Roy Cooper Steps Up

It is nice to be surprised.

North Carolina Attorney General Roy Cooper actually called the three Duke lacrosse players innocent during his just-completed press conference announcing that all criminal charges have been dropped by the state. I didn't think Cooper had it in him.

Moreover, Cooper said that no attack occurred that night in Durham last March and called Durham DA Mike Nifong a "rogue prosecutor." The only thing Cooper did not do is announce criminal charges against Nifong, but he repeatedly pointed out that Nifong faces a State Bar investigation into his conduct.

Taken together, Cooper's finding and choice of words greatly increases the chances that the young men charged by Nifong could win some sort of civil action against Nifong, Duke University, or both.

Keeping watching Durham for more fallout from this major turn of events.

Comments

[jp]

Hallelujah!

The civil side of this should be interesting, as the prey become the hunters. They have great facts that Cooper will apparently hand them on a silver platter. But they may face an uphill battle in terms of viable legal theories and finding deep pockets.

[John]

They are probably out of luck and will be stuck paying legal bills for the rest of their lives. They could sue Nifong, but in order to win, they have to prove he acted illegally, in which case the State of North Carolina will declare his actions outside the scope of his duties and refuse to defend him or pay any damages. Exactly how much money do you think you can get out of a disbared prosecutor and a out of work prostitute in Durham, North Carolina? Although, I bet the stripper could get some work as a novelty act in various men's clubs across the country. "Live Saturday, The Stripper From the Duke LAX Case, Be Sure to Bring Your 20s and a Good Allabi." I think she could also make a good living speaking on college campuses about how she was victimized and racism and sexism on campus. The fact that nothing she said was true wouldn't matter much to the people on campus. It is all about the lessons of the story not the facts.

[M]

I hope the exonerated defendants remain squeaky-clean so that they retain their strong case uncompromised. Caesar's wife and all that:

http://en.wikipedia.org/wiki/Bernhard_Goetz#Legacy

[TPM]

joe | December 22, 2006, 1:38pm | #

I just cannot believe that Nifong would continue down this path if the case was really as weak as the media presents it. There's got to be something more. Nifong is a respected career prosecutor. I simply can't accept that he'd keep pushing if all he had was the absolute nuthin' that we keep hearing about.

[John]

TPM,

That is Joe speak. In ordinary English it translates to "this case confirms too many of my existing prejudices and views of the world for it not to be true. There must be a pony in there somewhere."

[R C Dean]

Ouch, TPM.

John, I'm no expert on sovereign immunity, but its a complicated area and there may be a way to get something to stick to the city/county, especially in a case that involves a violation of civil rights (as this one does, in spades).

Also, the ultimate deep pocket here may be Duke. There is a very tasty libel/slander claim for all the things various members of the Duke professoriat and establishment have said in which they implied, assumed, or outright stated the guilt of the accused.

Duke desperately needs this to go away, and should be willing to pay handsomely to make it so.

[Frith]

Should the people of Durham go ahead and order their replacement mailing labels which now read "Lacrosseville, NC"?

[Loundry]

I just cannot believe that Nifong would continue down this path if the case was really as weak as the media presents it.

I agree, especially considering that all white men (especially Southern white men) are, from birth, inherently guilty of raping black women. Only racism exonerated these guilty whites.

[AnonCowHerd]

An excellent source for information on all the aspects of this case -

Durham in Wonderland

I think the students have a good case against some Duke staff.

[ellipsis]

I've been tempted in the past to throw joe's words back in his face myself, but I just couldn't bring myself to do it. I just keep thinking that deep in his bleeding heart, he means well. That and partisan belief is hard to shake.

[Lord Duppy]

I know very little about law, but aren't prosecutors supposed to be merciless? Isn't it their job to try to get convictions, like the Jewish Satan? Er, that is, the Jewish version of Satan, I mean... like in the book of Job... *squeak*

Under what circumstances can one sue a prosecutor?

[Will Alllen]

Does this mean that Al Sharpton has to apologize for what he said about these lacrosse players, on Don Imus' radio show?

