Monday, November 23, 2009

Duke law professors fear the State Bar... as well they should

It is without doubt that the law professors at the Duke University School of Law fear the North Carolina State Bar. This fear is not borne due to a lack of courage on part of the legal faculty of this prestigious institution of learning, but rather due to an abundance of common sense. They realize that speaking out in behalf of justice on the taboo topic of former Durham District Attorney Mike Nifong's selective and unjust disbarment could net them an outcome similar to his at the hands of the unregulated agency. In disbarring Mr. Nifong, the only prosecutor to be disbarred by the North Carolina State Bar since its inception in 1933, the State Bar sent a strong message to all attorneys licensed to practice in the Tar Heel state: "We have the capacity and the will to take away your legal livelihood on a whim, at our discretion, arbitrarily, and selectively without regard to the merits and justification, or lack thereof, of bogus charges we choose to bring against you." Attorneys throughout the state of North Carolina realized that Mike Nifong was prosecuting the Duke Lacrosse case with professional conduct well within acceptable established standards, and that his actions in that case did not warrant his disbarment (or any disciplinary action). Lawyers were also aware that former prosecutor David Hoke, in prosecuting Alan Gell, withheld exculpatory evidence from the defendant's attorney which enabled Hoke to win a conviction and death sentence against the innocent defendant. Justice was definitely denied in this case as Mr. Gell spent more than nine years wrongfully incarcerated because of a prosecutor acting as an antithesis of a "Minister of Justice." Although Mr. Hoke's actions in the Gell case were flagrantly and egregiously afoul of acceptable standards, attorneys witnessed the arbitrariness of the Bar disciplinary arm when it meted out to Hoke a mild reprimand, the weakest action possible. North Carolina attorneys, especially Duke law professors, are able to put two and two together, and they realize that if they cherish their law license, their employment, and their opportunity for advancement in their field, that they must avoid the minefield which is the taboo topic of Mike Nifong's disbarment.

On Wednesday, November 18, 2009, I trolled the halls of the Duke University School of Law seeking professors to take my "Snapshot Survey" (a survey consisting of one question). Using two hypothetical scenarios (A and B), which were thinly veiled cases representing the Alan Gell case and the Duke Lacrosse case respectively, it asked which Prosecutor (A or B) was more deserving of disbarment. Approximately two dozen professors were gracious enough to give me a few minutes of their time and consider the question. However, without exception, they all refused to answer it. The majority gave no specific reason, whereas a few did acknowledge that they were concerned about possible fallout resulting from any participation in the survey. One professor refused to select one prosecutor over the other as being more "deserving of disbarment" using the irrational logic that to do so would suggest the other prosecutor did not deserve to be disciplined. I was surprised at the number of law professors who told me they believed Mr. Nifong should have been disbarred (three or four). When I asked them to specifically tell me what Mr. Nifong did to deserve disbarment, they all responded that they were busy and had to prepare for class. That response is definitely not unreasonable, especially since I dropped in on them unannounced and without an appointment. One professor, who is an outspoken critic of Mr. Nifong, has been challenged on numerous occasions in the past to explain in writing why he feels Mr. Nifong deserved to be disbarred over his handling of the Duke Lacrosse case. Although he has repeatedly assured me that he would provide me with a written answer (which I told him I would post on our website, unedited and without direct comment), he as yet to do so, and I doubt that he will find time in the future to get around to doing it.

What I find particularly disturbing is that in an institution for legal learning, like the Duke University School of Law, such a topic of significant importance would be suppressed, and that its professors, out of justifiable fear of retribution (whether academically, professionally, legally, and/or financially) would avoid talking about the selective and unjust disbarment of Mike Nifong. Currently, I am unaware of any other topic which would garner such a response, but I would imagine that any subject matter that casts an unfavorable light on the North Carolina State Bar would be applicable. For example, law professors have no problem tackling controversial topics such as the First Amendment Right of racists writing inciteful hate-speech on university campus walls, but they are mum when it comes to discussing issues that threaten the sanctity of the almighty State Bar with its absolute power. Often overlooked is the fact that the issue of Mike Nifong's disbarment is not limited to the man alone, but has wide reaching ramifications about the state's social justice system, the issue of whether justice is a commodity that can be bought by the affluent, and the absolute power of the North Carolina State Bar and the influence it welds with the General Assembly and in the courtrooms.

