Sunday, August 05, 2007

The Nifong Effect

The effects of Mike Nifong’s activities have spread well beyond the North Carolina borders. In Maryland, the Baltimore Sun recently profiled Ocean City’s chief prosecutor, Joel Todd. Todd is set to prosecute the locally high-profile case of Christy L. Freeman, who allegedly murdered her four children.

The Nifong effect? Sun reporters

Talbot County prosecutor Scott G. Patterson, the newly chosen president of the Maryland State’s Attorneys’ Association, said high-profile cases such as Freeman’s can be a real test for prosecutors.

“You don’t want to be a Nifong, out trying a case in the media, but at the same time, the media have a right to ask questions,” Patterson said, referring to Michael B. Nifong, the former prosecutor in Durham, N.C., who was widely criticized for pursuing rape charges against three Duke University lacrosse players who were later cleared. “Those kinds of cases become extremely time-consuming. Everything gets ratcheted up.”

Meanwhile, just to the north in Pennsylvania, this month’s attorneys’ E-newsletter of the State Disciplinary Board featured the Nifong case as a way to remind lawyers of the importance of ethics.

The newsletter noted how some have feared that Nifong’s behavior might make prosecutors fearful to bring marginal cases. That, it noted, would be the wrong lesson, since “this was a flagrant pattern of misconduct, far outside the scope of normal prosecutorial conduct and far more serious than just bringing a bad case. Lawyers in general, and prosecutors in particular, will probably not face serious discipline merely for bringing or proceeding with a marginal case. Lawyers who lie to investigators, however, almost certainly will.”

The newsletter further noted that in Pennsylvania, as in North Carolina and in most states, it’s the prosecutor’s job to achieve justice, not “win” at trial.

And, of course, the Nifong effect remains powerful in North Carolina. In yesterday’s N&O, reporter Titan Barksdale observed, “Mike Nifong may have never made his way to the legislature this year. But the former Durham County district attorney's presence was felt there nonetheless,” as the state legislature considered criminal justice issues.

Nifong was critical to passage of bills mandating a statewide baseline for eyewitness ID procedures and also to allow the governor to remove disbarred district attorneys or judges from office. And the legacy of the intentional agreement to withhold evidence between the ex-DA and Dr. Brian Meehan was critical in blocking prosecutors’ efforts to noticeably scale back the state’s open discovery law.

Senate majority leader Tony Rand was blunt: "Of course Nifong was on their minds in the consideration of those bills. It was sort of a specter that was hovering over the whole thing. You couldn't help but think about it.”

To the extent that Nifong’s behavior has highlighted the importance of legal ethics around the country, the outcome is a good one.

Hat tip: T.B.


Anonymous said...

This whole scenario couldn't be a more positive one....made for film.

Two things I wish for:

That the word Nifong becomes part of everyday language alluding to legal misconduct of any kind...

....and that every state be required to make public upon request the transcripts of grand jury proceedings.


Anonymous said...

JLS says...

It is a real shame PA prosecutors will not be subject to sanction for bringing "marginal cases." While in the Duke lacrosse cases there was NO case, prosecutors should in fact be punished for using the costs of a trial to punish someone they do not have the evidence to convict or could have reasonably expected to convict. That does not mean a prosecutor should be sanctioned any time there is a not guilty verdict, but for really thin cases prosecutors should be subject to penalty.

The fact that a prosecutor thinks someone is guilty is NOT enough to subject someone to the financial and emotional costs of a trial. The fact that a prosecutor WISHES there were more evidence does not make it ok for them to punish someone only on the prosecutors desire.

Gary Packwood said...

K.C. said..

...To the extent that Nifong’s behavior has highlighted the importance of legal ethics around the country, the outcome is a good one.
Agreed but I read in between the lines that Nifong's behavior was so over the top that those being interviewed don't know quite what to make of him or his actions.

I wonder if there is more to learn about what Nifong expected to eventually accomplish as the DA for Durham?

Anonymous said...

I wish some of these DAs who are so critical of Nifong NOW, had been able to find their voice a bit earlier during these last 16 months, and had criticized him THEN.

