Monday, November 26, 2007

Nifong & Prosecutorial Misconduct

Two serious studies of Mike Nifong and prosecutorial ethics have recently appeared. The first, a quite extraordinary CQ Researcher issue with a feature article by Kenneth Jost, positions the Nifong affair as part of a broader national debate about how extensive prosecutorial misconduct is and what can be done to prevent it. The second, a forthcoming article by Boston College Law School associate dean Michael Cassidy, builds off Cassidy’s presentation at Duke Law School, contending that some of Nifong’s statements ought not to have been considered ethical violations.

As the Jost article points out, “formal statistics showing the extent of prosecutorial misconduct or the frequency of discipline are all but nonexistent.” In general, the defense attorneys Jost interviewed see the Nifong affair as illustrative of a broader problem; most prosecutors consulted for the article contend that Nifong was an anomaly. The answer is probably in between—since, as Jost also notes, the line between ethical and unethical conduct can sometimes (not, of course, for Nifong) be murky.

His article is organized around three questions:

1) Should courts make it easier to reverse convictions resulting from prosecutors’ mistakes?

2) Should state bars increase penalties and sanctions for mistakes by prosecutors?

3) Should prosecutors be subject to civil lawsuits for misconduct?

Of the above issues, Jost discovered the most consensus on the third question, with the danger of frivolous suits seeming to guard against changing current law, which gives prosecutors all but total immunity. Commented Oregon district attorney Josh Marquis, one of Nifong’s leading prosecutorial critics, “If every prosecutor thought that every defendant with a grudge could bring a civil action against them, a lot of crimes would go unprosecuted.”

(It’s worth remembering that Nifong is being sued not for actions that he took as DA but for his behavior in his role as supervisor of the police investigation, a position he assumed on March 24, 2006, eight days into the case.)

On the second point, former Maine attorney general James Tierney doubts the power of State Bar Associations to regulate prosecutors. In the end, prosecutors themselves need to do the work: “The most important mechanism is the prosecutorial world itself. Prosecutors should not join ranks behind a fellow prosecutor without thinking about it. There should be increased debate within the prosecutorial community about these issues.”

(On that point, the Duke case leaves a mixed legacy: while the North Carolina Conference of DA’s issued a critical late December letter demanding that Nifong recuse himself from the case, the organization also offered, privately, to assist Nifong as late as September 2006, well after much of his ethical misconduct already was in the public record.)

It would seem that the most effective way to limit prosecutorial misconduct would be for judges to toss out convictions in cases where the prosecutor had misbehaved. A precedent for such behavior exists: the exclusionary rule, one of the hallmarks of the Warren Court’s civil liberties jurisprudence. The principle: even though guilty people might go free as a result of such rulings, it’s more important to preserve the integrity of the system and to provide a deterrent effect against police breaking the rules in how they obtain evidence.

Yet, as Jost uncovers, tough-on-crime judges have proven very reluctant to overturn verdicts based on prosecutorial misconduct. In this respect, it might be not prosecutors themselves or even state bar organizations but judges who can do the most to redress the problem exposed by the Nifong case.

Jost also ties the Nifong case into broader debates—such as former AG Alberto Gonzales’ decision to force the midterm resignations of nine U.S. attorneys—about prosecutorial discretion. As the article observes, prosecutors possess enormous power. The Nifong affair provide a case study of how the system can break down entirely when prosecutors abuse their discretionary authority.


Jost’s work is worth reading for anyone with access to CQ Researcher. Cassidy’s, on the other hand, is no more persuasive than when he presented it in abridged form at the September conference.

Cassidy cites Minnesota Republican Party v. White to suggest that the North Carolina Bar’s ethics rules limiting a prosecutor’s ability to publicly comment on a case are too broad.

Minnesota Republican Party invalidated a state law limiting what judicial candidates (Minnesota elects its judges) could say about issues upon which they might have to rule as judges. The principle behind the law was to preserve judicial integrity: we like to think that judges base their decisions on the facts and the law, not on their political beliefs. In oral arguments, however, Justice Antonin Scalia foreshadowed the Court’s eventual ruling, essentially saying that if states were foolish enough to have elected judges, they’d have to live with the consequences, rather than expect the Supreme Court to alter the First Amendment on their behalf.

Cassidy argues that, as Nifong was a candidate for election during the time of the lacrosse case, the Minnesota Republican Party precedent suggested that some of his remarks constituted protected speech. Minnesota Republican Party forbade judges from commenting on issues that might appear before the bench, a much broader restriction on speech than that limiting a prosecutor from commenting on a specific case that he himself plans to try. That said, I could have imagined a Scalia-like critique of the Bar’s ethics code, suggesting that if North Carolina is foolish enough to elect its DA’s, it has to live with the consequences of a DA who politicizes a case to advance his own electoral interests.

Cassidy, however, doesn’t make that argument. His first problem is a difficulty in concealing a bias about the case itself. For instance, he criticizes the “Disciplinary Commission’s rush to disbar Mike Nifong for very badly mishandling a high profile criminal case.”

Yet his article presents no evidence that the DHC “rushed” its process. More important, the charges against Nifong went well beyond his “very badly mishandling a high profile criminal case”—which could suggest that Nifong was merely an incompetent, perhaps North Carolina’s version of Inspector Clouseau, not a poster child for unethical behavior.

Meanwhile, as he did at the September conference at Duke, Cassidy peculiarly refers to Crystal Mangum as “the victim.” He never explains how—if a crime did not occur—an accuser can be “the victim.” In this case, of course, the description is particularly outrageous, since the Attorney General publicly declared the players innocent, even as “the victim” offered myriad contradictory and wildly implausible tales. Indeed, his willingness to label Mangum “the victim” makes it hard to take seriously anything else Cassidy says.

