Nifong & Grace

Months ago, Saturday Night Live noticed that Mike Nifong and Nancy Grace appeared to have a special affinity for one another. A friend passed along these excerpts from Georgia Supreme Court opinions; the prosecutor being referenced is Ms. Grace. Given her own record of dubious prosecutorial conduct, perhaps it’s unsurprising she found Nifong’s behavior so appealing.

Georgia Supreme Court, Carr v. State of Georgia, 267 Ga. 701 (1997):

. . . Carr devotes considerable argument in his brief on appeal to the topic of prosecutorial misconduct. The alleged misconduct of the prosecuting attorney included participation in and facilitation of unauthorized entries into Carr’s home, once in person to film a CNN television special featuring the prosecuting attorney; suppressing evidence not supportive of the State’s theory of the case; withholding information that two witnesses, Ms. Carr’s lover and Ms. Carr’s best friend, had entered into a romantic relationship by the time of trial; withholding information that the prosecuting attorney and some of the witnesses were expending personal funds to obtain evidence for the prosecution; abusing the subpoena process; withholding the complete witness list until the eve of trial; making statements in the opening argument about physical abuse which the prosecuting attorney knew would not be permitted in evidence; and making improper closing argument in which the prosecuting attorney again made arguments not supported by the evidence and repeatedly vouched for the State’s theory of the *711 case by asserting her personal beliefs. The trial court considered many of these same allegations in post-trial proceedings and found that some of the conduct was not misconduct and that the misconduct which did take place did not deny Carr a fair trial.

Our review of the record supports Carr’s contention that the prosecuting attorney engaged in an extensive pattern of inappropriate and, in some cases, illegal conduct in the course of the trial. Specifically, his allegations about illegal entries into his home are borne out by the record; the trial court, after a hearing on a motion to suppress evidence gathered through illegal use of subpoenas, specifically found that the prosecuting attorney abused the subpoena process by, among other things, inserting false information regarding hearing dates; the record shows that the witness list delivered on the eve of trial contained many names new to the defense . . .; the transcript of the opening argument shows that the prosecuting attorney repeatedly made references to physical abuse although the trial court had ruled out all evidence of purported abuse . . . and the closing argument was replete with references to the prosecuting attorney’s beliefs . . . and patent misrepresentations of fact such as the prosecuting attorney’s use of a chart falsely indicating that a
defense expert had not disagreed with a specific opinion by a State’s witness . . .

The State’s argument on appeal that there was no harm because the defense was aware of half of the names on the list does not persuade us that there was no wrongdoing. We wish to register our stern disapproval of tactics which give rise to the appearance that the prosecution, by act or omission, has attempted to subvert or circumvent the right of an accused to have reasonable pretrial “access to evidence,” as that right is protected by the Georgia and U.S. Constitutions, the statutes of this State, and the Uniform Superior Court Rules . . .

We conclude that the conduct of the prosecuting attorney in this case demonstrated her disregard of the notions of due process and fairness, and was inexcusable. Because we are reversing the convictions on other grounds, and because Carr has gotten the relief he sought in raising these issues on appeal, we need not conduct an analysis to determine whether the misconduct of the assistant district attorney who tried this case was so harmful as to require reversal. We trust, however, that if this case is to be retried, the prosecuting attorney and the trial court will bear in mind the special responsibility of a prosecuting attorney: “The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.”

Does that last line sound familiar? Here’s an excerpt from the Georgia Supreme Court’s opinion in Bell v. State of Georgia, 263 Ga. 776 (1994). Again, the prosecutor in question was Ms. Grace:

Appellant Deric Bell was found guilty of trafficking in heroin and sentenced to life imprisonment. After reserving her objections to the trial court’s instructions to the jury, defense counsel sought a mistrial on the grounds that the prosecutor had injected prejudicial matters not in evidence by making reference to a drug-related, execution-style triple murder and to a serial rapist in her closing argument . . .

Argument of counsel is a valuable privilege, and may not be unduly restricted. On the other hand, the court must not allow such latitude as will defeat the justice of the cause, such as introducing prejudicial matters not in evidence. The dignity of the court, and the public interest in having its courts properly conducted, are involved . . . The case at bar was based on a sale of 7.5 grams of uncut heroin that was observed by a surveillance team from the narcotics squad of the Atlanta Police Department. No physical violence or threat thereof was involved, though a defense expert admitted on cross-examination, over appellant’s objection, that he was aware that drugs were a cause of shootings in Atlanta. In justifying her reference in closing argument to the triple murder, the prosecutor relied on the testimony about violence in the drug trade and asserted that this case was analogous to the triple murder since both involved young men selling drugs in Atlanta housing projects. The prosecutor explained her mention of the serial rapist as an attempt to illustrate the concept of similar transactions . . .

Adherence to the limitation on the latitude of oral argument is also integral to legal professionalism. [T]he habit of counsel in addressing the Jury, of commenting upon matters not proven and not growing out of the pleadings ... [is] illegal and highly prejudicial to a fair and just administration of the rights of parties.... [i]t is the duty of counsel to guard, by the most scrupulous propriety of demeanor, in the conduct of a cause, the dignity and honor of the profession.

. . . By referring to such extraneous and prejudicially inflammatory material in her closing argument, the prosecutor exceeded the wide latitude of closing argument, to the detriment of the accused and to the detriment of the fair administration of justice. Inasmuch as the grant of a mistrial for improper argument should be liberally exercised where counsel abuses the right of argument by prejudicing the case of the opposite party . . . we reverse the Court of Appeals’ affirmance of the trial court’s denial of appellant’s motion for mistrial.

Of course, Nifong only conceded that he made multiple statements in public that he never could have made to the jury.

And here’s an excerpt from Stephens v. Hall, 407 F.3d 1195 (11th Cir. 2005), involving the failure of Ms. Grace to turn over exculpatory material in the form of arrest warrants against other suspects in the murder case eventually brought against Stephens:

Although the Georgia Supreme Court and the state habeas court decided that there was no evidence that the prosecution deliberately withheld the arrest warrants, this determination did not conform to Brady. The suppression of material exculpatory evidence occurs “irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. at 1196. The key decision of the state courts under Brady is that Stephens was not provided with the arrest warrants for Ragin and Williams until after the trial . . .

Although it is unclear whether the suppression was in good faith or bad faith, Grace, as the prosecutor, failed in her “duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.” . . . Stephens presented evidence that Grace knew about the warrants. Detective Johnson testified, both at the hearing on the motion for a new trial and at the evidentiary hearing in the state habeas court, that he discussed the arrest warrants for Ragin and Williams with Grace before Stephens’s trial began. Johnson also testified that he provided Grace with a copy of his entire file, which included copies of the arrest warrants. Grace never informed the trial judge or Stephens that Johnson obtained arrest warrants for Ragin and Williams based on Jackson’s statement. Instead, Grace assured the trial court that no charges against anyone else were pending. At the evidentiary hearing before the state habeas court, Grace denied that the detectives provided her the arrest warrants. Regardless of whether the detectives supplied her with the warrants, it was Grace’s duty to learn about the warrants and disclose them. See id . . .

The failure of the State to disclose the warrants constituted suppression of evidence.

Withholding exculpatory evidence should sound familiar to anyone who followed the lacrosse case.

Grace is expecting twins, and therefore will need a maternity leave; the recently disbarred Nifong is looking for gainful employment. Perhaps the ex-DA can substitute for Grace: at the least, he could ensure that the program continued to be hosted by a figure who disregards legal ethics.