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.


Hearing Judge now discusses the victims whom he declares to be the players, the entire team, honest prosecutors, the justice system. You can't do justice in the media.

The person most powerful in the justice system is the prosecutor. He is imbued with an awe that if he says so, it must be so. Just by charging a defendant, he has a leg up. When that power is abused, as it was here, it puts constitutional rights in jeopardy. The system only works if the people who participate in it respect those rights. Mr. Nifong, out of self-interest and self-deception, not necessarily out of an evil motive, lost his way. His judgment was so clouded by his own self-interest, he lost sight of this.

Nifong perpetrated deceptions on the public. He made people look foolish. Last spring, the public opinion was so against these defendants. Think of the public approbation they suffered. And how the truth came out slowly in small increments. And what public opinion is now, a 180 degree turn. And those who believed what the prosecutor said because he was the prosecutor were made to and still look foolish.

It's hard to find good in this situation. There are very few deterrents upon prosecutorial misconduct. They are virtually immune from civil liability. About the worst that can happen is for the case to be overturned. The only significant deterrence is the possibility of disciplinary sanctions. Here, the most severe sanction is warranted.

Additional comments now being made about something in Nifong's written response to the bar complaint in which he made a reference to people being out to get the prosecutor. We have applied the rules and we believe we are correct. We have a case here of intentional prosecutorial misconduct.

This should be a reminder to everyone that it's the facts, not the allegations, that matter. You can't just jump to conclusions and rely on someone who is supposed to know.

This is an opportunity to remind everyone that this is the first public hearing in this matter where evidence has been taken. And while we heard evidence this week about more than Mr. Nifong, our jurisdiction is only Mr. Nifong. Nonetheless, we acknowledge the actual innocence of the players and we have heard nothing to the contrary this week.

A written order will be entered in the near future, but will take time.

Nifong said earlier he won't appeal.


Bump and Update: Mike Nifong stole the thunder from the Ethics panel. After closing arguments, he said he will surrender his license. He said he got a fair trial and won't appeal. But, he didn't give up his license, he just said that's what he believes the appropriate penalty should be. The panel still has to issue a decison. Quite confusing.

Update: Judges find Nifong committed 27 of the charged 32 violations, including making false statements and engaging in dishonesty to court, opposing counsel and Grievance Committee. The penalty phase witnesses are now on the stand.

Bump and Update: The judges are in lunch recess deliberating which charges the bar prosecutors have proven against Nifong. At 2:00 pm ET, they will be back in session, announcing their findings. You can watch live here.

Then the punishment phase begins. Here is WRAL's recap of this morning's closings. Nifong's defense: His mind works differently than other people's (shorter version: he marches to the beat of a different drum.)

"It didn't click," Nifong's attorney, Dudley Witt, said as he tried to explain away one of his client's errors. "His mind is just his mind. That's the way it works. It just didn't click."

His lawyer is trying to convince the judges that Nifong's actions were negligent or at worst knowing, but not intentional, since some of the charges require them to find he acted intentionally.

I watched a long portion of Nifong's closing. One of the judges peppered his lawyer with questions, as if it was an appeal oral argument, rather than a closing. The Judge was not buying it at all.

Original Post:

Nifong Trial Continues Today With Closings, Deliberations

The ethics trial of Durham D.A. Mike Nifong continued until 8:45 p.m last night after Nifong presented character witnesses and the bar prosecutors called one rebuttal witness. News recaps of yesterday are here and here.

Court resumes at 9:00 a.m. Saturday, with closing arguments followed by deliberations by the 3 judge panel. The deliberations will be in two stages, one to decide if Nifong committed the violations charged in the complaint (available here, pdf) and the other, assuming he has, to decide punishment.

You can watch online here. Prior days testimony is available here.

This is not the end for Nifong. The defense plans to ask the judge that presided over the criminal case against the players to hold Nifong in criminal contempt. They also plan civil suits.