Cassidy’s article raises objections to the ethics code that might be reasonable—but had no bearing on the ethics case against Nifong.

For instance, he detects “ample room to argue that no compelling government interest supports some of the presumptively ‘off limits’ topics set forth” in the ethics code, such as the identity of witnesses. “What compelling government interest,” Cassidy asks, “justifies precluding a prosecutor from identifying the witnesses to criminal proceedings?”

Perhaps none—but the matter is irrelevant to this case. Nifong was never charged with improperly identifying prospective witnesses.

Likewise, he disagrees with the ethics code’s probation on a prosecutor publicly commenting on the “identity or nature of physical evidence expected to be presented.” “This too,” concludes Cassidy, “may be overbroad.”

Indeed it might. But, again, this issue wasn’t raised in the Nifong case.

When moving to the case itself, Cassidy has a disturbing tendency to offer hypothetical comparisons or to shade the facts of the lacrosse case to make Nifong’s conduct appear more benign than it was.

For instance, he contends that the ethics code harbors a lurking vagueness problem,” in that it restricts prosecutors from making a public statement that “(1) refers to the character, reputation, or criminal record of a party, suspect or witness, and subparagraph (2) refers to the ‘existence or contents of any confession… or statement’ given by a defendant or suspect, or their failure to give such a statement.” [emphasis in original]

To illuminate the rule’s vagueness, Cassidy sets out the following hypothetical:

Imagine the case of an armed bank robbery committed by three perpetrators. One of the suspects is shot and killed by police as he flees the bank and dies at the scene. Could the prosecutor, consistent with Rule 3.6, talk to the media about the prior criminal record or deathbed confession of that deceased accomplice?

Incredibly, to Cassidy, this comparison is “more than a rhetorical question.” He explains,

Mike Nifong made several statements to the media that were disparaging of the Duke Lacrosse team generally, including criticizing them for being “hooligans” and for failing to come forward with information. Yet only three of these players were indicted. When one reads the disciplinary opinion and the transcript of the hearing order, one cannot help but be left with the impression that the panel believed Mike Nifong had impermissibly tainted the reputation of the entire Duke Lacrosse program. Is it permissible to discipline Nifong for comments related to suspects who were never indicted, and therefore could not have had their adjudicatory proceedings tainted? What “compelling” interest does the state have in preventing a prosecutor from discussing alleged “hooliganism” of varsity athletes at an elite university, or their tendency to stick together in the face of adversity?

But, of course, Nifong didn’t discuss the “alleged ‘hooliganism’ of varsity athletes at an elite university.” He never used the word “alleged” in any of the statements cited by the Bar in its complaint. Instead, he stated, “I would like to think that somebody [not involved in the attack] has the human decency to call up and say, ‘What am I doing covering up for a bunch of hooligans?’”

Moreover, Nifong’s repeated statements that the players had failed to come forward with information was not a generic discussion of the tendency of “varsity athletes at an elite university . . . to stick together in the face of adversity”—it was an outright lie. The captains had come forward, voluntarily, as Nifong knew before making his statements. The attorney representing most of the other players (Bob Ekstrand) had offered to share information, as Nifong knew before making his statements.

The public comments relating to this matter for which Nifong was disciplined were remarks in which Nifong had lied about the facts of a case in which he had assumed the lead investigator’s role. Cassidy’s wording, on the other hand, makes it appear as if Nifong was sanctioned for comments that might have appeared on a PBS roundtable about athletes’ sociology.

Cassidy also suggests that two other statements for which Nifong was sanctioned—“What happened here was one of the worst things that's happened since I have become district attorney” and “When I look at what happened, I was appalled. I think that most of the people in the community are appalled”—would not have survived “strict scrutiny if challenged on First Amendment grounds.”

Why? These statements “were simply expressions by a sitting district attorney, running for re-election [sic], about why he viewed the allegations in the case as serious, why the public should be equally concerned about them, and why he had chosen to prosecute the case personally rather than assign the case to a staff member.” [emphasis added]

But, of course, in neither of the statements cited by Cassidy did Nifong speak of “allegations.” In both remarks, the ex-DA definitively stated that something happened. Why, then, did Cassidy pretend otherwise? Moreover, by the time he made these statements, Nifong’s office had announced to the world that there 46 and only 46 suspects in the case—the white members of the Duke lacrosse team.

Finally, Cassidy faults the DHC for sanctioning Nifong for merely repeating items in the public record. “For example, the disciplinary complaint alleged that Nifong violated Rule 3.6 by revealing to Newsweek in April 2006 that the examining nurse on the morning after the alleged attack concluded that the victim [sic, Crystal Mangum] had suffered injuries consistent with sexual assault.” The matter, notes Cassidy, was in the public record, courtesy of the March 23 NTO prepared by Nifong’s assistant, Tracey Cline, and signed by Ben Himan.

But, of course, the description was untrue. Nothing in SANE nurse-in-training Tara Levicy’s report “on the morning after the alleged attack” concluded that Mangum “had suffered injuries consistent with sexual assault.” Levicy, of course, would subsequently make such a claim, just as she would subsequently and repeatedly shift her story about what “the victim” did or did not tell her during the SANE exam. Cassidy’s position appears to be that because the police and one of his chief deputies falsely described a key piece of evidence, Nifong should have been ethically cleared to publicly repeat this false description.

There is, in short, nothing in the Cassidy article to suggest the DHC misjudged the Nifong case. For those with access to CQ Researcher, however, the article provides an excellent jumping-off point for a discussion about how the Nifong affair can illuminate broader issues.


Skip said...

