I get mail....

I usually get some comments about my Slate pieces, but this last one must have struck a nerve. Leaving aside the huge number of posts and the rollicking debate in Slate’s “Fray”, I’ve personally received many more e-mails that usual. And while I’m sure that had something to do with posting my web address (thus making it easier to write) I’m beginning to think that these questions of prosecutorial misconduct have really hit a nerve.

So just for fun (and without attribution) here’s a lightly edited sample of the feedback I’ve gotten on the piece. Some good, some not so happy…

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“As a former prosecutor, I read your Slate article, One-Off Offing, with interest. I agree with your statements that prosecutors are “afforded almost unparalleled discretion to do their jobs,” and that “young prosecutors too often see their goal as winning rather than doing justice.” But I must take issue with your statement that it is a “rare [state] case in which problems involving the withholding of potentially exculpatory evidence don’t arise.” Really? In my experience, the exact opposite is true. And in a small jurisdiction such as I served, the spotlight on the prosecutor to “win” a big case shines very brightly.

One other small point. Twice you refer to Evans, Seligmann and Finnerty as “boys.” In North Carolina juvenile cases involve children under the age of 16 who are delinquent and children under the age of 18 who are undisciplined, dependent, neglected, or abused. Evans, Seligmann and Finnerty are not “boys.” Why choose to identify them as such?”

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You are the man, what can I say. As usual, it needed to be said, and everyone is afraid to say it lest they be ostracized as crazy or biased. But you and I both know it's true that the type of crap Nifong pulled is standard operating procedure. The hypocrisy of vilifying this guy while keeping our heads in the sand on the larger issue is mind-boggling. Let's all go watch unlawful interrogations by the Good Guys on Law & Order! Ugh.

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Your Slate article about the Nifong disbarment was right on the money and should be distributed far and wide. I have spent my entire career (15 years in legal services and 21 as a public defender --- now doing only death cases) representing the poor, powerless and disliked (to say the least) and though I have seen the misconduct you wrote about, no prosecutor has even been reprimanded. Thanks for the article and keep up you good work.

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That was a very strong and troubling piece in Slate on prosecutors.

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I just wanted to write and tell you that I thought your last Slate piece on the Nifong case was great. I have been saying much the same thing to our local media down here for the last couple of months. I also am enjoying your book very much (I was a public defender in San Francisco for a couple of years) and may assign it as my optional "book club" book for my 1L Criminal Law class next year.

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Sorry, but I thought it was an especially weak article that appeared in Slate today. There are number of factors that you don't mention or don't give sufficient weight to that at least weaken your major points. The two I would like to mention are: the egregious flim-flam that Nifong was running; and second, his motivation. Both of these in combination serve to ameliorate the otherwise wretched behavior of the legal profession and the press during the few weeks early in this case.

To consider motivation first: Nifong had 28 years in as a Durham County prosecutor, and was recently named to the DA position by the governor, an otherwise elective office. Mike's first action was to fire Freda Black, an assistant DA. When the Duke case broke, the primary season was in full swing in Durham with Mike showing a distant second to Freda in the
race for Democratic nominee for the DA's office. There was every likelihood that Freda would win the nomination and also win the pro forma election in the fall, and that her first act as DA would be to fire Mike. After 28 years. That was the motivation.

Egregious behavior: Nifong was so positive, so assertive, so graphic in his presentations to the press about what he knew and what the evidence would show, that even skeptics like myself thought he had the goods on the Duke lacrosse players. It was beyond imagination at the time that he could have behaved, not so badly, but so foolishly. If he didn't have the goods, we would find out eventually and he would be in serious trouble. We were assuming guilt until innocence was proven, on the basis of a trust in the DA. When the DNA tests came back showing 100% negative results, Nifong lost all trust. I think we have to give a pass to all those who acted in good faith in believing the district attorney. Nifong was acting out of desperation, and we couldn't appreciate how far he was capable of going.

I could say more but don't want to try your patience.

