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Mike Nifong and Prosecutorial Immunity

Although Michael Nifong has been disbarred for violating his duties as a prosecutor, there is virtually no realistic prospect of a successful suit against him arising under 42 U.S.C. Section 1983. The result is counterintuitive. Didn't the prosecutor abuse his authority under color of law?

1983 claims are based on a flimsy foundation. Consider the case that ushered 1983 litigation into the modern era. In Monroe v. Pape, 365 U.S. 167 (1961) rogue Chicago police officers illegally entered a dwelling. When they were sued under 42 U.S.C. 1983, the city defended by saying that since the acts were ultra vires, they could not have been done under color of law. The cops could perhaps be sued in state fora for ordinary torts, but not for a constitutional violation. The court held, perhaps inelegantly, otherwise.

The practice today is that defendants can be sued in their individual capacity for acts done under color of law. Municipalities or states are not obliged to indemnify for damages in these cases. However, at least in New England, most public bodies underwrite all but the most egregious constitutional torts. Thus, a cop sued for breaking an arrestee's jaw might be found liable for excessive force, but pay nothing in damages. His employer pays.

Prosecutors enjoy special immunities. In the leading cases on prosecutorial immunity, the Supreme Court performs a functional analysis. If the prosecutor's acts and omissions arose in the context of his or her function as an advocate, the prosecutor is immune from suit, even if acting under color of law. Imbler v. Pachtman, 424 U.S. 409 (1976); Kalina v. Fletcher, 522 U.S. 118 (1997).

In Mr. Nifong's case, it will not do simply to say that he acted outside the scope of what the law authorized. That is the failed defense of the defendants in Monroe v. Pape. Mr. Nifong was acting under color of his authority as a prosecutor, even if he crossed the line of what the law permitted him to do by engaging in fraud, deceit and other acts prejudicial to the administration of justice.

Will he enjoy the full protection of prosecutorial immunity? That is a closer question. In Kalina, the Court permitted a claim against a prosecutor to advance when it was clear that the prosecutor behaved as an investigator, rather than as an advocate. In that case, the prosecutor signed an affidavit attesting to the truth of certain facts that turned out to be untrue. In signing the affidavit, he became a witness, not an advocate.

Parsing the potential claims against Mr. Nifong is exacting work. The odds are overwhelmingly in his favor insofar as immunities are concerned. An unprincipled advocate is immune from suit under Section 1983. But a lying ivestigator is not.

Of course, counsel need to determine whether all the work is worth the risk of no return. In the end, should prosecutorial immunity be penetrated, it is inconceivable that Mr. Nifong's employer will indemnify him for damages. Thus, the only source of damages will be Mr. Nifong's assets. Odds are those are meager.

The disbarment of Mr. Nifong may be the only justice members of the Duke lacrosse team ever get. That seems a shame. Perhaps the team's supporters will make this a test case designed to frame the issue of whether prosecutors who engage in egregious misconduct as advocates should forfeit immunity from suit. That would be a welcome development in the law.


A Father's Death

I am not crying yet, but I know the tears will come. I learned only moments ago that my father just died.

I have not been a good son. And he has not been a good father. But that seems hardly to matter now as I envision his flesh suddenly cold.

Here is his brief biography: He was born in the town of Sfakia in Crete more than 80 years ago. He snuck into the country when he as a child with his father. They crossed illegally from Windsor, Canada, into Detroit. They lived hand-to-mouth and soon my father was on his own, a Greek Oliver twisting from one day to the next.

As a young man, he lived by means of a gun and cunning. He and his "crew," the word was his, robbed payroll trucks for a living. It was a good living, too. He owned an apartment building where he spent most of his time. "You needed a warrant" to get to the upper floors, he told me. When the "heat" was on, he had a "safe house" he would hide in.

He needed to only "knock off" three or four firms a year to live. He was content.

My father was at pains to tell me he was not a violent man. Except for one night. In 1954, he shot a man. He said he only wounded the victim. And then the feds got interested, or so my father told me. He took the young woman he was seeing with him to Chicago. She is now my mother.

They were happy for a time. I have some pictures that prove it. But he had no education and skills only in crime. One night he walked out of my mother's and my life. I cried for a decade then, and my mother seemed lost in ways from which she never really recovered.

