Situation Normal, All Nifonged Up

Jeff Taylor | January 24, 2007

The other shoe -- a rather large hob-nailed boot, in fact -- has fallen on Durham DA Mike Nifong in the form of additional North Carolina State Bar charges. A complaint filed this morning charges that Nifong withheld DNA evidence from the defense and then lied about it in court. A more serious charge is hard to imagine.

At the same time, Nifong's personal fix-it man in the Duke lacrosse rape case, investigator/gospel singer Linwood Wilson -- the TV movie is so gonna rock -- has to be wondering what this all means for him. It was Wilson who rushed to re-interview the accuser in the case on December 21, the day after the State Bar told Nifong it was investigating his comments regarding the DNA evidence.

In that interview with Wilson, conducted one-on-one, yet another departure from sound investigative practice, the accuser radically changed her story to the point where Nifong dropped the rape charges. But the story changes made the lack of DNA evidence less important to the sexual assault charges Nifong held onto. Everyone else on planet Earth, meanwhile, could see the entire story was a fiction.

The upshot is we've moved squarely into the realm of a conspiracy to hijack the criminal justice system and use it against three innocent men. It is great that the State Bar has finally moved itself to act against one of its own. However, actual justice may demand that criminal charges be filed shortly after the remaining charges against the lacrosse players are dropped by the special prosecutor.

Is there the political and institutional will in North Carolina to do that? We should find out shortly.

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|1.24.07 @ 1:17PM|#

Wow, a corrupt prosecutor. In North Carolina, no less. Who'd a thunk it?

Seriously, this man needs to do some real time in addition to losing his license to practice law.

|1.24.07 @ 1:18PM|#

Political will may not matter. The Bar complaint flat out STATES that Nifong took over the investigation from the police and exceeded the scope of his duties as a DA. That opens him to civil damages by taking away his immunity as a prosecutor. Any judge would now award damages against him for the legal time and effort that it took to pry the witheld DNA exculpatory evidence from him, and likely some pretty severe punitive damages and mental anguish damages for the parents of all three students to boot.

The man is legally in deep deep shit here.....

The Wine Commonsewer|1.24.07 @ 1:22PM|#

So when is Jesse gonna apologize? Or Al? Or all the duly anointed and ever-so-vigilant........

Hmmmm. Just Crickets.

Then again, I don't watch much TV so I could have missed it.

However, actual justice may demand that criminal charges be filed....

May? I think definitely is a better word.

Nicely done story Jeff.

Jennifer|1.24.07 @ 1:38PM|#

The accuser also needs to face serious charges, but I'm skeptical that'll happen.

|1.24.07 @ 1:42PM|#

Politicians are supposed to be sensitive to the prevailing social conditions.

Civil servants are supposed to ignore them, and conform their behavior to an established standard.

District Attorneys really shouldn't be elected.

|1.24.07 @ 1:49PM|#

"So when is Jesse gonna apologize? Or Al?"

This is minor league for Al. Compared to Tawana Brawley and inciting the mob over that store in Harlem going after a bunch of college jocks is child's play. They are never going to apologize because they don't care.

|1.24.07 @ 1:50PM|#

"District Attorneys really shouldn't be elected."

I not sure that would help much. There are plenty of civil servents who do crazy things and unlike an elected official, their is no way to hold them accountable for it.

Sam Franklin|1.24.07 @ 1:56PM|#

That opens him to civil damages by taking away his immunity as a prosecutor. Any judge would now award damages against him for the legal time and effort that it took to pry the witheld DNA exculpatory evidence from him, and likely some pretty severe punitive damages and mental anguish damages for the parents of all three students to boot.

I certainly hope this would not give Nifong's employer any additional immunity from civil suits for large money damages. The people who hired Nifong need to feel this one when they pay their taxes. Accountability.

|1.24.07 @ 1:57PM|#

So when is Jesse gonna apologize? Or Al?

It boggles the mind that these two still have credibility for some of the populace. Of course they will not apologize. That would be admitting to being wrong, irresponsible, race-baiters.

|1.24.07 @ 1:59PM|#

District Attorneys really shouldn't be elected.

I think the intention is to let the people get rid of an abusive DA whose misdeeds aren't provable to the standards necessary fire a civil servant. Ultimately, though, I don't know whether that justifies making DAs politicians - or whether DAs could really be prevented from being politicians even if appointed.

|1.24.07 @ 2:23PM|#

"...and unlike an elected official, their is no way to hold them accountable for it."

