duke - Otherwise Occupied

Perhaps if the decision had not come on a weekend, the blawgs would be alive with discussion of the Nifong disbarment. Even though it seemingly had to be done, I still found myself surprised that the Disciplinary Hearing Commission of the North Carolina State Bar actually did disbar him. However, the transcript of the panel chair's comments make clear that careful consideration was given to the aggravating factors, and the decision they made had to be made. Nifong was granted due process in this decision.

I've already seen a number of commentators touting that this is great, because Nifong withheld exculpatory evidence, and a prosecutor who withholds exculpatory evidence should be disbarred. The problem with this line of thought is that there is no bright line determining exculpatory from non-exculpatory evidence. While the defense may rightly argue that they would view the existence of other mens' DNA on the clothing of the accuser, I can also sort of see how a somewhat unscrupulous prosecutor might see a way to call that non-exculpatory.

The particular rule of professional conduct in North Carolina is Rule 3.8(d), under Special Responsibilities of a Prosecutor:

(d) after reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense . . . .

Rules of professional conduct are riddled with wiggle room, and the rule above is no different. In fact, it would be unusual to disbar a prosecutor merely for failing to turn over evidence. As the panel chair said, "under most jurisdictions or the majority view, actually no discipline would be imposed." Instead, the penalty is the threat of reversal, which is the penalty through much of our criminal justice system.

The violations by Nifong ran much deeper. For one thing, he took to making damning statements regularly on the news, in clear violation of Rule 3.8(f):

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

That is required in addition to the base rule that applies to all attorneys in North Carolina, Rule 3.6(a):

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Clearly, if Nifong was in violation of 3.8(f), he was in violation of 3.6(a). Frankly, in my opinion as a wholly untrained legal ethicist, it was the repeated public statements that were most vile on his part. He clearly abused his position to push for his reelection, his own self-interests.

Of more concern to the commission, I imagine, was that Nifong failed to cooperate with the Bar investigation of his activities, going so far as to lie to and withhold evidence from them. That was probably a very bad move. Then there were the aggravating factors. One was his years of practice. With 29 years in practice, he simply should have known better. Other included his dishonest and selfish motives, the pattern of misconduct that grew around this case, and withholding that DNA evidence. What's more -- and this may be most telling in this extreme punishment -- they found the effect on the community, both local and of lawyers near and far, to be an aggravating factor.

And so, in the end, 3 kids are rebuilding their lives, Duke is still licking its wounds, prosecutors are apparently already suffering from accusations of Nifonging defendants, and a 29-year prosecutor in North Carolina has been disbarred.