I think it's important to distinguish between prosecutorial "mistakes", and prosecutorial misconduct. I don't for a minute believe Nifong made a mistake, he intended to do everything he did, because he thought he could get away with it.

Misconduct needs to be punished harshly - the perpetrators of such should lose their status as officers of the court, since they will have been found to be untrustworthy.

Anonymous said...

Today's NY Times had a front page feature on victims of wrongful prosecution. They are f*@!i*g with everyone.

Anonymous said...

Immunity should not apply when prosecutor lies to public. Nifong lied as did another political hack prosecutor, Patrick Fitzgerald in so called Plamegate.

When prosecutor knowingly gives false information to public (e.g. in press event) he should be punished severely.

Michael said...

A critical issue facing the criminal justice system today is how best to promote ethical behavior by public prosecutors. The legal profession has left much of a prosecutor’s day-to-day activity unregulated, in favor of a general, catch-all admonition to “seek justice.” In this article the author argues that professional norms are truly functional only if those working with a given ethical framework recognize the system’s implicit dependence on character. A code of professional conduct in which this dependence is not recognized is both contentless and corrupting. Building on the ethics of Aristotle and modern philosophers Alasdair MacIntyre and Bernard Williams, the author argues that virtue theory can help bridge the gaps in prosecutorial ethics where other forms of moral reasoning fail.

The author analyzes three especially difficult ethical problems frequently confronted by prosecutors in the field. He demonstrates not only that the Model Rules of Professional Conduct and the ABA Criminal Justice Standards fail to answer any of these complex questions, but also that future attempts to more closely regulate how prosecutors should act in any of these nuanced situations are unlikely to succeed. The author argues that honesty, fairness, courage, and prudence are the primary virtues that citizens have a right to expect of their public prosecutors. He then demonstrates how these four key virtues might provide important guidance to conscientious prosecutors striving to do what is right. The author concludes by offering several insights into how the field of virtue ethics might inform both the structure and organization of government law offices, and the manner in which individual prosecutors working within these offices might perceive and fulfill their professional roles.

Cassidy, Michael, "Character and Context: What Virtue Theory Can Teach Us About a Prosecutor's Ethical Duty to 'Seek Justice'" . Notre Dame Law Review, Vol. 82, No. 2, p. 101, 2006 Available at SSRN:

On the one hand, he tries to use weasel words to justify Mike Nifong's behaviour. On the other hand, he talks about how "honesty, fairness, courage, and prudence are the primary virtues that citizens have a right to expect of their public prosecutors" - does this guy have a jekyl and hyde personality?

Michael said...

It's a 30 minute drive for me to get access to CQ Researcher but maybe Bill Anderson will do a nice article on the document.

I was going to write to Cassiday about his piece but decided not to. He'll see KC's rebuttal soon enough. I wanted to express my disappointment as an alum in that he didn't come out against Nifong early on.

Anonymous said...

In my opinion, the exclusionary rule is not a good example of precedent for dismissing cases that involve prosecutorial misconduct. The exclusionary is a disaster; it mostly protects the guilty.

Essestially, the exclusionary rule excludes incriminating evidence if the search which discovers that evidence is conducted without "probable cause".

Take the case where a police officer stops a citizen, detains him, and searches his entire car. If the officer finds no incriminating evidence, the officer releases the citizen. However, the innocent citizen has no recourse against the state, since there is no evidence to exclude.

However, if the officer finds a dead body in the trunk, the evidence is excluded and so is all other evidence which is "fruit of the poisonous tree". Thus, the exclusionary rule protects the guilty, but leaves the innocent without redress for the violation of his Fourth Amendment right to be free from an unreasonable search.

On the other hand, throwing out a case of prosecutorial misconduct is more likely to protect both the innocent defendant and the guilty.

Mike in Nevada

Gary Packwood said...

Michael Cassidy does not yet know enough about the Duke case to comment and both Cassidy and Jost are rushing their scholarly product out to the academic market before the facts are known.

We have yet to learn why Nifong was so certain and so assured that an entire team of 'Hooligans' were guilty of such terrible crimes.

Who was feeding Nifong faulty/phony information and what was the form of that information?

I would imagine the members of the Durham grand jury would like to know those answers, also.

Anonymous said...


Re: Cassidy's article

As Stuart said...."'As it unravels, I believe it will just get uglier and uglier and uglier."


Anonymous said...

Michael Cassidy, what a maroon. Was he elected associate dean at Boston College Law School? Is this the same school Wendy Murphy is associated with?

Anonymous said...

Cassidy's phrasing errors and omissions reminded me of Newsweek's Evan Thomas:

"We just got the facts wrong. The narrative was right, but the facts were wrong."

mac said...

Some "were made to look foolish and many still do look foolish."
(Lane Williamson, Nifong's Bar Hearing)

Continuing to refer to CGM as "victim" is evidence of a certain type of appearance, perhaps best described as "foolish."

The comment about the Disciplinary Commission's "rush to disbar Mike Nifong" is nearly as astute as a statement from Victoria Peterson, as it provides no evidence that a rush-job occured. If anything, it was painstaking and thorough. Perhaps nothing would satisfy Cassidy, and he would therefore be a choice, Grade A juror in the OJ trial (the murder trial,) suggesting that if OJ were not actually caught in the act or on tape (and even then the tape would be suspect, eh?) then no verdict of guilt could be rendered.

Such standards have left some juries with the impression that "reasonable doubt" means any Victoria Peterson-type principle, whereby space aliens may have deposited things of evidentiary value in order to frame the perpetrator, or that the State somehow tinkered with the evidence (something that she publicly maintains in the Duke Hoax.)

