Saturday, December 30, 2006

Where Are The Ethics Complaints Against Lawyers Who Attack Alleged Rape Victims

CNN

A 17-page complaint to the bar's Disciplinary Hearing Commission accuses Durham County District Attorney Michael Nifong of telling reporters that the Duke players were refusing to cooperate with the investigation and that the players were refusing to make statements to local law enforcement authorities. It also says he improperly commented on tests involved in the investigation.

It further accuses him of improperly commenting on evidence and testimony he expected would be presented in trial; improperly giving his opinion about the guilt of the players; improperly trying to explain the absence of incriminating evidence; and improperly commenting on the character, credibility and reputation of the accused. Nifong's comments risked prejudicing any criminal trial, the complaint said.

With the nature of this case, I have to wonder if these complaints would have been filed if the Nifong's comments had been directed at men considered low-class thugs. If a prosecutor should be held to a high ethical standard, why aren't defense attorneys who make similar types of comments about alleged rape victims held to this same high standard?

Don't the defense attorneys and other attorneys who have spoken publicly against this alleged victim risk prejudicing any criminal trial? Or is it okay as long as the prejudice only smears the character, credibility and reputation of alleged victims?

This AP headline provides an opinion, but does it also provide a motive:
Ethics Charges Against Duke Lacrosse Prosecutor Could Force Him Off Case, Legal Experts Say

Frankly, the more determined people are to shut down a case by any and all means, the more suspicious I am of their motives and their ethics.

Technorati tags:
Bookmark and Share
posted by Marcella Chester @ 12:02 AM   13 comments links to this post

13 Comments:

At December 29, 2006 11:13 PM, Anonymous Anonymous said...

1. The prosecutor is held to a higher standard. There are still rules for the defense attorney but they have a lot more latitude. The prosecutor is charged to find justice, the defense attorney is charged to represent the defendant. There are limits though, if the defense attorney commits libel or slander in an effort to discredit the alleged victim they can be sued. It’s a hard thing to make stick but it can be done.
2. Ethics complaints by the state bar ethics committee against a prosecutor are very rare. It’s even more rare for the ethics committee to release the report before the conclusion of a trial. It sends a clear signal that the committee thinks the prosecutor is misbehaving.
3. Our legal system is designed to protect the rights of the accused, not the victim. This isn’t always the most just situation, but it’s the system we’ve got.

While I obviously don’t know what happened that night (I wasn’t there, but neither was one of the defendants) I think that this case is less about rape, the accusation of rape, and woman’s rights than it is about abuse of power on the part of the prosecutor. Between the rapidly shifting theories of the case, the flawed line-up, the poor procedure at the DNA lab, and the clear way that Nifong used the case to further his political ambitions the case stinks. And in this case I think the wealth and social standing of the accused is working against them. It’s unusual but here we are.

 
At December 30, 2006 1:02 AM, Anonymous GPrestonian said...

You pose some interesting questions, Marcella:

With the nature of this case, I have to wonder if these complaints would have been filed if the Nifong's comments had been directed at men considered low-class thugs.

I think the answer to that is 'No'. 'Low-class thugs' probably make up the majority of perps/defendants in Durham in particular and the US in general. DA's like Nifong regularly run rough-shod over those defendants, who never have a chance due to overworked & underpaid PD lawyers. In this situation the fact that the defendants can afford effective representation is a good thing in that it exposes the lack of due process afforded many people who are less fortunate.

"Injustice anywhere is a threat to justice everywhere. ~MLK

Don't the defense attorneys and other attorneys who have spoken publicly against this alleged victim risk prejudicing any criminal trial?

Attorneys are well within their rights, if not required by legal canons, to respond to comments by DA's & the media that predjudice their clients. There's a lot of info in the media now about the AV - she went from a veritable black June Cleaver to a bipolar, lying druggie dancer/prostitute w/ a serious police record within a matter of months, or perhaps weeks.

Are you suggesting that the defense put all of that on the record? I pose that question sincerely - do you know of comments that the defense has made outside of Court filings that necessarily become public record?

Or is media investigation the provenance of most of the 'new' information?

I haven't seen any suggestions that the defense has violated the NS rape shield laws, either.

Again, I mean this sincerely - I would appreciate it if you could point me toward any good discussions on these matters.

 
At December 30, 2006 2:09 AM, Anonymous observer said...

The defense attorneys have attacked the alleged victim's credibility by pointing out inconsistencies in her various stories. The district attorney has repeatedly lied about the actions of the Duke lacrosse team, while not even attempting to determine whether his star (and apparently only) witness was telling the truth.

The district attorney is supposed to keep an open mind about his cases. His job is NOT to convict. It is to try to see that justice is done. Mike Nifong is everything that a DA should not be.

 
At December 30, 2006 8:46 AM, Anonymous Anonymous said...

Do you have evidence that the defense attys in this case have spoken anything but the truth? Have their statements intentionally attacked the unnamed accuser or have they defended their clients?

Has the prosecution made false statements about the accused? The NC Bar seems to think he/they has....

