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The Lesson in the Mike Nifong Debacle

The transcript of the disbarment ruling for Durham D.A. Mike Nifong is now available here. The Sunday papers will be filled with editorials about Nifong's disgraceful conduct. But, the money quotes are these:

The prosecutor, as any defense lawyer will tell you, is imbued with an aura that if he says its so it must be so. And even with all the constitutional rights that are afforded criminal defendants, the prosecutor merely by asserting a charge against defendants already has a leg up. And when that power is abused, as it was here, it puts constitutional rights in jeopardy. We have a justice system but the justice system only works if the people who participate in it are people of good faith and respect those rights.

....It is very difficult to find any good in this situation that brings us here. I can only think of a couple things. One is that there are very few deterrents upon prosecutorial misconduct. For very good policy reasons, prosecutors are virtually immune from civil liability. About the worst that can happen to them for the conduct of a case is that the case can be overturned. The only significant deterrent upon a prosecutor is the possibility of disciplinary sanction. And here the most severe sanction is warranted.

While many, and perhaps most prosecutors don't cheat and lie, Nifong is not the only one. This happens to many defendants all over the country who don't have the resources for top-flight lawyers who will fight for them to the end.

According to the Innocence Project,

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D.A. Mike Nifong: Disbarment

Bump and Update: (live blogging court ruling now)

The panel has deliberated. Disbarment is the only appropriate recommendation. The root of this case is self-deception arising out of self-interest. We had a prosecutor in a case where his self-interest collided with race, sex and class. If part of a John Grisham novel, it would be too contrived. He was facing a primary and he was politically naive. We can draw no other conclusion but the initial statements he made [to the media] were to further his political ambition.

Then, he refused to change his mind and accept the facts as they developed even in the face of a declaration of actual innocence by the Attorney General. (Even yesterday, on the witness stand, he clung to the mistaken belief that something happened.)

Aggravating factors found: selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge misconduct, substantial experience in practice of law.

Mitigating factors: lack of prior record and character.

Finding: Aggravating factors outweigh mitigating factors.

This matter appears to be an aberration in both Nifong's career and the way justice is handled in North Carolina. But we have to recommend the most severe penalty, disbarment.


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Duke D.A. Mike Nifong Resigns From Office

Bump and Update: Embattled D.A. Mike Nifong, while testifying in his ethics trial today, announced on the stand he is going to resign.

Facing the loss of his law license, a tearful Mike Nifong said Friday he will resign as district attorney, more than a year after he obtained rape indictments against three Duke University lacrosse players who were later declared innocent by state prosecutors. "My community has suffered enough," Nifong said from the witness stand at his ethics trial on allegations that he violated rules of professional conduct in his handling of the case.

You can watch the video of his announcement here.

Why make the announcement now? Perhaps because the trial has gone really badly for him, a decision is expected tomorrow and he's hoping for suspension rather than disbarment. If he admits his mistakes and resigns, perhaps he will avoid disbarment and be able to practice law again one day.

Closing arguments and deliberations are Saturday beginning at 9:00 a.m.

Original Post Below:

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DA Mike Nifong on Trial for Ethics Violations in Lacrosse Case

Durham, N.C. District Attorney Mike Nifong faces the music today for his conduct during the debacle that became the Duke lacrosse players' non-sexual assault case.

The ethics trial is being streamed at WRAL.com and you can watch live here.

The bar prosecutor's side:

"This didn't have to happen and the horrible consequences were entirely foreseeable," State Bar Counsel Katherine E. Jean said during her opening statement. "The harm done to these three young men and their families and the justice system of North Carolina is devastating."


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N.C. Attorney General Releases Duke Lacrosse Findings

When the North Carolina Attorney General declared the three charged Duke Lacrosse players innocent of sexual assault and stated there was no credible evidence to support that any attack had taken place that night, he promised he would be releasing a report.

The report was released today. You can read it here (pdf).

His findings:

  • The accusing witness’s testimony regarding the alleged assault would have been contradicted by other evidence in the case from numerous sources;
  • The accusing witness’s testimony regarding the alleged assault and the events leading up to and following the allegations would have been contradicted by significantly different versions of events she told over the past year;
  • No testimony or physical evidence would have corroborated her testimony;
  • The accused individuals were identified through questionable photographic procedures;


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NY Times Public Editor Examines Paper's Duke Coverage

New York Times Public Editor Byron Calame today examines the paper's coverage of the Duke Lacrosse players false sexual assault charges.

At one point he discusses whether the false accuser should be named now. He concludes:

Times editors discussed whether “to stick to our policy of not naming accusers in sexual assault cases,” Mr. Keller told me, “and decided to do so.” My first instinct was that The Times should strongly consider adopting a policy of naming false accusers. Then I decided that the mental health of the Duke accuser and the failure of Mr. Nifong to limit the harm she caused by doing his job responsibly combined to keep this case from being a good one on which to debate such a policy change. But I hope Times editors will soon consider holding a discussion, free of deadline pressure, about what purpose the tradition of not naming sexual assault victims serves when their accusations are proved to have no merit.