Cassidy apparently is a fond practitioner of the Great Snipe Hunt, with regard to identifying witnesses: send your victims or objects of your prank looking for snipes, and the real quarry (if there is any) go unmolested. That is, with regard to his question about what "justifies precluding a prosecutor from identifying the witnesses to criminal proceedings?"

The inverse question, which is an unstated parcel of his question - (stated or not) - is this:
"What justifies PREVENTING a prosecutor from HIDING the witnesses to criminal proceedings?

It can easily be interpreted that these "witnesses" he may be obliquely referring to are those whose presence was found in leftover DNA, rendered from the person and garments of the "victim." Perhaps they are the "witnesses to criminal proceedings?"

Is Cassidy saying that the Prosecutor in this case should have NOT felt compelled to at least identify the presence of these indemnifying "witnesses," their DNA itself a witness to the defense' interests?

So it would seem. And that is the matter at hand, not to mention the Prosecutor's prevarications to the Judge on the presence of these "identifying witnesses," something that was tried as a matter of criminal contempt, perhaps worthy of disbarment in it's own right. There was no rush to try the criminal contempt case, either.

Anonymous said...

Thank you KC as you have continued to be the voice of reason in a very scary, continuing saga post-nifong/ and others> injustice and malfeasance that was finally stopped. I truly hope the offending adults are punished.

Anonymous said...

It is frightening to think that someone with Cassidy's views is influencing lawyers of the future. Here is a man who apparently writes about a legal case, yet does not bother to check the facts of that case. His errors not only are prejudicial, but they are fundamental.

This is not acceptable work for academic research, period. People who do this kind of work must hold to higher standards than Cassidy's paper. Anyone who followed the case knew that Nifong was not stating opinons; he was trying to get lacrosse players to speak to police -- without legal counsel present. Then, he and the police would have made up a work of fiction as to what the players told them.

If Cassidy thinks this kind of misconduct falls within the protection of the First Amendment, then he truly is not fit to lead a law school.

Anonymous said...

Skip said...
I think it's important to distinguish between prosecutorial "mistakes", and prosecutorial misconduct. I don't for a minute believe Nifong made a mistake, he intended to do everything he did, because he thought he could get away with it.

Misconduct needs to be punished harshly - the perpetrators of such should lose their status as officers of the court, since they will have been found to be untrustworthy.

11/25/07 5:19 PM

Agreed--misconduct vs. mistake is a HUGE distinction.

Beyond losing status as officers of the court, they should also lose their freedom for a prescribed period of time--to serve as a deterrant to prosecutorial *misconduct*.

If prosecutors know that they risk their personal freedom if they knowingly and purposely engage in misconduct, they won't be so willing to behave the way Nifong (and others) have.

William Jockusch said...

To me, the biggest issue with the system is the extreme rarity of criminal punishment for prosecutorial misconduct.

One day in jail for Nifong is a joke.

John said...

The federal circuit courts have inconsistent holdings in cases where the alleged misconduct of a prosecutor is alleged to have occured outside of his advocate's role as an officer of the court. And when the conduct occurs in the prosecutor's exercise of an investigatory role, a qualified immunity still attaches. Each act likely will be looked at separately, i.e., press statements, line-up, DNA lab, witness interviews. This is by no means an easy case against Nifong. The judicial policy favoring immunity is very strong.

darby said...

Years ago an engineer in my department devised a plan to save the company money. He gathered the documentation, put together a team to review to process, performed the necessary financials, presented his plan the higher-ups and received the necessary authorization and funding to proceed.

Once implemented, said engineer was the project manager as well as the process analyst who provided feedback as to the success or failure of the project.

I, being the curious type and a bean counter had noticed some "extraordinary" expenses incurred as a by-product of the project had not been included in payback results presented in the months following inception.

One day while in the engineer's office discussing the daily logistics of the new project he bragged to me how well his team was performing and tossed me his production results. When he asked me what I thought of how well he was performing I told him "it's always easy to look good when you measure yourself". Needless to say he wasn't appreciative.

The same "organizational flaws" apply to the legal profession. Lawyers do the supervising, the oversight, the rule making, the data collecting, the ranking, etc.. etc.. Why would they ever do anything to cast aspertions on themselves. Plus, if the punishments were too harsh, they themselves might actually feel some pressure "play" by the rules.

The "fox watching the hen house" has never been more applicable.

Anonymous said...

It's a little off-topic but the blogger is still unhappy about this site. I wonder if she gave it this title to sneak it past a search. I assume KC read since the posting was at Cliopatria.

Anonymous said...

Is Cassidy a Communist? He is a disgrace to the memory of that Great American, Hopalong Cassidy.

mac said...

There is the Apocryphal story of Susanna, which is a good account of what might be done to lying witnesses/prosecutors.

In short:
Susanna is very beautiful (and married.)
Two men (elders) wish to have their way with her.
She is aware that if she accedes, she will be sentenced to death; if she refuses, she will be falsely accused. Knowing that she will lose either way, she refuses so that she will not sin against God.

Refusing their advances, they then falsely accuse her of adultry with a young man (who somehow escaped their grasp, in their story) which is punishable by death.

The two men serve as both prosecutors - in a sense - and witnesses against the innocent young woman - (which is one of Nifong's great crimes: he made himself a witness to the world against the accused.)

But then Susanna's cries to heaven are heard: their treachery is uncovered by another, a young man named Daniel who has been filled with the Holy Spirit: he interviews them separately, and proves that their stories about Susanna don't match. (Brad Bannon as Daniel?) They are given the same penalty as was decreed for Susanna.

An important point to consider: these elders could be considered prosecutors, and so could Daniel. The difference is in their ethics. It's interesting that one prosecutor is undone by another.


