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.
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.
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.
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