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Duke Lacrosse: The Impropriety of the DA's Comments

Today's News Observer has a very good article explaining why the DA in the Duke case may have crossed ethical lines by proclaiming his belief in the accuser's rape allegation. It also contains the ethical rules in a sidebar. As the excellent, veteran criminal defense lawyer (and TL pal) David Rudolf says,

"When a district attorney talks to the local and national media about his personal belief that certain people are guilty and are 'a bunch of hooligans,' about how horrified he is by the allegation, that 'a bunch of lacrosse players from Duke ... raped a black girl from Durham,' or how alleged racial slurs 'make what is already an extremely reprehensible attack even more reprehensible,' the State Bar would have to be concerned," Rudolf said.

Here's what DA Nifong said, according to the News Obersver which tracked his comments:

Nifong made what appear to be his first public comments about the case to a reporter from The News & Observer on March 27, four days after the paper reported that 46 lacrosse players were ordered to submit DNA as part of a rape investigation. In the following weeks, Nifong granted dozens of media interviews, including several that were nationally televised.

He criticized team members for not cooperating with police, at one point using the term "a bunch of hooligans." He has been emphatic that he thinks the dancer was raped and that he has medical evidence and eyewitness testimony that will prove it. He has said that the racial slurs alleged to have been used against the dancers at the party made an "extremely reprehensible attack even more reprehensible." He has speculated that no DNA was recovered because the attackers may have used condoms. And he went on a cable news show and used his own arm to demonstrate how the alleged victim was choked.

Duke player lawyer Joe Cheshire explains the "safe harbor" rule.

In its ethical rules, the N.C. State Bar orders lawyers to refrain from statements outside the courtroom that they know might have "a substantial likelihood of materially prejudicing" legal proceedings. But once one side talks to the press, ethics rules say the other side can make statements "a reasonable lawyer" would believe are required to protect a client from bad publicity.

"If the district attorney didn't put us in this position to have to answer these questions, I would not be discussing this case in public," said Joseph B. Cheshire V, who represents a team captain who lived in the Buchanan Boulevard house where a rape is alleged to have occurred.

The DA should not have discussed (Commment to Rule 3.6, Trial Publicity):

(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

Nor should he have expressed:

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;.

The same holds true for when the media, as opposed to opposing counsel, attacks your client. The defense is entirely within its rights to be presenting information to the public.

Another ethical violation committed by Nifong in my view is his refusal to look at evidence the defense tried to show him before indictment that was exculpatory. He may not be required to present it to the grand jury, but he has an ethical obligation not to turn a blind eye towards it.

Rule 3.8 of the North Carolina Rules of Professional Conduct discuss special obligations of the Prosecutor. Comment 2 to the rule says:

Further, 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.

By the way, some commenters have questioned whether legal commentators (or lawyers not involved in the case) are subject to these rules. The answer is no. See comment 3 to Rule 3.6.

Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the rule applies only to lawyers who are, or who have been involved in the investigation or litigation of a case, and their associates.

Update: Here's another of Nifong's statements according to Newsweek:

According to Nifong, one of the players called out, "Did you bring any sex toys?" When the women answered no, a man said, "That's OK, we'll just use a broom."

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    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#1)
    by chew2 on Sat Apr 22, 2006 at 11:52:42 AM EST
    My impression is that for the last few weeks the vast majority of the press statements and leaks have come from the defense attorneys. But I could be wrong since I don't read everything. Dahlia Lithwick at Slate says why this case has created such a public firestorm: "It reaffirms everyone's deep-seated, unspoken fear that black women/white men/poor people/privileged people/victims/ defendants can't get a fair shake under our legal system." "Everything we are hearing about the DNA tests and the photos is selective, secondhand, and anecdotal. We are being played by the lawyers, with leaks and well-chosen sound bites." "As was the case with O.J. Simpson, Bryant, and Jackson, this is very quickly becoming an ink-blot test, not a legal proceeding: We look to the facts to confirm our own pre-existing suspicions about what inevitably happens between men and women, rich people and poor people, black people and white people."

