Where Honor and Character Intersect
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The Legal Profession's Failure to Discipline
THE LEGAL PROFESSION’S FAILURE TO DISCIPLINE UNETHICAL PROSECUTORS Angela J. Davis* I. INTRODUCTION White students at Jena High School in Jena, Louisiana, hung nooses from a tree at the high school, provoking a series of fights between groups of black and white students. Punches were thrown on both sides, and both black and white students were injured. However, the prosecutor, Reed Walters, charged one white student with a misdemeanor while charging six black students with serious felonies in adult court. In Douglasville, Georgia, a seventeen-year-old boy named Genarlow Wilson had consensual oral sex with a fifteen-year-old girl. The prosecutor charged him with aggravated child molestation and other sex offenses. Oral sex with a person under fifteen years old is aggravated child molestation in the state of Georgia, and consent is no defense. Wilson was acquitted of all charges except the child molestation offense, which at the time carried a mandatory sentence of ten years in prison. A judge later found that Wilson’s sentence constituted cruel and unusual punishment and ordered him released. But the prosecutor appealed the judge’s decision, and Wilson remained in prison for over two years until the Georgia Supreme Court ordered his release on October 26, 2007.1 Delma Banks was charged with capital murder in the state of Texas. The prosecutor in his case withheld exculpatory evidence and repeatedly coached the main witness on what his testimony should be. The prosecutor even threatened to prosecute this witness if he did not conform his testimony to the prosecutor’s version of the case. -
How a Confluence of Social Movements Convinced North Carolina to Go Where the Mccleskey Court Wouldn╎t
Michigan State University College of Law Digital Commons at Michigan State University College of Law Faculty Publications 1-1-2011 Confronting Race: How a Confluence of Social Movements Convinced North Carolina to Go where the McCleskey Court Wouldn’t Barbara O'Brien Michigan State University College of Law, [email protected] Catherine M. Grosso Michigan State University College of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.msu.edu/facpubs Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, and the Other Law Commons Recommended Citation Barbara O'Brien & Catherine M. Grosso, Confronting Race: How a Confluence of Social Movements Convinced North Carolina to Go where the McCleskey Court Wouldn’t, 2011 Mich. St. L. Rev. 463 (2011). This Article is brought to you for free and open access by Digital Commons at Michigan State University College of Law. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Digital Commons at Michigan State University College of Law. For more information, please contact [email protected]. CONFRONTING RACE: HOW A CONFLUENCE OF SOCIAL MOVEMENTS CONVINCED NORTH CAROLINA TO GO WHERE THE MCCLESKEY COURT WOULDN’T Barbara O’Brien & Catherine M. Grosso∗ 2011 MICH. ST. L. REV. 463 TABLE OF CONTENTS INTRODUCTION ........................................................................................... 463 I. THE LONG STRUGGLE TO CONFRONT RACE IN CAPITAL PUNISHMENT ........................................................................................... 467 A. The Constitutional Litigation Strategy Disappoints When the Court Won’t Bite .................................................................... 467 B. Back to Basics: A More Incremental Approach to Reform ......... 472 II. A CONFLUENCE OF SOCIAL MOVEMENTS ............................................ -
Scientific Evidence and Prosecutorial Misconduct in the Duke Lacrosse Rape Case Paul Giannelli* the Need for Pretrial Discovery in Criminal Cases Is Critical
