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Sunday, June 17, 2007
 
Alan Childress on Nifong's Disbarment

Alan Childress at the Legal Profession Blog offers his thoughts on the disbarment of Mike Nifong for his misconduct in the Duke lacrosse prosecutions.

Childress makes one very good point that I had not seen elsewhere and that I think I agree with: Even assuming Nifong deserved to be punished this harshly, disbarment after one hour of deliberation is, at least historically, a highly unusual and harsh punishment for even extreme cases of prosecutorial misconduct. And a possible explanation for that difference is the high-profile and politicized nature of the case. In other words, the very thing that allegedly caused Nifong to engage in misconduct arguably caused the Bar panel to punish him severely, unusually so.

Childress writes:

. . . On the other hand, there is some history in bar discipline across the nation that would suggest that similar prosecutorial misconduct goes less punished, generally. It may be the right decision, but is it also possible that the N.C. bar [maybe even understandably] is doing some of what it accuses Nifong of doing: treating a case differently than it might have otherwise because it has gone public and taken a political life of its own? Do not some of the handwringing statements quoted from the bar seem designed for public consumption, more so than the usual panel finding? My query probably overstates the reality that Nifong created much of the "life of own" of his prosecution, and made the statements in the press not as part of a regular process like issuing a bar decision. But my experience is that bar boards don't decide cases in a day (or really, a year), write such strong statements, or slam prosecutorial overreaching this efficiently or thoroughly. I think they should in many cases, but this one is just more public than most.


This is a different point that is implicit in Andre's post. Rightly or wrongly and deserved or not, Nifong is, descriptively, being treated in an unusual fashion.





20 Comments:

Umm, its rightly, and deserved,... and it is unusual, but this is not a local issue hidden in the pages of the once per week small town barbershop discussion, Howard. This has been a 24/7 issue for a year. How about a different approach: this kind of treatment "against" a D.A. is refreshing and "it's about time." On to the next target: the lying woman!

Anonymous Anonymous -- 6/17/2007 12:54 PM  


I (and Childress, if you read the post) am not necessarily arguing that we should not treat prosecutorial misconduct this severely, only that we have not done so in the past. Perhaps we should be this tough, as you suggest.

But it remains to be seen whether we will be so tough. It remains to be seen whether future prosecutors will be similarly punished for similar misconduct--especially if that misconduct remains confined as a "local issue hidden in the pages of the once per week small town barbershop discussion." The amount of publicity a case receives should not dictate the behavior of the prosecutor--or of those on the Bar responsible for overseeing prosecutors.

Blogger Howard Wasserman -- 6/17/2007 1:01 PM  


H.W., as far as your last comment about "should not dictate" that pretty much sums up how most academics view the world. There's the way things "should" be and then there's reality, as sad as it has become. There's nothing wrong thinking that way...but you can keep dreaming and maybe someday you may be right.

Anonymous Anonymous -- 6/17/2007 1:30 PM  


In all the confusion regarding Nifong’s failure to provide the defense with the complete DNA report, there seems to be the lingering question of “non-probative” DNA data. As all of the “unidentified” DNA was degraded (at least 3 days old) is it not true that the defense would NOT have been able to use this in trial (even if they identified the DNA owners) as such evidence is contrary to NC rape shield laws (evidence of prior consensual sex)?

The question is then, is the defense entitled to evidence of a victim’s prior consensual sex?

Anonymous Anonymous -- 6/17/2007 2:14 PM  


Anonymous 1:30:

I do not think talking about how things "should be" has anything to do with what I do for a living. Most of the things we talk about in life (and most of the things worth talking about in life) are directed towards the way things should be. That is true of politics ("We should or should not bomb Iran to stabilize the Middle East"); sports ("The Blazers should or should not pick Greg Oden first"); and what we are talking about here ("The State Bar should or should not have punished Nifong as severely as it did").

Anonymous 2:14:

North Carolina's rape shield, N.C. R. Evid. 412(b)(2), permits "evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant." DNA of someone other than the defendants (assuming they could identify the sources) is relevant to show that someone other than the defendant engaged in sexual intercourse with the victim -- and that the defendant did not have intercourse with her.

