Poor judgment, or unethical behavior?
Of course I'm reading about the Mike Nifong ethics trial with great interest. I think he'll be lucky to come out of it with his law license and job as Durham DA.
I've been pondering a statement one of Nifong's attorneys, David Freedman, made Tuesday: "It is not unethical to pursue what someone may believe to be an unwinnable case."
I think that statement is true, but not in all circumstances.
A district attorney might realize he has a difficult case to prove, a case that other observers regard as unwinnable. But maybe he sees an opportunity to demonstrate a defendant's guilt that others miss.
Or maybe he believes that, despite poor odds of proving the charges beyond a reasonable doubt, there's still enough evidence to air it all out and let the jury decide. Wasn't it better for O.J. Simpson to have been tried, even though he walked, than not to have been tried at all? The prosecutors owed it to the victims to bring him to trial even if their case wasn't air tight.
But then there are other circumstances, like those at play in the Duke lacrosse case.
When Nifong should have listened to others telling him he didn't have a winning case.
He should have analyzed why they came to that conclusion.
Other than the inconsistent statements and identifications made by an exceedingly unreliable accuser, there was no evidence that the alleged crimes even occurred, much less evidence against any of the specific defendants. In fact, there was strong evidence showing one of the accused wasn't even at the scene of the alleged crime at the time it supposedly occurred.
It is unethical to pursue a case despite such compelling information refuting the basis for your prosecution.
It is even more unethical to try to turn the odds in your favor by making inflammatory, prejudicial and inaccurate public statements about the accused, creating a climate of animosity and potentially poisoning the objectivity of a jury pool.
And it is heinously unethical to deny evidence to the defense that would further render your case unwinnable.
Those are the issues before the N.C. State Bar in Nifong's ethics trial.
I think he's in trouble. If he had simply initiated a difficult prosecution in good faith based on the original accusations made by his witness, and also launched a thorough examination of the facts, he would have done what was reasonable and expected.
Instead, he made immediate assumptions, drew quick conclusions and began to try his case in the media before all the facts were known. Then, when enough information did emerge for any reasonable person to conclude that the case wasn't just unwinnable but wrong, he stubbornly continued his prosecution until he was forced to give up the case.
The attorney general, after his own investigation, later dismissed the charges, proclaimed the defendants innocent and declared that no crime had occurred.
Nifong had ample opportunity, and every reason, to do the same months earlier. He didn't. Was he guilty merely of poor judgment, or of unethical conduct? We'll see what the State Bar says, but my guess is the conclusion won't be pleasant for Nifong.
Comments (9)
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Doug,
Your analysis is kinder to Nifong than he deserves. My opinion is that he pursued this case that fell in his lap at an opportunistic time in an attempt to win his election. Freda Black was clearly in the lead at the time, and he was in trouble. This case presented him the opportunity to win..and he took it...to h#&& with the facts.
The unfortunate outcome of this case was the tarnishing of three people's lives, at considerable cost. The lacrosse players made some mistakes without a doubt, but they were ones that many, many other college students make every day. Their names will always be linked to the infamous "Duke Lacrosse Rape Case", and there will always be people who believe that they did the crime.
For this, Mike Nifong must pay, and District Attorneys across the nation must be put on notice that their power must be used judiciously.
Posted on June 14, 2007 9:37 AM
Stormy's right.
Like Dot Kearns implied in her Aug 8, 2006 LTE to the "Yes Weekly". Just win, baby! So some people get screwed over ("we're always sorry to inconvienience voters".) They'll just have to get over it.
Posted on June 14, 2007 10:11 AM
This was always about winning a election.Every one in the free world knew this a week after. Yankee papers shot the heck out of Nifong facts.Yet the papers in this state, never printed this to my knowledge. The Raleigh paper was Nifong best friend., until he ingored them for a interview, then they changed their minds. The only way, the case will be solved is by a FEDERAL investigation. Good Ole Boy Justice in NC has never worked and never will work. Ask Black he is still running free, my guess is he will never spend a day in jail. And for you people that do not know it, the taxpayers paid his lawyer fees, and from what I am told( do not know for a fact) we are still sending them $3000 a month.
Posted on June 14, 2007 10:51 AM
"It is not unethical to pursue what someone may believe to be an unwinnable case."
I think that statement is true, but not in all circumstances.* Doug
Not really! Nifong lie from the start about not running for the DA office to Easley. Case close!
The purpose of law is the use of the Grand Jury is to stop unwinnable cases for political purposes by a out of control DA with a police state mentality.
That concept of law was long gone many years ago when the Law and Order gang took over the Grand Jury process for political reasons to justify any reason to keep the masses within the control of the State.
Posted on June 14, 2007 12:27 PM
Stormy, you make good points. I don't think, however, that the State Bar will address Nifong's motivation. It's what he did and didn't do that will be judged. That's bad enough.
Posted on June 14, 2007 2:05 PM
If anyone watched Seligman's and Nifong's testimony today, there can be little doubt that Nifong will lose his law license and his position as D.A., at a minimum. There may well be a possibility that he obstructed justice, a felony crime. Just ask Scooter Libby. 30 months in prison?
I watched the players' attorneys taking copious notes during Nifong's testimony, which was a joke. He actually admitted to crossing the professional line with his press conferences. The players' civil case will be open and shut. Nifong will have to pay them every dolar he ever makes. In addition, the District Attorney's office and other city and state governmental agencies will likely be named in the suit, resulting in a multi-million dollar award for the players. But, when it is all said and done, the three players will die being remembered as participants in the Duke Lacrosse Rape Case. As we have seem, there are still many people who are convinced that they did the crime. (Ms. Malvuex?). And, where is Ms. Marcom on this day? Why isn't she testifying and asked to account for her accusations? What about the Durham Police Department? Were they accessories to Nifong?
Posted on June 15, 2007 12:39 PM
I hope anyone who thinks the falsely accused young men don't deserve apologies would reconsider in light of this ethics trial. It makes clear how badly mistreated they were by people in power.
Nifong is in the defendant's chair now as the alleged rogue prosecutor. But people around him, including police department investigators and lieutenants in his own office, should have made him see reason.
Again, I have to praise the State Bar and Attorney General Roy Cooper for putting an end to the travesty before it went to trial.
Posted on June 15, 2007 2:31 PM
Doug,
The question that I have now is why did it take this long for someone to stop this madness? Why did it go on for 16 months, as it was obvious to all reasonable people that there was o case, much less no crime? There are many people that could have helped end it. Everyone could see what he was doing, yet no one was brave enough to to step forward and stop it.
The other villian in this case who likely won't be brought to justice is Dick Brodhead. He did damage to everyone involved with this case, including tarnishing the university's image, along with many lives. He is a weak leader. And, what about all of those "enlightened" people at the Duke campus that assumed the players were all guilty; faculty, students, etc.
Posted on June 15, 2007 7:56 PM
The people at Duke have to live with their consciences about this.
As I stated above, Durham police and clear-headed professionals in the Durham DA's office, if there are any, should have done something to stop this sooner.
The State Bar acted when it could. It is unusual for the Bar to act while a case is still unresolved rather than after the fact. So thanks to the Bar for not waiting. Its filing of ethics charges against Nifong caused him to turn over control of the case to the AG's office, which allowed Roy Cooper to end it.
Posted on June 15, 2007 11:24 PM