John, that's an odd statement to make in a thread about the Bar Association filing charges against the guy.

|1.24.07 @ 2:24PM|#

One thing's for sure - prosecutors will think twice the next time they file charges against rich people on behalf of a poor person.

It's hard to sort out what's true in the case but what are the odds that the stars would align in such a manner to give us a lying accusor, incompetent police and an amazingly corrupt and dishonest prosecutor all at the same time?

It really does remind me of the Brawley case, where we are being asked to believe that a teenager would smear herself with feces and accuse a bunch of people of rape as part of an elaborate scheme to excuse her skipping school.

|1.24.07 @ 2:35PM|#

If I were these Duke kids, I would sue the DA personally, the city of Durham, the state of North Carolina and Duke University. I hope these kids are taken care of financially for life!

|1.24.07 @ 2:41PM|#

It's hard to sort out what's true in the case but what are the odds that the stars would align in such a manner to give us a lying accusor, incompetent police and an amazingly corrupt and dishonest prosecutor all at the same time?

It really does remind me of the Brawley case, where we are being asked to believe that a teenager would smear herself with feces and accuse a bunch of people of rape as part of an elaborate scheme to excuse her skipping school.

Stupid, moronic, and idiotic are words that come to mind regarding Haywood's Proxy's post. He seems to believe that black women would never lie about being raped.

The sad thing is that real victims will have a more difficult time getting an honest hearing.

I agree with Jennifer that the accuser should be prosecuted. That would be called justice.

|1.24.07 @ 2:44PM|#

...what are the odds that the stars would align in such a manner to give us a lying accusor, incompetent police and an amazingly corrupt and dishonest prosecutor all at the same time?

In Durham, NC, pretty damned good, I'd say.

|1.24.07 @ 3:02PM|#

I'd characterize Duke more as a victim in this case than a perpetrator.

The students had been indicted for forceable rape, fer chrissakes! It's not like the University was relying on the unsubstantiated word of the accuser - it was backed up the District Attorney's office and Police Department. That's where the blame lies.

Which is not to excuse Duke entirely - cancelling the entirety of the lacrosse season was certainly excessive - but their actions aren't even in the same league as Nifong's.

Admittedly, I haven't been following this case very closely, so there may have been more egregious behavior from Duke that I'm unaware of, but that's my impression.

|1.24.07 @ 3:24PM|#

Q: What's the difference between President Bush and the Duk 88?

A: The president can admit that he's made mistakes.

Let's just say it's interesting how things work out for those with money.

|1.24.07 @ 3:25PM|#

Duk = Duke

|1.24.07 @ 3:30PM|#

Dear haywood's proxy,

The poor are much better off han the rich because unlike the poor, rich folks can't take comfort in the belief that all of their troubles would instantly evaporate if only they had more money.

|1.24.07 @ 3:41PM|#

It is true that a rich man has many problems, but a starving man only has one.