On Tuesday evening, April 21, 2009, at the North Carolina State University campus, the ACLU of Wake County and the North Carolina State University Pre-Law Services presented the Annual Slater Newman Debate, with the topic: "A Debate Exploring First Amendment Rights, Hate Speech and the Free Expression Tunnel." Panelists for this debate included Professor Michael Curtis of Wake Forest Law School, Professor Shannon Gilreath of Wake Forest Law School, Professor Gregory Wallace of Campbell University Law School, and Legal Director Katy Parker of the ACLU of North Carolina. After the discussion/debate which was open to the public, I handed each of the panelists a survey which covered the subject of Mike Nifong's disbarment and the Duke Lacrosse case. I asked Ms. Parker directly if she would participate by filling out the questionnaire and returning it to me. She responded, "It depends on the questions." Well, she must not have liked the questions because I never heard from her. Neither did I hear from the other three law school professors, despite the fact that I enclosed a self-addressed stamped envelope for each recipient. I followed up with all of the "Free Speech" panelists, sending them letters dated May 8, 2009. These letters sought a response from the panelist, however, again my attempts to engage them in dialog was ignored. This made it very apparent to me that although the First Amendment may guarantee one's right to freedom of expression, it does not protect one from the consequences that may follow. Being intelligent and rational individuals, I have no doubt that the panelists had opinions that were favorable to Mr. Nifong and contrary to the NC State Bar's actions. However, fearing the repercussions that vocalizing their pro-Nifong opinions might generate, they elected to remain silent. As is so often the case, especially when logic flows against the powers that be, freedom of expression is suppressed by freedom of retaliation. There is no doubt in my mind that had the State Bar's position against Mr. Nifong been legitimate, the law professors, legal pundits, ACLU members and others would freely let their opinions on Mr. Nifong's disbarment be known.

Attorneys and law school professors are not the only ones who avoid, like the plague, the taboo topic of Mike Nifong's disbarment. Lieutenant Governor Walter Dalton's staff will not even allow me an appointment to meet with him. And although his staff has acknowledged receiving and reviewing contents of a package that I left for the lieutenant governor, they would not affirm that they had forwarded it to him. Most of the politicians, including outspoken ones, such as Representative Paul Stam, refuse to discuss Mr. Nifong's disbarment with me. I have not, as yet, approached Governor Bev Perdue on the topic, but plan on doing so in the future.

I can appreciate the conundrum in which law professors at Duke find themselves when it comes to discussing the selective and unjust disbarment of Mike Nifong. In the spirit of fairness, I will offer this blog site as a forum for an unedited response by the Dean of the Duke University School of Law. Although the First Amendment guarantees his right to take advantage of this platform, I hope that the prospect of any retaliatory consequences to his statements does not impede it.

17 comments:

JSwift said...

Sydney,

I am not persuaded that Duke law professors are cowered by the NC Bar. As you know, Brad Bannon, who represented Alan Gell in his appeal and also represented Dave Evans in the Duke case, was sharply critical of the NC Bar's failure to discipline Mr. Hoke and Ms. Graves. He essentially charged that the Bar made no bona fide attempt to prosecute that disciplinary case. As you also know, Bannon faced no adverse consequences for his criticism.

Perhaps the reason that no Duke law professors would answer your survey is that none take you seriously.

You demonstrate conclusively that you fail to understand basic legal concepts and you either do not know the facts of the Duke case or you simply ignore them when those facts are inconvenient. In short, you have made yourself into a laughingstock.

I have noted that you constantly make numerous errors in your posts. Indeed, you make so many mistakes that you complain that I ask for too many corrections (I do not even attempt to identify all of your errors). Yet you make no effort to be more accurate or even to learn from your mistakes.

I suggested that, unless you are remarkably uniformed (a possibility I do not discount), some of your statements bordered on dishonesty. I identified the most egregious example of what I considered to be a potentially dishonest statement.

I noted that other statements omitted so much crucial information as to be completely misleading. Again, I identified the most egregious examples.

I have shown that you demonstrate no understanding of basic legal concepts. Again, I identified the most flagrant examples.

I noted that I find the hypocrisy with which you apply a double standard to be absolutely stunning. I provided examples of this double standard. You clearly do not believe that Mr. Nifong is subject to the same rules you apply to other prosecutors. At best, you believe that Mr. Nifong did "nothing wrong" simply because he did not win a conviction.

In closing, I observe that your "I don't have access to the internet at home" excuse is wearing a little thin.

Some of my comments were posted as early as November 5. You have had more than two weeks to respond to those comments. When you have done so, you have simply repeated the same nonsense you had spouted in the past and ignored the substance of my comment. As you know, I critiqued directly that nonsense. Repetition thus is not a valid response.


Have a Happy Thanksgiving.

Anonymous said...

From a commenter at the world class blog DURHAM IN WONDERLAND:

"When you don't have the law on your side, argue the facts. When you don't have the facts on your side, argue the law. When you have neither, write 14 lines of gibberish."