[Seamus]

About. Fucking. Time.

[Captain Moose (NOT from Maryla]

"called Durham DA Mike Nifong a "rogue prosecutor.""

Come in here, Nifong. You're being sent to Top Attorney out in San Diego.

Now, I didn't want you to go. Son, your ego is writing out search warrants that your body can't cash. You're dangerous. Unpredictable.

You're a rouge attorney. We cannot control you. But you have to go. Brotherben was number one. But he didn't wanna hack it. Turned in his Imus toy. That leaves you.

[jimmy smith]

Nappy headed prosecutor??

[Imus]

Why does Drudge have a picture of the Rutgers point guard up?

[jb]

That quote by Joe is a poor thing to throw back. He was expressing disbelief in what turned out to be true--that Nifong was, in fact, a rogue prosecutor with no evidence.

Personally, I found that hard to believe too.

[Chris S.]

I seriously doubt that the lax players will get anything out of the city, Nifong, or the stripper, but RC Dean hit the nail on the head re: libel/slander against Duke.

[Mike]

I think the thing that probably kept it going even after it should have been dropped was the emails that were found early on. When one player sent an email saying roughly "I want to rape a girl and skin her alive while cumming in my pants" it makes a rape accusation seem a bit stronger -regardless of the context of the email.

My only point is that it was normal for the prosecuter to step on the gas in the case. His problem is that he didn't know when to put on the brakes.

http://www.insidehighered.com/news/2006/06/06/duke

This has a link to the player's email.

[kohlrabi]

Yeah, to be honest, that isn't the best example to throw back at joe. There's nothing wrong with being sceptical, and that's really all he said.

[lunchstealer]

Yeah, all fairness to joe, I didn't think Nifong was as far out as he was, although I didn't take QUITE as much convincing as joe did. Then again, I'm still not convinced that those kids are as innocent as they claim. Something probably happened there, but at this point it's between them and their consciences. Nifong has fucked this up so bad that the law will never be able to sort it out.

[R C Dean]

I just keep thinking that deep in his bleeding heart, he means well.

Road to hell, man, road to hell.

Yeah, to be honest, that isn't the best example to throw back at joe. There's nothing wrong with being sceptical, and that's really all he said.

joe wasn't being skeptical at all. Quite the opposite. He was being credulous, by declining to doubt the prosecutor's story.

[independent worm]

While they're at it, NC can go ahead and clean up these bastards while they're at it:

Moron NC judge calls baby killing ex-military guy a "hero" and sentences him to no time

This disbarred NC judge still on the payroll.

Then the two NC prosecutors who failed to turn over exculpatory evidence in a capital murder case

All of this in the last two years or so... and that's just the tip of the iceberg. The list goes on and on and on. NC has one fucked up criminal judicial system.

[jp]

Something probably happened there....

Cooper apparently gave strong hints at the press conference that the accuser is bonkers.

[Stevie Wonder]

Kohrabi,
Nothing wrong about being skeptical?

But we're talking malfeasance here. You know, government overstepping its authority. And this here is Hit&Run country. Being skeptical of authority is a good thing. Being skeptical that a prosecuting attorney would ever maliciously prosecute a case is pollyannish.

[NoStar]

OOPS! forgot to change it back.

[kohlrabi]

RC,

I guess you're technically correct, it just seemed to me that joe was being sceptical that the prosecuter was going on nothing. That doesn't necessarily mean he thinks they're guilty.

[kohlrabi]

NoStar,

Fair enough. I just think there's plenty to get joe on if that's your gig, but oy! it's not like he said "They're guilty, I just know it!".

[John]

Worm,

The baby case is all to typical. The sad fact is that parents can do things to their own children and get off that if they did them to a strange child they would get life. Miserable bastard. If I was the kid's grandparent, I would have shot the scumbag defendent and the judge both. I mean what the hell, if I have to watch my grandkid's murderer walk away with funeral expenses and probation, it is not like I would ever be happy again anyway. Might as well go to prison and at least get the satisfaction of sending those two bastards to hell.