|1.24.07 @ 3:43PM|#

Say you live in Washington state, and you find yourself getting to know and becoming attracted to your dental hygienist--or for that matter your optician (that's the person who fits your eyeglasses, based on the prescription provided by your optometrist). You're interested in a romantic relationship, a sexual relationship, perhaps even marriage. You're both consenting adults, you think, right? You have a right to marry, and even a right to have sex (given Lawrence v. Texas).
The Washington authorities don't seem to think so. Let's see how some new Washington regulations treat this.
Under Washington Administrative Code 246-16-020, your dental hygienist and your optician are "health care providers." This means that, under Washington Administrative Code 246-16-100, they "shall not engage, or attempt to engage, in sexual misconduct with a current patient." Sexual misconduct "includes but is not limited to" sex, kissing, "hugging . . . of a romantic . . . nature," "suggesting or discussing the possibility of a dating, sexual or romantic relationship after the professional relationship ends," "terminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship," or "making statements regarding the patient['s] . . . body, appearance, sexual history, or sexual orientation other than for legitimate health care purposes," among many other things.
OK, you say, no problem; you should just switch to a different dental hygienist or optician, and then start dating. Perhaps banning optician-client relationships is going a bit far, but it's hardly a big burden on people's romantic, sexual, or marital choices.
No dice! Subsection (3) of the provision states that "a health care provider shall not engage, or attempt to engage" in any of these activities "with a former patient, client or key party within two years after the provider-patient/client relationship ends." Two years is not a short time. If you do want to date your former dental hygienist or optician, you can't even kiss her until two years after you leave her practice. Or, to be precise, you can kiss her, and she can kiss you back--if she is willing to risk professional discipline and possibly loss of her livelihood, a pretty serious burden.
But wait; maybe before you leave and wait the two years, you ought to get a sense of whether she's even interested, no? Except that even if you ask whether she's potentially interested, her answer has to be: I'm sorry, but I can't discuss the possibility of a relationship after the professional relationship ends.
Of course, this restriction does end two years after the professional relationship ends. So two years after switching dental hygienists or opticians, you can call up the person and say, "Hey, remember me, from two years ago? I only stopped coming to your office so that I could wait two years and then ask you out. So, are you interested?" At that point, she can start a relationship with you--or say, "Oh, sorry you had to stay away for two years, but I don't think it would work out between us."
Actually, can she start a relationship with you, even two years later? Well, not if "(a) There is a significant likelihood that the patient . . . will seek or require additional services from the health care provider; or (b) There is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship." How should the hygienist or optician think this through? Let's skip item (a), though even that's troublesome enough (since if a relationship does develop, you might well ask your lover or spouse for some professional help, as lovers and spouses often do).
Instead, consider (b): Is there an imbalance of "power, influence, opportunity and/or special knowledge of the professional relationship"? It's hard to grasp what "special knowledge of the professional relationship" means, but if the question is whether there's an imbalance of "special knowledge," the answer would likely be "yes": All professionals, including dental hygienists and opticians, have special knowledge others don't have.
And what about "influence" or "opportunity"? Say the optician is a relatively well-paid small businessman, and you're poorer or less well-educated. The optician may well have more influence and opportunity than you do. He may not have nearly enough to threaten you or coerce you, but that's not the test; the question is just whether there's "an imbalance of . . . influence [or] opportunity." Does an optician making a comfortable living have influence and opportunity that's "balance[d]" with that of, say, someone who's working as a waitress for minimum wage? Probably not. And if that's so, then that means the optician and waitress can't date even after the two years have passed.
Of course, maybe the rule is meant to capture something less than all "imbalance of power, influence, opportunity and/or special knowledge." Perhaps eventually it will be interpreted more narrowly than it seems to be written. But in the meantime, the optician or hygienist who is contemplating whether to have the relationship with you risks losing his livelihood should he guess wrong about what the law means.
More: The rule applies not just to relationships with clients, but also with any "key party," which includes "immediate family members and others who would be reasonably expected to play a significant role in the health care decisions of the patient or client and includes, but is not limited to, the spouse, domestic partner, sibling, parent, child, guardian and person authorized to make health care decisions of the patient or client."
Say you're a single doctor; you get to know your patient; and through the patient, you get to know the patient's sister, whom you find yourself romantically interested in. Can you ask her out (either while you're seeing the patient, or for two years afterwards)?
Well, if "who would be reasonably expected" applies only to "others," and not to "immediate family members," then immediate family members are off-limits to you, period, no matter whether they play a role in the patient's health care decisions.
But say even that "key party" includes only those immediate family members who would be reasonably expected to play a significant role in the patient's health-care decisions. And say that the patient's sister is herself a doctor or a nurse. The patient's sister would surely be "reasonably expected to play a significant role in the health care decisions of the patient"--people routinely rely on medically trained family members' advice in making health-care decisions.
So no dice with the patient's sister. You can't marry her. You can't have sex with her. You can't ask her on a date. You can't even say she looks nice (that's "making statements regarding the . . . key party's . . . appearance"). You can't do this while you treat the patient. You can't do it for two years afterwards. You can't do it even two years afterwards, if "there is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship" (between you and the patient, or you and the sister? Who knows?). And of course you can't transfer the patient to another caregiver so that the two-year clock starts ticking, since that would be "terminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship."
And if you're the professional involved, don't just worry that these rules will apply to you only if the patient (or the other "key party" involved) complains. No matter how good your relationship with the person you're seeing, no matter how nonacrimonious any possible breakup, no matter how carefully you make sure that you only date people who won't want to jeopardize your career, someone else may file the complaint--say, a jealous ex of one of the people involved, which is what happened in this Minnesota case--and you may get disciplined even if the allegedly wronged party is entirely on your side (in fact, is now your loving spouse).
Of course medical relationships offer room for various kinds of abuses. In some situations, it may be proper to interfere with people's right to marry, and their sexual and romantic autonomy, in order to prevent those abuses. We can talk about relationships between psychotherapists and clients (or ex-clients), or relationships between doctors and current patients, or other circumstances in which the risk of subtle coercion or unprofessional behavior is especially high (which is to say materially higher than the risk of subtle coercion and other harms in any sexual relationship).
But the trouble here is that the rules go vastly further than these special situations, and vastly undervalue the countervailing reasons to limit regulation--people's right to choose whom to date, have sex with and marry, even including their dental hygienists, opticians, and the like. So much for the right to marry; so much for sexual autonomy; so much for consenting adults deciding whom to love, without the fear of losing their livelihood.