    Of course Nifong should tone it down. It has appeared from the beginning that there is a good chance the accused students are not guilty. He could be ruining innocent people's lives just to get himself reelected, and he knows it. The Stripper v Lacrosse players case has brought back some absolutely dreadful memories and, at the same time, it has aroused my curiosity. Several years ago, a young stripper accused me of acts which, according to her story, were less violent than those in the Lacrosse Team case but very, very illegal all the same. She went to the police and told them her story; they investigated and declined to make an arrest or to charge me with a crime. What a relief! (I had done nothing wrong; the woman had come to me looking for a job, and I agreed to help her. She went her way, and the next morning the police showed up.) I got to know a detective in the Special Victims unit as a result of this fiasco. Through her, I have learned that this woman has refined her technique over the years and has apparently been able to make a living, though perhaps not a very good living, through blackmail (apparently) and lawsuits (definitely). She is black, her targets are white, and her story always follows the same pattern: due to circumstances beyond her control--usually financial problems--she has found it necessary to put herself in harm's way; she has been subjected to sex acts to which she never consented; no witnesses are ever available; she always gets her father involved; there is never any direct physical evidence; she tells a great story and manages to arouse a high degree of sympathy. I know it's unlikely, but I can't help wondering whether the stripper in the Duke case is the same person. I won't go to great lengths to find out who it is, but I can't help wondering how common this kind of false accusation might be. If the Duke case is based on false accusations, my detective friend will probably try to have some input. Unfortunately, the DA in the case doesn't seem like the kind of attorney who would drop a case just because it's the right thing to do.

    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#3)
    by squeaky on Sat Apr 22, 2006 at 12:16:03 PM EST
    jsbach-your namesake was better at composing than you are. There are equally horrid examples the other way round. Bach made brilliant arguments able to go both ways (crab canons). You are a bit tone deaf on this. BTW-glad that you did not get ensnared, but what else did you get in return for your services, besides fu*ked.

    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#4)
    by chew2 on Sat Apr 22, 2006 at 12:45:55 PM EST
    Dahlia Lithwick was right:
    We look to the facts to confirm our own pre-existing suspicions about what inevitably happens between men and women, rich people and poor people, black people and white people.
    Even if our experiences and suspicions are made up ones.

    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#5)
    by Dadler on Sat Apr 22, 2006 at 12:51:21 PM EST
    The defense trashes on the accuser with a record of troubles, the D.A. trashes on the drunk fratboys with a record of troubles. Call it a draw and keep moving.

    I cannot remember a single case where the DA did not say that he believed in the case and believed that the accused was completely guilty. But of course in this case that is a problem.

    Nice Guy wrote:
    Fact: Time-stamped photos prove stripper arrived bruised and cut while drunk.
    To the credit of our nation's trial lawyers people, just don't get convicted of DUI on the basis of still photos. The second dancer says she wasn't drunk, by the way. In my view, she's a better witness than you. She actually was there, whereas you haven't even seen the photo you're describing. You have a credibility gap.
    Section 18 gives the accuser the right to bring a case to court, and she could certainly file a case in civil court alleging rape, and seek punitive and actual damages from anyone she cares to name as a defendant.
    Section 18 also gives an accuser the right to file a writ of mandamus requesting a court to require a prosecutor to comply with a clear legal duty, such as acting on a criminal complaint.

    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#8)
    by Lora on Sat Apr 22, 2006 at 01:21:33 PM EST
    If this were not a rape case, and someone had claimed to have been beaten and choked and robbed, and that person was treated at the hospital whose report said something like "injuries consistent with assault," would the DA's comments have been considered to be equally out of line? Just wondering. Also, what exculpatory evidence? The pictures? They really don't prove anything, except that the dancers were actually at the party, and many of the players were, too. Everything else we've heard is interpretation about what they mean. And that is open to, well, interpretation.

    Section 18 also gives an accuser the right to file a writ of mandamus requesting a court to require a prosecutor to comply with a clear legal duty, such as acting on a criminal complaint.
    True... The court can also tell the accuser to take a flying leap.

    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#10)
    by chew2 on Sat Apr 22, 2006 at 03:02:27 PM EST
    TL
    Another ethical violation committed by Nifong in my view is his refusal to look at evidence the defense tried to show him before indictment that was exculpatory.
    TL, I'm curious, does the DA have the right to subpoena the camera and photos taken at the party in the possession of the defense attorneys? Can the defense attorneys reveal only some photo's (presumably helping their clients), while witholding those that are damaging? Are the discovery rules different pre and post indictment?

