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Friday, April 13th 2007

Mike Nifong To Face The Music

What Nifong Should Really Be Charged With

Mike Nifong’s attempt to dismiss the ethics charge he’s facing from the North Carolina state bar has failed.

The decision by the three-member panel came shortly after an hourlong hearing, at which committee chairman F. Lane Williamson repeatedly challenged the arguments made by attorneys for Durham County District Attorney Mike Nifong.

The most substantial charges against Nifong involve the DNA lab results which he withheld from the defense for quite a while. The argument made by the bar is a good one – there is no such thing as no harm, no foul:

[The fact Nifong eventually turned the results over] shouldn’t matter, said bar counsel Katherine Jean, because Nifong knew about the test results before he even won indictments against the three players. It’s possible, she said, that with less capable defense counsel they might have chose to enter into a plea agreement, which is how the vast majority of criminal cases in North Carolina are resolved.

Indeed, Slate speculates on what sort of criminal liability Nifong might face over withholding the DNA evidence.

When does a prosecution itself become a crime? It is well understood that prosecutors enjoy broad immunity from civil suit for their actions as prosecutors. That immunity, however, does not protect them from criminal liability.

Obstruction of justice extends to actions by attorneys aimed at suppressing evidence in criminal cases. Such cases are unusual but not completely unheard of.

Obstruction of justice is a felony in North Carolina if it’s committed with the intent to deceive. The state bar has accused Nifong of intentionally excluding the exculpatory DNA results from his expert’s report and of subsequently misleading the trial judge as to their existence. If Nifong really intended to deceive the judge and the defense in order to prevent the introduction of those results into evidence at trial, he committed this felony.

Federal civil rights charges are also a possibility. I think this is the more established method of addressing prosecutorial misconduct rising to criminal liability,

According to federal statute, it is a crime for any person acting “under color of law” to willfully deprive a person of a constitutional right. Acting “under color of law” essentially means using the power of the government, and it includes the actions of state prosecutors in criminal cases. The constitutional right at issue would be the defendants’ well-established due process right to disclosure by the prosecutor of exculpatory evidence [i.e. the DNA evidence].

However, according to the law professor penning the Slate article, denying defendants exculpatory evidence has received some sympathy in federal courts,

It is less clear when a prosecutor needs to produce exculpatory material under the federal constitution. In deciding whether or not a defendant is entitled to a dismissal or other remedy, many courts have found no violation of federal constitutional rights when the material was produced at trial, on the theory that the defendant was not ultimately prejudiced by the timing of the disclosure.

Joseph Kennedy, the Slate article author, goes on to address the issue of not might/will Nifong face criminal charges but should he. We should wait for what comes of these ethics proceedings. I think there’s a good chance Nifong will face some strong punishment, maybe even disbarment. If that happens criminal charges probably become more likely, I should think. As well, we’ll have a better sense of the evidence against Nifong.