Mr. Cheshire said defense lawyers planned to file a motion requesting that Mr. Nifong be found in criminal contempt of court for misstatements to the judge and lawyers in pretrial hearings. The charge, if upheld, could result in fines or jail time. The families are also considering civil suits.]Mr. Cheshire said defense lawyers planned to file a motion requesting that Mr. Nifong be found in criminal contempt of court for misstatements to the judge and lawyers in pretrial hearings. The charge, if upheld, could result in fines or jail time. The families are also considering civil suits.

I suspect the criminal contempt finding is being sought to defeat any claim of qualified government immunity in the civil suits, but since I'm not a civil lawyer, that's just a guess.

TalkLeft coverage of yesterday's hearing, including Nifong's surprise testimony that he intends to resign is here.

< Why Does the Media Not Care About Lies From the Bush Administration? | The Lesson in the Mike Nifong Debacle >
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  • Display: Sort:
    Mind ticks (5.00 / 1) (#2)
    by 1980Ford on Sat Jun 16, 2007 at 12:25:37 PM EST
    If that's the way his mind ticks, it's been ticking like that for 25 years. That means every one of his convictions needs reviewed.

    Finally an overzealous (5.00 / 1) (#3)
    by Electa on Sat Jun 16, 2007 at 03:00:24 PM EST
    prosecutor is condemned.  Nifong used that woman for his selfish political gains and tried to destroy those young men.  He should be tarred and feathered.  Although, I doubt seriously that had not the 3 Duke students been white, affluent  and attending an Ivy League institution that the outcome would have been drastically different. FoxNews wouldn't have gone on a Nifong and victim media lynching.  I was disturbed at Jackson, Sharpton for prematurely getting involved in a media circus over this case.  It was suspicious from the onset.  Black folk have enough ligitimate cases of prosecutorial abuses that J&S could focus their attention on.  They crossed the racism line on this one.  J&S saw an opportunity to lynch 3 rich white boys and held fast to their position even as the case fell apart before their eyes.  Jesse and Sharpton lost credibility and hurt the cause of African-American injustices.  

    ZERO advantage (none / 0) (#19)
    by Abdul Abulbul Amir on Sat Jun 16, 2007 at 11:05:41 PM EST
    Although, I doubt seriously that had not the 3 Duke students been white, affluent  and attending an Ivy League institution that the outcome would have been drastically different.

    The outcome different?  Of course!  If they were black they would never have been charged in the first place.  Nifong would have gained ZERO political advantage charging and demonizing black defendants.


    What about his other cases? (5.00 / 1) (#10)
    by OkieFromMuskogee on Sat Jun 16, 2007 at 05:08:42 PM EST
    Since Nifong brought charges against these rich white boys without benefit of evidence, it's a stretch to believe that this is his first time.  At least these guys could afford good lawyers and therefore expose Nifong for what he is.  

    But Nifong has been a Durham prosecutor for years, although not always the head man.  Someone should be taking a look at his other case files.  Let's start a pool on how many innocent people he's put in jail in the past using the same tactics.  

    yep, that would be my guess too (none / 0) (#1)
    by cpinva on Sat Jun 16, 2007 at 07:38:12 AM EST
    qualified immunity, like the corporate veil, is pierced by the knowing commission of a criminal act. absent that, and a civil suit has no hope of surviving a motion for summary dismissal.

    Question: were the Duke la crosse (none / 0) (#4)
    by oculus on Sat Jun 16, 2007 at 03:21:45 PM EST
    players who were charged indicted by a grand jury?

    yes (none / 0) (#5)
    by Jeralyn on Sat Jun 16, 2007 at 03:38:18 PM EST
    but there's a backstory to that as well.  For a history of how the case evolved and imploded, check the archives.

    Am I wrong? (none / 0) (#6)
    by Kitt on Sat Jun 16, 2007 at 04:37:56 PM EST
    I saw on Fox News (yeah, I was watching - SO?!) that Nifong was disbarred for five years. Was that incorrect?

    I just happening to be flipping, saw MCHammer talking to Sean Hannity (whoa! that's totally freaky!) and then a NewsFlash came crashing in with the above news.

    There is a weird parallel between Nifong and Libby (none / 0) (#7)
    by jerry on Sat Jun 16, 2007 at 04:49:48 PM EST
    Libby's Obstruction of Justice kicked sand in the face of the umpire -- so that we may never know what happened.

