Now with that said….An honest Lawyer or a 3rd party acting as surety for the “defendant” will do what “46 BEN(the other one) would do….if I understand the following quote..” If I believed (or even suspected) that exculpatory evidence was being withheld, I would exhaust all my procedural options to obtain it before trial, and make the record clear (through proffers of evidence, affidavits, etc.) what was missing and why it was important to my defense.”

He would file a Petition to the Court for an Administrative hearing in the Judges private chambers with (proffers ……ect.)
“Not for public viewing”. BEFORE TRIAL.The Judge must then act as a ‘Referree” in this case and consider the evidence and affidavits (which unrebutted stand as Truth) on the private side…then make a Summary Judgement in a Public Forum “courtroom”…as the Public cannot hear or see what goes on ..on the private side of an administrative hearing.
Please correct me if I’m mistaken in my understanding of all of the above.
PS: WHY NOT INDEMNIFY THE PROSECUTOR AND OR THE AGENCIES INVOLVED…WITH AN INDEMNITY BOND ON YOUR OWN FULL FAITH AND CREDIT?

Unfortunately, many in government prefer totalitarian anarchy.

Dominus providebit!

It would turn a possible felony conviction with a lengthy sentence into a probable capital conviction (I live in Virginia) with the death penalty.

The Duke boys were looking at a felony conviction with a lengthy sentence.

It would deprive my family of a father,

Um, so would going to jail on false charges.

and the prosecutor’s family, too.

He’s a piece of human garbage – It doesn’t matter what happens to him. While I pity her, Mike Nifong’s wife chose rather badly…

I will say this, though. There comes a time, and I’m not sure when it is, that people actually have to fight back against those who use the resources of the government for their own nefarious purposes. As an example:

http://www.constitution.org/mil/tn/batathen.htm

Note that in that case, nobody had to die, but somebody *did* have to put their foot down and say enough is enough. Like many – if not most – people here, I believe in rule of law.

Mike Nifong, and those like him, do not.

I wish you luck in your fight, Ben, whatever it is.

First, re: Nifong– as I mentioned, I thought the criminal contempt sentence (levied because he lied to the court) of one day was far too short. I think the court would have been justified in sentencing him to many months (or even years, but I’m not sure that the NC state courts have authority to do that in criminal contempt cases). Also, as I mentioned, I don’t believe that Nifong’s extrajudicial statements (i.e., to the press) are covered by absolute immunity, and I believe that these are still being litigated. Also, from the press accounts I’ve read, Nifong may also be on the hook for involving himself in the investigation (which is what I’ve argued should also be immunized), because he prepared a suspects-only photo lineup for the police to use. So, he’s not off the hook yet, even under the pro-prosecutor standard set by the Supreme Court. Finally, even a federal bankruptcy court must respect the state’s exempt property rules, meaning that Nifong would get to keep his home if he owned it along with a spouse, his car (provided it’s not valued above a certain limit), and some income from whatever job he can get as a disbarred attorney and social pariah. The Duke players might get a trickle of income from garnishing his wages, but it’s not going to come close to actually compensating them, and I would predict that they, like other tort victims pursuing bankruptcy claims, would lose interest after a few years of hounding Nifong.

Now, to respond to your hypothetical: As I understand it, I’m being wrongfully prosecuted with falsified evidence and the prosecutor has withheld exculpatory evidence. This is going on right now, and I’ve not yet been convicted. With the caveat that I’m not offering specific legal advice, here’s what I would do: I would summon all of the financial resources I have and hire a diligent and competent defense counsel, probably along with a private investigator and experts in fields relevant to the alleged crime. I would make sure that every single witness was tracked down and interviewed, that all possible forensic tests had been done competently and that all available evidence to impeach the state’s experts was obtained, that every plausible legal argument had been made to dismiss the charges, that my defense team had filed the necessary motions to obtain access to the State’s evidence (including exculpatory evidence), that the team was prepared for trial in every conceivable way, and that before and during trial, an absolutely flawless record was prepared for appellate purposes in case I lost. If I believed (or even suspected) that exculpatory evidence was being withheld, I would exhaust all my procedural options to obtain it before trial, and make the record clear (through proffers of evidence, affidavits, etc.) what was missing and why it was important to my defense.