If that system in the story were applied here, Nifong should face 30 years in prison for his attempts to jail the innocent; the same for the accuser, the same for the enablers.

With advocates against prosecuting the prosecutors (like Cassidy,) we would see the men released and Susanna's good name besmirched: without people like Lane Williamson, people might believe Nifong did what normal prosecutors do; without Brad Bannon exposing the evidence that Nifong and Meehan were withholding...

It is time for a lot of people, the accuser and prosecutor included, to spend time under the judgement of the law.

mac said...

And I still maintain that the DNA material was a witness for the defense, not just material for the defense.

The accused were not given a chance to cross examine the witness, as the presence of the witness was withheld.

Anonymous said...

bill anderson said...
His errors not only are prejudicial, but they are fundamental.

This is not acceptable work for academic research, period.

Sadly, it seems to be all too unremarkable, at least outside the sciences & engineering. See KC's "Group Profiles."

Anonymous said...

Anonymous said...

It's a little off-topic but the blogger is still unhappy about this site. I wonder if she gave it this title to sneak it past a search. I assume KC read since the posting was at Cliopatria.

11/26/07 1:18 AM

This beauty deserves a link and more. The blogger is Claire B. Potter, Professor of History and American Studies(!!!!) at Wesleyan University in Middletown Connecticut.

My question for KC: Is lying about white people now a requirement for tenure at prestigious American universities or merely encouraged?

The lying doesn't bother me so much as the fear that they don't know they are lies, to wit: We have here (1) a tenured professor in "History and American Studies", (2)who teaches within 100 miles of where the first Thanksgiving occurred, and (3) who claims to have a personal, family connection to the first Thanksgiving, who says (... drum roll...)

[M]y Pilgrim forebears were turkeys too, and showed their thanks to the Indians who had brought several covered dishes to the first Thanksgiving by killing them afterwards. I don't mean to take the fun out of the holiday or anything, but you can't be in American Studies and not be up front about these things.

Apparently you can be in American Studies and be completely ignorant of, or lie about, a part of American history to which you have a professional, geographical, and personal connection!

The "first Thanksgiving" to which Potter refers occurred in 1621. The first outbreak of war between the Massachusetts settlers and Indians occurred in 1675. As one historian has found it necessary to note in boldface, "The peaceful relations between the Pilgrims and Indians had lasted 54 years, during the lifetimes of the Massasoit and the original members of Plymouth Colony."

(While the Indians did kill five deer and brought them to the feast, they probably did not bring them in "covered dishes".)

If Prof. Potter had any academic integrity, she would resign her tenured post today, but then given the other academic frauds that KC has shown dominate the arts and "soft sciences" at American universities today, I suppose the best we can hope for is that Prof. Potter at least doesn't believe the lies she tells her students.

Anonymous said...

"Essestially, the exclusionary rule excludes incriminating evidence if the search which discovers that evidence is conducted without "probable cause".

Take the case where a police officer stops a citizen, detains him, and searches his entire car. If the officer finds no incriminating evidence, the officer releases the citizen. However, the innocent citizen has no recourse against the state, since there is no evidence to exclude.

However, if the officer finds a dead body in the trunk, the evidence is excluded and so is all other evidence which is "fruit of the poisonous tree". Thus, the exclusionary rule protects the guilty, but leaves the innocent without redress for the violation of his Fourth Amendment right to be free from an unreasonable search."

Your illustration leaves unanswered the question which absolutely must be answered to have any relevance: why did the police officer search the car??? Are you saying that it is a frequent occurrence that police officers who are searching cars that they have no probable cause to search find dead bodies in the trunks of those cars? Are you saying that this happens frequently enough that our legal system should be constructed around the occurrence? I find that unlikely.

Anonymous said...

Re: “Nifong” joins the Urban Dictionary:

"When the professor only gave me a B- on my paper, I had the feeling I was getting a royal FONGING”

(Too bad Kim Curtis didn’t know this costly new word.)
Urban Dictionary- Nifonged: Verb, to use the law to destroy innocent people.

Nifonged describes the railroading or harming of a person with no justifiable cause, except for one's own gain. It is someone being taken advantage of unfairly by someone without scruples or morals.

It is created more in disdain of North Carolina/Durham District Attorney Michael Nifong, and his screwing of 3 Duke University Lacrosse Team members and helping to inflame a tense racial situation for his own glory, ego, and political gain.

Being Nifonged, Getting Nifonged, Nifonged

1. We knew we were BEING NIFONGED when we were forced to pay an extra $50 duty to the customs agent for bringing foreign magazines into Mexico under the threat of jail time.

2. When I saw that the rebate on my new DVD player was not honored by the company I'd bought it from, I had the distinct feeling I was GETTING NIFONGED.

3. "When we noticed that our belongings were missing from our room, we had the distinct feeling we had been NIFONGED by the locals.
-variations - may be used in place of slang or common terms denoting a situation where one is "bamboozled" "hoodwinked" or "screwed"

Fonging Fonged
1. When the professor only gave me a B- on my paper, I had the feeling I was getting a royal FONGING.

2. When I walked in to find my Dog had chewed up my term paper I knew I was FONGED.

tags screwed rail-roaded falsely accused shafted travesty
tags synonyms- screwed f*cked reamed railroaded hosed - variations- fonging fonged

Anonymous said...

Cassidy is licensed to practice law? Which state? Is it really Massachusetts? Wendy has a soul mate.

Anonymous said...

rrh @ 8:54

Actually, there was an encounter with another tribe on Cape Cod, where the Pilgrims first landed. They were attacked by a group of 10-12 indians and repelled them with gun fire. The article you cite does not specify whether or not they killed any indians in that brief exchange.