[andronoid]

from the ABA model rules which I'm pretty sure would be the governing law (or a similar state law) the requirement to prosecute is:
"(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause"

So it seems the the prosectuor is only restrained from prosecuting if they know (with 100% certainty?) that there is no probable cause (a very weak standard).

The other requirements are just procedural (e.g. don't say certain things to the press).

I don't know enough about the the history of this case to say if the procedural rules were followed but I'm virtually certain that the prosecutor can't be punished just for bringing the case and failing to drop the charges because it'll never be shown that he "knew" there was no probable cause.

[Carl Jung]

And thus we peer deeply in to the mind of John.

[Karl Hungus]

Und now I kann fix his Kable televishun.

[David Ross]

TPM 3:54pm

How dare you sully this board with Rethuglican talking points! I mean, joe's talking points from a few months ago. Whatever. Racist.

[Rex Rhino]

Yeah, all fairness to joe, I didn't think Nifong was as far out as he was, although I didn't take QUITE as much convincing as joe did. Then again, I'm still not convinced that those kids are as innocent as they claim.

Now, I don't have any more evidence to suspect you of the crime than you have to suspect the Duke players of commiting a crime. I just know, deep in my heart, that you are a vicious racist rapist! You wouldn't be so sure they aren't as innocent as they claim, if you werent there participating in the criminal acts.

[eb]

Has anybody seen The Staircase?

I haven't but a friend did and he describes it as a documentary about a murder prosecution run amuck with the assistant DA being Mike Nifong. Since I haven't actually seen the movie or read much about the case in question, I can't really speak to it but it is curious that the same guy would be involved in similar situations.

[Not a lawyer]

I don't know enough about the the history of this case to say if the procedural rules were followed but I'm virtually certain that the prosecutor can't be punished just for bringing the case and failing to drop the charges because it'll never be shown that he "knew" there was no probable cause.

I don't think that's the issue, Andronoid. The charge that Nifong should have to deal with is that he knowingly and willing withheld potentially exculpatory evidence from the court, from the results of rape examination.

[Thomas Paine\'s Goiter]

Then again, I'm still not convinced that those kids are as innocent as they claim.

Yeah! Those bastards! They didn't pay a stripper because she passed out in the toilet. JERKS!

[Uncle Leo]

They don't just overcook a hamburger.

[lunchstealer]

Now, I don't have any more evidence to suspect you of the crime than you have to suspect the Duke players of commiting a crime.

Might wanna check on your syntax there.

What you said was (Evidence for lunchstealer involvement)

[lunchstealer]

Bleh, lost most of the previous post due to forgetting that 'less than' and 'greater than' are verbotten in HTML enabled posting.

Meh, wasn't that enlightening anyway.

[txl]

I think this story goes to the point of excesses by prosecutors in general. I don't know that much about Nifong, but he isn't the only prosecutor that does this shit. These days prosecutors don't even seem to consider the possibility that someone might be innocent of charges and look at cases as a scorecard rather than the futherence of justice. How many other, less affluent people have gotten fucked by unscrupulous prosecutors like this and couldn't fight back or had to take a plea deal because his Public Pretender couldn't defend him?

[Paul]

I think Mike Nifong touched me inappropriately. I feel violated.

[Paul]

Then again, I'm still not convinced that those kids are as innocent as they claim.

You're totally right. Why, they may be mouth-breathing fraternity boys. They may even utter the n-word from time to time. So by god, a gang-rape charge should just cover all of those negative traits.

[Paul]

the case and failing to drop the charges because it'll never be shown that he "knew" there was no probable cause.

Perhaps he "new" there was no probable cause just like lunchstealer 'knows' that "something" happened with the Duke boys. Duke boys?!! Haa, I kill me.

Nifong: I'm gonna git them Duke boys!

[B]

eb--

I watched The Staircase a few weeks ago, as a matter of fact.

