Sunday, November 15, 2009

Hoke or Nifong… who is more deserving of disbarment?

I would like to challenge all of former Durham District Attorney Mike Nifong detractors (especially Walt-in-Durham, JSwift, William Anderson, K. C. Johnson, Durham Dad, Rhonda, and other blog commenters) to answer one simple question, which follows: “Who is more deserving of disbarment… Mike Nifong for his handling of the Duke Lacrosse case, or David Hoke for his handling of the Alan Gell case?” This is an either/or question. Responses such as “both” or “they are equally” are not acceptable. No straddling the fence, as I ask you to respond with either the name “Nifong” or “Hoke.” If you respond “Hoke,” then no explanation is necessary as it is obviously the sensible response. However, if you reply “Nifong,” then I would request that you supply accompanying dialog in support of your answer.

Now I am aware that this is difficult for the anti-Nifong throng to do, because to answer “Nifong” would bring their common sense and reasoning ability into question. However, to answer logically by saying “Hoke,” would give credence to the position that the unregulated North Carolina State Bar acted selectively and unjustly in disbarring Mike Nifong while giving David Hoke a gentle slap on the wrist. This question represents the biggest conundrum for the anti-Nifong throng… how do you explain it? I am looking forward to the responses.

In the event memories of the Alan Gell case have faded, or been subconsciously blocked out, let me refresh them as succinctly as possible. Prosecutor David Hoke, in seeking a first degree murder charge against Alan Gell, withheld exculpatory evidence from the Gell defense team. The evidence withheld included 17 independent eyewitness statements from individuals who had seen the murder victim alive after Mr. Gell had been incarcerated. He, in fact, was behind bars when the murder for which he was convicted took place. Additional evidence withheld consisted of a wire-tapped phone conversation from the star witness for the prosecution in which she stated that she had to make up a story (implicating Gell) for the investigators. Mr. Gell languished in prison for nine year, more than half on death row, before these facts came forth. Gell’s conviction was set aside, and the Attorney General’s Office, in light of the new evidence, disregarded its role as a “minister of justice” and proceeded to retry him. With the previously withheld exculpatory evidence now in play, the jury immediately found in favor of Mr. Gell’s innocence at his retrial. In this case justice was definitely denied, as an innocent man was sentenced to death (and spent more than nine years wrongfully imprisoned) by a prosecutor (David Hoke) who knew, or should have known, that the defendant had to be innocent.

A refresher about the Duke Lacrosse case: The Duke University lacrosse team had a history of bad behavior, including hosting raucous parties, and disorderly conduct. In fact, the 2006 team had nearly of third of its 47 member roster charged with criminal activities (mainly drunken and disorderly conduct, and public urination). Duke had a “fixer” on hand to smooth over the criminal misdeeds of its students, so that the criminal activities of these students were routinely swept under the rug and kept out of the media. The president of the university even warned the lacrosse coach, Mike Pressler, to rein in his unruly players. In March 2006, hosting a Spring Break party, a Duke lacrosse player used false pretenses to schedule two exotic dancers (strippers) to perform. He used an alias, and told the escort service that the request was for a small bachelor party of four or five (when he knew that more than 40 guests were expected at the beer-guzzling extravaganza). When two African American dancers showed up at the event, despite the request for two white dancers, the party-goers paid each $400.00 in expectation of a two hour performance. Because of sexual degrading, lewd, and vulgar trash talk directed at the dancers, they quit within minutes of their routine and exited to the bathroom. What transpired next is subject to debate. One African American dancer stated that she was sexually abused by several party-goers within the bathroom, and the money paid for her services was stolen from her. The party-goers, on the other hand, say nothing happened, and deny taking back the payment they had made earlier. Upon leaving the house on Buchanan Street, neighbors state that the party-goers hurled racial slurs and epithets at the retreating females. When Durham District Attorney Mike Nifong heard of the incident, he was appalled and outraged at the alleged gang-like sexual abuse coupled with the ugly racial component involved, so he took the lead in the prosecution of the case. Because of Mike Nifong’s independence (comparable to that of Archbishop of Canterbury Thomas Beckett in defying England’s King Henry II) and his unwillingness to allow the case to be customarily hushed up with charges dropped, the state powers-that-be had the North Carolina State Bar file an ethics complaint against Mr. Nifong in order to force him off the case. The basis for the Bar’s complaint, as accurately observed by Miami attorney Kendall Coffey, was that Mr. Nifong failed to “promptly disclose DNA” results to the defense team. Being a prosecutor with integrity and having a stellar 27 year reputation, Mr. Nifong turned the case over to the Attorney General’s Office, which then set about to persecute and destroy Mr. Nifong (not unlike what happened to Beckett). Mr. Nifong was disbarred, sentenced to serve 24 hours in jail, denied absolute immunity, and an attempt was made to bring federal criminal charges against him. The purpose of the actions against Mr. Nifong were to set an example to other prosecutors who do not follow the state’s tenet of “selective justice based on Class and Color,” and to quench the blood thirsty vengeance of the vindictive and avaricious carpetbagger families of the Duke Lacrosse defendants. Unlike Alan Gell, the Duke Lacrosse defendants spent no time in jail, received $7 million each from Duke University, and were proclaimed “innocent” before a national audience by Attorney General Roy Cooper; a promulgation which was given credence by the media and went unquestioned, even though the attorney general is part of the executive branch of government, and not judicial.