But better late than never, I suppose...

Anonymous said...

Is Todd a Communist?

Anonymous said...

I agree completely with the main thrust of this post. However, I would amend it slightly by emphasizing that the "Nifong Effect" really only found its way into reality by way of massive, sustained pubilcity and blogwork.
I think the hard, cruel truth of the matter is that the bad guys would have had their way if a lot of bright light had not been shone on this mess for the last 16 months

One Spook said...

When young Mikey was in law school, I do not think that was the sort of "legal fame" of which he dreamed ... but no one can catch the Midnight Rider, so This One's for Debra

One Spook

mac said...
This comment has been removed by the author.
Anonymous said...

Nifong showed the weakness of the system...a rogue prosector just about destroyed the lives of three innocent men and probably took ten years or more off the lives of their family members with the stress imposed. Look what he did to Coach Pressler and the other lax players too. 30 days jail time for Nifong is not justice in this case....common sense says he should serve several years in prison for what he did. He has never sincerely apologized....he just read a statement with ongoing ambiguities. He still does not "get it". Where is the Federal Justice Department protecting the civil rights of American citizens?

Anonymous said...

Debrah @12.51: Good post. But if you want to make transcripts of GJ proceedings available, you must first change NC law and REQUIRE transcripts. If they are freely available under FOI restrictions, there might be issues with the judic iary. Maybe make them available on a judge's order?

Anonymous said...

The NC legislature should have taken up the Grand Jury record legislation. Otherwise, good actors, like Nifong, can do whatever they want at the Grand Jury hearing. Fortunately, most prosecutors are basically honest. Nifong, I hope, was a rogue prosecutor.
Wake up, smell the coffee, and pass the legislation.

Anonymous said...


Why not do all G88 profiles till you end blog?

Nobody cares about Nifong. He's like a rapist who's already been convicted. Yesterday's news.

Anonymous said...

“this was a flagrant pattern of misconduct, far outside the scope of normal prosecutorial conduct and far more serious than just bringing a bad case. Lawyers in general, and prosecutors in particular, will probably not face serious discipline merely for bringing or proceeding with a marginal case. "


Frightening words used by a State Disciplinary Board.

Too bad the NC Legislature evidently dumped the proposed bill (S1130) requiring Grand Jury proceedings be recorded. If cost was the concern, certainly the Nifong case has cost the state far more than recordings would...for many years.

Anonymous said...

Ditto for the DPD bad guys too....they deserve serious jail time as well.

M. Simon said...

A true statement:

this was a flagrant pattern of misconduct, far outside the scope of normal prosecutorial misconduct

Anonymous said...

It helps if a prosecutor that is addressing the media regarding a case has an actual crime to discuss. Instead of making up things as he/she goes along such as condoms, choke holds, etc.

Regarding JLS statement at 12:28, I think good "sanctions" for prosecutors bringing marginal cases would be that any defendant that is acquitted at trial should have all of his costs to defend himself reimbursed out of the DA's funds that he uses to run his office. It would make most reluctant to use the courts to "punish" innocent people.

Michael said...

re: 9:04

Okay, I see you added mis to conduct there. I had to go back to see if that's what was actually quoted.

Anonymous said...

TO Spook (3:44AM)--

¡ Muy fantastico !


But please, Spook, put an "H" on the end of my name to make it more authentic.

I love it! You incorporated the excellent photo of KC...with Duke's gothic well as imagery of a midnight rider.

Ultra cool, dear Spook.

I definitely think this is the right song.

(BTW, did you like the latest version of Midnight Rider that I found? It's better than the first, but I still want a studio version that is bluesy-er.)

The song was used in the recent film Prison Break but I couldn't use the video because of the subject matter. It was used to romanticize the prison break of some dreamy criminals...the antithesis of what we are trying to convey here.



One Spook said...
This comment has been removed by the author.
mac said...

I still think one of the laws that North Korealina needs to adopt
is a law that allows for a "pretrial motion to dismiss" criminal charges,
something Jim Cooney alluded to in the LS/DIW post on the Dec. 15 hearing.
(I don't know how many states allow this kind of motion,
but it is acknowledged that it's allowed in tort cases,
and in federal jurisprudence when 1st amendment rights are in question,
so that no one ought to be able to say "it can't be done.")