    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#11)
    by Scrutinizer on Sat Apr 22, 2006 at 03:50:30 PM EST
    jsbach wrote
    I can't help wondering how common this kind of false accusation might be. If the Duke case is based on false accusations, my detective friend will probably try to have some input. Unfortunately, the DA in the case doesn't seem like the kind of attorney who would drop a case just because it's the right thing to do.
    or maybe the cw was raped, the DA genuinely believes that she was raped, and he's frustrated by what he sees as stonewalling by the lacrosse team, so he's making some less-than-great judgements about how to fix the problem, like making provocative comments about uncooperative hooligans, and conducting photo-id procedures that will make his job harder in the long run. It's possible, you know, that this woman was raped, and fingered the right guys. We don't know. The best we'll be able to do is judge for ourselves based on evidence presented at a trial, which hasn't happened yet. Jade wrote
    I cannot remember a single case where the DA did not say that he believed in the case and believed that the accused was completely guilty. But of course in this case that is a problem.
    The problem that I have with the DA's statements so far is that he goes way beyond "I believe in this case." Generally prosecutors say things like "I am confident that when this trial is over, the jury will find that the defendant is guilty." It isn't the prosecutor's job to determine guilt---that's what the jury does. The prosecutor's job is to present the state's side of the case. By calling the defendants and the unindicted members of the team hooligans, and decrying their lack of cooperation with the prosecution (suspects and potential suspects aren't required to cooperate with prosecutors, you know), he's creating a prejudicial public atomosphere which the defense has every right to oppose. PB wrote
    Section 18 also gives an accuser the right to file a writ of mandamus requesting a court to require a prosecutor to comply with a clear legal duty, such as acting on a criminal complaint.
    "Acting on a criminal complaint" doesn't necessarily mean prosecuting a case. What happens when, in the best judgement of the prosecutor, the case is frivolous, or there is simply not enough evidence to support a conviction? Do you think that a court would force a prosecutor to present a case in that situation? At most, the prosecutor would be required to show why s/he felt that way. I do agree with you that there are egregious examples of prosecutors refusing to bring cases when the guilt of the accused is almost unquestioned---I'm thinking about cases in the South when segregationists commited crimes up to and including murder against civil rights workers---but even then, prosecutors were not always compelled to bring cases to trial. In this case, however, we certainly aren't looking at a recalcitrant prosecutor. chew2 wrote
    Can the defense attorneys reveal only some photo's (presumably helping their clients), while witholding those that are damaging?
    I'm curious about that too.

    I don't mean to quibble, but it's the "News and Observer", not the "News Observer".

    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#13)
    by Slado on Sat Apr 22, 2006 at 06:00:49 PM EST
    This DA painted himself into a corner. He promised convictions before all the evidence was in and he assumed guilt even though his accuser was shaky at best. This guy will get re-elected and then promply drop charges or try to make a deal. Since these guys are "rich white kids" they should tell him to stuff it and get ready for the civil case that is sure to follow.

    Can the defense attorneys reveal only some photo's (presumably helping their clients), while witholding those that are damaging?
    If they are just talking to the media, they can reveal whatever they want. But if there is a lawsuit, then there would be a discovery process. And they would have to turn over whatever evidence the other side requested or (if necessary) obtained a subpoena for. That could include all photos, and even the cameras and their memories, I imagine (in case there had been any tampering with that evidence). That said, it seems highly unlikely (IMHO) that defense attorneys would be drawing attention to photographic evidence as a key piece of evidence if there were actually any incriminating photos, or if that evidence was in any way suspect. Surely they have to assume that there will be a real trial, as opposed to just a debate in the media. So ultimately public opinion is irrelevant.

    p.s. I'm not an attorney, but I did sleep in a Holiday Inn last year. All the same, I defer to TL (or any other attorneys here) to correct or supplement my layman's understandings.

    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#16)
    by cpinva on Sat Apr 22, 2006 at 10:36:05 PM EST
    i'm not an attorney, i don't play one on tv, and i slept in a hampton inn last month, and will do so again next month. so much for my bona fides. an accuser can file a writ of mandamus, a court can ask the prosecutor "what gives?". more likely than not, the prosecutor will tell the judge, nicely, to stuff it. it's called prosecutorial discretion. prosecutors are under no legal obligation to explain their refusal to press charges. moral, perhaps, not legal. i wondered about the propriety of mr. nifong's comments when i first read them, they seemed prejudiced to me, indicating a desired outcome, rather than an interest in the actual facts. they struck me as potential violations of the code of ethics. glad i wasn't the only one bothered.
    Also, what exculpatory evidence? The pictures? They really don't prove anything, except that the dancers were actually at the party, and many of the players were, too. Everything else we've heard is interpretation about what they mean. And that is open to, well, interpretation.
    well, there is that small matter of DNA. more precisely, the complete lack of any, either on the accuser, her clothes, or in any place, by any person, you wouldn't expect to find in that bathroom. lora, this is an incontrovertible fact. it is exculpatory. per mr. nilfong, he awaits the results of additional DNA testing, as do we. those results may or may not also be exculpatory. so far, as near as i can tell, this is the only actual forensic evidence not subject to opinion or interpretation; it is or it isn't, period. for myself, i've no idea whether or not a criminal event took place during that party, i'll wait for the cliff's notes version.

