Legal Response #5

I am a professor of law and I divide my time between the University of Maryland
School of Law and a graduate program in legal and ethical studies at the University
of Baltimore. Criminal law is one of my teaching interests. Before I began teaching,
I worked in the Criminal Appeals Division of the Maryland Attorney General's office.
I have been posting on the bulletin board under the name Thurber Whyte. You already
have a crack legal team assembled there and I hope some of them will weigh in here
as well.

You ask about Mr. Elmostafa's arrest and Nifong's conduct generally. As to
Mr. Elmostafa's situation, a warrant is an order to all peace officers to take
some particular action. They have an affirmative duty to obey that order. The
claim by police that they were just doing their duty by executing the warrant ordinarily
would be quite plausible.

However both the timing and circumstances make are suspicious and do seem to indicate
that the warrant was executed to at least discredit Mr. Elmostafa or, worse, to
intimidate him.

First, it is true that police do routine background checks on witnesses to see who
they are dealing with. However, Mr. Elmostafa has been known to police for quite
some time and was interviewed by them shortly after his account of Seligmann's
cab ride was published. The police would have or should have discovered his outstanding
warrant at that time. If duty we calling them, it would have done so at that time,
not several weeks later. Second, it is also probably not a coincidence that his
arrest occurred on the very same day that the Nifong and/or the police leaked information
about results of the second dna test. The theme for Thursday seemed to be 'The
Empire Strikes Back.�

I also find it suspicious that Mr. Elmostafa was arrested by not one, but two persons
identified as the same detectives working on the lacrosse case. Serving a warrant
does not require any investigation and is usually done by ordinary police officers
or, in many jurisdictions, sheriff's deputies. I sincerely doubt that these detectives
were trying to finally get to the bottom of The Great Hecht's Shoplifting Caper
of 2003.

Naturalized citizens and resident aliens are particularly vulnerable to threats
of prosecution. Conviction, even for a minor offense is grounds for loss of citizenship
and deportation. Thus, the police have even more leverage to use on Mr. Elmostafa.

Attempting to alter the testimony of a potential witness or discouraging a witness
from appearing at trial is obstruction of justice. If Mr. Elmostafa's account
is accurate, that the investigators asked him if he had anything new to say about
the lacrosse case and when he said 'no,� took him to the magistate, then the
police detectives involved committed a felony.

Finally, I would like to know what kind of warrant this was. If this was a bench
warrant for failure to appear in court at the appointed date, then it might very
plausibly have gone unnoticed or unacted upon. However, if this warrant was issued
at the outset of the case and not executed because the police investigated the matter
and, on the basis of their investigation, decided that Mr. Elmostafa was not in
any way complicit with the person who did the shoplifting, then their failure to
execute the warrant was a conscious decision on their part. If so, that decision
would make a mockery of their claim that they were doing their duty by executing
the warrant. Because all charges in the case were resolved against the principals,
I suspect that the latter scenario was the case. I would very much like to see
what is in the police report. If the police had decided not to pursue charges against
Mr. Elmostafa or execute the warrant, that fact would have been indicated in the report and would have been seen by the police when they did their background check.

As to Nifong's conduct generally, it is both unethical and unprofessional. Because
you are soliciting legal opinion, I want everyone to know that not only are you
correct in assuming the worst, but that the more you know the worse Nifong's conduct
appears.

Without getting into too detailed of a bill of particulars, he has violated, not
one but likely, several ethical rules. There is little doubt at this point as to
his egregious and systematic violation of the rule against publicly commenting on
matters likely to be tried in court. Not only is he tainting the jury pool by trying
the case in the media, he is using the opportunity to do so to make arguments to
the jury pool that he could not make in court. Calling the defendants 'hooligans,�
suggesting that innocent people do not need lawyers and inviting the inference of
guilt from the silence of the accused are things that would bring instant and vigorous
rebuke if uttered in open court and could potentially be grounds for mistrial or
contempt of court.

The preamble to the rules of ethics used in North Carolina states that Lawyers should
'cultivate knowledge of the law beyond its use for clients, employ that knowledge
in reform of the law, and work to strengthen legal education.� Although this
is established as an ideal rather than a rule, it, nevertheless, provides another
lens through which to these arguments. By making these sorts of arguments and generally
acting as a demagogue, Nifong has done the opposite. He has spread misinformation
about the law and sought to undermine its most cherished values, such as the equality
of all persons before the law, the right to and importance of assistance of counsel
and that the accused should be tried in a manner that respects their fundamental
rights. Such statements also bring the profession into disrepute.