This simple question of “who is more deserving of disbarment… Hoke or Nifong” is one that people in politics, media, and legal arenas refuse at address, and those who do respond do so only on the condition that their response is strictly “off record.”

I have just completed programming my questionnaire for posting online on our website: I hope that everyone will take the time to participate, especially the anti-Nifong throng. Taking the survey, with an open and fair mind, should enlighten the test-taker and give new insight into the Duke Lacrosse case and its prosecutor, Mike Nifong.


William L. Anderson said...

This one reminds me of the loaded question, "Yes or no; have you stopped beating your wife?" Logically speaking, this falls under the informal fallacy category of Complex Question.

Now, if this were the true choice, David Hoke (and by inference, Debra Graves), I would think that Hoke and Graves would deserve disbarment before Nifong because the stakes were higher. If I were to have my druthers, I would prefer seeing Hoke and Graves tried for attempted murder.

This does not mean I buy any of your arguments regarding Nifong, and after you accused (by inference) the Seligmanns of "paying off" Moez Elmostafa and gave approval of Nifong's blatant attempt to try him on trumped-up charges, I stopped believing you were presenting any serious arguments.

Furthermore, I am on the record as being very critical of Hoke and Graves, and I also am on the record as favoring the elimination of any immunity for prosecutors and police. You were a physician, yet had to work a major part of your year just to make enough income to pay for liability insurance. But a prosecutor is free to engage in conduct that you never would have imagined in your own position, yet be protected by the law.

Nonetheless, if I follow the logic of your post, it goes like this:

1. The NC State Bar has the power to disbar an attorney when that attorney is guilty of serious misconduct;

2. The state bar disbarred Nifong but not Hoke and Graves.

3. Therefore, Bill Anderson and the others supported the failure of the state bar to take meaningful action against Hoke and Graves.

Sorry, but your syllogism does not work. I supported the disbarment of Nifong and believe he should have been prosecuted. Likewise, I believe that any prosecutor who hides evidence or lies during the proceedings should be prosecuted and convicted, should the evidence demonstrate guilt beyond a reasonable doubt. Graves and Hoke hid evidence and attempted to create a nonexistent timeline in their prosecution of Alan Gell.

That being the case, they should have been prosecuted, not just disbarred.

JSwift said...


I wanted to call your attention to an oversight from this post.

You failed to describe in detail Alan Gell's prior arrest record. While I would not have thought that a suspect's past arrests are critical in the determination of "probable cause," let alone an analysis of prosecutorial misconduct, you obviously disagree. You have repeatedly obsessed on the misbehavior of some of the lacrosse players, citing the arrests of some players as justification of Mr. Nifong's decision to proceed with charges, based on "no credible evidence." For example, your support of Mr. Nifong's decision to charge one of the players with multiple felonies supported by "no credible evidence" is based on the arrest of some of his teammates for misdemeanors, including underage drinking, open container violations and noise violations. Surely, you agree that Mr. Gell's own arrest record merits comparable disclosure, particularly if it includes more serious charges.