Case Western Reserve University School of Law Scholarly Commons Faculty Publications 2009 Scientific videnceE and Prosecutorial Misconduct in the Duke Lacrosse Rape Case Paul C. Giannelli Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Evidence Commons, and the Litigation Commons Repository Citation Giannelli, Paul C., "Scientific videnceE and Prosecutorial Misconduct in the Duke Lacrosse Rape Case" (2009). Faculty Publications. 95. https://scholarlycommons.law.case.edu/faculty_publications/95 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Forensic Science: Scientific Evidence and Prosecutorial Misconduct in the Duke Lacrosse Rape Case Paul Giannelli* The need for pretrial discovery in criminal cases is critical. 1 An advisory note to the federal discovery rule states: "[l]t is difficult to test expert testimony at trial without advance notice and preparation." 2 A defendant's right to confrontation, effective assistance of counsel, and due process often turns on pretrial disclosure. This essay discusses a case that demonstrates this point. What came to be known as the "Duke Lacrosse Case" began with a student party and a false accusation of rape. 3 On March 14, 2006, Crystal Mangum claimed that she had been sexually assaulted at the party. As is common in rape cases, a Sexual Assault Nurse Examiner (SANE) used what is known as a "rape kit" to collect evidence. -
Fortis SE-S2642ACD.MAG
STATE OF NORTH CAROL OF THE WAKE COUNTY CAROLINA STATE BA Plaintiff, AMENDED FINDINGS OF FACT, v. CONCLUSIONS OF LAW AND ORDER OF DISCIPLINE MICHAEL B. NIFONG, Attorney, Defendant. The Hearing Committee on its own motion pursuant to Rule of Civil Procedure 60(a) enters the following Amended Findings of Fact, Conclusions of Law and Order of Discipline in order to correct a factual mistake in Findings of Fact Paragraph 43 of its original Order in this cause, and to add an additional Conclusion of Law (b): A hearing in this matter was conducted on June 12 through June 16, 2007, before a Hearing Committee composed of F. Lane Williamson, Chair, and members Sharon B. Alexander and R. Mitchel Tyler. Plaintiff, the North Carolina State Bar, was represented by Katherine E. Jean, Douglas J. Brocker, and Carmen K. Hoyme. Defendant, Michael 3. Nifong, was represented by attorneys David B. Freedman and Dudley A. Witt. Based upon the admissions contained in the pleadings and upon the evidence presented at the hearing, this Hearing Committee makes, by clear, cogent and convincing evidence, the following FINDINGS OF FACT 1. Plaintiff, the North Carolina State Bar, is a body duly organized under the laws of North Carolina and is the proper party to bring this proceeding under the authority granted it in Chapter 84 of the General Statutes of North Carolina, and the Rules and Regulations of the North Carolina State Bar (Chapter 1 of Title 27 of the North Carolina Administrative Code). 2. Defendant, Michael B. Nifong, (hereinafter "Nifong"), was admitted to the North Carolina State Bar on August 19, 1978, and is, and was at all times referred to herein, an attorney at law licensed to practice in North Carolina, subject to the laws of the State of North Carolina, the Rules and Regulations of the North Carolina State Bar and the Revised Rules of Professional Conduct. -
The Duke Lacrosse Case and the Blogosphere
07__JOHNSON__CONTRACT PROOF.DOC 11/18/2008 11:42:21 AM THE DUKE LACROSSE CASE AND THE BLOGOSPHERE KC JOHNSON* I INTRODUCTION On December 28, 2006, Durham County District Attorney Mike Nifong filed his initial response to the North Carolina State Bar grievance committee’s complaint that he had unethically withheld exculpatory DNA evidence in the Duke lacrosse case. Nifong concluded his missive with a swipe at the blogosphere: A well-connected and well-financed (but not, I would suggest, well-intentioned) group of individuals—most of whom are neither in nor from North Carolina—have taken it upon themselves to ensure that this case never reaches trial. (And if this seems like paranoid delusion to you, perhaps you should check out websites such as former Duke Law School graduate and current Maryland attorney Jason Trumpbour’s www.friendsofdukeuniversity.blogspot.com/, which has not only called for me to be investigated, removed