Likely the only persons arguing against such a law would be
big-headed prosecutors who wouldn't want
to have their party ruined,
or defense attorneys who actually
might want to string things out
for billing purposes.

On that note, I would expect that the
attorneys for they accused in this
case would have been DELIGHTED to
see the case dismissed summarily,
had that been an option.

Why go to trial when the Grand Jury has been shown evidence
that's tainted, flawed, full of "fantastic lies?"

Because political pressures tend to force trials, there ought to be a law that allows for outright dismissal.
There ought to be a remedy that prevents people from having to use their entire lives' savings to defend themselves
against false charges.

A pretrial motion to dismiss would have sprung Reid and Dave,
with-or-without the final round of exculpatory DNA evidence,
the alibis being sufficient for dismissal of all relevant charges.

Anonymous said...

TO Spook--

OK, I e-mailed you and I hope I addressed it correctly.

Well...excuse my mistake. Your attention to detail is never-ending. After all, Harvard is where he went to school. I should have paid closer attention.



Anonymous said...

JLS says....,

In addition to what they did this year, some other changes the NC legislature needs to enact are:

1. Make it a illegal for the DA to hold the scheduling power over judges as is the case in Durham now. That is the most important step towards rebalancing the scales of justice in that state. Violation of this should require punishment of the DA in question.

2. Record grand jury testimony and make it public, not that this would have changed a thing in this case.

3. Raise the penalty for making false sworn statements to the police.

4. Pass a speedy trial law. Usually it is the defendant who wants delay, but the innocent defendant well may as in this case not want this drug out over months and years.

And realy 1 and 4 might be what did Nifong his. His hubris reflected the power of the schedule and no speedy trial law going to his head.

Anonymous said...

JLS says....,

re: mac

Maybe a pretrial motion to dismiss would be ok, but it would not have changed a thing in this case. As in Colorado v. Kobe Bean Bryant the hearing judge might have publically said there is not much of a case here, but since in ruling on such a motion the judge is requred to treat the evidence in the light most favorable to the prosecution, this case would have gone forward on the word of Mangum. And in CO at least is was like a grand jury with the cops presenting hear say evidence and the complaining witness not testifying or facing cross.

Anonymous said...

Mr. Johnson, I have been reading this Blog for months,and want to thank you for the wonderful job you've done.I'm looking forward to reading your book.Thank you again

Anonymous said...

"The newsletter noted how some have feared that Nifong’s behavior might make prosecutors fearful to bring marginal cases."

The question of when to bring a marginal case is an interesting one. If you have an honest and fair prosecutor then I would be inclined not to second-guess his/her discretion. The problem arises when you have a marginal case combined with a politically sensitive case and a dishonest prosecutor. I’m not sure our system allows for a fair outcome in these circumstances.

mac said...

JLS 12:35
Perhaps: depends upon the judge.
The alibis were so clean, it is hard to believe that
the case against two of the accused
would have proceeded.

Kobe Bryant's case was different, especially in light of the fact that
sexual activity was admitted.

Compared to this case, with the absence of the accused from the alleged crime scene
at the time of the alleged crime, it seems very unlikely that the cases
would have a similar outcome.

I would be interested to hear an opinion from an attorney, particularly from North Korealina,
especially one of those who were
involved in this case.

Anonymous said...

I tend to agree with Tim. How about two G88 profiles a week instead of one, and less on what remains of the Fong? Judging from recent comments, the profiles are starting to hit home. And many of them have been flat-out hilarious. More red meat!!

Anonymous said...

OK, everyone weigh in on the selection of Midnight Rider as KC's Theme.

The fabulous Spook has found an original cut and all he needs to do is put some photos of the saga with it.

Then we'll ask KC to include it as a link on the right side of the screen......if he likes the idea.



Anonymous said...

TO 2:42PM--

Yes, the Gritty Gang of 88 profiles have been phenomenal.

