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Mike Nifong: From Prosecutor to Prosecuted?
Posted by: Dale Franks on Thursday, December 21, 2006

A new op/ed piece in the Raleigh-Durham News Observer switches sides on DA Mike Nifong's handling of the Duke "rape" case.
Whether the defendants in the Duke lacrosse case are guilty or innocent, Durham District Attorney Mike Nifong should disqualify himself, or be disqualified, from the case.

On Friday, Nifong's own witness essentially accused him of breaking the law. An actual conflict of interest now exists between Nifong's need to defend himself against possible charges of misconduct and his obligation to prosecute the case fairly and effectively.

In court Friday, the head of a lab that Nifong retained to analyze DNA samples testified that he and Nifong intentionally decided to exclude from the expert's report the fact that DNA analyzed from the clothes and body of the accuser did not belong to any of the defendants but came instead from unidentified males.

N.C. General Statute 15A-903 requires that a prosecution expert provide a report of the results of any tests performed and that the prosecutor furnish that report to the defense. Deciding to exclude these results is deciding to violate this law.

A prosecutor also has an obligation under the U.S. Constitution and under N.C. Rule of Professional Conduct 3.8 to disclose to the defense evidence which tends to suggest the innocence of a defendant — including evidence that calls the credibility of a state witness into question. DNA results showing the absence of DNA material from the accused and the presence of DNA material from other men goes to the credibility of the accuser's account and therefore needs to be disclosed.

In addition to these disclosure requirements, a prosecutor has an ethical obligation not to ignore evidence which suggests the innocence of the accused. A comment to Rule 3.8 provides that "a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused." It is not clear that Nifong has ever followed up on the DNA evidence described.
In brief, despite the clear text—and intent—of the state's discovery statutes, Mr. Nifong allegedly withheld potentially exculpatory evidence from the Duke defendants. A DNA test ordered by Mr. Nifong showed that there was no DNA from any of the defendants on or...uh...in the accuser. There was, however, DNA from a number of unidentified males.

Not only did Mr. Nifong not inform the defense about these results, he apparently has made no attempt to find out the identities of the unidentified males the DNA does belong to.

As the author, UNC Law Professor Joseph kennedy notes, discovery is not a game of Battleship where the DA gets to declare, "Miss!" if a discovery request isn't exact enough. The DA has a positive obligation to release the evidence to the defense as required by law.

So, can we now suggest that Mr. Nifong's handling of this case seems questionable?
 
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So, can we now suggest that Mr. Nifong’s handling of this case seems questionable?
Well, some of us have been suggesting it a long time. Others, who told us how smart Nifong was, probably ought to be reassessing their positions. No names needed, though I’d rate the probability of such reassessment to be somewhere between neglible and zero.
 
Written By: Billy Hollis
URL: http://
I’d love to see Nifong have to defend himself in a court of law. He chose bad targets to f*ck with this time, some of those Duke Lacrosse player families have deeeeeep pockets, and don’t take kindly to someone trying to screw with them.

 
Written By: shark
URL: http://
So, can we now suggest that Mr. Nifong’s handling of this case seems questionable?

yes.

not that i was staking my reputation on his, but this case is weird. (a) It’s not unknown for jocks to go too far on pressuring girls for sex, so it’s not like the original accusation was so farfetched. (b) but both the victim and the DA have acted like they’ve never heard of DNA or defense counsel or the 5th Amendment.

 
Written By: Francis
URL: http://
(a) It’s not unknown for jocks to go too far on pressuring girls for sex, so it’s not like the original accusation was so farfetched.
Let’s send those jocks to Abu Ghraib or Gitmo.
 
Written By: tom scott
URL: http://
"It’s not unknown for jocks to go too far on pressuring girls for sex, so it’s not like the original accusation was so farfetched"
No bias there.
 
Written By: Unknown
URL: http://
So, can we now suggest that Mr. Nifong’s handling of this case seems questionable?
No, that’s what we should have been suggesting since about three weeks after the phony rape allegation surfaced. By now, his handling of the case is clear prosecutorial misconduct. The only part that’s still "questionable" is how severe his punishment should be. That, along with the more basic question of whether there will be one.
 
Written By: Xrlq
URL: http://xrlq.com/
No names needed, though I’d rate the probability of such reassessment to be somewhere between neglible and zero.
Like hell - this is a golden opportunity!
I can see it now!

Wonder lawyer defends wonder prosecutor -
Nifong can hire MK to defend him.
MK will explain during defense how bright Nifong is and all.
During testimony he’ll drag the Duke lacrosse team in as witnesses and "isn’t it true" them into admitting they really DID commit rape, and in a brilliant hissy fit summary he’ll carry the day, delivering another stinging defeat to prosecutor Hamilton Burger and saving Nifong’s job.
 
Written By: looker
URL: http://
looker, I’m waiting for more of my predictions to come true (listed in that same thread I referenced above) before zinging mk again. I just saw that the 1st degree rape charges were dropped, which fits with the first of my predictions. I have other pending predictions, all of which look pretty solid.

Not bad so far for the non-lawyer (me), especially after I was told by Mr. M.K. Brilliant Lawyer how Nifong’s strategy was simply "over my head". So I’ll be revisiting this subject again, time permitting.
 
Written By: Billy Hollis
URL: http://
"over your head" = conspiring to withhold excuplatory evidence.
Brilliant isn’t it?

 
Written By: looker
URL: http://
"It’s not unknown for jocks to go too far on pressuring girls for sex, so it’s not like the original accusation was so farfetched"

I am so glad we non-jocks are above suspicion.

 
Written By: timactual
URL: http://
Just think if these guys didn’t have money - they would be going to prison because of ol’ Mike. It makes you think ol’ Mike has probably put others in jail that just didn’t have the money to hire lawyers and fight. I’m worried about that.
 
Written By: Gary Traina
URL: http://
He’s a narcistic creature who cares not who he hurts for his own gain. Please join me in contacting the Gov. of NC to have Nifong prosecuted for his illegal actions in this case.Contact the Gov.@ http://www.governor.state.nc.us/email.asp?to=1

The accuser needs to be prosecuted for filing a false report and for a hate crime. She only did this because they were rich and white.... ergo... a hate crime.
 
Written By: Lisa
URL: http://

 
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