from this case, and disbarred, but has also provided instructions on how to request such actions and to whom those requests should be sent.)1 A few months earlier, the District Attorney had similarly complained about the blogosphere. Asked in June 2006 by Newsweek reporter Susannah Meadows to comment on the mounting evidence of actual innocence, Nifong replied, “I have seen quite a bit of media speculation (and it is even worse on the blogs) that either starts from a faulty premise or builds to a demonstrably false conclusion. That is not my fault.”2 Nifong was hardly the only prominent figure associated with the case who read the blogs. -
The Duke Rape Case Five Years Later: Lessons for the Academy, the Media, and the Criminal Justice System Dan Subotnik
The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals June 2015 The Duke Rape Case Five Years Later: Lessons for the Academy, the Media, and the Criminal Justice System Dan Subotnik Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Criminal Law Commons, Criminal Procedure Commons, and the Legal Education Commons Recommended Citation Subotnik, Dan (2012) "The Duke Rape Case Five Years Later: Lessons for the Academy, the Media, and the Criminal Justice System," Akron Law Review: Vol. 45 : Iss. 4 , Article 4. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol45/iss4/4 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The nivU ersity of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact [email protected], [email protected]. Subotnik: The Duke Rape Case 10- SUBTONIK_MACRO.DOCM 10/12/2012 3:01 PM THE DUKE RAPE CASE FIVE YEARS LATER: LESSONS FOR THE ACADEMY, THE MEDIA, AND THE CRIMINAL JUSTICE SYSTEM Dan Subotnik∗ If engagement is the first step in healing, then the second is pure unadulterated struggle. We will never achieve racial healing if we do not confront one another, take risks. say all the things we are not supposed to say in mixed company. -
Race to Injustice 00 Seigel Cx2 11/19/08 3:03 PM Page Ii 00 Seigel Cx2 11/19/08 3:03 PM Page Iii
00 seigel cx2 11/19/08 3:03 PM Page i Race to Injustice 00 seigel cx2 11/19/08 3:03 PM Page ii 00 seigel cx2 11/19/08 3:03 PM Page iii Race to Injustice Lessons Learned from the Duke Lacrosse Rape Case Edited by Michael L. Seigel Carolina Academic Press Durham, North Carolina 00 seigel cx2 11/19/08 3:03 PM Page iv Copyright © 2009 Michael L. Seigel All Rights Reserved Library of Congress Cataloging-in-Publication Data Race to injustice : lessons learned from the Duke lacrosse rape case / Michael L. Seigel. p. cm. Includes bibliographical references and index. ISBN 978-1-59460-514-7 (alk. paper) 1. Malicious prosecution--North Carolina--Durham--History. 2. Criminal investigation--North Carolina--Durham--History. 3. Rape--North Carolina-- Durham--History. 4. Nifong, Michael Byron. 5. Criminal investigation-- North Carolina--Durham. 6. Discrimination in criminal justice administration--United States. 7. Campus violence--United States. 8. Col- lege students--United States--Alcohol use. I. Seigel, Michael L. II. Title. KFN7977.R33 2008 364.15'32092--dc22 2008043688 Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America 00 seigel cx2 11/19/08 3:03 PM Page v Contents Preface xiii Acknowledgments xix Part One Introduction Chapter One · The Facts and Only the Facts Robert J. Luck & Michael L. Seigel 3 Durham and Duke Before the Storm 3 March 13, 2006, and the Morning After 4 The Investigation and Indictment 9 The Prosecutor and the Press 13 The Response of Duke’s Administration and Faculty 17 About the Truth 22 Epilogue 26 Part Two Lessons Learned about College Campuses Chapter Two · Faculty Reactions, Contentious Debate, and Academic Freedom Robert M. -
The Case for Open File Discovery