Now, what Nifong was obligated to turn over is controlled by different rules. In deciding what exculpatory evidence to disclose, the prosecutor does not make ultimate relevancy determinations. It is, I think, enough that the evidence could be relevant and, if relevant, would have a tendency to exculpate. The presence of DNA from someone other than the defendant has a tendency to show that the defendant did not have sexual intercourse with the woman. So it is at least potentially relevant and thus, I think, subject to disclosure.

Blogger Howard Wasserman -- 6/17/2007 9:23 PM  


"The presence of DNA from someone other than the defendant has a tendency to show that the defendant did not have sexual intercourse with the woman."

Actually... no it does not. Not even in a 401 logical relevance way. It isn't material. It has a tendency to show that the woman has had sexual intercourse at least once before. Full stop. All the rest is either an irrational and disfavored stereotype about promiscuity and its relation to lying, or is a bogus presumption that consent once = consent to everyone.

And even if you want to construe 401 broadly, then it is certainly victim character evidence, and our centuries of experience with juries in rape cases tells us exactly how unfairly prejudicial it always is.

The only reason this is even argued as relevant is that tens of thousands of rape defendants have used the promiscuity of the victim to distract juries. There are many law journal articles discussing why this is wrong and the consequences of allowing this kind of evidence to be considered relevant.

Think of it this way, what if the accusations were assault with a foreign object, or that the attacker used protection? How could prior DNA be relevant then?!?

Blogger Corey -- 6/18/2007 3:57 AM  


I feel that prosecutorial misconduct should be treated this severely, it would however, be nice to see some continuity, so punishments were equal across the board.

Anonymous PintoPotts -- 6/18/2007 7:18 AM  


Corey:

Actually, Rule 401 alone is not the controlling rule here--Rule 412 is. And it says (as I quoted in my earlier comment) that evidence of sexual behavior is relevant to show that someone else committed the acts in question--here, someone else had sex with the victim and someone else was the source of physical evidence in question.

And even from basic relevancy principles, this works without coming close to a character inference. If A is accused of raping B, the *absence* of DNA evidence has some tendency to make it more probable than without that evidence that A did not have sex with B. (Note: This does not mean is establishes that A did not have sex with B, only that it logically moves us in that direction). If there is DNA evidence belonging to someone other than A, that, too, has some tendency to make it more probable that A did not commit the acts charged. More specifically, the presence of others' DNA shows the absence of A's DNA--and the jury can draw inferences from that.

At the very least, the DNA evidence was subject to prosecutorial disclosure at some point based on its potential relevancy.

As to your two examples:

a) Sure, if the allegations were assault with a foreign object, DNA evidence would not be relevant. But that would be a different case than this one. The fact that DNA evidence is not relevant in one case under Rule 412 does not mean it is not relevant in all cases.

Take a slightly different example of this: Suppose A's defense was that they did have sex, but that it was consensual. In that case, too, non-A DNA evidence would be irrelevant. But not because it is excluded generally, only because it is not probative on the facts of *this* case.

b) Evidence that the attacker used protection would not render the DNA evidence irrelevant. The testimony about protection would be the prosecution's way of explaining away the absence of A-related DNA evidence. It would be a fact question; the jury would infer why there was no DNA evidence--because A did not commit the assault or because A committed the assault, but used protection. This is, as I tell my class, a question of the weight of the evidence, not its admissibility.

Blogger Howard Wasserman -- 6/18/2007 9:35 AM  


Yes, I understand that this is how most evidence professors teach 412. There is however some dispute about the policy behind 412, even among evidence professors. Some people see it as just another expresion of the old biases against women who allege sexual crimes.

I don't think you can realistically deny that the way evidence of prior sex acts works in jury and public minds is that it goes to "propensity to consent to sex." We saw that in the Kobe case too. Well propensity to consent is victim character evidence.

Why a special rule 412 to assert that this particular brand of prior acts evidence is relevant? Because it would fail the standard 403 balancing test but patriarchical tradition demands that it be admitted anyway.

The law allows that even a prostitute can be raped. But if you insist in letting prior sexual history in, no jury in the world will ever believe that she didn't consent this time.

"More specifically, the presence of others' DNA shows the absence of A's DNA"

Presense of A's DNA is not an element. Any penetration counts. DNA is no more necessary to prove rape than to prove assault with a foreign object. A prior car crash with A does not show lack of a car crash with B.