To be fair, Nifong only appears in one scene, very early in the series, of a meeting in the DA's office. His role in the Peterson case seems to have been rather peripheral. And while the series makes the prosecution's case look very, very weak, it is blantantly biased in Peterson's favor.

To tell the truth, I came away thinking he probably did it, but wouldn't be able to vote for conviction as a juror, b/c the prosecution did such a lousy job.

The DA at the time who was in charge of that case is now a Superior Court Judge in Durham Co. Naturally.

[van]

I didn't see The Staircase, but I did see some program about the case, maybe on A & E.

The prosecution argued that his wife found out about his bisexuality and threatened to expose him. Also, he had been the last person to see alive a female friend in Germany many years before, and she died in a fall on a staircase. I recall not feeling entirely convinced of his guilt, though the similar event in Germany was alarming and certainly suspicious.

I didn't know about The Staircase. I'd love to see it.

[van]

"Some people will look at your defendant as a baby killer; others will say he is the authentic American hero," Gore, a Superior Court judge from Columbus County, said to Ullom's attorney. "At this point, this far removed from the actual act ... it appears to not be in the interest of justice to put him in prison."

wow, wow, and wow. not in the interest of justice...or so it appears?

[highnumber]

Bleh, lost most of the previous post due to forgetting that 'less than' and 'greater than' are verbotten in HTML enabled posting.

Meh, wasn't that enlightening anyway.

Comment of the Decade!

Kudos x 100!

[ChrisL]

Folks, Please!

I am presently living in Durham, NC and grew up here... I first heard about this case while living in Galway, Ireland and speaking with tourists. (in the typical, "how ya dooin',where ya from" banter which occurs among travellers.)

Anyway, Mike Nifong was in a pretty tight race for the DA position with two other contenders.
He had worked in the DA office for decades and I guess considered the office his due...

And along came this case, and, well, the rest is history. If Justice truly does out, this opportunist will be disbarred come June.

Good luck,
ChrisL

[eb]

I watched The Staircase a few weeks ago, as a matter of fact.

To be fair, Nifong only appears in one scene, very early in the series, of a meeting in the DA's office. His role in the Peterson case seems to have been rather peripheral. And while the series makes the prosecution's case look very, very weak, it is blantantly biased in Peterson's favor.

Thanks for that info. I'm tracking down a copy now to watch but I would wonder if the current case will raise issues about the other, meaning that people decide to take another look. I think this case calls into question not only Nifong but the entire culture of the office. I'm not trying to accuse anybody else of any wrong doing but it is an issue that should be looked into.

[jb]

I'm familiar with prosecutorial malfeasance, but it's very rarely of the form "Let's get this guy who we have no evidence against." It's usually "We can make a case that this guy did it, so let's ignore evidence to the contrary and railroad him."

I figured this was the latter--Nifong had some kind of case, even if it wouldn't go through, and was grandstanding. It'd take a powerful prognonsticator to have predicted that everything he had was a lie, founded on actions against procedure and outright fraud.

[Not a lawyer]

jb:

No prognostication is necessary. He seems to have used his political influence to suppress the introduction of evidence gained by services rendered under public trust.

This evidence happened to be exculpatory, but even it wasn't, the act of suppressing it at all is inexcusable.

[Nothing to do with anything]

http://www.houseofnames.com/xq/asp.fc/qx/nifong-family-crest.htm

[Jennifer]

Cooper just wants to "look good". I found it unsettling when I opened up my mail from ECU after a security breach at the school, to read all about "Attorney General Roy Cooper's site for protecting your credit" at http://www.noscamnc.gov/ Look, NO SCAM NC.GOV? Seems like an oxymoron...his photo plastered everywhere, telling everyone how saintly he is since freezing your credit in NC was HIS push. More on my blog.

[joe]

Yup, I still find Nifong's behavior unbelievable. I still find it incredible that someone who became a District Attorney would behave like that.

Interesting to see what y'all are reading into that statement.

[joe]

And why not cut and paste the entire comment?

"I just cannot believe that Nifong would continue down this path if the case was really as weak as the media presents it. There's got to be something more. Nifong is a respected career prosecutor. I simply can't accept that he'd keep pushing if all he had was the absolute nuthin' that we keep hearing about.