I don't give a damn if the defendants were 'low-class thugs' -- prosecutors should never, ever be able to railroad anyone for any reason (political or otherwise). And, everyone should take action when they see this happening. The fact that Nifong was able to get away with this for so many months is frustrating and the fact that some still support his actions is more than frustrating.

 
At December 30, 2006 8:53 AM, Anonymous Anonymous said...

just one more thing...

There are special rules for prosecutors reference NC Bar Ethics rule 3.8.

A prosecutor is (and should be) held to different standards. His job is to seek justice not to merely to seek conviction. The accuser is not his client, the citizens of that district are his client.

Question my ethics if you wish but please, when you see a prosecutor lying to the public and hiding evidence... do more than question, speak out, frequently.

 
At December 30, 2006 9:58 AM, Blogger Marcella Chester said...

Observer: The defense attorneys have attacked the alleged victim's credibility by pointing out inconsistencies in her various stories.
Those would be alleged inconsistencies just as these men are alleged criminals. I consider the defense attorneys presenting their allegations as proven facts to be clear attempts to prejudice the potential jury and to in fact try this alleged victim in the media. Ditto with their release of evidence in this case.

Ethics must be required on both sides. When it is not, our entire society loses not just individual alleged victims.

Any actions defense attorneys or those they hire take by being an unnamed source that biases the public against the alleged victim should be covered under ethics rules.

If it is wrong for the alleged criminals to be tried before their trial it is doubly wrong when the defense attempts to do the same to the alleged victim.

Both the prosecution and the defense should be based on evidence and not on personal attacks.

To only require the prosecution to be ethical is to advocate for injustice and enablement of the crimes these 3 men were charged with. And that is much bigger problem than this one case.

 
At December 30, 2006 10:09 AM, Blogger Marcella Chester said...

anonymous:While I obviously don’t know what happened that night (I wasn’t there, but neither was one of the defendants)

Allegedly one of the defendants wasn't there. The defense teams and those supporting the defense rarely hold themselves to the same standard that they demand of the prosecutor and those who advocate for victims.

Allegations and claims are consistently presented by the defense as proven facts when they are no such thing.

 
At December 30, 2006 10:22 AM, Blogger Marcella Chester said...

Observer:The district attorney has repeatedly lied about the actions of the Duke lacrosse team, while not even attempting to determine whether his star (and apparently only) witness was telling the truth.

These are allegations and not statements of fact. That you present them as proven facts reinforces the point I was making in my post. Either you have been prejudiced or are attempting to prejudice others.

 
At December 31, 2006 2:53 AM, Anonymous Anonymous said...

Well, this comment probably won't make it to your page as I have absolutely no faith in your honesty as a moderator of your own blog, but what the hell, I'll send it to you anyway and you can deepsix it or put it up if you wish.

First,I have to establish some facts -not opinions, but facts
A. The defense has introduced motions in court. These motions are based on evidence during the discovery phase that was handed over to them by Nifong. They are official court documents and are open for public inspection. You can find these documents among other places, at :

http://forums.talkleft.com/index.php/topic,3.0.html

Also, the discovery phase of the trial is now over. By law, Nifong has to have turned over everything he had. There is no "smoking gun", unless it be an illegal one.

B. Nifong was asked by an organization representing NC Prosecutors to recuse himself from the case.
C. Nifong is being investigated by the State Bar association. Once again the charging document is available online, if you want a link I can give it to you. This will almost certainly lead to Nifong having to recuse himself from the case as he is forced to defend his handling of it.
D. I have not found one forensic DNA expert over the last six months who believes that the DNA results implicate the 3 players in any way in any type of gang rape or sexual contact -or even personal contact!- with our accuser. This is only a personal fact, but considering the dozens of blogs I have read and thousands of posts, I doubt you will be able to find someone in the last six months who is a forensics expert on DNA evidence who believes the gang rape is possible.

E. There is no rape charge because the accuser changed her story -yet again- to say that she was not sure it was a penis that penetrated her. It is not "opinion" to say she changed her story when the charging documents and her police statement, which, once again, are public record claim penises were used, and now she claims she can't be sure.
F. I don't know if you know this as I haven't followed your blog, but it seems to cause confusion among some:
None of the 3 indicted boys were claimed to have been the ones hurling the 2 racial slurs. No one from the Lacrosse team has even been charged with a hate crime. There are 3 charges against the 3 defendents: rape, sexual assault, kidnapping. Since the rape charge has been dropped, that leaves only the other two charges.
G.The accusers criminal history is accessible online. It is is a matter of public record, not an opinion in any way. Once again, the link is available.

Anyway, that's just a beginning. There's tons more evidence out there if you wish to look at it. But apparently you aren't aware of the various rules that concern public access to documents at trials and rules both criminal(enforced by the legal system with possible jail terms) and ethical (enforced, sometimes, by professional associations) that govern how lawyers and court officials -such as DA's - must conduct themselves at trial. If you were, and you were honest, you wouldn't be complaining about defense spin and holding out hope against hope that Nifong must have something despite the rules of discovery, statments he's made in open court, and his own states disciplinary and professional bodies starting to turn against him.

