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Lawyer: DAs Have Protection From Lawsuits
NBC Durham ^ | 1/19/07 | Carolyn Costello

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.


TOPICS: News/Current Events
KEYWORDS: caste; castesystem; dukelax; nifong; prosecutormisconduct
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To: Gay State Conservative

Bye Bye. Pension.


21 posted on 01/19/2007 9:18:38 PM PST by rwilson99 (95% of Al-Jazzera Viewers Agree... the world is less safe (for them) since 9/11)
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To: coloradan
"What duty does a DA have to hold press conferences and lie to the general public during them? Where is this duty specifically spelled out in law or in Constitution?"

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.

22 posted on 01/19/2007 9:27:35 PM PST by spunkets
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To: freespirited

Interesting read:

It was all about Election Day.

By Thomas Sowell

>http://article.nationalreview.com/?q=Nzc3NTE4NzY1ZTdlZTY5ODZjOThkNjQ3ZTJjZWI4Mjc=<


23 posted on 01/19/2007 9:27:49 PM PST by STE=Q ("Diplomacy is the art of saying 'Nice doggie' until you can find a rock." (Will Rogers))
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To: freespirited

um...is subornation of perjury a felony ?

leaving out exculpatory evidence and getting the forensic guy to go along with it is what ?


24 posted on 01/19/2007 9:29:49 PM PST by stylin19a
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To: gcruse

he was initially appointed. and it was as the appointed one who took the case and took it down the rabbit hole.


25 posted on 01/19/2007 9:33:34 PM PST by stylin19a
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To: freespirited
Under state law, district attorneys have what's called absolute immunity from civil suits, meaning they can't be sued.

Okay, fine. Does this immunity protect him from a blanket party in a dark parking lot?

26 posted on 01/19/2007 9:40:40 PM PST by TheSpottedOwl (If you don't understand the word "Illegal", then the public school system has failed you.)
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To: spunkets
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.

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.

27 posted on 01/19/2007 9:55:22 PM PST by CurlyDave
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To: Gay State Conservative

Nope///Sovereignty Immunity.


28 posted on 01/19/2007 10:07:46 PM PST by tomcorn
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To: CurlyDave
"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."

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?

29 posted on 01/19/2007 10:14:10 PM PST by spunkets
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To: freespirited

It's called a "Bivens claim". Look it up. That a lawyer doesn't know that, is telling.


30 posted on 01/19/2007 10:16:47 PM PST by ikka
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To: Cicero
...I think Nifong is washed up and will be eased out of office...

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".

31 posted on 01/19/2007 10:27:38 PM PST by AndyTheBear (Disastrous social experimentation is the opiate of elitist snobs.)
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To: TheSpottedOwl
Okay, fine. Does this immunity protect him from a blanket party in a dark parking lot?

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.

32 posted on 01/19/2007 10:35:15 PM PST by AndyTheBear (Disastrous social experimentation is the opiate of elitist snobs.)
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To: spunkets; CurlyDave
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.

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

33 posted on 01/19/2007 10:55:51 PM PST by freespirited (Honk for disbarment of Mike Nifong.)
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Comment #34 Removed by Moderator

To: STE=Q
"Nifong's actions in this case have so tainted him that -- for all practical purposes -- his career may be over anyway."

Stay tuned...every case Nifong has been involved in that ended with a guilty verdict will come back to haunt him. I would guess defense attorneys are hovering over cases now. Nifong gave the convicted a "Get out of jail free card." Nifongs problems have just began. I know he jumped at the LaCross case to get elected, but what do you think he has done in the past, just to win. That is the question he will be hearing now.
35 posted on 01/19/2007 11:00:45 PM PST by fabriclady
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To: freespirited

Not for a federal civil rights violation.


36 posted on 01/19/2007 11:01:49 PM PST by Mike Darancette (Democrat Happens!)
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To: Cicero

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.


37 posted on 01/19/2007 11:03:56 PM PST by pepsionice
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RECALL


38 posted on 01/19/2007 11:24:49 PM PST by wodinoneeye
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To: freespirited
"Legal experts say Nifong opened himself to civil suits when he took over as the chief investigator of the case in March."

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.

39 posted on 01/19/2007 11:46:52 PM PST by spunkets
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To: Gay State Conservative
>OK,so the DA him/herself is immune....but the county who employs said DA can be sued for serious $$$ because of the DA's breathtaking incompetence or misconduct.

Absolutely. Actually, not the county but the State as the county is a political subdivision of the State.

State will never let something like this go to trial. Settlement will be in range of two to five million per student.
40 posted on 01/20/2007 12:06:02 AM PST by MindBender26 (Having my own CAR-15 in Vietnam meant never having to say I was sorry......)
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