Patterico's Pontifications

1/24/2007

Nifong Gets New Ethics Complaint

Filed under: General — Patterico @ 8:20 pm



Nifong’s been hit with a new ethics complaint. This one’s meatier than the earlier one, as it addresses his alleged suppression of exculpatory evidence. Allah says:

I’d bet my first child that he won’t disbarred.

I really feel like teasing him about that line, somehow, but I can’t find the right phrase. I’ll just leave it at this:

Don’t be too sure, my friend. And don’t go too far out on that limb.

UPDATE: Also via Allah is this link to the complaint itself.

25 Responses to “Nifong Gets New Ethics Complaint”

  1. I’m throwing down the gauntlet.

    I’ll bet all my future children that he won’t be disbarred.

    And my future wife’s life, too!

    Allah (bab333)

  2. I’m betting nothing. But I think Allah is right. Nifong, or a competent lawyer representing him, can make it a case simply of overzealousness. Censure or reprimand, taking into account his otherwise unblemished record. Not even suspension.

    Further explanation: Lawyers get disbarred only for #$$%%^^ their clients, literally or figuratively. Nifong can get away with claiming that he was only doing what he thought was in the best interest of his client.

    nk (4d4a9d)

  3. If he was knowingly withholding exculpatory evidence, and it came to light through the actions of others, I wouldn’t bet on it.

    And Allah? You’re still at about the same place on that limb. And I think the limb is on the ground.

    Patterico (a8fa4a)

  4. I’ll take that bet – although it will have to be a theoretical bet since I don’t need a future wife and kids (even though I’m sure they will be wonderful). I bet Nifong will at least be suspended and may be disbarred. I think the DNA lab director’s testimony makes suspension probable and if anyone else comes forward (especially an insider from the DA’s office or from the police, as I suspect they will), I think Nifong will almost certainly be disbarred.

    However, the Bar will probably leave the door open to reinstatement in the future, perhaps even in a few years. Bar associations don’t like bad lawyers but they frequently show mercy on reformed lawyers. Look for Nifong to seek out rehab or community service to make the reformation argument more palatable to the Bar association.

    DRJ (f4c219)

  5. Further explanation: Lawyers get disbarred only for #$$%%^^ their clients, literally or figuratively. Nifong can get away with claiming that he was only doing what he thought was in the best interest of his client.

    nk, you may be right. I’d prefer to believe not.
    Nifong’s client is, theoretically, the people of the State of North Carolina, and their best interest should not include violating basic procedures in their name.

    Karl Lembke (114653)

  6. I refer you to the Gell case, one in which two NC presecutors withheld the testimony of fifteen witnesses who saw the “dead man” seven days after Gell was in jail for stealing a car; withheld a tape recording by the main witness in which she said she made up the story for police. After the guy has been on death row for eight years, new lawyers discovered what had happened and a new trial sprung him. Get this: prosecutors sent the guy to his death with fake evidence, and the punishment? All were promoted and are still in the NC system and at least one is assigned to “look at” the Nyfong case. Nyfong knew that what he did had passed muster before in a case much more serious in terms of consequences for the accused. It ain’t over by a long shot.

    Duke (2d4db0)

  7. You’re still at about the same place on that limb. And I think the limb is on the ground.

    Heh. It’s been on the ground a long time.

    Allah (bab333)

  8. Disbarred, my ass. Why is this not a crime? Why is it not a crime to file a case that you know is bogus, and withold exculpatory evidence, when it means ruining the lives of innocent people?

    He should be in jail.

    CraigC (aa6a7c)

  9. I read the complaint.

    I disagree quite strongly with nk that there is any possible justification that anyone will see for this, though I also predict no disbarment. (I think he’ll lose his job and get suspended if he has the sense to make a deal. But maybe not.)

    The complaint is…. wow.

    In general, a lot of things that are called misconduct are really prosecutorial error; new trials for prosecutorial error don’t sound so sexy, so the courts call it misconduct. (Some California cases have acknowledged that “misconduct” is a misnomer for a lot of the things called “misconduct.”)

    But, but, but….

    The bar is saying Nifong lied to the press, lied to the court, lied to the defense, and lied to it about plainly exculpatory evidence. Nifong’s explanation does not pass any muster. If someone I absolutely and completely trusted gave me this story, I would not believe it. It is facially false.

    The first rule of holes is, stop digging. Nifong had chances to be a good prosecutor and do the right thing from the outset; nope. From there, it’s been dig, dig, dig. While it’s kind of interesting in a plane crash sort of way to see where the hole ends – will he dig to the center of the earth, to India, to the North Pole? – it’s amazing to see a prosecutor with no apparent ethical limitations whatsoever.

    Where people have stopped digging, on cases I’ve heard of or read about in the bar journal, they generally get reprimanded or fired or (occasionally) suspended. I think he can *still* stop digging and save some portion of his ass.

    Let me make clear: While I’m betting against disbarment, nothing permits what has happened in this case. He should be disbarred. I just don’t see it happening.

    I can’t find a prosecutor who is knowledgeable about this case who will say anything nice about Nifong’s actions. No one. He’s a pariah.