    cpinva, You wrote:
    well, there is that small matter of DNA. more precisely, the complete lack of any, either on the accuser, her clothes, or in any place, by any person, you wouldn't expect to find in that bathroom. lora, this is an incontrovertible fact. it is exculpatory.
    Shall we call for the enactment of a National Rape Act mandating that no rape cases to be prosecuted in the absence of dna evidence? Or would you prefer a more limited act, tailored to the particular circumstances of this case? Or would you prefer that the prosecutor make a backroom deal with defense attorneys to drop the case? Experts will have every opportunity to frame your argument in court. I think that's probably the right place for it.

    Cpvina, You wrote: "prosecutors are under no legal obligation to explain their refusal to press charges. moral, perhaps, not legal." I'm no lawyer either, but I disagree with your interpretation. Prosecutorial descretion is not unlimited. Prosecutor's can't, to invent an example, refuse to bring forward a case simply because the complainent is white. A Judge facing a writ of mandamus under such a circumstance might well be obligated, on legal grounds, not moral grounds, to force the prosecutor to move on the case. I don't know whether he could be forced to prosecute if the complainent was a woman. I gave about $6000 toward the passage of the Equal Rights Amendment back in 1980 or thereabouts, but it just wasn't enough.

    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#19)
    by ding7777 on Sun Apr 23, 2006 at 08:33:09 AM EST
    cpinva wrote
    well, there is that small matter of DNA. more precisely, the complete lack of any, either on the accuser, her clothes, or in any place, by any person, you wouldn't expect to find in that bathroom.
    How could there be a "complete lack" of DNA since DNA was sent for testing?
    this is the only actual forensic evidence not subject to opinion or interpretation; it is or it isn't, period.
    The results from the initial DNA test were inconclusive. That means it neither is nor it isn't

    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#20)
    by cpinva on Sun Apr 23, 2006 at 09:53:50 AM EST
    How could there be a "complete lack" of DNA since DNA was sent for testing?
    for those being intentionally thick: a complete lack of DNA matching that of the team members who provided samples. of course, unless you're a total dolt, you knew that already. it was only inconclusive insofar as it didn't firmly conclude that there had or hadn't been sexual activity. just that no DNA evidence of it, so far, has been found, in the places one would expect it to be. the additional tests may find differently. it was not inconclusive with respect to the lack of identified DNA, of the accused. it is, or it isn't, period. again, you knew that already. PB, get down off your self-righteous perch long enough to actually read what i wrote, not what you wished i had. DNA is but one forensic tool in the arsenal. it doesn't, by itself, prove anything. however, the lack of identified DNA, in a case such as this, is considered exculpatory, given the description of the assault provided by the accuser. you might not like it, but what you like or don't is immaterial. there is the rape kit. unfortunately, all of the bruises, injuries, etc. can also be caused by rough consensual relations. one issue not publicly addressed is a toxicology screen of the accused. supposedly, per several witnesses, she was drunk to the point of unconsciousness. assuming they did blood tests, it will be interesting to find out if she did have the "date rape" drug in her system. if so, this would not be good for the team, i shouldn't think. the bottom line: we don't actually have all the facts. nor, it appears, does mr. nifong or the attorneys for the team members. i, unlike you, mr. nifong and others, would prefer to wait until all the evidence is in, before reaching a conclusion. prosecutors have nearly absolute discretion, with respect to deciding which cases to try, writs of mandamus nothwithstanding. in the absence of compelling evidence to the contrary, judge's have little authority to force a prosecutor to proceed. that isn't a judge's job. it isn't a perfect system, but it's the best we have. don't like it? get the laws changed. myself, i'm not sure i want judge's deciding which cases should be prosecuted, solely because someone had the financial werewithal to file suit. by the same token, i don't want prosecutor's bringing cases to court, solely because of political considerations, rather than because the evidence justifies it. the flip side of this is that civil suits can still be brought, even absent criminal charges being filed. so just because you're off the hook criminally, doesn't mean you're out of the woods completely. see kobe bryant. as to your contributions to the ERA effort, that's nice, i voted for it too. however, it has zip to do with this case.