I disagree. The moment the charges were dismissed, upon the Attorney General's finding there was no credible evidence to support her claim that any attack occurred that night, she became a false accuser. Her name should be published so that she can no longer hide behind the victim label. Mentally ill or not, she caused incalculable damage to the lives and reputations of three innocent young men, who will be traumatized by the ordeal for years to come.


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"60 Minutes" Examines Duke Lacrosse Case

The three innocent Duke Lacrosse players and North Carolina Attorney General Roy Cooper appeared on "60 Minutes" tonight. Coper explained how the many stories of the accuser in the Duke lacrosse players alleged sex assault case fell apart.

DA Mike Nifong's actions were so inexcusable. As for his apology the day after the players' exoneration, it's too little too late.

As player Dave Evans said, "Rape will always be associated with my name." He'll always be known as one of the charged players.

At least, thanks to Roy Cooper, it will be followed by "he was innocent."

Now its time for Nifong to take his lumps -- either in the disciplinary hearings or in civil lawsuits by the players or both.

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Duke Accuser: Should She Be Named Now?

Fox News, Scripps Howards newspapers and others are now naming the accuser. Fox has published photos of her.

Should she be named now? Her name, Crystal Gayle Mangum, has been all over the internet for many months, as have details of her prior criminal record.

I have never approved of the media policy of withholding the name of the accuser while publishing the name of the accused.

Nonetheless, I have insisted that on TalkLeft and on the TalkLeft Duke Forums (on which more than 59,000 comments have been posted on more than 1,200 threads) her name not be used.

Tonight, I'm ending the ban on the use of her name on both sites. She has officially been declared not to be a rape victim. She is a false accuser. She has no right to be shielded any longer.

I'll also have an op-ed in tomorrow's Washington Examiner on the case, titled "The Travesty of the Duke Case." It focuses on how the Duke case should forge a new frontier to protect those who are wrongfully accused.

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Duke Lacrosse Defendants Cleared: They are Declared Innocent

The North Carolina Attorney General's office is making its announcement on the outcome of its investigation into the Duke lacrosse players alleged sex assault case.

You can watch live here.

I'll be live-blogging.

What reason will they give? Will it be lack of evidence to support the charges, a conclusion that the accuser was lying, or that the accuser has asked them not to proceed (a la Kobe Bryant)? Or something else?

I hope they say more than "after conducting through interviews of all involved and the witnesses, we have concluded that we are not likely to prove the case beyond a reasonable doubt."

In other words, will they have the guts to exculpate the players or will they hide behind the "not provable" scenario? (Update: Yes they do, Kudos to the AG's office.)

Ok, live-blogging below the fold.

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Decision Likely in Duke Lacrosse Case Tomorrow

Tomorrow appears to be the day the North Carolina Attorney General's office will announce its decision on whether to drop or proceed with sexual assault charges against the three former Duke lacrosse players.

Smart money says the case will be dismissed. Two of the defendants, Reade Seligman and Colin Finnerty traveled to Durham today, and the press is swarming around.

Question: If the charges are dropped because of lack of evidence or because the accuser won't cooperate, what should be the remedy for the boys? Their lives -- and that of their families -- have been turned upside down and into a hell for the past year. Their schooling has been interrupted, their reputations trashed.

Duke's reputation has taken a hit. The lacrosse team season was cancelled. Unpleasant racial issues surfaced.

I put much of the blame for this travesty of a case on D.A. Mike Nifong. If he hadn't glommed on to the media and made outrageously inappropriate comments in the beginning, jumping to the support of the accuser before the facts were in, much of the damage could have been avoided.

I think the State Bar will hold him accountable, but it still can't undo the damage.

Update: I'll be live-blogging the AG's press conference in a new thread. Or, you can watch it on your computer's here.

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Duke Defense Lawyer Kirk Osborn Has Died

Kirk Osborn, one of the chief lawyers for accused Duke lacrosse player Reade Seligman, has died, following a massive heart attack on Friday.

Osborn was a respected lawyer who had been in high-profile cases for years. He had participated in a number of death penalty cases and his wife said he was most proud that he had never lost a death penalty case.

R.I.P. Mr. Osborn, and I'm very sorry that you didn't live to see your client vindicated, as I expect he will be when the Attorney General's office concludes its investigation.


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N.C. Attorney General Denies Duke Lacrosse Charges to Be Dropped This Week

Rumors have been rampant this week that the North Carolina's Attorney General's office would be announcing the dismissal of all charges against the three accused former Duke Lacrosse players.

The Attorney General's office now says, "Not so fast." It's not true...at least not this week.

Our review of the case, including reviewing documents and conducting interviews, is continuing," Talley said. "[A] decision hasn't been made. ... We expect our review of the case to wrap up within the next few weeks and ... no announcements about the case by our office have been scheduled."

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