You may contact me at clarenceinbalt@yahoo.com

Sincerely,
Clarence

 
At December 31, 2006 9:49 AM, Blogger Marcella Chester said...

Clarence:E. There is no rape charge because the accuser changed her story -yet again- to say that she was not sure it was a penis that penetrated her. It is not "opinion" to say she changed her story when the charging documents and her police statement, which, once again, are public record claim penises were used, and now she claims she can't be sure.

Your interpretation of this alleged victim's testimony is definitely opinion including categorizing it as "changing her story" and is based on your biases about alleged rape victims in general and about this specific alleged victim in specific.

This type of bias, which includes plenty of ignorance, has contributed to false charges being filed against real rape victims including this one.

You and many others seem concerned only about the legal rights of the Duke lacrosse players.

I am concerned about legal rights of defendants (their rights are being defended quite well IMO so I'm not going to focus on them) and I am concerned about the legal rights of alleged rape victims and how quickly people, who claim to believe in due process and not assuming the guilt of alleged criminals, will jump to the conclusion that the alleged victim is a liar.

I am also concerned about defense teams who fight their cases with character assassination in the media instead evidence in a court of law. Despite the stories people tell about how those accused of rape don't have a chance of a fair trial, rape victims are by far the ones who face the greatest injustice.

 
At January 01, 2007 11:54 PM, Anonymous trvolk said...

To boil the whole issue down to one simple statement: Nifong started it.

The defense attorneys reacted to a situation unfavorable toward their clients that was created by the prosecutor. Further, the defense attorneys have not put forth any allegations beyond their clients' innocence. For the most part, everything else that the defense attorneys have stated to the press were direct quotes from police reports past and current, past trial records that are open to the public, and court papers filed by Nifong. In that, they have done nothing unethical.

"the legal rights of alleged rape victims"

This is a myth. Crime victims have no rights, at least not prior to a conviction, only thereafter.

"will jump to the conclusion that the alleged victim is a liar"

Not all of us do that. Ensuring that the civil rights of defendants is the foremost priority has nothing whatsoever to do with the credibility of the accuser nor even the nature of the crime. One of the corollaries to those civil rights is the duty of defense attorneys to keep the case from ever reaching a criminal courtroom. Innocence is sacrosanct, "immune from criticism or violation", until determined otherwise by a jury, and if not so determined, that innocence is immune from attack thereafter, even if the accuser wins by lawsuit in a civil court.

However and conversely, the charges of an accuser must be considered suspect by police and prosecutors from the moment of issuance. The job of the police and the prosecution is to attack those doubts and render them moot. This is where Nifong failed, by stating his belief in the validity of the accusations before virtually any conclusions had occurred in the investigation. Not only does this disbelief of the accuser follow from logic, it is an economic necessity due to limited resources for investigation. You can stutter and stamp your feet and turn blue in the face, but until the Constitution is amended and public agencies are fully staffed with experienced professionals and trainable recruits (in other words, when taxes are raised much, much higher than they are now), this is the reality of the american system of justice.

 
At January 02, 2007 9:59 AM, Blogger Marcella Chester said...

trvolk, to excuse actions taken by defense attorneys by saying the DA started it is nonsense. That logic excuses people from their personal and ethical responsibility. What people do in reaction to others must be held to the same high standard as what they do otherwise.

The "he started it" mentality is the mentality of uncontrolled escalation. On the streets this is what causes gang warfare and the loss of innocent life.

You are wrong when you say crime victims have no legal rights. Every citizen has legal rights and being an alleged crime victims doesn't strip a person of those rights.

You and many others seem to excuse alleged victim bashing and slander in the name of ensuring the civil rights of defendants, but those 2 are not linked. Character assassination of alleged victims is not a civil right.

You say that defense attorneys working to keep a case from reaching a criminal courtroom is linked to the civil rights of the defendants, but this isn't true outside of the courtroom and the criminal justice system.

When the defense attorneys are doing PR and attempting to manipulate the public they go far beyond ensuring the civil rights of their clients.

In your statement that innocence is sacrosanct, you very conveniently apply that only to criminal defendants. Civil rights apply to all citizens not just criminal defendants. So if defendants must be "immune from criticism or violation" so must alleged crime victims.

Yet many who say they are only speaking up to protect civil rights have no problem violating the civil rights of alleged victims and those who advocate for alleged victims.

You are wrong that the charges of an accuser must be considered suspect by police and prosecutors from the moment of issuance. This approach is one that systematically assures injustice against crime victims. There is nothing logical about this unless you want rapists to go free.

By your logic, forced confessions are good since they save taxpayers money and can only be halted when public agencies are fully staffed with experienced professionals and trainable recruits. Until then false confessions are to be accepted as the reality of the American system of justice.

 
At January 02, 2007 6:45 PM, Blogger Holly Desimone said...

All the defense lawyers in the Duke Rape Case is DA off the case. Why? Is he the only DA in Durham willing to prosecute this case? Maybe! Time will tell, and if false claims have been made by the accused, I am sure the defense team will want to see the DA office prosecute that offence. Sincerely Holly Desimone

 

Post a Comment

Links to this post:

Create a Link

<< Home