Mind you, I'm certainly not convinced that the accused are guilty, but there's got to be something that will come out in the trial. Nifong would have to be insane to keep going forward if there wasn't. As in, willing to destroy his reputation and career, and leave himself open to a giant civil suit.

I guess we'll find out."

[Hooked on Innuendo]

I still think there is a possibility that the woman was attacked at the party and simply was not able to identify the accused accurately.

In other words, the three accussed may be totally innocent but that doesn't mean the assault never happened.

[Mr. F. Le Mur]

I just keep thinking that deep in his bleeding heart, he [joe] means well.

The road to Hell is paved with ... ?

In this case it's good to keep in mind that 'joe' is a racist (a well-meaning racist...of course!): check the HnR blog if you think otherwise and fell like wasting some time. But at least he's open and honest about it.

[Son of a!]

Bleh, lost most of the previous post due to forgetting that 'less than' and 'greater than' are verbotten in HTML enabled posting.

I realize this is wa-a-a-ay late, but you can use &amplt; and &ampgt; to get the desired symbols.

[Son of a!]

Gah! stupid preview breaks it!

< and >

[crimethink]

And why not cut and paste the entire comment?

Uh, because then it wouldn't be as fun to throw back in your face?

We're not interested in truth here, joe. Just controlling the narrative.

[joe]

Ah, see, I make an attempt to stick with the truth.

This is a common problem for ethical people - we often expect others to be ethical as well.

[I-Man]

Is it now acceptable to call the accuser a ho?
I need to know the rules in this topsy turvy world of ours.

[joe]

John, RC Dean, Loundry, ellipsis, Mr. Lemur,

Suckers!!!!!!!!

So DESPERATELY eager to find something to hand on me, you fell for it hook, line, and sinker.

Ha ha. Nope, I'm not going to be gracious to you. Why the hell would I be?

Maybe you should learn to be a little less determined to believe whatever can be grasped to buttress your prejudices, political or otherwise.

[Chris S.]

TPM,

That half-quote really was a cheap shot. It's fair to say that most of us don't agree with Joe's politics, but that was a pretty crappy stunt.

[speedwell]

(lurker gently folds joe's 12:07 comment in half and lovingly inserts it between the pages of her favorite dictionary next to the word "rancor," after briefly considering a location next to the word "bitterness.")

[Pro Libertate]

In my professional opinion--whatever that's worth--Nifong should be disbarred.

joe, I didn't read the whole thread, but it sounds like you're retaining some doubt because of the question of why a prosecutor would behave so recklessly. My view is that (1) prosecutors overreach as a matter of course and as a matter of politics, and (2) the spotlight's glare makes many people crazy--ask Judge Ito.

[joe]

Imagine that, having negative feelings about people who abuse, insult, and lie about you.

How devilish of me.

[joe]

Pro Libertate,

Cooper's announcement makes me think there is a third, possibly more important factor in play, at least at the beginning - he honestly believed that she was the victim of a crime.

Crazy people report crimes, actual crimes, all the time, and often have trouble distinguishing between reality and delusion. Nifong's comment "I'm convinced an attack occured," viewed in this light, takes on a different cast - he realized her stories didn't add up, either, but something about her convinced him (or his staff, more likely) that she wasn't making the whole think up, just getting the story wrong because she's unbalanced.

After a certain point, though, this belief was clearly untennable, and that's where politics, over-reaching, and just plain stubbornness in the face of critics seem to have taken over.

[Pro Libertate]

joe,

I actually think that you're right--Nifong really got it in his head that these guys were guilty. At least initially. The problem is that he has a duty to produce exculpatory evidence, etc., which he didn't do. His actions, charitably attributing to him an actual belief in the accuser, still were unprofessional and likely illegal. Of course, "everyone else does it" is one of the big problems with prosecutors these days.