What has made this scenario so delicious is that the Gang provoked the scrutiny they went about harming others.

And as many, many posters have opined, not having Wonderland as a cyber destination will be heart-wrenching.



Anonymous said...

Beyond will mean having to get back into a workout schedule again...instead of getting lost daily inside and devouring the intellectual candy that is Wonderland.....GIS!

I'll yield to--surprisingly---a Madonna tune to convey this sentiment:

Don't tell me to stop

Tell the rain not to drop

Take the black off a crow

Just don't tell me to go.....



Anonymous said...

Oh, wow!

Ashley and company are to begin endorsing candidates.

Should anyone guess who they'll be?

The H-S doesn't really have to bother. After all, they do all their editorializing inside their regular news reports.

Get excited by the change. LOL!

Herald-Sun to endorse candidates

Aug 5, 2007
Over the years, The Herald-Sun editorial pages have shared our institutional views on a host of subjects.

From whether to borrow money to fix streets and sidewalks to celebrating national championships, from fighting crime to recruiting jobs, from defense spending to Darfur, we have not been bashful.

But in one area we have been silent. At least for as long as anyone here can remember, and perhaps throughout the paper's history, we have refrained from sharing our opinions on candidates for elective office.

This year, that is changing.

This fall, we'll endorse a candidate for mayor of Durham and for the three at-large seats at stake on the City Council.

We're starting with a fairly small slate, expecting to comment on more races in years to come. Next year's county, state and national elections will present a much larger field, and we may well decide to go beyond Durham in later municipal election cycles.

The change in endorsement policy comes after substantial discussion. In the 2 1/2 years I've been editor, a number of people have urged us to reconsider the paper's policy of not endorsing, while some newcomers to the area have expressed surprise we don't.

Many people, on the other hand, have urged us to continue refraining from endorsements.

Endorsing candidates seems like a natural act for a newspaper's editorial page, perhaps because at both newspapers I've edited before, not to mention The Charlotte Observer where I spent a decade, endorsements were an annual ritual.

And in this region, both The News and Observer and The Independent, the feisty, pugnacious alternative weekly, have endorsed. So do several political action groups.

I understand the arguments many make against newspaper endorsements. In recent years, in fact, probably more newspapers have abandoned the practice than have taken it up.

Those who reject the practice would say that newspapers have no place telling citizens how to vote. Some characterize it as arrogance.

Al Neuharth, the former Gannett CEO who among other accomplishments launched USA Today, has long been one of the industry's most ardent opponents of endorsements.

"Newspaper endorsements of candidates are viewed as kingmaking and resented by readers," Neuharth once wrote.

Countering that line of thinking, Washington Post columnist Fred Hiatt wrote last year that he had "come to believe it would be more arrogant to remain haughtily above the fray."

I like and share Hiatt's reasoning.

"We spend all of our time in between elections telling officials what to do, advocating for the ideal, arguing for what we think is right," he wrote. "But then, on Election Day, the ideal isn't on the ballot. Instead, there's a concrete choice between two or more flawed human beings ... yet, we urge voters to do their civic duty and make their best choices. I think we ought to go on record and do the same."

There is, I confess, a certain placidity to not endorsing. The past couple of election seasons, for the first time in my two decades as an editor, I haven't had to cope with angry unendorsed candidates or, even more often, their supporters. Candidates generally take the outcome of the endorsement process more philosophically than some of their partisans.

As Hiatt argued, though, it is unseemly of us to urge others into the electoral arena and then sit smugly on the sidelines.

We intend to spend a good bit of time on our choices, just as we know many of you will. We'll interview each candidate, review their records, rely on our own knowledge and that of others to make the most reasoned judgment we can.

That is what any voter would do. If we present our case articulately, we might help to affirm or strengthen someone's choice. Sometimes, we'll affirm or strengthen their choice to vote for the person we don't endorse.

Regardless, we hope we help to encourage debate and deliberation about the contests, just as we hope to on the issues successful candidates will confront during their terms in office.

In the end, we hope that you make your own best choice about whom to support -- and, most important, that you go to the polls on election day to register that choice.
(Bob Ashley's Sunday drivel)


mac said...