I told myself he died for decades. He must have died. Half-hearted efforts to find him always failed. Then one night his new wife called. He was living in Virginia. I went to see him. He had settled in the South, working to build homes for troubled teens. Oh, that I had lived in one of those towns, I thought.

It was odd to see an older version of myself. I was not his spitting image, but we were father and son. I am not sure I liked it. Suddenly, a future that seemed unlimited was now bound by the image of a man in his eighties who was mortal. My future.

And not just mortal. I could not trust his candor. There were stories he'd told his new wife that made no sense given what I knew. It seemed as if he wanted me to keep his secrets in his new life. Would I convey his thoughts to my mother?

It was too weird for me. I could not bear stories of how much he loved me as a child. He disappeared, the event which perhaps more than any other explains my bearing in the world. Am I distrustful of authority? Gee, I wonder how that happened.

We did not talk at all after a year of trying to reconnect. What could give back all that is lost? Was I a mere bauble at life's end, some consolation prize he could give or take with impunity when it suited him?

And now he is stone-cold dead. Now I will travel South to give a farewell kiss to lips whose absence destroyed a boy and made a man of many struggles. I will stand before his new family as a stranger. I will take my place beside a grave and look into a hole and wonder where time goes, where hope goes.

My father died an illegal immigrant. He had false papers throughout his life. He robbed people at gun point. He shot a man. He broke a boy's heart and walked out of the arms of a good woman who adored him. And when, like Odysseus, he returned after his many struggles, he seemed unaccustomed to truth.

This was the father I knew. James Pattis died this week. He was not a good man, but neither was he bad. He was my father. And now I have to learn to cry all over again. •

Reprinted with permission of The Connecticut Law Tribune.

Nifong Almost Escaped Discipline

What Mike Nifong did was wrong - but it not just wrong, it was visible.  Yet in spite of Nifong's clear ethical violations, and in spite of the fact that he indicted three innocent people, the state bar ethicals panel just barely agreed to punish him.  Per K.C. Johnson, a history professor and author of a forthcoming book on the fiasco:

[T]he State Bar’s grievance committee voted to charge Mike Nifong with ethics violations by a mere one vote, with grievance committee chairman Jim Fox casting the tie-breaking vote.


Mike Nifong Hears Gong

Mike Nifong has resigned from his position as District Attorney, though he is still a lawyer.  This is a tactic no doubt directed at saving his law license.  If he had remained District Attorney, the North Carolina State Bar may have concluded that they had to find that he violated ethical rules - if for no other reason than to remove him from office.  As Nifong is no longer in a position of power, the State Bar might conclude that he doesn't pose as great of a threat to the public. 

They might also view his resignation as a mitigating facto.  In other words, Nifong's lawyer might say, "My client has already been forced to give up the only job he has ever had - and it was a job that he loved.  He has been punished enough."  Also, Nifong will be able to argue: "I made a mistake.  I am accepting responsibility for those mistakes by giving up my job."  His lawyers will spin this as an act of sacrifice.  It was a very intelligent move.

It reminds me of a famous story involving Edward Bennett Williams.  Williams was asked to represent a federal judge in a corruption trial.  Williams had helped many facing worse odds prevail at trial, and was on a huge winning streak. 

Williams told the judge he would represent him only if he resigned.  "Why?" asked the judge?   "Because,  Williams said, "If you don't resign, every juror will be thinking that if they vote to acquit you on Friday, you'll return to the bench on Monday."  The judge refused to resign.  During closing arguments the prosecutor concluded: "Do you want this man serving on the bench?  Then vote guilty."  The jury took the hint and convicted the judge.

The state bar prosecutors will not be able to say: "If you do not find that Mike Nifong violated ethical rules, then this man will remain in power."

* For an explanation of the post title, go here.

The Price of Innocence

Although the Duke case had many problems, the breakthrough in the case came when Brad Bannon discovered that Mike Nifong had hidden exculpatory DNA evidence.  According this New York Times story (which was written by Duff Wilson, so we'll have to wait for independent verification):

Brad Bannon, a Raleigh defense lawyer, testified about how he had made a breakthrough in the case by finding the evidence of the other male DNA. It was buried in 1,844 pages of laboratory data released by Mr. Nifong in October, six months after a summary report had failed to disclose it, Mr. Bannon said.

