Posted on 01/14/2007 4:25:09 PM PST by Howlin
Great issues you raise.
I came to this thread the day after. I saw the parents last night and thought they did an excellent job. Do you know exactly what (legal) remedies they are pursuing that will make Nifong sorry every day for the rest of his life?
I am not sure what their strategy is at this time. First the charges have to be dropped. Then, they have to sit down with the attorneys and see how far they want to go. I hope with all my heart that they have the strength and resolve to resist any attempts by anyone in the case to "settle" in exchange for dropping the charges or to settle for less than a lawsuit is worth. And thank you for your kind words.
Thanks for the fast response. I didn't see any of these parents as the settling type. Their kids have been irreparably damaged and they have the resources to go after the DNA expert, Nifong, the county, the state, Duke, and everyone else for damages. The boys should be compensated with huge amounts of cash they arguably have been cheated out of earning for the next 45 years. Their reputations are in shreds. Libel?
Also, their families have been through hell and deserve some kind of award for their pain and suffering and public humiliation.
As Leslie Stahl said, just google their names.
I'd like to see this turn into a huge trial with enormous awards just to discourage the next set of sleazes from going after "white boys." You'd think the ACLU would come running to their defense on grounds of clear racial bias. Hell, sue the NAACP too.
Exactly right - post #291. Durham is NOT a college town and IS as you say a very dangerous place. I personally know of two people who got lost in Durham and one was murdered and one was assaulted. I vowed to stay away from Durham unless absolutely necessary to go there.
Well - yes re: the liberalism on Duke's campus and other campuses throughout the country. However, the problem in Durham is that REAL CRIME has long been dealt with by the city police and city fathers with kid gloves. Durham was for a long time the murder capital of NC. Don't know if that's true now. It has a crime rate that should not be tolerated by any police department worth its salt. Durham's is not worth squat.
"Seriously, people will still line up to play for coach K" - Yes he's the best thing Duke (and Durham) have going for it (them).
Well - you're r9ight - it always pays to do the RIGHT thing no matter what else is going on. I'm sorry but Democrats in this state have skated on so many issues from corruption to just pure power crazed behavior that I am more disgusted about his actions as a Democrat power luster than about anything.....power is THE most important thing to Democrats in places of political prominence.
If this is not true - I await someone's documented case to prove me wrong.
I am just curious about to whom Nifong talked when this case first came up. I want to know if he was talking with some of the radical Marxists dominant in Durham political circles - the ones who have made it a point to go easy on Durham thugs, criminals, and gang members to the point that much crime in that city is sneezed at - or has been in the past. Such behavior hurts the African American community in Durham worse than anyone else because the crimes are black on black crimes - many of them murders, drug and gang shootings.
Durham Marxists see itself as New Orleans mayor Nagin sees N.O. - as a "Chocolate" city - in which, much like NO, major crimes centers are allowed to flourish rather than being cleaned up - again hurting the predominantly African American neighborhoods in which Durham's hoodlums live terrorizing its neighbors. THE DECENT GODFEARING DURHAM RESIDENTS HAVE BEEN ABUSED BY THE POLITICAL MACHINE IN DURHAM FOR YEARS AND YEARS....and Nifong is a cog in that machine. It's a shame this crime became black against white instead of wrong against right.
I responded by pointing out that, while plaintiffs are prevented from using the 5th as a shield in civil cases, in a bar proceeding, the court has held that no penalty can be applied to a party invoking the 5th. That would include, in my recollection, adverse inferences and similar penalties. I believe that the court has held that such administrative proceedings are "quasi-criminal" in nature, and thus, you must make no adverse inference from silence, just as you can make no adverse inference from silence in a criminal case.
Your initial post concluded, "So should he take the Fifth in the disciplinary proceedings, Nifong would be risking an adverse inference that could be quite hazardous to his license to practice law in North Carolina.". I don't think that is correct, and the reason is, I don't think that a bar discipline proceeding is considered a "civil" proceeding to which your authorities apply, but a "quasi-criminal" one. I think that's the terminology used, anyway.