I think this just about sums up this ridiculous revisionist blog of yours, Sydney and the ridiculous excuse for a human being you ghost write for.

unbekannte said...

HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA

Sidney Harr de Harr Harr, if nothing else, you are always good for a laugh.

Nifong Supporter said...

To JSwift:

I traveled to Durham, and walked the halls of the Duke Law School. I presented about two dozen law professors with two hypothetical scenarios that were thinly veiled to represent the Alan Gell and Duke Lacrosse case and asked a simple question. Which prosecutor, A or B was more deserving of disbarment. None of them would give me a simple answer of Prosecutor A or Prosecutor B. A few shared they had concerns about repercussions if they did. However, none of them used the excuse that they did not take me seriously as a reason for not answering the simple question.

I am not familiar with Brad Bannon, and do not know whether or not he is a Duke law professor. I do plan on looking into his alleged criticism of the Bar.

As far as Mike Nifong goes, I have not applied a double standard. My position is that Mr. Nifong did nothing wrong in his prosecution of the Duke Lacrosse case. He has been accused by the media and bloggers alike of withholding evidence. Can we agree that he never withheld evidence... that the Defense team of the Duke Lacrosse defendants had all DNA lab results no later than October 27, 2006 (well before a trial date was even set). The defense had plenty of time to utilize the lab evidence in preparation of a defense. As Miami attorney Kendall Coffey more accurately stated, Mr. Nifong was in large measure disbarred because he did not promptly present lab results to the defense. I can't think of a weaker excuse to disbar someone.

Justice58 said...

Happy Thanksgiving Sidney, Victoria, and the entire Justice4Nifong Team!

May your day be blessed!

JSwift said...

I am not familiar with Brad Bannon

Is this some kind of joke?

Otherwise, your statement betrays a remarkable lack of knowledge about both the Gell case and the Duke case (Bannon was one of the defense attorneys who represented Gell in his appeal and was one of Dave Evans' attorneys, the attorney who discovered the unreported male DNA from the DNASI report). Any reasonably informed person knows the role that Mr. Bannon played in each case.

Your statement also demonstrates that you either have absolutely no ability to understand what you read or you simply pretend to ignore what you find inconvenient. I indicated directly in my comment to which you responded that Mr. Bannon had represented both Gell and Evans.

You have proven that you are not credible. If you genuinely do not recognize Mr. Bannon, you have no business commenting on either case, let alone hosting a blog. Sydney, you truly are a laughingstock.

I do plan on looking into his alleged criticism of the Bar.

I will save you some work. Here is a link to his letter to the NC Bar:

http://www.askthelawguy.info/dissent/id4.html

A summary: "I have never seen a case as weakly prosecuted as I saw at the State Bar on Thursday and Friday. In fact, it made me wonder why the Bar bothered to file a grievance in the first place: not because I thought the grievance lacked merit, of course, but because I saw very little effort to actually prosecute it."

Mr. Bannon faced no adverse consequences as a result of his harsh criticism. He was far more public and direct in his criticism than any Duke professor who would have commented anonymously to your loaded question.

Nifong Supporter said...

To Justice58:

Thank you for the best wishes. We hope that you have a great Thanksgiving, as well.

Nifong Supporter said...

To JSwift:

On this Thanksgiving Day eve, I am thankful that you alerted me about Mr. Bannon. I plan on posting a blog about him after the holiday.

One question I have for you. Did Brad Bannon request that Attorney General Roy Cooper proclaim his client Alan Gell "innocent" like he did for his other client Dave Evans? If not, why? The answer: "selective justice based on Class and Color." Would be interested in your answer, if you can come up with one.

Hope you have a nice Thanksgiving, too.

DEHall said...

Is this statement accurate?

"After a recess in the hearing, Nifong's attorney surprised the panel by saying his client believed he deserved to be disbarred."

http://www.cnn.com/2007/LAW/06/16/duke.lacrosse/index.html

If Mr. Nifong himself has stated that he deserved to be disbarred, why would you continue to argue otherwise?

DEHall said...

My apologies -- my previous comment truncated the website link. The full link is:
http://www.cnn.com/2007/LAW/06/16/
duke.lacrosse/index.htm

Nifong Supporter said...

To DEHall:

If you will read "The MisAdventures of Super-Duper Cooper Episode IV" you will notice that I have portrayed Mike Nifong's Bar attorneys David Freedman and Dudley Witt by using Judas Iscariot and Benedict Arnold respectively. Need I say more? Would you actually believe a traitor? I have had more than my share of attorneys "represent" me in my life, and almost all of them took my money and worked against my best interests.