    Even today, certain feminist bloggers are claiming that Mangum was raped in the bathroom, and that if it wasn't for Nifong's acts the Duke students would be in jail.

    I don't believe such beliefs are good for feminism or society.  I wish more feminists were interested in fair trials and free speech for everyone.  (At times Jeralyn, you and free speech feminists like Wendy Kaminer have been dismissed by more "mainstream" feminists.)

    I do not think disbarment is sufficient.  Prosecutorial abuse under color of law should be a criminal act.

    I'll eat crow (none / 0) (#8)
    by atlanta lawyer on Sat Jun 16, 2007 at 05:03:24 PM EST
    Never thought it would happen. Today, I am more proud to call myself a member of a noble profession that refuses to tolerate this sort of behaviour from one of it's members.

    I can appreciate that Nifong probably felt he was doing the right thing all along.  But like too many prosecutors, he had a very myopic concept of "right".  Being a prosecutor takes a certain disposition, a willingness to be self-critical and critical of your own case and a deep seated concern about accusing citizens of crime. Not that prosecutors should be weak, but they should careful.  And if, a la Nancy Grace, they lack that concern, then they should be careful out of fear and self-preservation. I hope Mike Nifong can be an example, though I fear that in many jurisdictions, and given the poverty and lack of clout that most criminal defendants bring to the table, many prosecutors get away with this stuff for years. Many are even forced to act unethically by their supervisors.

    I'd just like to pass along (none / 0) (#9)
    by naschkatze on Sat Jun 16, 2007 at 05:04:21 PM EST
    Mediamatters put a comment on the thread over at HuffPo that there will be an op-ed piece tomorrow (Sunday, June 17)in The Chicago Tribune by a woman named Anne Ream about remaining troubling aspects of the Duke case from the victim's perspective.  Personally, I am troubled when so much power and so much money line up on the side of the defendants and against the prosecutor, and usually it's the other way around for me.

    You will not (none / 0) (#11)
    by Jeralyn on Sat Jun 16, 2007 at 05:16:17 PM EST
    use TalkLeft to smear the players or imply that that  something happened. We have now had two declarations of actual innocence. Accept it. And  use another blog if you want to speculate otherwise.

    Fair warning, such comments will be deleted.


    Re: Prosecutorial immunity (none / 0) (#12)
    by scribe on Sat Jun 16, 2007 at 06:23:22 PM EST
    TL and CPinVA both mention the potential for civil immunity, viz.:

    I suspect the criminal contempt finding is being sought to defeat any claim of qualified government immunity in the civil suits, but since I'm not a civil lawyer, that's just a guess.

    I've commented/blogged here about this issue before, but I can't remember where so I'll just synopsize. I've defended about 10 civil cases where the prosecutor was sued by a defendant for alleged violations of civil rights or tortious conduct.  These cases are losers for the plaintiffs. I never lost one and never heard of one being lost save where there was actual criminality by the prosecutor.  The cases are usually disposed of on motions to dismiss - even before discovery gets started.

    The short version is this.  The prosecutor is entitled to at least three species of immunity from civil liability and, even, against the prosecution of a civil case.  These are:
    (1) absolute prosecutorial immunity;
    (2) qualified immunity;
    (3) judicial proceedings immunity.

    There are several more, too, which I discuss later.  You usually address them in this order:

    (1) absolute prosecutorial immunity - This comes from the US Supreme Court case of Imbler v. Pachtman, a late 60s case out of California where, IIRC, the prosecutor knowingly got a conviction of the wrong guy for a murder.  In short, if the conduct which allegedly gives rise to liability involves the individual performing any of the duties of a prosecutor - meeting witnesses, presenting evidence, trying cases, representing to the court, deciding which evidence to put on or produce in discovery, withholding evidence, etc., then the prosecutor is deemed to be acting as a prosecutor.  When a prosecutor is acting as a prosecutor, he is absolutely immune.