In short, if I were on trial in such a case, pretty much the last thing I would waste my time on would be a civil suit against the prosecutor which– even if it were permitted in this hypothetical– would certainly be stayed pending the completion of the criminal trial anyway.

If what you’re implying is that I (or someone in my position) should take the law into their own hands and try to harm the prosecutor or the police, I think that’s a terrible option. It would turn a possible felony conviction with a lengthy sentence into a probable capital conviction (I live in Virginia) with the death penalty. It would deprive my family of a father, and the prosecutor’s family, too. Plotting such a thing would also be an enormous distraction from preparing my criminal case.

As for the civil action, I really don’t care about his bankruptcy. He looks fit for work to me. I don’t care what kind of work. There are three men with $1M in legal bills that were created solely by the malicious actions of Mike Nifong. He owes them that money, along with the city of Durham.

But, let me take another approach, because I think this might help a) bring you around and b) bring a little closure.

Imagine that you are being prosecuted for a crime that you didn’t commit, and the prosecuting attorney knows that you didn’t commit. He has faked evidence against you, withheld all exculpatory evidence, and you’re looking at 15 or 20 years in jail if he gets a conviction.

What would *you* do?

And, if you didn’t go to jail, do you think you would be entitled to compensation for your lost time and money?

I know what I would do, but we’ll save that for later.

Moreover, as a private lawyer, although you would probably be named individually if you committed malpractice, the reality is that your firm’s insurance carrier would probably pick up the tab and your aggrieved client– even if it were really angry– would probably settle for an amount less than or equal to the coverage limits. When it comes to a civil suit, practically speaking you’re just like a prosecutor whose government (local, state, or federal) is the deep pocket that is most likely to get sued.

Remember, lawsuits aren’t just about money. Any 1L who’s taken torts law will be able to tell you about getting $1 damages for a minor “harm” done. It’s sometimes about the principle of a court telling someone that a wrong has been done, which, among other things, acts as a deterrent for others to engage in the same conduct in the future, especially in a case where there may be true damages. Yeah, some defendants are gonna sue everyone — but not to the extent you seem to think they will, and most of those lawsuits will end up being looked upon kinda like the ones from everyone’s favorite litigious federal inmate, Jonathan Lee Riches.

I’m not a litigator. I’m your typical average big firm transactional corporate lawyer. I sit and push paper all day. So maybe my thoughts on this matter aren’t exactly the best, legally. But I do still have my sense of what’s right and what’s wrong. Just on a simple principle — I’m currently working on a deal worth about $10 million to a client of mine, a small, private company. If I were to screw up and cost them money, or if I were to take personal actions that caused my client harm — you’d better believe that I’d be on the wrong end of a malpractice lawsuit for big money. Guess I don’t understand why, if a prosecutor maliciously or negligently sends someone to jail for years of their life (which is far more egregious than costing them some money) they shouldn’t have to suffer the same fate.

My understanding of the practical application of Godwin’s Law is to deter the flippant reference to Hitler, which is widely regarded as diluting the gravity of Hitler’s crimes and disrespecting the victims.

“In any case, thanks for taking the question seriously and for the historic examples I was wondering about.”

You’re quite welcome, Dave. The historic examples, while not as well-publicized as the Nazis’, might have generated a similar ignominy pre-WWII in public discussion had they been given the same respect as the Holocaust.

I guess Jews have better publicity.

Disclaimer — Both of my parents are Jewish, which makes me Jewish by default.

As for Nifong’s civil liability, another exception to absolute immunity concerns making statements to the press, which the NC bar identified as one of Nifong’s offenses against the bar rules. So I’m not sure that he’s been let off the hook entirely on immunity grounds.