I'll miss you presence, too, like Dorothy in the Wizard of Oz.
KC is the Wizard, obviously, but most of us will run off and melt
into the underbrush like the Munchkins -
(oh, I know some trolls will love to hear that admission!)
The One Whom We Do Not Speak Of has been doused with a bucket
of clean water and has melted...

Hail to Dorothy! "Ooo-eee-oh..."

We'll miss you, Dorothy, and your little dog too!


Anonymous said...

Oh, "mac"......what an analogy!

Do you mind if I run off with Kitty Diva instead of a little dog?

BTW, her full name is Farah Dhiba (after the wife of the late Shah of Iran--Diva loves Persians!)

And you'll be the big-hearted lion.



Anonymous said...

I have never visited North Carolina and I'm sure it's a fine place. But if it were not for many out-of-staters (including KC of course) these boys would still be on trial.

In many ways, Nifong is a descendent of the prototypical Southern sheriff thug. You just don't find this type of joker in places like Cleveland.

As far as I'm concerned, the South has a lot to answer for in US history--- and we can now add Mr. Nifong along with North Carolina's response to that sad history.

Anonymous said...

TO 5:23PM--

On most points I must concur; however, as one who comes from Northern, Southern...and a bit of Northwestern stock....I believe there's enough evil to go around most everywhere.

I totally agree with your description of Nifong.

He most certainly conjures up images and tales of the old small town white racist sheriff.

Only thing this case, his victims are from the other side of town.


mac said...

Debrah/Dorothy 5:11
Thanks! I'm not Scarecrow, nor Tinman, nor the Lion, actually,
since those are bigger players with real insider-knowledge and credibility -
(you sure know some of the local folk, eh? That's why you get to be Dorothy!)

I'm actually a reformed, repentant flying monkey.

Anonymous said...


Excuse me, but I take umbrage at your comment regarding the South.

Police corruption in other parts of the country has been documented...New York City, New Orleans, Los Angeles ... etc. ...

Your comment -- "...prototypical Southern sheriff thug..." -- betrays your bias.

My experience and sense is that law enforcement officers in the Southern states are every bit as professional, honest and well-intentioned as their counterparts in the North, or the West, or frankly anywhere. Yes, there are a few bad apples, but that is why other major police departments have had scandals.

Whether the South has a lot for which it must answer is a political question and one that likely will never be answered. Your opinion in that regard is noted.

But, unlike other judicial proceedings in which evil was addressed (such as the Nuremberg trials), the Duke Lacroose Burning case was not intended to address Southern 'evil'.

One could argue that despite the many fine contributions of innumerable African American and Black scholars, businessmen, politicians, doctors, scientists, etc. --- that despite their contributions, the Union lost the war. For such is the state of the progeny of all who lived during that era.

My opinion only: Honor died. Deceit and crime and discourtesy and hate and dishonor has become a fact of American life. And race has become the card that all-too-many people are willing to carry.

mac said...

Nifong is a name that will be remembered for a long time, as well as Nifey's gang of beligerents and co-conspirators.
(I suspect that KC's name will be remembered for a long time, too, but chiefly for his positive contributions.)

For those who don't think the tide is turning in academia, too, one need only read an article in the LA Times by Gregory Rodriguez, "America's Hidden Crackpots." I have no idea what he's written in the past, but this article proves that people are taking notice of the academic crazies, and the effort to filter them out and to demand rigorous academic accountability seems to be occuring already. He sounds like a poster on DIW, to be honest! It's sound logic, good writing.

Still, some posters (Jack?) keep demanding that the effort to reform the system stop, that we should all just stop posting and shut up, because, after all, GM can't reform itself, and therefore nothing else is worth taking the time and effort to rescue, either! Right? (Gee. That's great logic: let's start by shooting the wounded, instead of getting them battle-ready once again.) That's the worst kind of defeatism. Maybe General Patton needs to have a word with some of those types. Maybe they need a slap with a leather glove, too?

As the saying (or cliche) goes: it only takes an ounce of pressure to steer a large ship. Looks like the ship is beginning to move, already; keep on pushing, KC: it's paying off.