I like reading about Nifong because every time I read his name I imagine W C Fields spelling it aloud.

|1.24.07 @ 3:47PM|#

"It is true that a rich man has many problems, but a starving man only has one."

Well don't keep us in suspense. What IS the starving man's problem?

Can't he work?

Can't he haul his ass to a foodbank?

Can't he fill out the welfare forms?

Can't he beg on the streets for food money?

Again I ask you, what is the starving man's problem???

lunchstealer|1.24.07 @ 3:52PM|#

I will admit that I haven't followed this case exhaustively, but while I think that there's a good case for prosecutorial misconduct, and a reasonable case for some exageration on the part of the alleged victim, that doesn't mean that they didn't do anything inappropriate, or that this actually disproves a sexual assault charge. These kids may indeed have gotten out of hand. However, Nifong was so gung-ho to railroad them that he's destroyed any credibility that the charges may have had.

The charges should clearly be dropped, probably in their entirety. But I won't go running out to say that the Duke kids have been proved innocent.

|1.24.07 @ 3:58PM|#

The starving man's problem is being a pawn in the class warrior's empty rhetoric.

|1.24.07 @ 4:03PM|#

|1.24.07 @ 4:15PM|#

...some exageration on the part of the alleged victim,

How about "complete fabrication on the part of the alleged slanderer."?

B|1.24.07 @ 4:16PM|#

Sam Franklin:

"The people who hired Nifong need to feel this one when they pay their taxes. Accountability."

That sounds nice on paper, but would you really want a world where taxpayers are effectively financially liable for the wrongful actions of elected officials?

Really?

Just askin'.

B
(Durham resident and taxpayer)

Gilbert Martin|1.24.07 @ 4:17PM|#

"The charges should clearly be dropped, probably in their entirety. But I won't go running out to say that the Duke kids have been proved innocent."

They don't need to be proven innocent.

The presumption in this country is (or is supposed to be) that one is innocent until proven guilty.

|1.24.07 @ 4:18PM|#

"Uh, the problem is that he's starving."

No, that's just a symptom.

|1.24.07 @ 4:23PM|#

"The starving man's problem is being a pawn in the class warrior's empty rhetoric"

You got that right.

|1.24.07 @ 4:40PM|#

"Again I ask you, what is the starving man's problem???"

That's the difference between you and us: we don't pretend we know the starving man's situation, opportunities, shortcomings, and problems.

You assume you do.

VM|1.24.07 @ 4:47PM|#

lunchstealer:

that's the most reasonable account thus far.

"would you really want a world where taxpayers are effectively financially liable for the wrongful actions of elected officials?"

we sure get reamed, at least.

|1.24.07 @ 4:48PM|#

I remember the good ol days when joe was about as extremist as we saw in these parts.

Gilbert Martin|1.24.07 @ 5:04PM|#

"That's the difference between you and us: we don't pretend we know the starving man's situation, opportunities, shortcomings, and problems."

No you just pretend we are all obligated to help him regardless of what his problems are.

|1.24.07 @ 6:07PM|#

That sounds nice on paper, but would you really want a world where taxpayers are effectively financially liable for the wrongful actions of elected officials?

And what, in your world they hunt down and rob a leprechaun of his gold to pay for damages whenever a government agency or administration is successfully sued? ;)

Thomas Paine\'s Goiter|1.24.07 @ 6:09PM|#

But I won't go running out to say that the Duke kids have been proved innocent.

You have to be kidding me. "Proved innocent?"

Jesus holy.

lunchstealer|1.24.07 @ 6:27PM|#

TPG, unless you're bitching about my grammar and/or spelling, I was responding to this statement out of Jeff's original post: "The upshot is we've moved squarely into the realm of a conspiracy to hijack the criminal justice system and use it against three innocent men."

The prosecutor's misconduct does not ipso facto mean that the kids aren't guilty. It means that he's so thoroughly trampled their rights that they have no chance to effectively mount a defense, so the state must refrain from prosecution. Big difference. My guess is that those kids did something to that stripper. It's possible that they just insulted her or stiffed her, and she made the rest up as payback. It's equally possible that they broke the rules (lots of strippers stipulate look-but-don't-touch), or got rough, or attempted sexual assault, and she or police or the DA pumped up the story to get more attention. It's also possible that she told the truth, and that Nifong just went nuts with the high-profile case and just threw his ethics out the window in his pursuit of fame.