But with the said, I wholeheartedly agree that this intellectual bimbo is a freaking disgrace.

"... covered dishes..." That is too precious. These same indians also helped the Pilgrims hold their first church bazaar complete with bingo night and covered dish supper.

I'd also be willing to bet that she's a fraud and has no acceptable proof, whatsoever, of a lineal descent from any Pilgrim.

Anonymous said...

We have yet to learn why Nifong was so certain and so assured...

I doubt Nifong was certain. Perhaps he was following orders. Maybe he had no choice.

Anonymous said...

Prosecutorial and law enforcement misconduct has been rampant for a very long time. It has been identified as "testilying" rather than testifying. In these scearios prosecutors wilfully encourage law enforcement to lie when testifying, to lie when submitting an affidavit to obtain a warrant (search or otherwise). It is far more common than people believe and assume. They were only caught in the Duke Lacrosse case.

Anonymous said...

I scanned the article by Associate Dean Michael Cassidy and fixated on the same juicy quote that K.C. Johnson spied:

"In my view, there were not one but two 'rushes to judgment' in the Duke Lacrosse case; the prosecutor’s rush to condemn the lacrosse players before considering alternative theories of what happened at that party, and the Disciplinary Commission’s rush to disbar Mike Nifong for very badly mishandling a
high profile criminal case."

As Professor Johnson noted, the author "badly mishandl[ed]" this paragraph. I would suggest the difference between "badly mishandling" and what Nifong did would be like comparing an auto lube technician who forgot to change the air filter and lube the front carriage with the technician who put sugar in the gas tank.

There was absolutely NOTHING that stopped Mike Nifong from campaigning for his election by saying:

"I will be tough on crime, including rape."

There was, however, specific rules providing that Nifong could not say:

"I will be tough on crime, including the rape at Duke, and starting with those rich Duke hooligans, who wouldn't need a lawyer if they were innocent, and who quite certainly committed crimes worse than the worstest Klansmen, and, furthermore, they are too cowardly to come forward."

The Associate Dean also badly mishandled use of the word "victim" in his article. Apparently, Cassidy believes that BOTH Mangum and Nifong were victims of this tragedy. Was he watching the same tragedy we were watching?

DURHAM: We're like Hell without the remorse! MOO! Gregory

Anonymous said...

Discussion at LS continues re: Brian Meehan's culpability. Does anyone here know whether Dr. Meehan attended any of the hearings on May 18, 2006, June 22, 2006, or September 22, 2006 where Mr. Nifong stated in open court on each occasion, I believe, that the defense had all the information there was to have from the DNA testing?


Anonymous said...

inman said...

rrh @ 8:54

Actually, there was an encounter with another tribe on Cape Cod, where the Pilgrims first landed. They were attacked by a group of 10-12 indians and repelled them with gun fire. The article you cite does not specify whether or not they killed any indians in that brief exchange.

11/26/07 11:29 AM

Thanks Inman, though of course the distinguished Prof. Potter said the Pilgrims killed Indians who "brought covered dishes to the first Thanksgiving", not who "attacked the Pilgrims upon their landing at Cape Cod".

This is only proof that you, Inman, or I, or my 15-year-old daughter, is more fit than Claire Potter to be "Professor of History and American Studies at Wesleyan University in Middleton Connecticut".

Oh well, at least this enables us to scratch one more university from the list of ones to which my kids will apply.

The last things on which they need to spend their college money are academic frauds who perpetrate blood-libels about white Americans.


Anonymous said...

I would respectfully edit the first sentence of this posting to read, "Two attempts at serious studies...."

As you clearly demonstrate, Cassidy's work is not worthy of recognition as a serious work.

Anonymous said...

In a just world, Cassidy would find himself an innocent defendant being prosecuted by a Nifong wannabe.

Of course, as Cassidy points out in his article, he needn't worry because, as he states, in the event he eventually is found to be innocent, then that finding will put him securely on the path of rehabilitation to his reputation within society.

Further, he might have the option of pursuing legal (civil) action against the wannabe, which he states should be viewed as a suitable deterrent to any prosecutor thinking of making statements that could be considered to be the basis of prosecutorial misconduct.

Living with the legal system of North Carolina is tough enough. I shudder to think of what a legal system as devised by Cassidy would look like.

Michael said...

re: 11:00 AM

Professor Michael Cassidy is Associate Dean for Academic Affairs. He teaches and writes in the areas of Criminal Law, Evidence, and Professional Responsibility. He is considered an expert on the subject of prosecutorial ethics, and frequently provides training to public sector attorneys on their responsibilities under the Rules of Professional Conduct.

During his extensive career as a government lawyer, Professor Cassidy prosecuted hundreds of serious felony cases at both the trial and appellate levels, including briefing and arguing numerous high-profile criminal matters before the Massachusetts Supreme Judicial Court. Immediately prior to joining the Boston College faculty, Professor Cassidy served as Chief of the Criminal Bureau in the Massachusetts Attorney General’s Office.

Among his many professional and community activities, Professor Cassidy has served as a member of the Governor's Commission on Corrections Reform, as a member of the Massachusetts State Ethics Commission, as Editor-in-Chief of the Massachusetts Law Review, as a hearing officer for the Board of Bar Overseers, as a member of the Criminal Justice Section Council of the Boston Bar Association, and as a member of the Board of Advisors to the National District Attorneys Association. He is also active in local government and youth sports in his home town of Winchester, Massachusetts.

Professor Cassidy received his B.A. degree, magna cum laude, from the University of Notre Dame, and his J.D. degree, magna cum laude, from Harvard Law School. Following law school he served as law clerk to the Honorable Edward F. Hennessey, Chief Justice of the Massachusetts Supreme Judicial Court.