Anonymous said...

JLS says....,

re: mac

In a motion to dismiss, I am not sure alibi evidence would even come up. A motion to dismiss as far as I have seen concerns the evidence of the prosecution, not the evidence of the defense. That is the question before the judge is does the DA have enough evidence to go forward. In this case, if Mangum was willing to continue to lie, Nifong would have prevailed.

Anonymous said...

To "mac" (6:32PM)--

One has only to read KC's story and his battle with those professors around him--twice his age and his CV is two or three times as full as theirs--to see how very corrupt things are.

it sounds hyperbolic, but KC is simply amazing.


mac said...

In a motion to dismiss, the evidence of the prosecution would definitely be a good place to start, since they are required to share it: the evidence they both shared was that the accused -(two of them)- were elsewhere when the alleged crime occured.
I gather that most of the motions to dismiss have to do with tort cases, and in criminal trials where Constitutional rights are threatened. Those are where motions to dismiss are usually found. You pretty much answered my question, though: it's not a common practice. Mr. Cooney stated that the motion to dismiss in criminal law did not exist in North Carolina. I wondered, from his wording, if that kind of motion existed outside of the state of NC, and in venues other than torts and Constitutional law.
(Guess not.)

Maybe there should be such a law, when evidence shows that a defendant
is so reasonably and overwhelmingly innocent (i.e. the defendant was not in the same locality,
the accuser could not have been levitated based upon the laws of physics etc.)
that the charges should never have been brought in the first place? Sure would free up a lot of dockets. Maybe.
);You could call it "Mac's Law." :)

Anonymous said...

JLS says....,

re: mac

I guess it comes down to reasonable DAs are thought not to bring or continue bringing charges under the circumstances like in this case.

But in the real world there are many cases where someone places a person committing a crime and they have an alibi OFTEN a spouse or other family member. These cases come down to who the jury believes.

There was a recent case where someone in LA was held for a year for a gang murder. He said he was at Dodger stadium. Either the guy or his lawyer contacted HBO's Curb Your Enthusiasm who happened to have filmed at Dodger stadium that night and after much searching of their crowd scenes out takes found the guy in the crowd. The DA there of course immediately dropped the charges.

Anonymous said...

KC>Your insight and coverage, just beautiful work. Thank you, though the price paid by these three families was too great for the lessons learned by some DA's across the country. But none the less, it is good to hear people were watching and listening when Nifong was brought to justice.
Duke should take notes.

mac said...

JLS 9:38
"The DA there of course immediately dropped the charges."

Reminds me of "The 13th Warrior," where the guy being left behind said:
"This was a good day!"
Except in the case you mention (re. the ballpark) we could say:
"This was a good DA!"

I doubt that such a law ("Mac's Law") would have a large number of applications, and would be opposed by some defense attorneys (privately, of course) as a pretrial dismissal would cost them money. I expect that in this case, it would have been used promptly if it were available.
(My guess.) You're absolutely right, though: any reasonable, honest DA would have dropped this case like a bag of flaming poo. Cooney's plan - (as he articulated it) - was to prevent the DA from using evidence (like the lineup procedure, which was more than flawed) in the absence of the ability to make such a motion.

I'd still like to see a law on the books that enables such a motion under certain circumstances, if only to balance the grand jury system, which seems to have been developed by and for protohominids.

Anonymous said...

Debrah loves KC, Debrah has a boyfriend!

Of course, I am just jealous. I sit alone, in my place here in Durham, just waiting for a glimpse of the boots. But they never come.

That makes me so Nifonging mad!

Mad Hatter said...

Midnight Rider is the perfect theme song for KC's blog. It gets my vote.

Anonymous said...

RE: Aug 5, 2007 6:18:00 PM

Clearly, there is plenty of corruption in so many nationwide police depts and other law enforcement agencies.

My point was (admittedly I did not make it well) that Nifong is a guy that is more likely than not to emerge from the South.

To be fair, it is felt by many the South is the best place to live (overall) in America these days.

I truly apologize INMAN--> perhaps I got carried away a bit.