Sunday, February 01, 2009

Plaintiffs’ response to Nifong’s latest filing

Liestoppers has just posted concerning it.

LS begins:

The Plaintiff's attorneys wasted little time in filing a response to Nifong's January 15 terse motion for dismissal with this filing of January 29.
That’s followed by extracts from the response filing which includes reference to the U. S. Supreme Court’s recent unanimous ruling in Van de Kamp v. Goldstein.

Plaintiffs’ attorneys say Van de Kemp “reconfirms that Nifong is not entitled to absolute immunity for his investigative misconduct and public statements.”

LS links to
an LS Meeting where you'll find a copy of the filing and discussion. Be sure to visit.

The title of LS’s post is a perfect summing up of the disbarred Nifong’s situation:
“Nifong’s Options Running Out”

Hat tip: cks


Ex-prosecutor said...

When prosecutors step out of their traditional role as a courtroom advocate, they no longer have absolute immunity. An example would be when a DA goes with police officers as they execute a search warrant. This is a non-traditional role and the DA can be liable, just as police officers are, if, for instance, the warrant is executed at the wrong address and the homeowner is shot.

My opinion always has been that Mr. Nifong probably would not have absolute for many of the things I think he did, such as rig the photo lineup and ask that a deceptive DNA report be prepared. The same may be true of his outrageous statements regarding the three defendants.

As of now, I don't see how he can expect to have the suit against him dismissed because no depositions have been taken and nobody can be sure of exactly what he did.

In the depositions, each group of defendants (Duke, police, Nifong, DNA etc.) will want to dump on the others, to deflect liability from themselves. The city of Durham can be tagged only if police supervisory personnel violated the plaintiffs' rights. So, to whatever extent they can, police supervisors will dump on lower ranking officers.

I haven't kept up with the law on prosecutorial liability for ten years or so. But at that time, there simply were no court decision regarding the screwy things that Mr. Nifong did to involve himself in this case.

Following law school, I was a law clerk for a federal judge and I cannot imagine how the judge to whom this is assigned is going to handle this. I expect that he has two clerks and they must sift through huge briefs drafted by teams of many lawyers and arguing complicated issues for which they are few court, if any, previous legal decisions.

Anonymous said...

Ex-Prosecutor is right: this case will plow new ground. Nifong's behavior was so outrageously and obviously against tradition and ethics, it is impossible to conclude that any Assistant DA (all officers of the court) in the DA's office was unaware of what was going on. Yet the current DA pretends she had no direct knowledge of Nifong's actions. She must think all of us are as stupid as the MSM that conspired with Nifong to frame three innocent men.
Tarheel Hawkeye

Anonymous said...

DIW has a posting from KC Johnson "Responding to Nifong" wherein he explains the roles which Nifong undertook in this case. Johnson is very explicit in what Nifong can be liable for and for what he cannot. It is very interesting reading.