    This guy will get re-elected and then promply drop charges or try to make a deal. Since these guys are "rich white kids" they should tell him to stuff it and get ready for the civil case that is sure to follow. Are you serious? Talk about being laughed out of court. The only way the lacrosse players could sue the D.A. is if (1) it ca be proven that the escort fabricated the story (i.e., someone flips who was told about the scam or helped plan it) and (2) the D.A. was in on the scam itself. I don't know if these guys actually raped anybody, and suspect it will be very hard to prove that they did, at least based on what is publicly known. But people are charged with serious crimes every day with less evidence than there is in the lacrosse case. Executions based solely on eyewitness testimony are a common occurrence in this country. I don't have a strong opinion about the guilt of the accused, but the selective outrage from their partisans (again, not TL, who unlike them is consistent in her insistence on due process for the accused) is simply laughable.

    Re: Duke Lacrosse: The Impropriety of the DA's Com (none / 0) (#22)
    by ding7777 on Sun Apr 23, 2006 at 10:25:40 AM EST
    cpinva: Your initial vagueness re DNA is the reason I asked. Thanks for being more specific this time(a complete lack of DNA matching that of the team members who provided samples.) Here's what inconclusive results means (and it has nothing to do with firmly determining whether sexual activity occured:
    Inconclusive results indicate that DNA testing did not produce information that would allow an individual to be either included or excluded as the source of the biological evidence

    cpinva, You wrote:
    the lack of identified DNA, in a case such as this, is considered exculpatory, given the description of the assault provided by the accuser. you might not like it, but what you like or don't is immaterial.
    The term "exculpatory" can mean that it clears a person, or it can mean that it "tends" to clear a person, unfortunately. If you're claiming that it clears a person, or, let me get you right, that "it is considered" to clear a person by some unnamed body, well, I've not see that argument made with any depth as of yet, so, as I say, I'll wait for trial. You wrote:
    there is the rape kit. unfortunately, all of the bruises, injuries, etc. can also be caused by rough consensual relations.
    Those "rough consensual relations" for some reason wouldn't yield dna? Is that what you're saying? Now you are confusing me. You wrote:
    i, unlike you, mr. nifong and others, would prefer to wait until all the evidence is in, before reaching a conclusion.
    What conclusion do you imagine I have reached? The only thing I've been peddling here is society's right to a fair trial. You wrote:
    myself, i'm not sure i want judge's deciding which cases should be prosecuted, solely because someone had the financial werewithal to file suit.
    The writ of mandamus places an appropriate limit on prosecutorial indescretion. It doesn't replace a prosecutor's discretion with a judge's. But it is a way to proscribe what the limits of prosecutorial discretion are. Prosecutor's are not above the law, nor are they totally free from supervision from the judiciary. That's a good thing.

    PB wrote: The second dancer says she wasn't drunk, by the way. In my view, she's a better witness than you. She actually was there, whereas you haven't even seen the photo you're describing. You have a credibility gap. The second dancer, Kim Roberts, called 911 to have the first dancer removed from her vehicle because she was drunk, semi-conscious, and wouldn't leave. Then, when Nifong dropped bond in Roberts' embezzlement case, Roberts changed nearly every aspect of her story: 1] No, the "first dancer" wasn't "impaired". 2] Yes, I believe a rape did take place

    rwilymz posted:
    Then, when Nifong dropped bond in Roberts' embezzlement case, Roberts changed nearly every aspect of her story:
    1] No, the "first dancer" wasn't "impaired". 2] Yes, I believe a rape did take place
    She has changed nearly every aspect of her story? Do you have more examples than these two? One is her opinion on whether or not a rape took place. That she agrees has changed since she has been privy to information in the hospital reports that sites injuries she did not see that night - vaginal and anal trauma and facial swelling. Your other example, her assesment that the other dancer was impaired when she was talking to the security guard, has not changed. Kim says the accuser was sober when they first met up that night and after drinking a beverage offered at the party, her condition rapidly declined. She says the accuser was friendly, chatting with her when she first got there and by the time they left, less than an hour later, she was incoherent. She couldn't even tell Kim "where she lived much less that she had been raped." The defense claims they interviewed Kim and have her voice on tape. I would think they would be discrediting her story with specific examples by now - if they had any. Seems to be the way they are playing this.

    When the DA said that 70% to 80% of rape cases don't have DNA evidence, how factual is that? Is the media even looking into that or are they just taking him at his word? It seem way too high to be true. I believe a large part of the % are date rapes, in that there is DNA but it is not useable because the accused is admitting there was sex but claiming the sex was consensual. I would like to know in the cases that a rape test was done in a timely manner, and the accused has denied that any sex took place, what are the chances that there would be not be DNA? If anyone has a source of DNA statistics, would you be kind enough to list a link?