BC does have a class related to the Innocence Project so maybe there's a little balance there. I'd suggest taking a look at the guy's picture. Does he look like the helpful type to you?

Anonymous said...

Professor Cassidy has an impressive CV. We need Alan D. to determine if his arguments have any merit. In any event Nifong has lost his reputation, job, bar license and exposed as a public menace.
As LS, now consists of about eight posters writing to each other and are down to a "what did Nifong have for lunch" discussion - who cares?

Debrah said...

"For those with access to CQ Researcher, however, the article provides an excellent jumping-off point for a discussion about how the Nifong affair can illuminate broader issues."

A perfect subject for KC's next book!

Debrah said...

TO 5:46 AM--


Anonymous said...

Looks like ol' Anon @ 3:12 wants everyone to "move on." Nice try!

I humbly submit a third or fourth definition for "Nifong" or "Nifonging." It should include something like this:

4. Of or pertaining to the use of race, gender or class by a public figure or public servant to sway a crowd into lynching a presumably innocent individual. (ex. "There goes Al Sharpton again, 'nifonging' the crowd.").

Debrah said...


This guy wants no part of the Nifong Gang:

Gang pro won't be back in Durham

By John Stevenson : The Herald-Sun
Nov 26, 2007

DURHAM -- Former gang prosecutor John Phillips has backed away from a previously announced commitment to rejoin the Durham District Attorney's Office after an absence of two years, forcing local officials to scramble for a replacement as they ratchet up the war against street violence.

Phillips, who earned high acclaim for previous anti-gang accomplishments here, had been scheduled to return this month following an interlude of private practice in Charlotte.

But District Attorney David Saacks said it won't happen.

He blamed the setback on unspecified personal considerations.

"He cannot come," Saacks said of Phillips. "It's not about being unwilling to come. It's about being unable."

Saacks said Phillips asked him not to reveal the precise reason for the change in plans.

Phillips could not be reached for comment.

"Clearly, we're disappointed," said Saacks. "We very much wanted John Phillips back."

Had he returned to Durham, Phillips would have worked hand in hand with current gang prosecutor Stormy Ellis to help stem a rising tide of street crime. His arrival would have given the Bull City two dedicated gang prosecutors for the first time in history.

Saacks said he still plans to put a second assistant district attorney into the anti-gang war. But it may be impossible, he conceded, to find a person with Phillips' experience and expertise.

"We'll probably have to hire someone new and train them, which can take a considerable amount of time," Saacks added.

Numerous legal officials, including Senior Resident Superior Court Judge Orlando F. Hudson, recently expressed enthusiasm about what they expected would be Phillips' imminent return.

They said his rehiring couldn't have come at a better time, since a professional consulting firm recently blasted the District Attorney's Office and other local agencies for not doing enough to fight gangs.

Phillips set at least two legal precedents and generally made life miserable for many street gangsters during a previous stint here.

In 2005, not long before leaving Durham, he became the first North Carolina prosecutor to successfully increase a gang member's punishment by proving so-called aggravating factors to a jury.

That precedent arose in the case of Xavier Dominique Johnson, who was sentenced to between seven and 10 years in prison for kidnapping and assaulting another man, nearly castrating him in the process.

Contending Johnson was an associate member of the Bloods criminal street gang and a danger to the community, Phillips convinced jurors of two aggravating circumstances: Johnson was armed with or used a deadly weapon in the assault, and he occupied a position of leadership or induced others to participate in the crime.

Without the aggravating factors, Johnson might have received a prison term of only three to five years.

In another innovation, Phillips once resurrected a moldering, obscure anti-Ku Klux Klan law and turned it into a gang-fighting tool in Durham County Juvenile Court.

"I believe in using any statute that's available to combat gangs. Period," he said in a phone interview early this month. "I make no apology for something that might be reversed if the law changes later. If it's permissible under existing law, you have a duty to do it. The public wouldn't want it any other way."

mac said...

Perhaps Professor Cassidy should read and review the many statements Nifong made, such as the one Nifong made that he's "not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham."

These statements weren't made by the police and repeated by Nifong: they were authored by Nifong. He was an ubiquitous element, frankly.

Another point: prosecutors have a responsibility to avoid bringing things to grand juries when the evidence is either thin or nonexistent. Why should the accused players have even had to deal with a grand jury, when Nifong already had knowledge that the charges were a hoax?

The Grand Jury met after the DA knew about the DNA, and that the DNA not only didn't contain evidence from the accused, but represented 4-11 "others."'s article was April 18, 2006. About a week after the lab director Meehan explained these things to Nifong and others. If even ESPN can get it right, how can an esteemed law professor be so wrong?

It appears that some people believe that their education should end once they've attained sufficient honors. Perhaps Professor Cassidy could learn how to use search engines, so that he can keep up?

Or maybe he could just listen to Will Hunting, and go to the library.

Anonymous said...

So, if a tree falls in the forest and no one hears the fall has the tree made a sound . . . what is the sound of one hand clapping . . . my goodness Cassidy needs to hopalong and do something else. What was different in the Duke fraud was that someone heard "something" in the forest of potbangers and racist faculty. They turned up the volume in a system that is paroachial and inward looking tied by class and prejudice not to dicipine themselves. To use the well documented clannishness of the legal system as reason to suggest that no prosecutorial misconduct ocurred is just naive.

Debrah said...

Cassidy has the appearance of a reasonable sort of guy.

Not the Nifong-apologist-loon that he is.

Anonymous said...

3:12-Dream on 88er!
Your incompetence and fraud will be exposed here for all the rest of the academy to see and the LS board will continue to grind down the criminals of Durm.