How serious are these matters? I handled a case on appeal where Mike Nifong's
counterpart in a local county referred to the defendants as 'mutts� (as in Mutt
and Jeff) in closing argument. This was fairly innocuous, but still out of bounds.
I conceded the wrongfulness of this type of argument, but the case was still a clear
winner for the state because the error was harmless given the overwhelming evidence
of guilt. Ordinarily a case like this would be submitted on brief without argument.
However, the Chief Judge of the Maryland Court of Special Appeals scheduled the
case for oral argument and assigned it to his own panel so he could personally yell
at me as the representative of the state and let me know that, even though the conviction
had to be affirmed in that particular case, he would not tolerate this sort of conduct.
There was no other argument or any questions from the panel. It was that important
to the Chief Judge. I called the state's attorney and !
tell him that the Chief Judge had a message for him.

Nifong also likely violated the rule against directly contacting persons represented
by counsel when police went to interview the team members at their dorm. A basic
legal principle is that a person cannot do through the use of an agent what he himself
cannot do personally. Caselaw I have seen suggests that this is the principal applied
where a prosecutor uses or encourages police to question suspects represented by
counsel. The circumstances suggest that Nifong sent officers to get information
he desperately needed in order to go forward with his indictments. Indeed, Nifong
himself has been quick to tell us that he is the one directing the investigation,
not police. This conduct is a serious matter and typically leads to reprimand or
sanction in the state where I live.

Nifong, also likely violated the rule that requires prosecutors to pursue charges
only were they personally believe that the accused has committed a crime and not
simply because they believe they can secure a conviction. Many prosecutors try
to avoid this duty by being agnostic or simply not thinking about it. However,
Nifong went beyond that and took a position of willful ignorance by refusing to
consider or even look at the exculpatory evidence presented to him by defense attorneys.
Willful ignorance is not a defense to any guilty act and, even if the defendants
did commit a rape, Nifong violated the rule by consciously shielding himself from
any evidence that might have made him think twice about his decision to prosecute.

The worst part about Nifong's unethical conduct is that he knows better and that
the conduct is willful. When called on these matters, he becomes indignant and
treats them as his entitlement.

Mike Nifong also comes up woefully short in terms of his professionalism. At the
outset, he stated that this case was so important to him that he was assigning it
to himself. Published reports seem to indicate that Nifong had a solid reputation
as an effective advocate. The operative word there is 'had.� Nifong has not
tried a felony case in several years. Moreover, rape cases are extremely tricky
to try. Without getting into a lot of detail, juries hate hearing rape cases involving
acquaintances and, worse are prone to apply their own questionable standards rather
than the legal ones they are told to apply in order to acquit. Downtown juries
are usually the worst in this regard. Having experience trying rape cases is absolutely
vital. Most district attorney's offices in a city the size of Durham would have
one or two prosecutors who specialize in sexual crimes. If Nifong were truly serious
about winning this case and, according to his lights, seeing justice !
done, he would never in one million years have assigned this case to himself.

Nifong was hasty in bringing the indictments. His timetable for doing so was apparently
driven entirely by his election needs. The police still have not completed their
investigation. As I write, the second round of dna tests have just been returned.
First, he ordered the police to violate their own standards for photo identifications
and those accepted as critical for proper identification just so he could generate
some names to insert in his bill of indictment rather than wait for other evidence.
Second, if other evidence does identify another person or persons who can be tried,
Nifong has potentially undermined that case by linking it to the fortunes of cases
cases against two men who may have solid alibis.

I do not believe that Nifong is an incompetent attorney. However, he has manifested
an inclination to take risks in order to advance his own interests and, in doing
so, to act in a manner contrary to the interests of the community that he is purporting
to serve.

Remember when I told you that rape cases are difficult to try? One of the reasons
is that jurors often come to court with the belief that women typically make false
allegations for a variety of reasons, particularly vindictiveness. If at the end
of this process, the complaint in this case does turn out to be false, Nifong has
set public attitudes towards rape back 50 years by embracing the media attention
that came with the case rather than quietly getting all of the facts and filtering
this case out of the system.

In my time, I have worked with or had the opportunity to observe local prosecutors
of varying levels of competence. Many of them were extremely zealous advocates.
However, the overwhelming majority of them were highly ethical and professional
in their outlook and approach to their work and generally good folks. I say that
not because I worked on the prosecution side. If anything, I have an extremely
low tolerance for this sort of foolishness because, as an appellate attorney, I
was the one who had to try and clean up after inept or overreaching prosecutors.
Aside from a couple of prosecutors in the federal system, I have never heard of
anyone as unethical and venal as Mike Nifong.

I hasten to add that I am not expressing an opinion at this point as to the guilt
or innocence of those accused or any others likely to be indicted. The evidence
that has been made public so far does indeed caste serious doubt on the allegations.
However, the prosecution may have more evidence that they are not disclosing at
the moment. The actual truth cannot be determined until all facts are known and
weighed together at trial. Your query was about Nifong's conduct. Of that I
am quite certain, however.

Jason Trumpbour, Trinity 88, Law 91