Protect Californians from Getting Nifonged: The Case for Open File Discovery Kenan Gultekin1 I. Introduction Prosecutors possess the power to punish criminals, but they also have the ability to abuse this authority and injure the innocent. Recent events in North Carolina have made clear the dangers of prosecutorial misconduct. Durham County District Attorney Mike Nifong was disbarred for failing to disclose exculpatory evidence to the defendants, a group of Duke University lacrosse players.2 Nifong withheld results of DNA testing that found on the rape accuser the presence of DNA from at least four males who were not the defendants.3 California is not immune from prosecutorial misconduct. The California Commission on the Fair Administration of Justice held a hearing at Loyola Law 1 The author would like to thank Professor Levenson for her invaluable assistance in writing this Note. 2 Duff Wilson, Prosecutor in Duke Case Disbarred by Ethics Panel, The New York Times, Jun. 17, 2007, at A1. 3 See infra pp.40-45. - 1 - School in the summer of 2007.4 The Commission concluded that “professionally inappropriate behavior by prosecutors or defense lawyers is not widely prevalent.”5 The Commission did find misconduct significant enough to recommend changes in the reporting of attorney misconduct.6 4 Henry Weinstein, Lawyers Clash over Prosecutorial Misconduct: Some Tell a State Panel that Occurrences are Common but Discipline is Rare. Others Say Current Rules Guard Against Excesses., Los Angeles Times, Jul. 12, 2007, at B2. 5 California Commission on the Fair Administration of Justice, Report and Recommendations on Professional Responsibility and Accountability of Prosecutors and Defense Lawyers, Oct. -
Learned from the Mike Nifong Debacle
04__CASSIDY__CONTRACT PROOF.DOC 11/18/2008 11:39:56 AM THE PROSECUTOR AND THE PRESS: LESSONS (NOT) LEARNED FROM THE MIKE NIFONG DEBACLE R. MICHAEL CASSIDY* I INTRODUCTION Former District Attorney Mike Nifong made several statements to the media during the Duke lacrosse case that were overzealous and clearly contrary to a prosecutor’s dual responsibilities to seek justice and to preserve a defendant’s right to a fair trial. Notable among Nifong’s more outlandish public comments were his characterization of the rape as “totally abhorrent” and “reprehensible,” his analogizing the case to a “cross burning,” his expression of personal confidence and satisfaction that a rape had in fact occurred, and his criticism of the targets for “refus[ing] to speak to investigators” upon “advice [of] counsel.”1 After a hearing, the North Carolina State Bar Disciplinary Commission ruled that these comments violated North Carolina State Bar Rules of Professional Conduct (N.C. Rules) 3.6(a) (“substantial likelihood of materially prejudicing an adjudicative proceeding”) and 3.8(f) (“substantial likelihood of heightening public condemnation of the accused”).2 The Commission ordered Nifong disbarred.3 After the disciplinary hearing, Nifong essentially acknowledged that the disbarment sanction was appropriate and agreed not to appeal.4 In all likelihood Nifong accepted this sanction because other misconduct charges against him— for failing to disclose exculpatory DNA evidence that showed the presence of multiple unidentified males on the rape kit specimen (in violation of N.C. Rule Copyright © 2008 by R. Michael Cassidy. This Article is also available at http://www.law.duke.edu/journals/lcp. -
The Duke Lacrosse Matter As a Case Study of the Right to Reply to Prejudicial Pretrial Extrajudicial Publicity Under Rule 3.6(C)
Volume 15 Issue 2 Article 1 2008 The Duke Lacrosse Matter as a Case Study of the Right to Reply to Prejudicial Pretrial Extrajudicial Publicity under Rule 3.6(c) James R. Devine Follow this and additional works at: https://digitalcommons.law.villanova.edu/mslj Part of the Entertainment, Arts, and Sports Law Commons Recommended Citation James R. Devine, The Duke Lacrosse Matter as a Case Study of the Right to Reply to Prejudicial Pretrial Extrajudicial Publicity under Rule 3.6(c), 15 Jeffrey S. Moorad Sports L.J. 175 (2008). Available at: https://digitalcommons.law.villanova.edu/mslj/vol15/iss2/1 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Jeffrey S. Moorad Sports Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Devine: The Duke Lacrosse Matter as a Case Study of the Right to Reply to Articles THE DUKE LACROSSE MATTER AS A CASE STUDY OF THE RIGHT TO REPLY TO PREJUDICIAL PRETRIAL EXTRAJUDICIAL PUBLICITY UNDER RULE 3.6(c) JAMES R. DEVINE* TABLE OF CONTENTS INTRODUCTION .................................................. 