Now be off to oppress some privledged students, 88er.

Anonymous said...

It is by no means unusual for prosecutors to go mad with power, believing they can do whatever they want, to whomever they want, and that the rules cannot touch them.

Then Nifong got caught, and in a sense they all got caught. And they're in a panic, circling the wagons. Here we have a legitimate legal scholar, committing academic fraud and perpetuating fundamental lies about the Duke lacrosse case, and why? So that other prosecutors can preserve their prerogatives to lie, to cheat, to used perjured testimony from crooked cops, to bully everyone around them, and to steal your freedom.

Your best revenge? Keep all this in mind, next time you serve on a jury.

Anonymous said...

Sad irony that Nifong's treatment of the LAX Hoax bears a strange resemblance to the comings and goings of Congress. Manipulate what you need to manipulate to get what you want and as long as you sound confident, the idiots around you will accept what you say on blind faith.
Inexcusable is knowing all of this and still thinking that CGM is a victim. But a victim of what? Only a situation of her own making. Personally, I think she saw dollar signs and anticipated a quick bankroll via blackmail. She surely didn't know Rae Evans and the values she instilled in her son or of the Finnerty and Seligmann values.
The old adage may have said "Hell hath no fury like a woman scorned" but never, and I mean never underestimate the power of a Mom whose son has been wronged. Just think on that one for a while!!!!!

Anonymous said...

2:58. All that CV proves is that the guy has had too many opportunities to be smarter/ wiser than he currently appears to be.

That OFTEN portends some type of "inside" allegiance, rather than astute and unbiased search for truth.

Anonymous said...

Just read your May 3rd, 2007 article - Many of the issues, you present as facts are just not true. i.e among others - Levicy testified in court under oath that she had two meeting with LE ( a year apart) and one phone call. No one challanged this testimony in the bar hearing.

Anonymous said...

The new U.S. Attorney General, Michael Mukasey, while District Judge for the U.S. District Court for the Southern District of New York, made some interesting distinctions in a decision he filed, denying a motion by ADAs, among others, to dismiss a civil suit brought against them by a plaintiff for "intentionally, malicious and/or... recklessly" investigating and prosecuting the plaintiff for murder.

All charges against the plaintiff (who had consistently denied them from the beginning) were dropped during the trial when it came to light that the "evidence" against the plaintiff was false, obtained through a pattern of "coercion, trickery and misrepresentation."

Specifically the plaintiff alleged that the ADAs had "supervised," "assisted," and "gave advice" to the police in the course of the investigation, had "acted and conspired" with the police in the investigation, and "knew or should have known" that the police conducted "the investigation in disregard of the civil and constitutional rights of the plaintiff." And so, following the dismissal of the criminal charges the plaintiff filed a complaint in civil court.

The ADAs moved to dismiss the complaint on the basis of two arguments: 1) that whatever they had done had been "intimately associated" with their quasi-judicial roles as prosecutors, and therefore protected by absolute immunity; and, 2) even if they weren't entitled to absolute immunity, they were entitled to qualified immunity as a matter of law.

To the first argument, for absolute immunity, Mukasey answered: "...when a prosecutor supervises, conducts, or assists in the investigation of a crime, or gives advice as to the existence of probable cause to make a warrantless arrest -- that is, when he performs functions normally associated with a police investigation -- he loses his absolute protection from liability."

To the second, for qualified immunity (because the ADA's actions could be considered "objectively reasonable"), Mukasey said: "the [plaintiff's] complaint alleges that the ADA defendants, with a malicious or intentional state of mind, played a key role in an investigation predicated on trickery and coercion. It may well be that these allegations are unfounded or exaggerated. However, accepting them to be true and drawing all reasonable inferences in plaintiff's favor, I cannot say beyond doubt that plaintiff will be unable to prove that the ADA defendants acted in an objectively unreasonable manner." In other words, the ADAs participation in the police investigation, as characterized by the plaintiff's allegations, was not "objectively reasonable" and therefore was not sufficient cause for "qualified immunity."

And Mukasey denied the ADAs' motion to dismiss the complaint to the extent that it sought to hold them liable "for supervising, participating with and assisting the police in their investigation..."

ADAs and, one would assume, DAs who are as active in a police "investigation" as Nifong was in the Duke hoax– and in the way he was, "an investigation predicated on trickery and coercion"– are entitled neither to absolute nor qualified immunity from civil suits, in now-U.S. Attorney General Michael Mukasey's opinion.

Regulars here are only too familiar with the degree of "trickery and coercion" practiced by all of the defendants in the pending civil suit against Durham, and more will be learned.

As for the best means of preventing prosecutorial misconduct? How about the utter ruination of offenders? It would appear that Seligmann, Finnerty, and Evans, based on decisions like Mukasey's, stand a fair chance of achieving it.


mac said...

12:38 Dave,

I doubt that Professor Cassidy would agree with U.S. AG Mukaskey, and is likely to throw down some lightning bolts from Mount Olympus in order to settle things once and for all.

Anonymous said...

I doubt that Professor Cassidy would agree with U.S. AG Mukaskey, and is likely to throw down some lightning bolts from Mount Olympus in order to settle things once and for all.

As long as Professor Cassidy is thundering ex cathedra and not from the bench, this blog can handle him. :)


Anonymous said...


I am in the middle of Until Proven Innocent .....I am speechless, but not surprised, as to the behavior of a DA, the media etc regarding this case. From the beginning it was obvious that this case was a sham and a political move. I hope everybody involved in the accusation...the DA, "victim" Group 88 and the Duke administration all pay their due, be it jail time or moneatry damages to these fine young men, the falsely accused, the entire team and Coach Pressler's, whose lives are now changed forever.