At last, on December 28, 2006, the North Carolina State Bar proved it was awake by filing a much awaited complaint in Wake County, North Carolina with its Disciplinary Hearing Commission.
HURRAY!
At last, on December 28, 2006, the North Carolina State Bar proved it was awake by filing a much awaited complaint in Wake County, North Carolina with its Disciplinary Hearing Commission.
Durham County, North Carolina District Attorney Michael B. Nifong is the named defendant in that complaint!
The strategy that secured an upset election victory in Durham, North Carolina has a downside!
Rule 3.8(f) of the Code of Professional Responsibility mandates that prosecutors “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."
Do YOU think statements set forth below and attributed to DEFENDANT Nifong in the complaint had" a substantial likelihood of heightening public condemnation of" Reade Seligmann, Collin Finnerty and David Evans?
Rule 8.4(c) and Rule 8.4(d) BOTH have been invoked against DEFENDANT Nifong as well. They prohibit a prosecutor from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation” AND "conduct that is prejudicial to the administration of justice.”
The allegation against DEFENDANT Nifong is NOT merely that he got carried away, but also that he was dishonest AND he breached his duty to be a fair and impartial minister of justice..
The essence of the complaint:
"[P]laintiff alleges that defendant’s [specified] actions constitute grounds for discipline pursuant to N.C. Gen. Stat. § 84-28(b)(2) in that defendant violated the Revised Rules of Professional Conduct as follows:
(a) By making statements to representatives of the news media commenting on matters including but not limited to those set forth in paragraphs 12-177, Nifong made extrajudicial statements he knew or reasonably should have known would be disseminated by means of public communication and would have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter in violation of Rule 3.6(a), made extrajudicial statements that had a substantial likelihood of heightening public condemnation of the accused in violation of Rule 3.8(1), and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the Revised Rules of Professional Conduct
(b) By making statements to representatives of the news media including but not limited to those set forth in paragraphs 114-119, Nifong engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct."
Paragraphs 114-119:
"114. Nifong stated to a representative of the news media '[i]f a condom were used, then we might expect that there would not be any DNA evidence recovered from say a vaginal swab.'
"115. Nifong made the statement referenced in paragraph 114 above to a reporter for MSNBC.
"116. Nifong made the statement referenced in paragraph 114 above on March 31, 2006.
"117. Nifong stated to a representative of the news media 'I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex.'
"118. Nifong made the statements referenced in paragraph 117 above to a reporter for the Charlotte Observer newspaper.
"119. Nifong made the statements referenced in paragraph 117 above on or after March 29, 2006."
BIG PROBLEM for DEFENDANT Nifong: False accuser Crystal Gail Mangum had insisted that condoms were NOT used.
The North Carolina State Bar's prayer for relief:
"(1) Disciplinary action be taken against defendant in accordance with N.C. Gen. Stat. § 84-28(a) and § .0114 of the Discipline and Disability Rules of the North Carolina State Bar (27 N.C.A.C. lB § .0 114), as the evidence on hearing may warrant;
"(2) Defendant be taxed with the costs permitted by law in connection with this proceeding; and
"(3) For such other and further relief as is appropriate."
That disciplinary action could be disbarment, which would put an end to DEFENDANT Nifong practicing law as well as serving as Durham County District Attorney, even though he was elected.
The complaint against DEFENDANT Nifong contains 181 numbered paragraphs and runs to a seventeenth page.
The following paragraphs allege "statements [by DEFENDANT Nifong] to the news media...that were improper commentary on the lacrosse team members’ alleged failure or refusal to make a statement to law enforcement authorities and upon the lacrosse team members’ alleged invocation of their constitutional rights":
"13. Nifong told a representative of the news media that lacrosse team members deny the rape accusations, that team members admitted that there was underage drinking at the party, and that otherwise team members were not cooperating with authorities."
"16. Nifong told a representative of the news media that he may also consider charging other players for not coming forward with information, stating '[m]y guess is that some of this stonewall of silence that we have seen may tend to crumble once charges start to come out,' Nifong said."
"19. Nifong stated to a representative of the news media: '[t}here are three people who went into the bathroom with the young lady, and whether the other people there knew what was going on at the time, they do now and have not come forward. I’m disappointed that no one has been enough of a man to come forward. And if they would have spoken up at the time, this may never have happened.'"
"22. Nifong stated to a representative of the news media that the lacrosse team members were standing together and refusing to talk with investigators."
"25. Nifong stated to a representative of the news media that he might bring aiding-and-abetting charges against some of the players who were not cooperating with Nifong’s investigation."