This is the same class of politician--I won't honor them with the attorney label--that routinely sit on exculpatory evidence (which is illegal and unethical) and that seem to take a perverse pleasure in letting defendants rot in jail when they've received evidence that pretty much destroys the initial conviction. Because they must be "tough on crime", you see.

[joe]

Agreed, Pro Lib. The good faith of his belief is a fuzzy issue, but the way he handled the evidence stinks to high heaven.

I try to make a point of not pre-judging individual cases - I don't actually have the evidence in front of me, and I don't want to be one of those Nancy Grace people - but Nifong's got a lot of explaining to do.

[ChrisO]

Suing Nifong: Not likely. Prosecutorial immunity is almost airtight. Failing to turn over exculpatory evidence falls within the "performance of his job", for which he has absolute immunity, though I submit that it's a closer call here than in some other cases.

Suing the city/county/whatever: Sovereign immunity.

Suing Duke: I suppose you could make a case that Duke improperly suspended the students, but that's tiddly winks, and the univ. likely did not endorse the statement by the 88 professors.

Suing the "88 professors": I haven't read the statement in question, so I don't know if there's any actionable defamation there. They would have to make a false assertion of fact, not merely hurl epithets, in order to have libeled the students. Plus, the students might have been famous enough by then to qualify as "public figures," meaning that the students would have to prove actual malice by the professors, not mere falsehood.

In the end, these guys should just thank their lucky stars they have affluent parents who could hire good lawyers, and move on with their lives.

[Pro Libertate]

ChrisO,

Whether Nifong can be sued is one question, but he can most certainly be disciplined by the Bar.

[R C Dean]

I dunno, the rest of that quote doesn't really change it much. I would regard the half that was posted as "fair use." its not like joe did a 180 in the second half. Bottom line:

joe was still being awfully credulous of the DA in the face of mounting evidence to the contrary.

One of the few ways to beat sovereign immunity is with a civil rights violation. I'd say these boys have a pretty good shot at it.

[ChrisO]

Whether Nifong can be sued is one question, but he can most certainly be disciplined by the Bar.

Oh yeah, I expect that Nifong's law license is toast. But that does nothing to recoup the legal fees incurred by the defendants and their families.

One of the few ways to beat sovereign immunity is with a civil rights violation. I'd say these boys have a pretty good shot at it.

Reverse discrimination is the only remotely possible Civil Rights Act claim I see here, and those are almost unwinnable. Nifong said some crazy shit, but I doubt it's enough to prove a discrimination claim.

I'm sure there's a team or two of lawyers looking into this stuff right now. I'm guessing that Duke ends up being the target, since the parents seem to have the hardest feelings over what the university did, out of all the actors.

[Pro Libertate]

I wonder if there's a ?1983 claim here for malicious prosecution?

[ChrisO]

I wonder if there's a ?1983 claim here for malicious prosecution?

Don't you have to prove animus toward the specific target on that claim? I doubt that Nifong had ever met the three students prior to the incident.

[Pro Libertate]

ChrisO,

I'm thinking that it went from non-malicious to malicious during the process. Whether that's a valid claim is another matter.

[joe]

"joe was still being awfully credulous of the DA in the face of mounting evidence to the contrary."

Uh, no, I was finding his behavior incredible, and wondering about the reason. As pretty much all of the other commenters who don't make a point of trying to "get" me noticed.

[lunchstealer]

Agreed, Pro Lib. The good faith of his belief is a fuzzy issue, but the way he handled the evidence stinks to high heaven.

Absolutely. Certainly early on he might have genuinely believed her, but that doesn't excuse his conduct. Hell, even if he still believes it, that's still irrelevant, because he should have provided them with the exculpatory evidence even if they were guilty as hell.

[crimethink]

I would regard the half that was posted as "fair use."

Wait, is joe suing people who quote his posts for copyright infringement?

[John]

Where's Jesse now? With the clearing of the Duke players. Where's Jesse now? Am I wrong or don't I remember, wasn't he quick to jump on the band wagon early in this case? If this were three black players, would he not be right in front of the news media attacking Nifong? Would some report not have the guts to ask?