    Anyone who buys his Stephen Glass-style book after this thing melts down and he needs the money should be socially ostracized.

    –JRM

    JRM (355c21)

  10. If the complaint is correct, Nifong repeatedly lied to the court. He’s got to be toast.

    Federal Dog (9afd6c)

  11. nifongs gonna go down, if a DA cant be disbarred for lieing to 3 judges, with holding evidence, lied in responces to bar complaint, then DAs in nc are above the law and cant be touched. easy call here, hes gone

    james conrad (7cd809)

  12. The complaint that will lead to disbarrment is that he lied to the Bar in response to the first complaint. Everything else he did is par for the course in NC, as pointed out by Duke.

    NC’s Supreme Court has ruled that the legal system is not even subject the the Constitution’s requirement for a speedy trial.

    In the case mentioned by Duke, the AG’s office testified under oath that it was the policy in NC to withhold exculpatory evidence. This, in direct defiance of Brady.

    If Nifong is ever hauled up on a 1938 complaint, he has an iron-clad defense even under qualified immunity: No reasonable attorney in NC could be expected to know that it was illegal to violate the Constitutional rights of a defendent.

    great unknown (9f37aa)

  13. Allah: I’m glad I’m not your wife and won’t be any of your kids. These charges are really damning. What’s Nifong’s response going to be? Like O.J., I didn’t do it? Now let’s begin the search for the real unethical prosecutor?

    NK: methinks you’re confusing the ethical rules applicable to attorneys generally with the more stringent ones applicable to prosecutors specifically. If Nifong had done what he did in private practice, as the personal attorney of his favorite stripper/perjurer, his conduct in the case, apart from lying to the State Bar, would have warranted a slap on the wrist. But he doesn’t represent her, he’s a prosecutor who is supposed to seek justice. If this doesn’t get him disbarred, I’m not sure what a prosecutor can do, if anything, that would.

    Xrlq (f52b4f)

  14. I back off. I know generally that prosecutors are held to more stringent standards than private attorneys and Illinois has even codified exactly what public statements a prosecutor is allowed to make in a pending case but otherwise I am no expert. Xrlq is right. I am going by decisions involving private attorneys.

    nk (77d95e)

  15. From KC Johnson’s blog on the case:

    [In an article published in today’s Times, Duff Wilson (writing under the sole byline, alas) paraphrases Nifong’s December Times interview to offer yet another explanation for his withholding the evidence. “In an interview last month,” writes Wilson, “Mr. Nifong agreed that the DNA results had been potentially exculpatory, but said they had not seemed important to him because he was no longer then pursuing the case on the basis of DNA evidence.”
    —–

    JRM: Ah, potentially exculpatory but not important to Nifong.

    This isn’t the A game we’re seeing.

    –JRM

    JRM (de6363)

  16. I read Allah’s post yesterday, and I must say I’m glad to see the other lawyer types aren’t so sure about Nifong keeping his license.

    I’m with Craig C, I think his ass belongs in jail. I’d like to think no lawyer could get away with repeatedly, maliciously lying to a judge that way – to say nothing of what his behavior says about his attitude towards justice.

    The whole thing is beyond scandalous really. Jeez man he at least needs to lose his license. Come on.

    Dwilkers (4f4ebf)

  17. Which would mean that prosecutors are exempt from the law and punishment.

    Nothing less than a disbarrment is in order here. Give us back some faith in the system.

    rightisright (2fce83)

  18. MORE than disbarrment is in order here. But I’m getting the feeling that disbarrment is our best hope.

    Dan S (8771d0)

  19. There are several separate questions here.

    1) Should Nifong be disbarred (or even jailed) as a matter of small-j justice?

    2) Must Nifong be disbarred under the rules and laws of North Carolina?

    3) Will Nifong be disbarred, in the actual case at hand?

    I would say the answers are yes, probably not, and definitely not. The reason for the last is quite simple: attorneys, like the Mafia and Hell’s Angels, practice in-group morality. Nothing an attorney does to a non-attorney, including railroading innocent men to prison or death row, if ever punished. The people passing judgment on Nifong will all be attorneys, keenly aware of how much money admission to the bar is worth, and they will weigh their brother’s fate against that of three strangers, who are of no value to them (not being admitted to the bar).

    Note that the attorneys commenting on the case are mostly more concerned with Nifong’s lies to other attorneys or the judge than they are with Nifong’s malicious attempt to railroad innocent men. Which is the most serious crime? The answer is equally obvious if you are an attorney or not, but those two sides pick differently.

    In-group morality in action. You can do anything you want to the kafirs, just don’t harm a member of the brotherhood. As long as Nifong can come up with some mealy-mouthed rationalization that gives them a little cover, his brothers will let him off lightly.

    cheers

    -=K=-

    Kevin R.C. 'Hognose' O'Brien (eb668d)

  20. “if ever punished” — I meant “IS ever punished” (end of third sentence). My apologies.

