ABC’s Durham affiliate, Eyewitness 11 News, reported yesterday that Durham DA Mike:
Nifong has met with the special prosecutors at the Attorney General's Office.That news got me asking questions.
A spokeswoman for the Attorney General declined to comment on the details of the meeting, but confirms the discussion took place within the past week.
It comes nearly two weeks after defense attorneys for the three charged players in the case met with special prosecutors for several hours at the Attorney General's office.
Were the special prosecutors responsible for deciding only whether to proceed with the case brought be Nifong against three clearly innocent young men?
What if, when examining evidence, the special prosecutors found evidence suggesting crimes may have been committed by others, including some sworn to uphold the law and at least one attorney sworn to administer justice?
What then?
I couldn’t find any MSM follow-up this morning on the Nifong interview story and couldn’t find any at news.google at 3 P.M today.
So I posted some questions and received a response I think belongs on the main page.
You’ll bear in mind we always need to be cautious about what we read. Who knew, for instance, last March that the Raleigh News & Observer was withholding from us the news of the players’ cooperation with police, and was instead promulgating the “wall of silence” falsehood?
With that said, the comments from a reader self-identifying as Ex-prosecutor impressed me as have other comments the self-identified Ex-prosecutor has made. They’ve also drawn affirming comments from others self-identifying as attorneys.
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Ex-prosecutor said...
Here's my view as an ex-prosecutor but not from NC.
Generally, special prosecutors replace the DA who has withdrawn from the case, and have sole responsibility for deciding whether it should proceed or they should seek dismissal. In most jurisdictions, the dismissal recommendation is made to the judge assigned to the case, who may accept or reject it.
A preliminary hearing, which Mr. Nifong avoided, would have determined whether a crime probably occurred and whether those charged probably committed it. That's the legal standard and if the special prosecutors cannot answer each question affirmatively, they have an ethical responsibility to recommend dismissal.
Mr. Nifong claimed that he had a duty to proceed just because the complainant had claimed she was raped, or whatever she claimed. However, that is wrong, and the special prosecutors can find themselves civilly liable if they believe this to be the case.
Generally, citizens, lawyers included, have no responsibility to report a crime, such as if I see my neighbor's car being broken into. However, lawyers have a duty to report misconduct by another lawyer, and they may find some additional improper acts by Mr. Nifong. This would include evidence of a crime, although they have no duty to report it to the Durham police department, who should investigate.Reporting would be to the state bar, which might report a crime.
The replacement prosecutors are really in the cross-hairs, because misconduct on their part could lead to ethics charges against them as well as civil liability. In my opinion, if they want to proceed with this case, they must do a complete investigation to make sure the case is viable. Proceeding without this being done could subject them to civil liability if the case is lost.
It is standard procedure for replacement prosecutors to discuss the case with the DA they replace. What is telling to me is that they met first with defense lawyers before meeting with Mr. Nifong. The first meeting should have given them plenty of ammunition for the second. I expect they would have asked him why he supplanted the police in the investigation, set up the illegal lineup, refused to meet with defense counsel before bringing charges, etc.
This is the most egregious case of DA misconduct that I have ever seen. Distill the misconduct of DAs in other cases, mix them together, and the blend can't approach the misdeeds of Mr. Nifong. Personally, I'd rather pass consecutive kidney stones than prosecute this case.
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Message to Ex-prosecutor: Thank you for a carefully considered, concise and very well-organized response.
Question to the Raleigh N&O and other NC news organizations: Why aren't you reporting on this story?
13 comments:
Everyone knows why the N&O isn't reporting on this.
For those of you who read KC Johnson's blog, Durham in Wonderland, his comments have been hijacked by the abject racists and those who wish to discuss issues far from the hoax. If any of you can help him out (I have offered my services, for whatever they are worth) to keep his blog focused on the issues surrounding the three Lax boys, please do so. He's done an amazing job.