"28. Nifong stated to a representative of the news media that lacrosse players still refused to speak with investigators."
"31. Nifong stated to a representative of the news media '[i]t just seems like a shame that they are not willing to violate this seeming sacred sense of loyalty to team for loyalty to community.'"
"34. Nifong stated to a representative of the news media that “[t]he lacrosse team, clearly, has not been fully cooperative' in the investigation and '[t]he university, I believe, has done pretty much everything that they can under the circumstances. They, obviously, don’t have a lot of control over whether or not the lacrosse team members actually speak to the police. I think that their silence is as a result of advice with counsel.'"
"37. Nifong stated to a representative of the news media '[i]jf it’s not the way it’s been reported, then why are they so unwilling to tell us what, in their words, did take place that night?'"
"40. Nifong stated to a representative of the news media '[a]nd one would wonder why one needs an attorney if one was not charged and had not done anything wrong.'"
The following paragraphs are alleged to be "statements to the news media... that are improper commentary on the performance or results of tests performed as a part of the investigation."
"45. Nifong stated to a representative of the news media '[m]y guess is that there are many questions that many people are asking that they would not be asking if they saw the results.'"
"48. Nifong stated to a representative of the news media '[t]hey’re not things that the defense releases unless they unquestionably support their positions.'"
"51. Nifong stated to a representative of the news media '[s]o, the fact that they’re making statements about what the reports are saying, and not actually showing the reports, should in and of itself raise some red flags.'"
The following paragraphs allege "statements [by DEFENDANT Nifong] to the news media...that are improper commentary on the evidence and testimony expected to be presented in the trial of the case":
"56. Nifong stated to a representative of the news media '[t]here is evidence of trauma in the victim’s vaginal area that was noted when she was examined by a nurse at the hospital.'"
"59. Nifong stated to a representative of the news media that 'her general demeanor was suggested-suggestive of the fact that she had been through a traumatic situation.'"
"62. Nifong stated to a representative of the news media '[a]nd the investigation at that time was certainly consistent with a sexual assault having taken place, as was the victim’s demeanor at the time of the examination.'"
"65. Nifong stated to a representative of the news media that the police took the alleged victim to a hospital where a nurse concluded that she had suffered injuries consistent with a sexual assault."
"68. Nifong stated to a representative of the news media that other DNA testing had not yet come back and that there was other evidence, including the accuser being able to identify at least one of the alleged attackers."
"71. Nifong stated to a representative of the news media that a rape examination of the victim done at Duke Medical Center the morning of the alleged attack revealed evidence of bruising consistent with a brutal sexual assault, 'with the most likely place it happened at the lacrosse team party.'"
"73. Nifong stated to a representative of the news media '[s]omebody had an arm around her like this, which she then had to struggle with in order to be able to breathe... She was struggling just to be able to breathe.'"
The following paragraphs allege "statements [by DEFENDANT Nifong] to the news media...that are improper commentary on Nifong’s opinion about the guilt of the accused and/or about his opinion that a crime had occurred":
"78. Nifong stated to a representative of the news media '[t]he information that I have does lead me to conclude that a rape did occur.'"
"81. Nifong stated to a representative of the news media 'I’m making a statement to the Durham community and, as a citizen of Durham, I am making a statement for the Durham community. This is not the kind of activity we condone, and it must be dealt with quickly and harshly.'"
"84. Nifong stated to a representative of the news media 'I am convinced there was a rape, yes, sir.'"
"87. Nifong stated to a representative of the news media that he believed a crime occurred."
"90. Nifong stated to a representative of the news media 'the guilty will stand trial.'"
"93. Nifong stated to a representative of the news media '[t]here’s no doubt a sexual assault took place.'"
"96. Discussing the result of DNA testing, Nifong stated during a public forum that '[i]t doesn’t mean nothing happened. It just means nothing was left behind.'"
"100. Nifong stated to a representative of the news media 'I am satisfied that she was sexually assaulted at this residence.'"
"103. Nifong stated to a representative of the news media '[t]hey don’t want to admit to the enormity of what they have done.'"
"106. On June 19, 2006, Nifong issued a press release stating '[n]one of the "facts" I know at this time, indeed, none of the evidence I have seen from any source, has changed the opinion that I expressed initially.'"
