Saturday, June 16, 2007

Bar Panel Recommends Nifong Be Disbarred

Posted by Alan Childress

The AP wire story here.  It is reported as the panel having "disbarred" him.  I wonder if that is premature since this is just the bar panel first hearing the matter.  On the other hand, "Nifong will not appeal the punishment, his lawyer said."  Maybe that gives it some immediate effect, though even then it would seem to await the end of the appeal period (e.g., just in case a client in this position might want to appeal despite his attorney's statement).  Yet it would be hard now for him to take that back and appeal it, and I doubt the attorney said that without having run it by the client [unlike Angelina Jolie's?], so it seems this will result in a disbarment.  Perhaps he is readying himself as best as possible for a reinstatement petition a few years from now.  If so, his attorney may want to file a consent discipline formally in lieu of an appeal, and not just "not appeal."

In the abstract and as the world perhaps should be, it seems the right punishment for the admitted and obviously proven offenses.  On the other hand, there is some history in bar discipline across the nation that would suggest that similar prosecutorial misconduct goes less punished, generally.  It may be the right decision, but is it also possible that the N.C. bar [maybe even understandably] is doing some of what it accuses Nifong of doing:  treating a case differently than it might have otherwise because it has gone public and taken a political life of its own?  Do not some of the handwringing statements quoted from the bar seem designed for public consumption, more so than the usual panel finding?  My query probably overstates the reality that Nifong created much of the "life of own" of his prosecution, and made the statements in the press not as part of a regular process like issuing a bar decision.  But my experience is that bar boards don't decide cases in a day (or really, a year), write such strong statements, or slam prosecutorial overreaching this efficiently or thoroughly.  I think they should in many cases, but this one is just more public than most. 

Even if there is something political in the board's result and speed here, it is certainly a wake-up call to "rogue prosecutors" everywhere. And I predict that later bars will not be able to honor so readily the tradition of easily forgiving the prosecutorial misconduct they often find, as just overzealous public protection.

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"And I predict that later bars will not be able to honor so readily the tradition of easily forgiving the prosecutorial misconduct they often find, as just overzealous public protection."

Well, I generally use the 203 exonerations of convicted prisoners by the Innocence Project and others as my chief evidence of widespread overzealous prosecution. The fact that 71% of those wrongly convicted persons were minorities is also quite stunning. But I don't know of any prosecutors being disbarred over any of these 203 cases. If any occurred they certainly weren't publicized. Why is that?

Cynics would say that the Duke case is the first "DNA exoneration" involving rich white kids. Others would respond that it is just the increased publicity. Cynics would counter that the increased publicity is also because of the rich white kids.

I will be optimistic about the bars' treatment of overzealous prosecution when someone gets sanctioned for covering up police errors in a routine crack cocaine possession case. Jumping on Nifong in order to rehabilitate a public relations disaster is not really indicative of a conversion on the road to Damascus.

Posted by: Corey | Jun 18, 2007 1:22:36 AM

Deborah Rhode, Stanford, urges that nonlawyers should be more involved in bar disciplinary matters. She is concerned primarily about civil matters; see her book, Access to Justice, New York, Oxford University, 2001. Do you agree, and can you provide examples of greater lay person participation in review of lawyers' disciplinary matters?

Posted by: Ted Preston | Jun 18, 2007 4:40:52 PM

I agree-the Nifong disciplinary case is an aberration caused by publicity--it will be business as usual for the vast majority of bar complaints against prosecutors around the country.

Posted by: Mike Frisch | Jun 19, 2007 4:51:11 AM

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