I know: This is a blog about the Fourth Amendment, not due process of law, prosecutorial misconduct, or the fine points of a Brady violation. It is, however, still a blog about the Constitution and how the ministers of the law administer it. So, I cannot resist. I have to talk about Mike (“rogue prosecutor”/”too little, too late”) Nifong, the Durham N.C. District Attorney ordered disbarred Saturday night by the North Carolina Bar Disciplinary Panel.
Like all conscientious criminal defense attorneys, I gave Mr. Nifong the benefit of the doubt. Maybe I’m instilled with the disciplinary double standard that has existed heretofore in the legal system where prosecutorial misconduct gets a wink and a nod but defense counsel misconduct results in charges. Mr. Nifong was represented by a capable criminal defense attorney, David B. Freedman of Winston-Salem. Even the best lawyer cannot win when the facts are so overwhelming. Been there, done that.
In Friday’s NY Times is this:
At one point after the accusation surfaced, Mr. Nifong said, “I am not going to let Durham’s view in the eyes of the world be a bunch of lacrosse players from Duke raping a black girl from Durham.”
On Friday, he said, “I think that crossed the line.”
Mr. Nifong said he had made other mistakes in the case but continued to defend himself against charges from the bar that he had intentionally lied and withheld from the defense DNA evidence favorable to the defendants.
Mr. Nifong, a 29-year veteran of the district attorney’s office who had been appointed to the job in April 2005 by Gov. Michael F. Easley, attributed his mistakes to inattention, preoccupation with a political campaign, and what he said was inexperience in handling felony cases in recent years. (emphasis added)
When I read that he blamed his lack of experience, I laughed out loud. Here is a “29-year veteran” of the DA’s office pleading inexperience as justification for his flagrant misrepresentations that there was no Brady material. He charged young men he could not even prove were at the party, the DNA evidence exonerated them and he hid it, police officers warned him that he was charging people that he could not place there. Nifong may not be far off the mark, however. Many state prosecutors wilfully ignore or belittle Brady thinking that nothing is exculpatory.
His excuse is the kind all criminal defense lawyers hear from clients who are incapable of taking responsibility. Mr. Nifong played it close to the vest and admitted only that which he had to, I’m sure against his lawyer’s advice. In a federal sentencing, a federal judge might not consider some of his testimony full acceptance of responsibility under U.S.S.G. § 3E1.1, up until he finally offered to give up his ticket, likely in hopes that the disciplinary panel would just accept it and not issue an opinion.
But they did.
After Mr. Nifong offered to be disbarred, the ethics panel said it still had to decide on a penalty, and 40 minutes later it issued a scathing opinion.
“There is no discipline short of disbarment that would be appropriate in this case,” said F. Lane Williamson, a Charlotte lawyer who led the panel.
See Comments of Disciplinary Panel’s Chairman from NYTimes.com.
I have dealt with several prosecutors who played close to the line and a few who actively sought to subvert Brady. Some remember nothing of Brady except what they learn in law school, and it leads to uncertainty in convictions and endless post-conviction. But this: This was a Brady violation with a vengenance. I had a prosecutor once deny on the record that there was any exculpatory evidence when a police officer told me that the prosecutor knew that another man had confessed to the crime my client was charged with. The punishment? No contempt, no referral, no nothing. DAs are judged by different standards, at least until now.
In the end, this proves that there is no double standard in lawyer discipline, and some disciplinary authorities will take prosecutorial misconduct seriously.
The State should just get ready to pay these young men for what they went through. Nifong may be immune, thanks to Imbler v. Pachtman, but the State should pay them their attorney’s fees and mental anguish, which has to be considerable.
And criminally? Nifong may not be out of the woods there, either. Obstruction of justice, abuse of office, falsifying public records, false swearing, contempt of court?
I bought a Duke Lacrosse t-shirt off eBay when this case started to smell. I’m wearing it to work tomorrow.
The defense lawyers for the lacrosse players? They are the heroes here because they kept plugging away for their clients so “the truth will out.” They make me proud.