But to refer to those kids as 'innocent' as if it were a fact seems to be a stretch to me.

|1.24.07 @ 7:14PM|#

The students had been indicted for forceable rape, fer chrissakes!

Just like the Scottsboro Boys, fer chrissakes!

|1.24.07 @ 7:17PM|#

Jason Ligon,

I am registered Democrat, who voted Kerry-Gore-Clinton-Clinton.

That makes me less extremist than any person who ever considered voting for an LP candidate in any election.

|1.24.07 @ 7:20PM|#

|1.24.07 @ 7:25PM|#

"and likely some pretty severe punitive damages and mental anguish damages for the parents of all three students to boot."

Damages to the parents? Last I checked those boys were all over the age of 18. Why would their parents get money? Any "mental anguish" the parents went through pales in comparison to what their children underwent.

|1.24.07 @ 7:37PM|#

Wow, Seamus, I've seen the light. Because there was once a case in which someone was wrongly accused, that makes it wholly irrational for a university to suspect men indicted for rape from the campus.

How could I have been so blind?

Beats the fuck out of me how you could excuse the university for saying, under circumstances that suggested a photographic negative of the Scottsboro boys case, "well, the grand jury has indicted its ham sandwich; no need to look any farther than the face of the indictment." I'd say you have to look into your own soul for how you could be so goddam ready to condone the abdication of any independent moral judgment.

dhex|1.24.07 @ 9:08PM|#

"would you really want a world where taxpayers are effectively financially liable for the wrongful actions of elected officials?"

i'm pretty sure we live in that world, by hook or by crook.

what's interesting about this case is that it gives everyone a little bit of what they want, even if that includes the bizarre inclusion of al sharpton by any means necessary. if sharpton had that much cred, everyone involved in the bell shooting would be in prison by now.

http://en.wikipedia.org/wiki/Sean_Bell

culture war is as culture war does. (i.e. is boring as shit)

dhex|1.24.07 @ 9:09PM|#

and to win some cathy young points, i do like the unspoken assumption of "they were white and played college sports, of course they're rapists!" thing too. that's pretty tasty.

Ray G|1.24.07 @ 9:39PM|#

Wow, is this guy the most radioactive man on the planet right now. Someone should have him on suicide watch, no kidding.

|1.24.07 @ 9:44PM|#

Quick, Seamus, your neighbor has been indicted for child rape. Do you tell your brother to keep an eye on his kids when he comes over, or not?

|1.24.07 @ 10:36PM|#

Miss Direction, unless your handle is a pseudonym for Professor Eugene Volokh, isn't some attribution in order for your cutting and pasting?

biologist|1.24.07 @ 10:45PM|#

TP's G

apparently, what you're concerned about and confused about in lunchstealer's post is the difference between the legal presumption of the accused's innocence and the actual fact of their guilt or innocence

|1.25.07 @ 10:07AM|#

Quick, Seamus, your neighbor has been indicted for child rape. Do you tell your brother to keep an eye on his kids when he comes over, or not?

If the neighbor is Gerald Amirault, then no.

(Of course, your question suggests that you think there's no difference between keeping an eye on someone and throwing him out of school while publicly subjecting him to Maoist-style denunciations.)

|1.25.07 @ 10:49AM|#

joe:

But turnabout is fair play: Quick, joe, Kobe Bryant is a member of your university's basketball team, and is indicted for forceable rape. Do you suspend him from school, fire the coach, shut down the basketball program, and join in a frenzy of denunciation of "coddled athletes" or not?

|1.25.07 @ 10:07PM|#

Seamus,

Months (in Kobe's case) or years (in Tookie's case) later, we are in a position to judge their prosecutions as idiotic. And, as a matter of fact, once Duke got the benefit of that time and the opportunity to cooly review the facts as they came out, they reversed themselves, even as the indictment remained in effect.

But two days after Amirault's arrent, would I have warned my kids away from him? A week after Bryant's indictment, would I have forbidden my daughter from joining him in his hotel room?

Hell yes.

|1.25.07 @ 10:14PM|#

Dem good ol boys been gettin away with this kind of law enforcement in NC for 300 years Nfong aint gonna make no difference, nohow

Aint y'all never seen no Burt Reynolds movies?
Why twernt for crooked lawyers NC wouldnt have no lawyers. They is all crooks.

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