The following paragraphs allege "statements [by DEFENDANT Nifong] to the news media... that improperly suggested the existence of evidence of guilt or attempted to explain the existence of exculpatory evidence or the absence of incriminating evidence":
"111. Nifong stated to a representative of the news media that the victim’s 'impaired state was not necessarily voluntary... .[I]f I had a witness who saw her right before this and she was not intoxicated, and then I had a witness who said that she was given a drink at the party and after taking a few sips of that drink acted in a particular way, that could be evidence of something other than intoxication, or at least other than voluntary intoxication?'"
"114. Nifong stated to a representative of the news media '[i]f a condom were used, then we might expect that there would not be any DNA evidence recovered from say a vaginal swab.'"
"117. Nifong stated to a representative of the news media 'I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex.'"
BIG PROBLEM: DEFENDANT Nifong had represented to a representative of the news media that he had read the report of the emergency room nurse and that report reflected that Crystal Gail Mangum
had stated the alleged attacker 'did not use a condom.'"
The following paragraphs allege "statements [by DEFENDANT Nifong] to the news media... that are improper commentary about the character, credibility and reputation of the accused":
"128. Nifong stated to a representative of the news media '[s}omebody’s wrong about that sexual assault. Either I’m wrong, or they’re not telling the truth about it.'"
"131. Nifong stated to a representative of the news media '[t]he circumstances of the case are not suggestive of the alternate explanation that has been suggested by some of the members of the situation.'"
"134. Nifong stated to a representative of the news media 'I don’t think you can classify anything about what went on as a prank that got out of hand or drinking that took place by people who are underage.'"
"137. Nifong stated to a representative of the news media 'I would like to think that somebody [not involved in the attack] has the human decency to call up and say, “What am I doing covering up for a bunch of hooligans?”'"
The following paragraphs allege "statements [by DEFENDANT Nifong] to the news media... that had a substantial likelihood of heightening public condemnation of the accused" and "constituted an expression of his personal opinion about the guilt of the suspects/accused and/or an expression of his personal opinion that a crime had occurred":
"142. Nifong stated to a representative of the news media “[i]n this case, where you have the act of rape — essentially a gang rape — is bad enough in and of itself, but when it’s made with racial epithets against the victim, I mean, it’s just absolutely unconscionable.'"
"145. Nifong stated to a representative of the news media '[t]he contempt that was shown for the victim, based on her race was totally abhorrent. It adds another layer of reprehensibleness, to a crime that is already reprehensible.'"
"148. Nifong stated to a representative of the news media '[i]t is a case that talks about what this community stands for.'"
"151. Nifong stated to a representative of the news media '[t]he thing that most of us found so abhorrent, and the reason I decided to take it over myself, was the combination gang-like rape activity accompanied by the racial slurs and general racial hostility.'"
"154. Nifong stated to a representative of the news media '[t]he circumstances of the rape indicated a deep racial motivation for some of the things that were done. It makes a crime that is by its nature one of the most offensive and invasive even more so.'"
"157. Nifong stated to a representative of the news media '[t]his is not a case of people drinking and it getting out of hand from that. This is something much, much beyond that.'"
"160. Nifong stated to a representative of the news media '[t]he racial slurs involved are relevant to show the mindset.. . involved in this particular attack.'"
160. Nifong stated to a representative of the news media “[t]he racial slurs involved are relevant to show the mindset.. . involved in this particular attack.”
"163. Nifong stated to a representative of the news media '[a]nd obviously, it made what is already an extremely reprehensible act even more reprehensible.'"
"166. Nifong stated to a representative of the news media '[w]hat happened here was one of the worst things that’s happened since I have become district attorney.'"
"169. Nifong stated to a representative of the news media '[w]hen I look at what happened, I was appalled. I think that most people in this community are appalled.'"
"172. In a conversation with a representative of the news media, Nifong compared the alleged rape to the quadruple homicide at Alpine Road Townhouse and multiple cross burnings that outraged the city of Durham in 2005."
"175. Nifong stated to a representative of the news media 'I’m not going to let Durham’s view in the minds of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham.'"
The complaint further alleged that DEFENDANT Nifong "knew or reasonably should have known that his statements to representatives of the news media...would be disseminated by means of public communication" AND "had a substantial likelihood of prejudicing the criminal adjudicative proceeding."
I look forward to Mr. Nifong's answer and his removal from the Duke case.
Suggestion to Judge Osmond Smith: In the Duke case file there's a motion made on behalf of Reade Seligmann by Kirk Osborn (the attorney who futilely tried to show now DEFENDANT Nifong evidence of his client's innocence before indictment) to remove Mr. Nifong from the case. If Mr. Nifong does not resign, or at least remove himself from the Duke case, promptly, please decide that motion.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.
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