Saturday, June 16, 2007

Bye, bye, Nifong

Astounding as it is, the state bar of North Carolina has disbarred a prosecutor for ethical violations in prosecuting a case. Suffice it to say, getting a prosecutor disbarred for doing their core duties (as opposed to doing something unethical outside their duties, such as committing a crime on their own time) in an unethical manner is an unusual occurrence. North Carolina has a pretty tepid history of punishing prosecutors who withhold evidence. In the case of Alan Gell, prosecutors withheld important exculpatory evidence and gained a conviction putting Gell on death row for 9 years. He was lucky enough to get a new trial and get off death row in an unusual manner - through exoneration. Consider him lucky. In that case, and another, prosecutors got off with barely a slap on the wrist for wrongly putting someone on death row. You can read more about those cases here.

It is hard not to be a little cynical about this whole thing. As I've discussed previously, one of the main reasons this case has made the press, and that Nifong is getting the book thrown at him, has to do with race and class. Obviously, we all know that the defendants in this case were white and relatively well-off (playing an "upper middle class" sport lacrosse no less) and that the victim was African American and poorer. I don't think that it's a straight race or class issue, but both work hand in hand to create a very dynamic for these defendants and prosecutor than you'd see in your typical case (typical cases involve poorer people and higher percentages of minorities).

This is why prosecutors can withhold evidence on poor minorities (or even poor white people - Gell was white), and generally escape serious punishment. Now let's be clear, Nifong did some serious digging here, putting himself front and center of this absurd prosecution -probably in order to ensure his re-election. So, he was not your typical prosecutor withholding evidence, but it does bear some scrutiny that Nifong did things that prosecutors everywhere have done (I'm not saying that all prosecutors, or even that a large percentage of them, do this. Far from it, it's a small minority, at least where I practice), yet most prosecutors face little or no sanction for doing these things.

And what is the message to other zealous, or especially overzealous, prosecutors? The message is that you can continue to do this without real fear of sanction. Think about it. You're a prosecutor in a heinous case with a defendant you despise. You believe he did it, but you know you probably can't prove it. You can withhold a little evidence, plead ignorance, and have the person go away for a decade or two before his case gets reversed (which is a longshot anyways, since 90% or more of all appeals are denied anyways - even for likely innocent people - think "harmless error"), if it gets reversed at all. Or you can be ethical and watch him get acquitted right now, possibly hurting your chances at advancement within your office. Moreover, it's a blow to you personally.

Most prosecutors won't care, they'll do the right thing. However, there are a number of overzealous ones out there, aware of the manner in which the courts and state bars enable this activity, that will do the wrong thing - just because they can.

It's nice that Nifong got nailed, and got nailed the way he did. I rather think it has more to do with the type of person he dragged down rather than what he did. He went after otherwise really good people whom he dragged way down in contrast to otherwise unremarkable, or even bad people, who didn't fall far from where they already were when ensnared by unethical prosecutors. I'd like the punishment to prosecutors to be the same regardless. Remember, Nifong felt like he could act with impunity towards these otherwise good, law abiding, people only because of the well-trod path laid out before him by his predecessors. That should scare everyone.


CS Legal said...

Since you must drag race and class into everything legal, I knew our "agreement" would last only a short while...

Just think about say that Nifong is overzealous is an understatement. He deserves everything he got plus the criminal contempt and civil penalties that are coming. But he ain't stupid...he knew who he was charging, and their status and race. He did it for a reason. If he didn't think that he could get away with it by fanning the flames and exploiting "race" he wouldn't of done it. The bottom line is, contrary to what you say, he did what he did based exactly on social class and race (rather than just a mere mistake in picking on the wrong class of people as you seem to imply) by believing that the mere fact that a minority victim was involved he would have the momentum and public on his side (given the initial outrage by the public and so called civil rights leaders). Plus, nowadays, the Duke type of defendants just don't have that much public support or defenders. That's just not socially chic.

So in essence, what was done to minorities and the poor 10, 20, and 30 plus years ago, is now often being done to the opposite social class because its easier and more politically correct to do so. This is not to say that it doesn't still happen to minorities today,...of course it does and frequently so. But if one cant even recognize that because of the intrusion of politics and political correctness into the law, the pendulam has also swung the other way and that injustice now affects all classes of people and races...then to that extent, I think your analysis does a disservice.

The Duke Def's were in the position they were in exactly because of who they were (just as the case with the poor minorities you mention)...and that should trouble you most. And if that doesn't...recall and watch the video in the initial days of this ordeal and observe how many protesters demonstrated against these students, how many professors wrote silly condemnation letters about their actions and all of the hoopla outside of their courtroom. Now cut to many of those (or anyone else for that matter) were protesting, demonstrating or calling for Nifong's head?? Yup...zipppo...nada...not a soul. Why???...because they don't care about the Duke "type" defendants...they are not interested in that. Which of course means...they are not much interested in justice at all.

PD Dude said...

CS - I don't think we disagree that much. Clearly Nifong thought that going against the perceived rich white Duke people would do him well in his race to win the DA election in the coming months (and he was right) in the largely minority surrounding Durham.

That being said, you, who practice here in LA, should know good and well that poor minorities face the brunt of the criminal justice system on a day to day basis. How many houses do you see being broken into by the police without a warrant in Beverly Hills vs. South Central? How many rich, white beating victims are there? How many harrassing auto stops, etc....

My only point is that the reason that this prosecutor got it good as compared to the numerouus other examples of prosecutorial misconduct nationwide which have resulted in far worse results is that he went after the wrong people (in the wrong manner too - but the victims were the biggest hurdle he hit).

So, truce back on...? LOL

CS Legal said...

PD Dude,

No truce necessary my friend...we are both interested in the same thing.

With respect cops, all I know is the same thing you know--that they lie...whether its a duece in beverly hills or something else in compton. Having said that, I dont dispute ur point further there.

I really think, however, that in the Duke case the same twist that got them into the mess, luckily got them out... that is "publicity" and "media coverage." After the media, legal commentators and others saw the evidence sometime last year, and kept digging with respect to the was clear that there appeared to be nothing. If that coverage and attention wasn't there, I doubt their race, privilege or attorneys would have them where they are now. Now dont get me wrong...good lawyering and money are key, but in such a case and in such an enviorement, it isn't enough. We can all ask Paris how much Richard Hutton was able to do for her when there is such a feeding frenzy.

Moreover, despite privilege and wealth, you and I know that the DA's office is about the largest law firm in the country (at least LA County's is). They have unlimited resources, manpower and not many as it is have a chance if and when they engage in tactics such as Nifong's.

Ronald said...

Well having read your statements and comments on this case I thought I would put my say in. I grew up in Durham NC, I was what most would call a middle class teenager. Granted I was not the most innocent person in the world, I did the usual teenage pranks and stuff. It started with the purchase of a moped from a guy and ended up with me having over 17 felony counts piled on. Some of the charges I was charged with I called the cops and told them who did it. The cop was named Jerimiah Davis, he railroaded me with numerous charges and then the DA waited to charge me as an adult. My public defender was to my knowledge a drunk, everytime I saw him he seemed to have just drank something. But here I sit with a record for something I did 16 years ago and have lost many job opprotunities because of this.

Then at 19 I was stabbed by my best friend of 3 years. For over a week he went around telling people he was going to kill me and showing people the knife he had. I spent a year of my life in the hospital in a coma and he got 2 years probation and 2 thousand dollars restitution. I got more time for my charges and I never hurt anyone.

The justice system in this country is a joke, your guilty until your proven innocent.