Posted on 01/19/2007 8:38:22 PM PST by freespirited
Durham District Attorney Mike Nifong is already facing complaints from the North Carolina State Bar that he made misleading, deceitful and fraudulent statements to the media about the Duke lacrosse case.
Additional complaints that the DA intentionally hid DNA evidence favorable to the defendants could be added to that State Bar complaint.
Nifong will defend himself before the State Bar in May.
But Nifong could also be forced to defend himself before a jury in a civil trial down the road.
In a recent interview with CBS's "60 Minutes," the parents of the three indicted players vowed to hold Nifong accountable for how he's handled the Duke case. One parent said: "You will pay every day for the rest of your life."
Exactly how could the families of Dave Evans, Collin Finnerty, and Reade Seligmann go after Nifong?
Don Beskind, an attorney in Raleigh, says it might not be easy.
"District attorneys have an enormous protection against being sued," Beskind said.
Under state law, district attorneys have what's called absolute immunity from civil suits, meaning they can't be sued.
"Even if you've done something for a bad reason, even if your corrupt no matter what as long as your being a DA, you have an absolute immunity." Beskind said.
But according to Beskind, if lawyers can prove Niflong acted outside the scope of his duties as DA, he could lose his immunity.
For example, under state law the families could sue Nifong for defamation, saying he made false statements, either knowingly or with reckless disregard for the truth, and those statements harmed the reputations of the accused players.
But in this case lawyers would have to show Nifong not only made such statements but that he was acting outside his role as DA when he made them.
Meanwhile under federal law, district attorneys have what's called "qualified immunity." This means they can't be sued unless lawyers can prove they should have known their actions violated the law.
In federal court, the players' families could accuse Nifong of violating their sons' civil rights.
They could accuse Nifong of denying their sons a fair trial, or even of producing false evidence. Defense attorneys have already laid out that argument by contending that Nifong withheld certain DNA findings favorable to the defense from a final report presented to the court.
Civil lawyers could also argue Nifong denied their sons a fair jury. Defense lawyers have laid out that argument by accusing Nifong of making misleading or fraudulent statements to the media that may influence potential jurors.
In this case lawyers would have to prove Nifong not only did these things but also knew he was violating the law.
Bye Bye. Pension.
He's the DA. The people of the Co. have the right to his comms regarding any relevant matters. Any case is a relevant matter. As long as the appearence is about some relevant matter, like a case, it's within the scope of his duties.
Interesting read:
It was all about Election Day.
By Thomas Sowell
>http://article.nationalreview.com/?q=Nzc3NTE4NzY1ZTdlZTY5ODZjOThkNjQ3ZTJjZWI4Mjc=<
um...is subornation of perjury a felony ?
leaving out exculpatory evidence and getting the forensic guy to go along with it is what ?
he was initially appointed. and it was as the appointed one who took the case and took it down the rabbit hole.
Okay, fine. Does this immunity protect him from a blanket party in a dark parking lot?
Not quite so fast there.
He is bound by a code of ethics which forbids making "inflammatory statements". Now the definition of an inflammatory statement might not be crystal clear, but the intent of the ethics code is clear.
If he holds a press conference and makes an "inflammatory statement", he is acting outside of his official duties.
If the law requires him to disclose exculpatory evidence, and he instead conspires with the DNA lab to withhold exculpatory evidence, he is not only commiting a crime, he is also acting outside of his official duties.
Nope///Sovereignty Immunity.
The code of ethics regards his membership in the State Bar. That's why there's a State Bar Action.
" If he holds a press conference and makes an "inflammatory statement", he is acting outside of his official duties."
No, see above. Otherwise, he was accting within the scope of his duties when he said whatever.
"If the law requires him to disclose exculpatory evidence, and he instead conspires with the DNA lab to withhold exculpatory evidence, he is not only commiting a crime, he is also acting outside of his official duties."
That would clearly be a fed crime. Why is there no mention of that. The fed crime is not within the scope of his official duties. Only something he overlooked, forgot, ect... Like what happens in IL repeatedly. That kind of thing is within the scope of their duty. Why didn't the judge cite him for contempt?
It's called a "Bivens claim". Look it up. That a lawyer doesn't know that, is telling.
If you mean by the voters in the next election, I hope your right, but it seems he has at least this next term. Otherwise I'm not sure what you mean by "eased out".
I relate to your frustration, but I don't like the idea of this guy being made into any kind of a martyr. He should have to earn back his honor if he is to have any again.
Like I said, I'm just a dumb layman. All I know is what I read in the paper and on FR. What I read is the following in the Durham rag:
Legal experts say Nifong opened himself to civil suits when he took over as the chief investigator of the case in March.
Prosecutors have absolute immunity from lawsuits for their work as an advocate inside the courtroom.
"They are not absolutely protected for misstatements they make at press conferences or actions they took as an investigator," said William Marshall, a constitutional law expert at UNC-Chapel Hill.
http://www.newsobserver.com/102/story/532014.html
Not for a federal civil rights violation.
In Nifong's case...I hope the dude had a decent retirement deal with the state because I don't see him working much after this summer. As the board yanks his papers...he will likely have to ease out and retire. A fellow like him...just isn't going to find easy new employment. Any law firm would consider him a bit tainted and other than CNN advisors...I can't see a real paying job in the future. I'm sure his state retirement deal is easily worth at least $35k per year...so maybe thats not too bad.
RECALL
Nifong's the CO. DA, that's a prosecutors position. A prosecutor's office may have investigators, but they aren't prosecutors. They play the role of investigative police. That puts them in the position of witness. I can't see how Nifong could play the role of an investigator. It looks to me like Nifong just took over the case. That would be if he has assistant DAs and he decided to do it himself. THen whatever he did, would open him up for whatever action by virtue of his actually doing something. As I started to say though, it sounds funny.
"Prosecutors have absolute immunity from lawsuits for their work as an advocate inside the courtroom."
Inside and out, whithin the scope of their duties. Violations of criminal acts, rules of procedure, ethics rules are not within the scope of his duties.
""They are not absolutely protected for misstatements they make at press conferences or actions they took as an investigator," said William Marshall, a constitutional law expert at UNC-Chapel Hill."
The press conference misteps are covered under the bar ethics rules, the judge, or the NC SC also has rules regarding evidence release that could apply. I'm not too familiar with NC. I have no idea what they mean by investigator.
The prosecutor can't investigate and provide testimony to the case he's prosecuting. Prosecutors normally have investigative services at their disposal and they are in charge of directing them in a general way, like telling them to find evidence. Maybe what they're referring to is that he took over some "chief investigators" role and got involved in details. That would open him up to all sorts of accusation, like conspiracy and more.
I haven't followed this case, but if there was anything to the fed criminal stuff I see, the feds would already be on it. Generally the judge puts and end to the whole thing. Then the feds may not be interested, because the defendants remedy of due process has been had. It's the State Bar, I think that has to move. If Nifong conspired to withold evidence, at least one other conspirator has to be IDed. Then they could sue in fed court for conspiracy to deprive rights under the color of law.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.