I am sure that this oversight is completely unintentional on your part. Otherwise, some might question why you applied vastly different standards to Mr. Nifong than to other prosecutors. Some might even think that you were guilty of tremendous hypocrisy and could not be taken seriously.

I expect that this oversight explains why your poll has not attracted more attention. Readers cannot participate until you have given them all the facts.

I look forward to seeing your apology and correction.

Unlike you, I do not believe a suspect's (or, particularly, his friends') criminal record is of utmost importance in analyzing proscutorial misconduct. I can answer your loaded question despite your failure to recite Mr. Gell's more serious criminal record.

I concur with Bill Anderson's judgment. He stated it quite well. Mr. Hoke (and Ms. Graves) are "more" culpable than is Mr. Nifong simply because the stakes were higher. They convicted a man they knew (or should have known) to be innocent, and they sought and obtained the death penalty. This is unconscionable.

As I have stated earlier, the failure of the NC Bar to take action against Mr. Hoke and Ms. Graves represented a complete abdication of their responsibility. In spite of that failure, I support without reservation their decision to disbar Mr. Nifong. As Walt-in-Durham has noted, the Bar's failure to take action against Mr. Hoke and Ms. Graves likely emboldened Mr. Nifong, causing him to expect that he too would face no consequences for his misconduct. Thankfully, he was wrong.

Despite the disbarment hearing and the criminal contempt trial, I am confident that we do not yet know all of the details of Mr. Nifong's misconduct. I look forward to further information as a result of possible discovery on the civil suits. Sydney, I expect that you too share this desire for more information, although I concede that your expectations may be somewhat different than those of many of your readers.

We may only hope that the Bar will continue to take seriously their responsibilities in the future. Prosecutors must no longer conclude that they are above the law, with the expectation that the Bar will simply overlook their misconduct. The Bar must no longer serve as a "fixer" for wayward prosecutors. Punishment must become a significant deterrent. Disbarment should be merely one option; criminal charges should be available when appropriate. If so, Mr. Nifong's fate may serve a useful role if it deters misconduct by other prosecutors.

William L. Anderson said...

I will say one thing about Hoke and Graves: they were willing to look at information given them by the defense. Nifong, on the other hand, refused to look at any exculpatory evidence at all, telling attorneys he was "not interested in reading fiction."

At the Bar hearing, other prosecutors testified that they looked at all evidence, not just the material they believed was helpful to them. Nifong certainly did not follow that pattern, and it cost him.

In your former line of work, if a patient had come to you with symptoms, do you think it would have done him or her well for you to conclude beforehand what their illness was and then not listen to any information that might upset your own "diagnosis"? Prosecutors are duty-bound to listen to different sides, and Nifong openly stated he was not going to do that. Thus, it left him open to huge amounts of justified criticism.

unbekannte said...

No contest. Decent(HA) Honorable(HA HA) Distinguished(HA HA HA) Exemplary(HA HA HA HA) Minister of Justice(HA HA HA HA HA) is the one most deserving not only of disbarment but also of a criminal conviction, a 3 figure prison term and a 7 figure fine.

JSwift said...


I am afraid you are somewhat confused.

Mr. Nifong was not "denied absolute immunity" as you suggest.

Prosecutors have absolute immunity only in their roles as prosecutor. In that role, they are not subject to criminal charges nor are they liable for damages in a civil litigation. Prosecutors are subject to discipline for misconduct in their prosecutorial roles only by the state Bar and the court itself. For this reason, the failure of the NC Bar to discipline Mr. Hoke and Ms. Graves represented a particularly egregious miscarriage of justice. Their actions were not subject to other discipline.

Despite the discipline handed down to Mr. Nifong by the NC Bar and Judge Smith, Mr. Nifong continues to have absolute immunity for his actions taken in his role as prosecutor.

Prosecutors are not, however, entitled to absolute immunity when they act in roles other than as prosecutor. Numerous cases confirm this point.

