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Legal Response #1

Hi guys-

Just noticed your post regarding how the lacrosse case is being handled. I'll note that I am a licensed NC attorney, and a Duke alum and athlete, but I'll do my best to not let that factor in.

Much has been made of the prosecutor's degree of disclosure to the media, and I'm assuming that's what you are referring to at this point, not knowing all of the evidence. I can recall at the beginning of this case, Nifong on one particular occasion questioned the players' "manhood" which I found to be morally reprehensible as an attorney. The public forum held on the NC Central Campus was in my professional opinion, completely inappropriate as it did nothing of any substantive value for the case. Prosecutors have unique jobs in that on the one hand they must be politicians, and on the other they must conduct themselves as honorable attorneys, seeking truth and justice. When the two roles collide is when you typically run into problems, which is precisely why most states (North Carolina included) have special rules that govern prosecutorial conduct.

Specifically, Rule 3.8(f) of the NC Rules of Professional Conduct deals with the responsibilities of a prosecutor and states the following:

The prosecutor in a criminal case shall:

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under this Rule.

As you can see, the rule is pretty straightforward. The comments to the rule state that the prosecutor should avoid comments which have no legitimate law enforcement purpose and will have a substantial likelihood of increasing public condemnation of the accused. I think it's pretty obvious from what I've read that this hasn't occurred here. (Bear in mind, I live in Washington D.C. and I read this up here)

I think one can draw a comparison to the way Colon Willoughby conducts himself over in Wake County. He's someone who has been on the job for many years, and has always conducted himself properly. Furthermore, he expects the very same from his staff. The Wake County DA's office has for the most part consistently upheld a level of justice and truth that has served it's residents well. A trial like this should not serve as grounds to expand a political career. Rather, it is the job of the prosecution to aggressively seek the truth, find it, and then fight for justice, whatever that may be.

In regards to the level of media attention, relevant to this discussion is the NC Professional Conduct Rule pertaining to Trial Publicity-Rule 3.6, which states:

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

One thing that the rules clearly illustrate is that the prosecutor is seen as a "minister of justice" and that his/her job is to seek justice, not to convict. In order to do that, the defendant has to be afforded due process, and there must be sufficient evidence to move forward with the case. This is obviously a matter of debate, but it seems to me that if the prosecutor is approached by defense counsel with exculpatory records that exonerate his/her client (ATM receipts, fast-food receipts that put the accused a different location at the time of the incident) it's incumbent upon the prosecutor to review that evidence and have it weigh into his/her decision to seek an indictment. Not to reject it outright because he either doesn't want it or disagrees with how a defense attorney has been handling the case. It's not about personal pride or opinion, it's about justice.

The prosecution has different responsibilities from that of the lawyer in private practice-he/she has to make timely disclosures to the defense of evidence known that tends to negate the accused's guilt, that mitigate the offense, or reduce punishment. Perhaps most importantly, the comments to the rules specifically state that a prosecutor should not "intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused." If we are to believe the claims that Nifong intentionally chose not to take this purported evidence into account, it seems pretty clear that he may have neglected his duty as a prosecutor. Again, it's up for debate whether or not this actually occurred.

In regards to the DNA evidence-I believe from what I've read that this has been handled properly. As for the recent arrest of the cab driver-there's no question that amounts to intimidation. It's completely inappropriate. Also, conducting warrantless searches of the dorm rooms, if that actually occurred, is not only wrong, but pointless as any evidence collected from an illegal search like that would be inadmissible in a court of law. If the police truly believed that the "smoking gun" was in one of those rooms, they'd go about it in a proper manner and obtain the evidence after executing a search warrant. It doesn't take much to get one of these-you need about 20 minutes to get it signed and probable cause. Failing to get this warrant, I'm left to wonder if they did it to intimidate, harass, or if they are just completely incompetent.

You guys have done a brilliant job of emphasizing that if indeed these players did something wrong, they should be held accountable in a court of law. No question-that should be the case. The only people that truly know what happened are the ones who were there that night. But in a case of this magnitude, it is incumbent upon the prosecuting attorney to not only seek justice, but advocate strongly to the community that justice be allowed to take its course. That is done by not inflaming the potential jury pool, by not sharing evidence with anyone outside of the defense attorneys or those necessary to conduct justice (yes, that includes the New Black Panther Party-if that's actually true that he met with them, but I find that really hard to believe he would do that), and by taking into account anything that may serve to exculpate the accused. These boys are on trial for their lives, and they should be deemed the rights and procedures any one of us would want if we stood !
in their shoes, as should the accuser herself. If something did happen that night, the accuser deserves better than what has materialized here; from what I've read her life has been completely shattered. I certainly pray that nothing happened to her that night, as no one deserves to be raped by anyone, much less three men. I'm sad that this case has put the University in such a negative light. If something happened, I'm sad that the accuser's life has been completely destroyed. But I do believe that much of this could have been avoided without the prosecution's tactics. It's crucial to all parties involved that the state follow due course in order to ensure that justice is allocated. That's what makes our system unique from so many others around the world, and that's what makes it right. Clearly, it hasn't happened here, and all involved are paying for it.

Robert Hines, Esq.

Trinity 99