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I just read your piece in Slate. Outstanding, I agree 100%. I am looking foreword to your book, will pick it up locally. Thanks for a great read.

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Your article was a fast read and it certainly resonates… I think that we've all learned a fair number of nasty problems in the CJ system over the last
1.25 years in a variety of problem areas. There were problems with
police misconduct in the Duke case as well and it is unclear as to whether these will come to any meaningful light…Not all of the students had the resources to fight the DA and some had to borrow it. Legal costs ran $80K per defendent per month and even a lot of upper-middle-class families would be stressed by the costs alone.

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Anonymous said...


A depressing—and ultimately unpersuasive—take on the Nifong disbarment by David Feige in Slate. Feige makes some good points. For instance, he notes,

Mike Nifong did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution. The fact is that few if any prosecutors wait for corroborating evidence or insist on more than one person’s say so before initiating a sexual assault prosecution. Indeed, they’d be vilified if they did. The cardinal rule of sexual assault complaints is “believe the victim,” and since anyone who complains is deemed a victim, even a semi-credible complainant can generate an arrest and prosecution in the absence of physical evidence, additional witnesses, or even a prompt accusation. This isn’t just the case in Durham; it’s true almost everywhere. The widespread support for this questionable practice is such that if the Duke case had gone to a jury and the defendants had been convicted, Nifong would not only still have his law license—he’d have been lionized for his dogged pursuit of rich white kids.

Yet Feige’s attempts to equate Nifong’s massive misconduct with the general behavior of prosecutors ultimately falls flat. He cites Josh Marquis of the National District Attorney’s Association and Wendy Murphy as two people who initially backed Nifong, only to turn upon him, from “a simple calculus . . . : If Mike Nifong’s conduct is commonplace, then the whole system is corrupt. If other DAs do what he did, then we have to face up to how widespread and corrosive prosecutorial misconduct really is—a discussion Marquis and Murphy and other prosecutors would strongly prefer to avoid.”

Marquis, however, never endorsed Nifong’s conduct: the quote from early in the case supplied by Feige is innocuous, and Marquis publicly and repeatedly criticized Nifong’s behavior in December and January, at a time when many prosecutors were still loath to speak out. And any portrayal of Wendy Murphy—who’s still busy spinning conspiracy theories about non-existent bribes to Crystal Mangum—as a Nifong critic is absurd.

As Judge Tjoflat pointed out in his recent address, this case has exposed the excessive power possessed by North Carolina prosecutors in general—especially the power to control court dockets (and effectively judge-shop) and to abuse the grand jury proceedings as a tool for bypassing probable cause hearings. But the claim that Nifong’s conduct in this case—where, after all, he not only withheld exculpatory evidence and made myriad prejudicial pre-trial statements but also engineered a rigged lineup, obtained indictments without probable cause, and orchestrated an ill-concealed frame with the December 21 “interview”—is routine among prosecutors both minimizes the degree of Nifong’s misconduct and trivializes the legitimate debate about prosecutorial power.

Fima Fimovich said...

I came to US as political refugee on human rights violations in former USSR
I am russian jew, and I got a lot of discrimination in USSR
My parents are Holocaust survivors
But I got the worst thing in USA, never possible in communist country.
I was set up with my computer, convicted as a s..x offender for computer p..rn.
Now I do not have job and can hardly survive under police database
supervision, named s..x offender registration. Nobody want to hire me,
I think because of police database.
And I have family. Who cares? Dirty polititians are playing their
dirty games for more power.
I would like to send you some links to publications about my criminal
case. I was forced to confess to the
possession of internet digital pictures of p..rn in deleted clusters of
my computer hard drive. My browser was hijacked while I was browsing
the web. I was redirected to illegal sites against my will. Some
illegal pictures were found on my hard drive, recovering in
unallocated clusters, without dates of file creation/download.

I do not know how courts can widely press these charges on people to
convict them, while the whole Internet is a mess.
You can find all links to publications about my case here