    Kevin R.C. 'Hognose' O'Brien (eb668d)

  21. Commenter # 19: With all due respect to Mr. P., it’s why the general public has a very low opinion of lawyers.

    Unfortunately, they rarely do anything to change our minds.

    rightisright (2fce83)

  22. Commenters 19 & 21:

    Our system does not punish conduct – even attorney conduct – simply because it yields results that people don’t like. It punishes conduct that violates established rules and laws. That’s why the attorneys commenting here are focusing on Nifong’s alleged lies to the Court and other attorneys. Engaging in prohibited conduct can be punished. Engaging in conduct that results in a bad conviction might be punished, but not all bad results occur because of wrongful conduct.

    The fact is, we want lawyers to be zealous advocates for their clients. Sometimes zealous representation goes overboard and can be improper, but sometimes it’s merely questionable or even misunderstood conduct. That’s why bar associations have 2 layers of standards for attorney conduct: permissive guidelines (ethical considerations) and mandatory rules (disciplinary rules).

    The standards of conduct that most attorneys are concerned that Nifong violated are covered by the disciplinary rules. Other conduct may be covered by the ethical considerations and is more nebulous – it can be wrong in some situations but not in others – so punishment for those actions is possible but not as certain. It doesn’t mean that such behavior can’t or won’t be punished, just that it’s not as certain. That’s probably why the attorneys here focused the discussion on the disciplinary issues that seem more certain. It doesn’t mean other ethical issues aren’t important or troublesome.

    DRJ (e69ca7)

  23. DRJ:

    I was with you right up until the end. In California, all ethics violations are subject to discipline; there aren’t two separate sets of rules.

    But the big thing about not focusing on the result *as far as what should happen to Nifong* is that, well, part of the result is the prosecution of apparent innocents, but there’s a bigger result, a destruction of confidence in the system. There’s also a willingness to do evil that you just can’t have in a prosecutor.

    Let’s suppose that tomorrow a US spy satellite incontrovertibly showed that the three accused men committed a rape and kidnap of the victim. (Assume this is true despite the current state of the evidence.)

    I would think less of them, certainly, but more of Nifong? No. Nifong’s actions happened to catch innocent people, and that was slightly unlucky for Nifong and hugely unlucky for the lacrosse players. It’s much like the DUI-death cases; slightly unlucky for the idiot that drives drunk, spectacularly unlucky for the victims and their families.

    But that doesn’t mean that when you drive drunk and ram into the schoolhouse, miraculously injuring no one, that, hey, everything’s cool; you’re evil.

    And in Nifong’s case, the evil done spreads everywhere. It hurts rape victims. This *will* lead to freed rapists. This *will* lead to people mistrusting the system. It will lead to good people expending tremendous effort on behalf of perceived innocents who aren’t. It will lead to good people who might consider prosecution work doing something else.

    Prosecutors do get sanctioned hard for lying to the court, even when they are doing so in an effort to convict the guilty. (This, in my view, happened in a recent California case; the prosecutor got suspended from the bar and fired on absolutely meritorious grounds in a case where the accused sure acted guilty.)

    We’ll see what happens. If you think attorneys are going to line up behind Nifong, you’re right. But they’re lining up to slice him up and serve him on a platter to a public which wants and deserves his head.

    –JRM

    JRM (355c21)

  24. JRM,

    I agree with you. This case hurts the legal profession and I certainly hope that attorneys will join in deploring this conduct. It hurts our profession and, worse yet, it hurts our system of justice.

    I’m glad you commented because apparently something I said left the impression that some ethics violations can’t be sanctioned, and that is not what I meant. First, I readily concede that I don’t know the disciplinary rules for California or NC. Second, however, I was under the impression that the field of legal ethics recognizes the concepts of disciplinary rules and ethical considerations. Both can give rise to sanctions but the latter is more nebulous. In other words, some ethical issues can be questioned or questionable, but do not rise to the level of violations.

    I share your concern for the damage this case might cause the justice system. Here’s my concern: If we focus too much on Nifong being a prosecutor and fashion a remedy that punishes him hard because he is a prosecutor, then attorneys risk winning the battle and losing the war. People will learn that prosecutors can abuse their power and, if they get caught, they will be punished. That’s obviously a good thing, but I think the larger message will be that non-prosecutor attorneys do this all the time and get away with it. That is not the message I want people to learn from this case.

    The message I want to send, and what I think is true, is: Any lawyer that intentionally lies to the Court and to other lawyers will be punished. I want the NC Bar to send that message loud and clear.

    DRJ (e69ca7)

  25. I believe Nifong will be disbarred — he has shined a spotlight on North Carolina Justice that everyone involved — from the A-G’s office to the courts, to the bar — is feeling very uncomfortable under. Someone mentioned the Gell case — it’s being brought up repeatedly in local newspaper articles — partially because Jim Coman, who is now overseeing the case for the A-G’s office, prosecuted Gell the second time. The Bar Association is going to throw the book at Nifong to make a point. If they don’t, they will be the laughingstock of the nation.

    You can see how pissed they are in the complaint against Nifong — the last few charges are that he lied in responding to the Bar Association complaint. Their attitude might be, lie to everybody else, but if you lie to us…

    Brian (1e1316)


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