    Imbler and prosecutorial immunity means there is absolute immunity from civil liability for things like:  Brady violations, knowingly putting on perjured testimony, withholding relevant evidence, tampering with witnesses, securing indictments against known innocents (e.g., by giving the grand jury a partial view of the facts - the one which supports an indictment), misconduct (i.e., lying) to support warrants, lying to the judge, trial misconduct.  The list goes on, but you get the idea - the examples I list are from reported cases.

    Anything which survives absolute immunity then gets to address -

    (2) qualified immunity - this is the same immunity any other law enforcement person gets against civil rights claims.  The question is, in short, whether a reasonable law enforcement official in the position of the defendant knew or should have known that the conduct allegedly giving rise to the liability was unconstitutional/ a violation of the plaintiff's civil/constitutional rights.  This would apply to any conduct of the prosecutor where he was not acting in the core functions of a prosecutor.  Such things as press conferences that go beyond a mere "we have arrested X and charged Y, look at the pile of guns, money and dope we took" are about the closest a prosecutor ever gets to liability (and those are probably immune depending on the words used).  The scope of qualified immunity keeps getting larger, as every time Scalia and his buddies get their hands on a case, they find in favor of law enforcement (viz. the recent car-chase case).

    Then you address -

    (3) judicial proceedings immunity - this is the immunity given to lawyers, judges, witnesses and all the other personnel involved in courtroom activity, so they can say bad things about defendants and witnesses and do the investigating they have to do, in order to try cases effectively.  The scope of this immunity is defined by state law, so I won't go further.

    These usually have the effect of knocking out all claims against a prosecutor under the Civil Rights Act (42 USC sec. 1983).  

    Then you address claims grounded in state law.  

    He may also be entitled to immunity:
    (4) under N.C.'s version of its Tort Claims Act
    That's a state law issue which I don't have any knowledge about other than to say that most states' TCAs have immunity for public employes except where the act in question is willful, criminal, or outside the scope of employment.  

    Again, this is a state law issue I won't address because these Tort Claims Acts and their annotations usually merit a whole book unto themselves.  My guess is that the lacrosse players' lawyers are going strictly under state law-based claims, as federal civil rights claims will go nowhere fast, and the criminal contempt finding may open the door to state law liability for Nifong.

    Then, depending on the State's constitutional structure and the place the prosecutor plays in it, he might get yet another bite at immunity -

    (5) Under the Eleventh Amendment, there can be immunity from federal civil rights suits under particularized circumstances through a narrow, but growing, area of Eleventh Amendment law.  This is really subtle and involved, and I won't get into it here.


    (6) In appropriate cases, I also used to drive plaintiffs (and their lawyers) nuts by invoking the Rooker-Feldman doctrine in particular cases to eliminate subject-matter jurisdiction.  There was a Supreme Court decision last year (i.e., several years since I did these cases) in which the scope of Rooker-Feldman was narrowed, so I haven't looked at whether my syllogism would continue to apply (and I won't share it because it was my original idea - and wickedly powerful, too.).

    Immunity is addressed before discovery begins.  Only the claims which survive immunity are proper fodder for discovery.


    re: too much immunity! (5.00 / 1) (#17)
    by 4liberties on Sat Jun 16, 2007 at 08:20:32 PM EST
     This very much sounds like "if the president does it, it is not illegal". Or, alternatively, like the "state secrets" doctrine, "if we say so, it is a secret".

     Without some responsibility, a lot of BS is just bound to happen ...


    Help me understand... (none / 0) (#13)
    by sphealey on Sat Jun 16, 2007 at 07:10:37 PM EST
    > OK?

    Sure.  Now could you help me understand where "justice" is to be found in that sequence?  



    in the eye of the beholder? (none / 0) (#14)
    by atlanta lawyer on Sat Jun 16, 2007 at 08:00:34 PM EST
    The traditional jurisprudential justification for this has been than prosecutors should not be hampered in making sure that criminal laws are obeyed and they might feel chilled in doing that if civil liability would lie for a bad judgement call.

    A bad judgement call? (none / 0) (#16)
    by sphealey on Sat Jun 16, 2007 at 08:05:43 PM EST
    > if civil liability would lie for a bad
    > judgement call.