Mr. Bannon said he read a book on DNA and spent 60 to 100 hours analyzing the data.

I don't know the North Carolina legal market, but I would be shocked if Bannon's billing rate was less than $300 an hour.  So finding this one piece of evidence - a piece of evidence no one even thought existed! - likely cost the defendants around $18,000 to $30,000.

Because it's so costly to prove one's innocence, prosecutors should be required to reimburse defense legal fees in any case filed without probable cause.  If, as the National District Attorneys' Association and every prosecutor in the country claims, Mike Nifong's conduct is an aberration, there should be no objection to a requirement that a prosecutor who is found to have indicted a defendant without probable cause must personally pay the defense's legal fees.  After all, the rule would be applied so rarely.  Right?

Why then are North Carolina prosecutors resisting even less "extreme" regulations on prosecutors?  Why then do prosecutors across the country vehemently resist disciplining prosecutors?  Why did the National District Attorneys' Association support perjury?

Could it be that there are more Mike Nifongs running around than anyone would like to admit?  Or could it be that prosecutors want to be able to deal from the bottom of the deck - when the situation, in their judgment, calls for it?

If prosecutors truly believe that their colleagues are honest and ethical, why do they resist any efforts to prevent another Duke Lacrosse prosecution?

Do People Enjoy Paying Taxes?

A couple of researches have concluded that people actually enjoy paying taxes:

Paying taxes feels good, say researchers.

Bill Harbaugh at the University of Oregon in Eugene, US, and colleagues gave 19 female university students $100, and told them some of this money would have to go towards taxes.

Each volunteer then read a series of 60 separate taxation scenarios involving $0 to $45 in taxes, knowing that one of the scenarios would be selected at random and the related amount be subtracted from their $100.

Secret pleasure

As the participants viewed the tax scenarios, their brains were scanned using functional magnetic resonance imaging (fMRI). Surprisingly, whenever the students read the taxation scenarios, scientists saw a spike in activity within two of the brain's reward centres – the nucleus accumbens and caudate nucleus.

I would need to review the entire study, but my initial reaction is: Of course people would enjoy paying taxes if you told them where their money was going, and how much good that money will do.  People do not generally complain about taxes because they don't want to help people.  We complain about our taxes because we are tired of government wasting our hard-earned money.  Indeed, I could design a study showing that people both a) love paying taxes and b) hate paying taxes.  I'd just frame the issues differently.  For example:

Scenario 1:
An elderly woman falls on ice and breaks her hip.  She is unable to afford an operation.    Your tax dollars will pay for an operation that will prevent her from living the rest of her life in extreme pain.

Scenario 2:
Healthy 50-year-old doesn't want to go to work.  Instead of using a vacation day, he calls in sick and complains of back pain that doesn't really exist - per the AARP's advice.  Your tax dollars will pay for a test that will make it seem like he suffers from back pain, even though he actually doesn't.

I suspect that if I loaded the test with the first scenario, I could show that people love paying taxes.  If I loaded them with the second scenario, I could show that people hated paying taxes.  Here's one more set:

Scenario 1:
New York City is unable to hire qualified police officers, because it can only afford to pay officers $23,000 a year in salary.  Your tax dollars will increase the police officers' salary, thus ensuring a more qualified police force and safer New York City.

Scenario 2:
The FBI director feels he needs to travel in style.  Thus, your tax dollars will pay for a private jet for him.

So... Which is it?  Do people enjoy paying taxes or not?  The answer, of course, is that it depends.  It depends on where the money is going and on how much good the money is doing.  I don't enjoy paying taxes to fund our public school system, but I would enjoy paying taxes to fund education - e.g., school vouchers.  I don't enjoy paying taxes into Medicare because too many old people who aren't paying their own freight run to the doctor's office at the sign of a hiccup.  I do think, however, paying taxes to reduce the suffering of the elderly is enjoyable. 

So while I will need to read the entire study to judge it, my suspicion is that the questions were loaded to favor of a pre-determined result.