More from the Legal "Experts"

I received an e-mail from Cash Michaels, author of yesterday’s piece in the Amsterdam News, noting that the News had very much edited the version he had submitted; and, therefore, he has posted the full version here.

The article contains several additional quotes from NAACP case monitor Irving Joyner and adjunct instructor Wendy Murphy. Joyner still doesn’t explain, however, how he determined that Illinois senator Barack Obama, in endorsing a DOJ inquiry of Mike Nifong’s misconduct, was “stating a position without a valid examination.”

In his additional quotes, Joyner notes that “a prosecutor is immune from civil suit for actions taken in the role as the prosecutor. The law provides absolute immunity even from civil rights claims.” Therefore, he notes, Nifong couldn’t be civilly sued for his decision to enter into an agreement with Dr. Brian Meehan to intentionally withhold exculpatory evidence.

I’m unaware of anyone who has discussed filing a civil suit against Nifong for actions that he took as a prosecutor. Michael Tigar, among others, has noted that Nifong appears very vulnerable to a civil suit for his false public comments. Moreover, Nifong was in charge of the police investigation from March 24 onwards; and, as Joyner well knows, has only qualified, not absolute, immunity from civil suits for actions that he took outside his capacity as DA.

Joyner also takes strong issue with the Bar’s decision to bring Nifong up on ethics charges for the DNA conspiracy, since “discovery is not constitutionally required unless authorized by the Brady Rule which deals with the providing of exculpatory evidence after a request has been made, an order to produce has been issued and the prosecutor violated that directive . . . That rule does not mandate immediate compliance with the discovery mandate and provides no more than that the discovery, after it has been ordered, must be provided at a reasonable time before trial. Even the North Carolina statute does not place a time line on when the discovery must be provided. Only that it is to be provided at a reasonable time before trial.”

If Joyner’s words sound familiar, they should—they mirror, almost word for word, the recent talking points of Mike Nifong’s personal attorneys. As the Bar noted in its response to Nifong, nothing in state or federal law would seem to justify Nifong’s “proposed bright-line rule” that because no trial date had been set, he didn’t have to turn over the exculpatory evidence.

Adjunct instructor Murphy, meanwhile, added that “having a federal civil rights investigation is such a joke. Nobody can justify such a ridiculous idea.”

Continuing her assault on the Bar, she asserted, “Even if this case were reviewed by a federal court, they would say there has been no constitutional violation and the defense has suffered no prejudice to their rights. If the courts would summarily laugh at such a claim, how can Congress say with a straight face that the claim merits a federal civil rights investigation?”

If the adjunct instructor’s words sound familiar, they should—they mirror, almost word for word, the recent talking points of Mike Nifong’s personal attorneys. As the Bar noted in its response, Nifong (and now adjunct instructor Murphy) appear to be confusing a violation that would lead to a court overturning a conviction with a violation of the Bar's ethics rules or state and federal law.