    The Nifong case was not a "bad judgement call"; it was clearly deliberate obstruction of justice by Nifong.  So I am again left scratching my head where the "justice" comes in.  Had he succeeded in his crime the original defendants would have gone to jail; he was caught so he.... loses his law license.  Wow.



    ok, first off, (none / 0) (#15)
    by cpinva on Sat Jun 16, 2007 at 08:03:39 PM EST
    justice, like apples and wheat, is a bought and sold commodity. in theory, it's the same in theory and practice. in practice, it isn't.

    the underlying precept of immunity for public officials, especially those in law enforcement and the judiciary, is to eliminate/reduce nuisance suits against them, for doing their jobs.

    its basis lies in english common law, and the theory that the king is above the law (sovereign immunity), and therefore those representing him are as well. when you are god's personal designee ("divine right monarchy"), clearly you can do no wrong.

    this all began to change after the english revolution (charles I went a wee bit too far, and lost his head to cromwell), and the crown became a "constitutional monarchy". however, the concept of sovereign immunity remained, and crossed the atlantic to jamestown.

    while it has evolved over the centuries, the basic premise remains: public officials can't vigorously carry out their duties, if they live in constant fear of having to defend themselves in lawsuits, by unhappy members of the public.


    You make a compelling argument (5.00 / 1) (#21)
    by demohypocrates on Sun Jun 17, 2007 at 01:15:34 AM EST
    for prosecutorial immunity.  But, like most everything in law, this notion is not untouchable.

    I don't have any qualms with your defense.  It is based on long held and fundamental legal precepts.  But you wholly base your argument on one public policy consideration.  In this instance, there are competing public policy arguments which should be addressed.  I think they trump your vigorous public servant argument.  Please consider these:

    1.  The ability of the general public to have faith and confidence in the local justice system. Nifong destroyed that.  Disbarrment?  Is that a sufficient penalty for the broken relationships in the Durham community?

    2.  The Rule of Law.  The main individual entrusted with enforcing the law, violated it.  The Justice system was smeared, and the law was smeared as well.  See 1 for implications.

    3.  The damage done to the original lying victim.  The previously alleged victim, is obviously a troubled woman.  Many have heaped scorn upon her for her lies.  I won't because I think MN used her for political votes.  Abuse of an obviously disturbed person.

    4.  Recompense for the wrongly accused.  Their rights were violated  NO LESS THAN 27 TIMES.  LIES,FRAUD,DECEIT - I didnt make those words up.  See the final decision.


    The fact that the families of the Duke 3 had enough money to destroy this case is a blessing.  But these families have suffered severely because of MF's lies and misrepresentations.

    You know, I used to think the Duke 3 were owed beaucoup bucks from the MFer, but the way things have played out, C, R and D are vindicated and look like a few fellers that are gonna do real well!!!  They had a real crappy year, but handled themselves with such dignity, they have grown beyond their resumes.


    A change? (none / 0) (#20)
    by 1980Ford on Sat Jun 16, 2007 at 11:14:38 PM EST
    Has Whitaker v. Garcetti, 291 F. Supp. 2d 1132, changed this at all? Or maybe it falls into one of the categories.

    Scribe's diary (none / 0) (#22)
    by Jeralyn on Sun Jun 17, 2007 at 11:48:48 PM EST
    on immunity is available here.

    Nifong bisbarred (none / 0) (#18)
    by bigdog on Sat Jun 16, 2007 at 09:37:18 PM EST
    So Nifong is disbarred. Big deal. Bill Clinton was disbarred for 5 years and he is still loved by millions of fools who think private and public are separate spheres.

    At least Nifong resigned.

    nusun (none / 0) (#24)
    by sarcastic unnamed one on Mon Jun 18, 2007 at 12:40:15 PM EST
    Usually people who post here have some semblance of rational thought. And some concept of actual facts. You clearly have no capacity for either of these traits.

    My suggestion would be for you to take some time and read TL's Duke Case Blog and at least educate yourself as the facts of the case.

    You might learn something.