But that begs the question whether I think he should be subject to civil liability for non-public violations of the Duke players’ rights (e.g., failing to disclose exculpatory evidence). I would be happy to have the immunity changed to qualified immunity, but I do think prosecutors have to be shielded from the costs and distractions of civil litigation, particularly given the litigative propensity (and free time) of many convicted defendants.

Suing Nifong or doing nothing are not the only choices. Nifong was an officer of the City of Durham. Although I’m not an expert on North Carolina law, the City is probably answerable for his conduct under respondeat superior principles.

Finally, consider Nifong’s personal bankruptcy, and then consider that, as the DA for Durham, he was probably making more, adjusted for cost of living, than 75% of other state and local prosecutors make. You can sue him all you want, but you can’t get blood from a stone. Anyone with a deep faith in the civil justice system as a means of righting wrongs should pick up a copy of Bleak House at their public library.

Wow.

Congratulations, you’ve made Michael Chaney speechless…

#37 Cynical in CA

In terms of sheer numbers, these come close to Hitler’s tally.

But they don’t have the contemporary name recognition of Hitler and Nazism. I think comparisons to extreme cases are perfectly valid if they are trying to explain where the state is headed. After all, when the state becomes as far gone as Germany was in the 30s, it will be too late for comparisons. Complaining about those who raise the specter of Hitler (which is what Godwin’s law does) seems to imply that “it can’t happen here” so one shouldn’t be making such wild assertions. I’m not arguing so much as just explaining my attitude.

In any case, thanks for taking the question seriously and for the historic examples I was wondering about.

Well, Dave, they could have gone to the recent examples of genocide of Armenians by the Turks in 1915-16 (orchestrated by the Germans) or a bit further back to the British concentration camps for Afrikaaners in South Africa during the Boer Wars of the late-19th and early 20th centuries.

Or they could have noted the extermination of the Native Americans by the U.S. during the 19th century. Or the mass famines induced by the British in India and Ireland in the 19th Century. In terms of sheer numbers, these come close to Hitler’s tally.

Do cops get rewarded for how many guilty people they arrest, or just how many people they arrest?

Do prosecutors get rewarded for how many guilty people they convict, or just how many people they convict?

What more dangerous predator is there on the North American continent than the ambitious prosecutor?

Just asking.

As for Nifong, he got about 60% of what he deserved: the one-day sentence for lying to the court should have been much, much, longer. Nevertheless, the guy lost his job, was disbarred, and ended up bankrupt. I wouldn’t characterize it as the system “working” (because if the system worked it wouldn’t have happened to begin with), but I think that it demonstrates that there are some alternatives to personal civil liability for prosecutive decisions.

Chris in AL (#29): I didn’t mean to suggest that the only solution to police abuse is to waive personal liability more broadly (nor do I agree with Justice Scalia that there’s a “new professionalism”– I think that comment reveals as much about how out-of-touch Scalia is as the Burns decision reveals about how out-of-touch the Court was in 1976).

I think there’s a lot of other things that could be done to improve our system: better training for police officers and magistrate judges (many of whom know as little as a beat cop about the 4th Amendment); national standards for tracking informants and assessing their reliability, and for assessing officers’ performance in light of civil rights; compensation funds for victims of excessive or misplaced force, etc.

ktc2 (#30): In fact, I do not believe that most prosecutors would collude with police to work around or find holes in civil rights. In the federal system, search warrant applications typically are only presented after review by a prosecutor; like most federal prosecutors, I know of many times in which a prosecutor refused to present a warrant for lack of probable cause. (Federal prosecutors who are involved in large-scale investigations also tend to be more comfortable providing some legal advice to investigative agents than state and local prosecutors who typically receive a case in a package after the investigation is over.) I suspect that the fact that relatively few stories about federal warrants appear in Radley’s blog reflects the benefits of additional legal scrutiny.