Anonymous Corey -- 6/18/2007 1:46 PM  


“North Carolina's rape shield, N.C. R. Evid. 412(b)(2), permits "evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant." DNA of someone other than the defendants (assuming they could identify the sources) is relevant to show that someone other than the defendant engaged in sexual intercourse with the victim -- and that the defendant did not have intercourse with her.”

Decayed DNA, 3 or more days old (as it was in this case testified to) does not offer evidence that the act or acts charged (at the time of the incident) were not committed by the defendant. It only indicates that at some time prior to the incident the victim had consensual sex with someone else.

For instance, the one “identified” source of DNA was the victim’s boyfriend. Is it your position that the defense could have used this evidence during trial? – I think not.

Anonymous Anonymous -- 6/18/2007 6:17 PM  


How about focusing on the good that has come out of this case. For example, Duke has settled with the players: http://www.foxnews.com/story/0,2933,284077,00.html.

Anonymous Anonymous -- 6/18/2007 8:02 PM  


"Good guy gone bad"... or is it? Nifong is definitely being used to send a message to any other good fellows, who want to get out of line, that we will crush you. While I do not condone any inappropriate behavior, would this man be disbarred if the roles of the individual’s race were reversed? Lastly, the media must realize the power that they possess and use this power accordingly. I believe this matter as many others are blown out of proportion, and more times than less this attention is negative in nature, and we as Americans keep feeding into it.

Anonymous Anonymous -- 6/18/2007 8:40 PM  


Boy, this is a tough audience. :)

I make a normative argument about how prosecutors should act, and I get slammed for being a typical dreamy-eyed academic who thinks too much about how the world should be and not the ugliness of how it is (see the 2d and 3d comments to this post). On the other hand, in response to a descriptive question ("Would the DNA evidence be relevant as against a shield law?"), I give a descriptive answer ("Yes, based on the language of the applicable rule"). And then I get slammed for teaching the way most evidence professors do and ignoring the normative policy controversy surrounding use of prior sexual behavior evidence. Of course, my answer to a question on a blog indicates nothing about how I teach the issue--you would need to talk to my students about that.

As I said, I do not know anything about the state of the DNA evidence and whether some of it had become degraded or what effect that has. Degradation to one side, I think the following evidence would be admissible if offered by the defendant(s):
* A rape kit was run on the victim and DNA was extracted from her.
* DNA samples were taken from the defendants.
* The results of the the DNA testing, showing defendants' DNA did not match any of the DNA found on the victim.

I am not sure the defense could go further than that, such as getting into the identity of the other sources or how many other sources there were.

I do not understand the resistance to the conclusion that the fact that none of the DNA evidence matched the defendants should be relevant. Is there any doubt that, if there had been a match to defendant(s), the prosecution could have brought that in? Otherwise, we would not do rape kits and Nifong would not have gotten a warrant for the player's DNA. But if that is so, the *absence* of DNA linking the defendants to the victim also is admissible. And we cannot offer evidence showing the absence of defendants' DNA without, implicitly, getting into the victim's past sexual behavior.

Note, by the way, that this discussion assumes the case we have: The central issue was whether one or more of the defendants had sex with the woman. It would be a different analysis if it were uncontested that the defendant had sex with her but the issue was whether she consented. In that case, DNA evidence would not come into play because the existence of other sexual partners is not relevant to show consent between victim and defendant. But again, *this case* is different.

More broadly, a piece of evidence need not go an element to be relevant. And it need not conclusively establish, by itself, that element. It only has to fit into a logical chain of inferences that reasonably can (not must) lead to the conclusion that some elemental fact (the defendant(s) had sex with the woman) is true or false.

I never suggested that DNA evidence is necessary to prove a rape case. But it *can* be used to prove it--the presence of defendant's DNA can show that he had sexual intercourse with the victim. And it therefore also can be used to rebut such a case. Now, could the defendant still have committed the rape even if there was no DNA evidence? Sure. But that does not keep the evidence out--it simply gives more information for the jury to weigh in deciding the case.

Blogger Howard Wasserman -- 6/18/2007 9:57 PM  


Agreed, H.W. It seems obvious to me that, upon completion of the rape kit, if there was no DNA from the victims but there was from other people, it would certainly be useful to the defense. Sure, it doesn't completely prove that the defendants didn't rape her, but it certainly would be beneficial to the case. I, like you, am confused as to the harsh objection to this idea.

I still wish you would comment, though, on your thoughts as to the validity of Smith's previous post. He just seems so far off to me that it's not even an opinion you would want posted on this esteemed blog.