Don't believe everything you read in the media. For example, an online article was titled, "Nifong Apologizes, Admits Nothing Happened." That was a false headline, so I wrote the media outlet, WRAL.com, and they corrected the statement. As a media consumer, you must take the initiative to question statements that don't strike true. Thank you for your comment.

Dehall said...

Your portrayals aside, please answer the question posed. Is the quote accurate?

Walt said...

"My position is that Mr. Nifong did nothing wrong in his prosecution of the Duke Lacrosse case."

Yet he did. He lied to the court, he lied to adverse counsel he violated the rules of professional conduct in his numerous media appearances and he continued to prosecute the case long after it was clear there was no probable cause to believe any of the defendants had anything to do with the alleged crime.

"He has been accused by the media and bloggers alike of withholding evidence."

And he was found to have witheld evidence. Not only that, but he was found in contempt for lying to the court about witholding evidence.

"Can we agree that he never withheld evidence."

No, we cannot unless we are willing to ignore the facts of the case.

".. that the Defense team of the Duke Lacrosse defendants had all DNA lab results no later than October 27, 2006 (well before a trial date was even set)."

That is not the issue. Nifong said in September that he had disclosed all the DNA evidence to the defense. That was a patent falsehood. It does not matter when, if ever there was a trial date set. The rules of professional conduct require candor with the court (Rule 3.3)and counsel (Rule 3.4).

"I can't think of a weaker excuse to disbar someone."

Short of stealing a client's money, I cannot think of a stronger reason to disbar someone.

Walt-in-Durham

Nifong Supporter said...

To DEHall:

Regarding your December 2nd comment: Is the quote accurate? The quote of Mr. Nifong's attorney to the reporter may very well be accurate. It is the statement that the Turncoat attorney attributed to Nifong that I doubt. I was not privvy to every conversation between the two, but I seriously doubt that he would say that he deserved to be disbarred. It is a bunch of balogna that the traitor spewed to the reporter. And believe me, attorney do turn on their clients, especially when the incentives are there.

Nifong Supporter said...

To Walt:

Regarding you December 3rd comments, Mr. Nifong did not lie to the court. He believed that the defense had received all the DNA evidence (there was no reason for him to conceal it to begin with). If it is found that the statement is wrong, then the statement is in error. You cannot conclude that someone lied just because they made a statement that is not completely accurate.


Also Mr. Nifong has never withheld evidence in the Duke Lacrosse case. Defendants had access to all evidence, including DNA, prior to a trial date being set. Refer to the Alan Gell case if you're looking for an example of withholding evidence. Prosecutor David Hoke withheld exculpatory evidence of 17 eyewitnesses from defense attorneys in winning a death penalty conviction. As a result of Mr. Hoke withholding evidence, an innocent man spent nine years wrongfully imprisoned.

In the Duke Lacrosse case, they had all DNA evidence no later than October 27, 2006, which gave them plenty of time to use it in preparing a defense.

Nifong detractor and Miami attorney Kendall Coffey stated it most accurately with a statement that Mr. Nifong was disbarred because he did not turn over evidence promptly enough. Now that's a weak excuse for disbarment.

Walt said...

"Regarding you December 3rd comments, Mr. Nifong did not lie to the court. He believed that the defense had received all the DNA evidence."

The facts say otherwise. Nifong was convicted of contempt for? Oh yeah, lying to the court about turning over the DNA evidence. He lied and he violated the court's discovery order. Had he believed otherwise, the time to say so was at his contempt hearing. Not that he had any credibility left at that point.

"Also Mr. Nifong has never withheld evidence in the Duke Lacrosse case. Defendants had access to all evidence, including DNA, prior to a trial date being set."

As much as Nifong and you would like that to be the rule, it is not. The minute adverse counsel asked him if he had additional evidence, he was under a Rule 3.4 obligation to answer honestly. The minute he was asked by the court if he had turned over all the DNA evidence, he was under a rule 3.3 obligation to answer honestly. He lied, thus violating both rules. A trial date has nothing to do with triggering either rule. Further, North Carolina has an open file discovery rule which means once the state gets evidence, it must turn it over to the defense. Nifong had the DNA evidence in his file from May until sometime in October. That does not comply with our discovery rules.

Walt-in-Durham

Walt said...

"Now that's a weak excuse for disbarment."

You have made that comment too many times for me to let pass. Because Nifong's decisions to prosecute and continue the prosecution are protected by absolute immunity, the only remedy is disbarment. Here, Nifong was engaging in a continuing set of violations of the rules of professional conduct and continuing a prosecution without probable cause. The state bar had to act as no other agency had the power to do so.

Walt-in-Durham