So, what we are on the same page on is that you can't plead the 5th in a civil action in which you are affirmatively trying to prove something, at least without consequences. But where we seem to be disagreeing is whether a state bar proceeding, such as the one against Nifong, is one of those types of actions. I think he can plead the 5th, and there will be no negative inference or issue preclusion--the state will just have to prove its case. However, if Nifong does testify, he will have to answer any and all questions--you can't just testify as to the good stuff and then clam up.
If you have case law subsequent to the Supreme Court's decision to apply the 5th amendment to administrative proceedings, such a bar discipline actions, which indicates that a bar discipline action is a civil action at which an adverse inference may be drawn against someone who invokes the privilege, I would love to see it. I'd be happy to be wrong, because I agree with you that the court, for the millionth time in the last century, exceeded its mandate in extending rights beyond their boundaries.
I've never seen such a case, and would very much like to read it, because this is an important issue. I can tell you this, though: In Baxter v. Palmigiano, 425 U.S. 308, 320 (1976), the Court expressly held: "The short of it is that permitting an adverse inference to be drawn from an inmate's silence at his disciplinary proceedings is not, on its face, an invalid practice" under the Fifth Amendment.
In so holding, the Court noted that "[p]rison disciplinary hearings are not criminal proceedings," id. at 316, further explaining: "The prevailing rule [is] that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence against them: the Amendment 'does not preclude the inference where the privilege is claimed by a party to a civil cause.'" Id. at 318 (quoting 8 J. Wigmore, Evidence § 2272 at 439 (McNaughton rev. 1961)) (U.S. Supreme Court's emphasis).
Now I don't know about you, but my guess is that the prison disciplinary proceeding at issue in Baxter, which resulted in the accused inmate-defendant being subjected to what the Court characterized as "'punitive segregation' for 30 days," as well as a downgrade in his "classification status," id. at 313, was quite a bit more "quasi-criminal" than any attorney disciplinary proceeding, even one that resulted in an attorney's disbarment.
For these reasons, any subsequent Supreme Court decision holding that because attorney disciplinary proceedings are "quasi-criminal" in nature, no adverse inference (much less total issue preclusion) can be drawn from an attorney's invocation of the Fifth Amendment either during discovery or at trial, would be a significant departure from Baxter, which would, of necessity, have to be distinguished. Maybe this has indeed occurred (and if so, it would certainly be yet another instance in which the Court "exceeded its mandate in extending rights beyond their boundaries" as you noted), but at this point, I am not aware of such a case.
If you can specifically identify the case to which you are referring, it would help clear this up. Otherwise, I think the many cases I have cited and quoted provide at least some support for my argument.
Meanwhile, when I have a chance, I'll Shepardize Baxter to see if it's been distinguished in a subsequent attorney disciplinary case decided by the U.S. Supreme Court. Meanwhile, perhaps you can dig up the case you're remembering. Does that sound like a workable plan?
"Texan"
Texhole.
;)
Okay, BB, I'll see if I have time during the day to find some cases for you. I am impressed with your ability to put together a brief in short order. Oh, and stay out of Imo's! Rich and Charlie's is much better.
"Of course, if Nifong was asked if he was aware of such evidence, his denial would be an absolute lie no matter what sort of Clintonesque parsing he tried."
Nifong did, in fact, specifically state that he was unaware of any other evidence to that effect IN OPEN COURT!!!
By your own logic, that is "an absolute lie no matter what sort of Clintonesque parsing he tried."
"...the defendants would need a smoking gun as to improper motive by Nifong..."
His former campaign has already stated publically that Nifong's only motivation for running was to "get three years and some odd months" more on the payroll/dole (paydole) inn order to maximize his pension.
Tie his motivation for running to his bringing of the case, and the improper motive argument is made.
"...Coach K may well be available ..."
You are on crack if you really believe that stement of yours.
Please take your history discussion off-line.
That is a bit harsh. My surmise was that if the negative PR begins to affect the quality of student athletes Coach K can recruit, then he might want to move to another big time but academically committed program. However, if you have a deeper insight into Coach K's make up, then I would certainly bow to your superior insight.
And no, I was not on crack on either occasions that I raised this possibility.
Lighten up, "on crack" is merely a figure of speech.
K has spurned even the NBA -- for millions more than he could ever make at Duke or elsewhere -- on multiple occasions. He is going nowhere.
Now you may bow.
;)
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