Ex-prosecutor’s comment was excellent. He is right that the special prosecutors have a duty to report any ethical violations, including criminal conduct, that they discover to the state bar. I would simply add that that is probably all that the special prosecutors can do themselves. John in Carolina seems be curious about whether the special prosecutors could initiate criminal charges against Mike Nifong, DPD officers or the alleged victim based on the contents of the case file or the results of their own investigation. As I understand North Carolina’s system, they probably cannot. Special prosecutors from the Attorney General’s Office can prosecute cases only at the request of a district attorney. Therefore, their power to initiate charges would be limited by the extent of the request made by the district attorney. One would have to read Nifong’s letter to the Attorney General to determine exactly what he requested special prosecutors to do, but I think it would have been limited to the alleged incident at 610 Buchanan. Any crimes committed by Nifong, the police or the alleged victim would be separate transactions or occurrences and thus outside the scope of the request. However, the special prosecutor could file theft charges if the evidence warranted because such charges would stem from the alleged transaction or occurrence and, indeed, the alleged victim complained that she had her money stolen (by Kim Roberts).
Keep in mind that the most likely and most obvious criminal violations would be violations of federal law which makes it a crime to violate the civil rights of a citizen or to conspire to violate the rights of a citizen. The special prosecutors could and should turn over the results of their investigation to the local United States Attorney if any possible violations of federal law are revealed. However, because any such report would aid in a civil suit against Durham County, it is unlikely that they would do so. In fact, I seriously doubt that the special prosecutors are doing much of anything in the way of new investigation for this very reason.
Let me suggest that NC residents contact the President Pro Tem of the NC Senate, Marc Basnight, to urge him to change the archaic NC laws that enabled Nifong to commit the craven acts that have bought us to this point. Senator Basnight's address is State Legislative Building, Raleigh, NC 27601. He is a decent and honorable man and he needs to know of the widespread concern this incident has aroused. Personal letters are infinitely better than floods of emailed petitions, BTW.
Dear Mr. Clyne:
There was nothing on this tread by or about "Cedarford" until you mentioned it.
We don't go for name-calling here.
If someone makes a false statement you lay out the falsehood as part of saying the person is making a falsehood.
Almost all the people who comment at JinC are reasonable and civil. Some of them are especially helpful because they use facts to point out my errors and avoid name-calling.
There’s nothing personal when I hit the “delete.”
I’m just trying to hold to a standard I think works for my blog. Other bloggers have different standards.
Readers like you can pick and choose among us.
John
Dear HumboldtBlue,
If you read up the thread, you'll see the message I left for Mr. Clyne.
The message was about standards here that apply to everyone.
In the few weeks you've been commenting here, your comments have added to the blog.
I hope you keep commenting in that manner.
John
I understand completely.
All this civility is painful to a junkyard dog like me.
straightarrow said...
All this civility is painful to a junkyard dog like me.
6:17 PM
I'd like to echo that sentiment in regards to Jason Trumbour. He's continued civility and commentary which is always based in fact are driving me crazy. I sense that he could be the source of some hilarious comentary if he wasn't so concerned about doing what is best for Duke. Embrace the darkside Jason.
Carolyn asks:
Mr. Trumpbour: As I understand you, the special prosecutor CAN'T find Nifong guilty because Nifong has tied the prosecutor's hands by deliberately narrowing the scope of his 'request'. And Durham WON'T let the prosecutor find Nifong guilty because that would implicate Durham in a crushing lawsuit.
Mr. Trumpbour, I really hope I've gotten this wrong.
Dear Carolyn,
I'm glad people like Jason Trumpbour, an attorney and law school professor, comment here.
Most attorneys I know say they won't comment on the net because, while most people who read their comments will react thoughtfully, others won't.
What do you hear?
John
Thanks John
I appreciate your posting the comments from "Ex-prosecutor", along with providing the source here for Mr. Trumpbour to share his wisdom on the topic with your readers.
Kent
Carolyn says:
John, I hear the same thing.
The frustration level of this case is so high because so little is explained. When I ask things like 'well, if the case is about rape, but now there's no rape, why isn't it being dropped?', the answer is 'well, that's not how the law works.' So, if I just understand how the law DOES work, it removes a great deal of frustration.
Thank you again, Mr. Trumpbour! And thank you, John, for citing the 'ex prosecutor'. It's been a tremendous help.
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