Blogger Stephen -- 6/18/2007 11:51 PM  


Cant believe Kobe was dropping F bombs like that!

http://www.thekobevideo.com/

tell all your friends so we can finally see this video!

Anonymous Anonymous -- 6/18/2007 11:52 PM  


“Degradation to one side, I think the following evidence would be admissible if offered by the defendant(s)”

Setting aside the gunshot, Mrs. Lincoln, How was the play?

The point here is that degradation cannot be set aside. It was, in this instance, testified to by (undisputed) expert testimony. The DNA was, at a minimum, 3 days old. It can therefore have no bearing on the incident in question and only speaks to the victim’s prior sexual conduct (which should be irrelevant).

“And we cannot offer evidence showing the absence of defendants' DNA without, implicitly, getting into the victim's past sexual behavior.”

Any sexually active female, and certainly every sexually active prostitute (male or female), with modern DNA extraction and profiling methods WILL have positive examples of multiple degraded DNA somewhere in/on their body or on their underclothes. Allowing the defense to enter such evidence at trial is performing a run around the rape shield laws designed to protect the victim’s prior sexual history from the jury. Certainly the defense cannot (if this degraded DNA was identified) have these men testify in court. Similarly, their DNA should not be allowed to testify for them.

Anonymous Anonymous -- 6/19/2007 12:57 AM  


Compare these two hypothetical witness statements:

"We ran a rape kit and did not find any of defendant's DNA"

"We ran a rape kit and found like, ten different DNA samples, I mean, wow, that's one busy woman, but none of them were of the defendant"

Absense of defendant's DNA can be relevant. Presense of another person's DNA is not relevant, even in this case. All it does is suggest to the jury what other commenters on this blog have said, that the woman was... what was the quote... oh yeah, "a retarded whore."

"And we cannot offer evidence showing the absence of defendants' DNA without, implicitly, getting into the victim's past sexual behavior."

Yes we can, see hypothetical statement #1 above.

I was not trying to "slam" you for neglecting the normative policy argument, I was trying to bring the normative policy argument in, to remind people why we have to be careful about the scope of victim exam evidence. This senario came up in the Kobe trial too, where the issue really was scope of consent, and prior partners SHOULD have been clearly irrelevant.

Anonymous Corey -- 6/19/2007 8:19 AM  


I wish people were more familiar with the facts of the case before expounding on this topic. Everyone discussing the DNA issue misses the point that the accuser's allegations were that she was forcibly raped, and that there was a now thoroughly discredited report from the nurse who examined the accuser that she suffered some type of trauma consistent with multiple episodes of forced sex. Once those claims are in play, the multiple DNA samples become relevant under any standard, becuase they offer a separate explanation for any physical trauma or evidence of multiple partners. I'm certain that's the main reason the samples were considered exculpatory, and why the prosecutor misled both the defense team and the presiding judge as to whether there was such evidence.

Anonymous Anonymous -- 6/19/2007 12:28 PM  


“Once those claims are in play, the multiple DNA samples become relevant under any standard, because they offer a separate explanation for any physical trauma or evidence of multiple partners.”

This is an opinion that I do not think would (or should) withstand the N.C. Gen. Stat. § 8C-1, Rule 412.

Rule 412 has specific provisions regarding the introduction at trial of evidence regarding the sexual behavior of the complainant. The evidence must first be “of specific instances” and then those specific instances must be offered to show that “the act(s) charged were not committed by the defendant.”

The degraded DNA in this case is not “specific” (we do not know who specifically it belongs to, when specifically it was deposited or how specifically it was deposited).

Even if the specifics are known (we know who when and how) and, as has been testified, they were deposited at a minimum of 3 days prior to the alleged rape, it still would not satisfy the second prerequisite as they do not show that the act(s) “charged” were not committed by the defendant.

I understand that Rape Shield rules defy the logic (and perhaps justice) of normal rules of evidence, but this is the trade off lawmakers have defined to preserve the prejudicial effect a victim’s sexual behavior can have on a jury.

Anonymous Anonymous -- 6/19/2007 3:49 PM  


"preserve the prejudicial effect a victim’s sexual behavior can have on a jury."

Sorry - I meant prevent the prejudicial effect a victim's sexual behavior can have on a jury.

Anonymous Anonymous -- 6/19/2007 3:53 PM  


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