176 RULE 3.6(c): AN OUTGROWTH OF GENTILE V. STATE BAR OF N EVADA .............................................. 179 JUDICIAL INTERPRETATION OF RULE 3.6(c) .................... 183 THE FACTS OF THE DUKE CASE .................................. 185 THE BEGINNINGS OF THE MEDIA INVOLVEMENT ................ 189 THE DUKE CASE AND EXTRAJUDICIAL COMMENT ............... 189 COMMENTS ABOUT THE ALLEGED CRIME: THE STATE'S SIDE ... 191 COMMENTS ABOUT THE ALLEGED CRIME: THE DEFENSE SIDE .. 194 COMMENTS ABOUT STONEWALLING OR SILENCE BY THE PLAYERS: THE STATE'S SIDE ...................................... -
Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: the Rc Itical Importance of Full Open-File Discovery Robert P
University of North Carolina School of Law Carolina Law Scholarship Repository Faculty Publications Faculty Scholarship 2008 Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The rC itical Importance of Full Open-File Discovery Robert P. Mosteller University of North Carolina School of Law, [email protected] Follow this and additional works at: http://scholarship.law.unc.edu/faculty_publications Part of the Law Commons Publication: George Mason Law Review This Article is brought to you for free and open access by the Faculty Scholarship at Carolina Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. 2008] 257 EXCULPATORY EVIDENCE, ETHICS, AND THE ROAD TO THE DISBARMENT OF MIKE NIFONG: THE CRITICAL IMPORTANCE OF FULL OPEN-FILE DISCOVERY * Robert P. Mosteller INTRODUCTION What has come to be known as the Duke Lacrosse case began in the spring of 2006 with allegations of a racially motivated gang rape. It ended a little more than a year later with the exoneration of three players, who had been indicted, and the disbarment and resignation of Durham County Dis- trict Attorney Michael Nifong, who had pressed the baseless case forward with reckless abandon. In this Article, I examine the disciplinary charges brought by the North Carolina State Bar against Nifong for failure to dis- close potentially exculpatory evidence, two other disciplinary actions that preceded Nifong’s case, and the discovery reforms that stand at the heart of the effort to do justice in the associated criminal prosecutions. -
The Duke Lacrosse Case, Innocence, and False Identifications: a Fundamental Failure to "Do Justice"
Fordham Law Review Volume 76 Issue 3 Article 6 2007 The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice" Robert P. Mosteller Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A undamentalF Failure to "Do Justice", 76 Fordham L. Rev. 1337 (2007). Available at: https://ir.lawnet.fordham.edu/flr/vol76/iss3/6 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Duke Lacrosse Case, Innocence, and False Identifications: A undamentalF Failure to "Do Justice" Cover Page Footnote Chadwick Professor of Law, Duke University School of Law. I wish to thank Sara Beale, Ken Broun, Diane Dimond, Elizabeth Gibson, Paul Haagen, David Levi, Daniel Mosteller, Theresa Newman, Jeff Powell, Rich Rosen, Andy Taslitz, Mike Tigar, Neil Vidmar, and Fred Zacharias for their comments on an earlier draft and Allison Hester-Haddad for her help as a research assistant. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol76/iss3/6 THE DUKE LACROSSE CASE, INNOCENCE, AND FALSE IDENTIFICATIONS: A FUNDAMENTAL FAILURE TO "DO JUSTICE" Robert P. Mosteller* INTRODUCTION The Duke lacrosse case was a disaster-a caricature. The case, which involved false rape charges against three Duke University lacrosse players, began with gang rape allegations by an exotic dancer at a team party in March 2006 and ended with the declaration of their innocence in April 2007 and the disbarment of Durham County District Attorney Mike Nifong in June of that year.