Police investigators are provided only qualified immunity. They have immunity for actions taken consistent with a reasonable man test. They have no immunity for actions found to be unreasonable. Similarly, a police spokesperson has only qualified immunity. A spokesperson likewise has no immunity for unreasonable actions.

When Mr. Nifong allegedly assumed responsibility for the DPD investigation on March 24, two weeks before he obtained indictments, he arguably was performing investigative functions not directly associated with those of a prosecutor. Similarly, when he gave dozens of interviews, he functioned in a role as media spokesperson; again, arguably a role not directly associated with his prosecutorial function.

His admission that many of these interviews were in direct violation of legal ethics rules weakens his argument that his statements were part of his prosecutorial responsibilities; his many statements not supported by the case file weaken the argument that his actions were consistent with those of a reasonable man.

Similarly, Mr. Nifong likely must demonstrate that the investigation allegedly under his control was reasonable. The rigged lineup designed by Mr. Nifong, Sgt. Gottlieb's problematic report and the alleged attempt to intimidate a number of witnesses raise questions whether that investigation was reasonable. One of the investigators admitted under oath that affidavits filed in applications for warrants contained false information. Moreover, the failure of that investigation to interview numerous witnesses, examine physical evidence in their possession or known to exist, read medical reports, reconcile conflicting witness statements, reconcile witness statements with contradictory physical and medical evidence, and reconcile Ms. Mangum's inconsistent statements raise additional questions as to its credibility.

As you know, Mr. Nifong has claimed absolute immunity for all of his actions and asked for dismissal in the Evans civil litigation. The court has not yet ruled.

Once again, I suggest you apologize to your readers and retract your erroneous statement.

Nifong Supporter said...

To William L. Anderson, JSwift, and unbekannte:

Thank you for participating in the "snapshot survey" (survey consisting of one question). Naturally, I agree with the position taken by William Anderson and JSwift, and find their reasoning to be just. There are additional reasons why I believe that Mr. Hoke was more deserving of disbarment than Mike Nifong. Unbekannte, although I do not agree with you, I would like to know the reasoning, if any, behind your selection of Mr. Nifong as being the prosecutor most deserving of disbarment.

I applaud you all for your participation, which is something that I was not able to get from approximately two dozen Duke University Law School professors. In a thinly veiled hypothetical, I asked the same question, and not one of them would respond. I can not fault them, because to go against the unregulated agency that can take away one's livelihood would be foolhardy.

I hope that Walt, gak, Rhonda and others will take part and respond.

To Walt: I am grateful for you bringing up the issue of the statement attributed to Mike Nifong that he admitted nothing happened (WRAL online article). I contacted the station's general manager and they modified the misleading headline and included an editor's note... much to my satisfaction. The station acted appropriately and responsibly in doing so. The correction can be seen by going to the following link

Hope everyone has a nice Thanksgiving. I am thankful your participation in this blog.

Walt said...


I don't think my participation in your survey was necessary, but to make it clear, I think Hoke and Graves should have been disbarred. While they did not participate in the pre-trial media blitz of the kind Nifong did, they exhibited exactly the same behaviors he did in court. Hoke and Graves, like Nifong pursued a prosecution long after it lacked any probable cause. Like Nifong, they witheld evidence that they knew was exculpatory. Unlike Nifong, they avoided directly lying to the court, but only because the Judge did not ask them direct questions. Likewise, I agree with Bill Anderson that the stakes for Allen Gell were considerably higher than for the lacrosse defendants, thus their offense was worse.

However, I do not buy your line of argument that because Hoke and Graves were not disbared that somehow Mike Nifong should not be disbared. Two wrongs simply do not make a right.


Rob Dean said...

Although I would like to see Hoke disbarred and imprisoned, I still believe Mike Nifong was properly disbarred and should have done a much longer term in jail/prison as well as having been stripped of any government pension and benefits. He is a disgrace to our community! Also wish that Durham had prosecuted the false accuser for her lies and false police reports. A DA has a duty to the accused as well as to the victims. Truth and honesty is required.

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