Four years ago, the State of North Carolina saw something more rare than a wild polar bear in Florida: the actual disbarment of a prosecutor for withholding exculpatory evidence and then lying to a judge about it. While it was morally satisfying to see a lawbreaker like Mike Nifong get at least a tiny bit of comeuppance for his crimes, apparently the other prosecutors in North Carolina got nervous.
Never fear. This week, the North Carolina legislature passed a bill ensuring that prosecutors, in violation of the U.S. Supreme Court's Brady decision, can withhold exculpatory evidence indefinitely. (Notice that the information is barely mentioned in the news article, but it definitely has major implications, as I see it. This article has a bit more information.)
Now, prosecutors no doubt will claim that it is not their fault if the police withhold information that is vital for the defense and do so without the knowledge of prosecutors, and if something is put into those terms, I can understand their point. However, my sense is that situations in which exculpatory evidence is withheld rarely, if ever, involve police mishandling of evidence or even police misconduct in absence of the knowledge of prosecutors.
Anyone familiar with how criminal law works knows that police and prosecutors work closely together. The notion that police are going to treat prosecutors the same way they treat defendants and defense lawyers truly is a howler, but that is what prosecutors want us to believe.
So, what is likely to happen as a result of this new law? I have no doubt that prosecutors simply are going to make sure that a lot of exculpatory information somehow remains in police files and doesn't make its way to the courthouse. The police will be able to claim that they "just forgot" and prosecutors will be able to claim that they had no clue this stuff existed.
As outrageous as this law is, I doubt it could have saved Mike Nifong's skin in the infamous Duke Lacrosse Case. First, Nifong took over the investigation from the police and was involved in a number of details, including overseeing the "lineup" from which Crystal Mangum picked her alleged assailants. In fact, this very point is why he is able to be sued, given he went outside the normal scope of his duties.
Second, while Nifong in his response to the North Carolina State Bar (after it filed charges against him), first claimed no recollection of being at a meeting with Brian Meehan, whose DNA lab had found the results which ultimately led to Nifong's downfall. His only hope would have been that the police had not turned over the relevant exculpatory information, but given that he and Meehan actually planned strategy at that meeting, his "I don't recall being there" defense was seen for the sham it was.
I have no doubt at all that this new law will lead to more wrongful convictions in North Carolina, a state that already is known for a bad criminal "justice" system. Furthermore, I suspect that most legislators voting for this abomination knew just that, but really didn't care. And prosecutors now have been handed yet another weapon to destroy innocent people.
As I further develop the case narrative and look into the conviction of Bradley Cooper, I can see this mentality at work. The police (as we shall see) destroyed a key piece of exculpatory evidence and then lied about what they did. Was this done with collusion with prosecutors? Who knows. All I know is that the legislature and Gov. Bev Perdue have handed police and prosecutors the opportunity to destroy and hide even more evidence -- and it all will be perfectly legal.
All in a day's work, I suppose.
Showing posts with label Michael Nifong. Show all posts
Showing posts with label Michael Nifong. Show all posts
Monday, June 27, 2011
Thursday, March 24, 2011
No moral hazard here! Not at all! Carol Chambers (again)
One of the reasons that the Law of Unintended Consequences rears its head time and again is because people in authority often institute new policies or changes in existing policies that contain perverse incentives that entice people to act in a way that is contrary to what the authorities supposedly intended. In economics, we call such situations, "moral hazard."
As I have written before, American prosecutors, both state and federal, generally face no consequences for illegal, immoral, and unethical behavior, and this situation tends to create two effects:
His strategy almost worked, but the North Carolina State Bar intervened during the case, something that almost never happens. Nifong had to remove himself from the case and after North Carolina Attorney General Roy Cooper led a real investigation (as opposed to the dishonest "sham" investigation conducted by Nifong and the Durham Police Department), the charges were dismissed and Cooper declared that the players were "innocent."
In an interview with The Atlantic, Radley Balko pointedly noted that Nifong's fate was an exception and a huge exception to the rule. The usual occurrence, even when prosecutors clearly have lied and engaged in illegal conduct, is for nothing to happen. The Tonya Craft case is proof that dishonesty pays, even when the defendant is acquitted, as none of the wrongdoers faced any punishment, despite the fact that the judge (if we can call brian outhouse a "judge"), the prosecutors, and the police literally conspired to fabricate a document DURING the trial that they hoped would fill a huge hole in the case. That is outright criminal conspiracy, and a representative of the Georgia State Bar told me that she was fine with it, so we can see that the Georgia authorities have no interest at all in reining in criminal behavior on behalf of Georgia prosecutors.
Carol Chambers
This brings me to the latest revelation from the office of Colorado's most unethical prosecutor, Carol Chambers. If ever there were a "win at all costs" prosecutor, it is Chambers, who has set up a bonus schedule in her office that reeks of moral hazard.
The Denver Post reports:
While it is true that the conviction rate in Chambers' district is comparable to what it is elsewhere in Colorado, nonetheless the perverse incentives are there and Chambers seems to be encouraging unethical behavior. What else can explain her decision to charge a 10-year-old with felony arson in a situation that openly and clearly did not warrant such charges?
(To find other examples of prosecutorial misconduct from Chambers, this blog has more information. To quote a jury foreman in one of Chambers' cases, this one ending in acquittal:
As for paying prosecutors for winning convictions, Chambers creates the worst kind of moral hazard. On the one side, even if her prosecutors are caught lying and breaking the law, they face no penalties because no one will discipline them. On the other side, if they win, they get money.
There is a reason that Radley Balko nominated Chambers for the "Worst Prosecutor of 2010" in his blog. Yet, the real problem is that Chambers never has to pay a price for her dishonesty and abuse of the law and of innocent people.
If authorities in the USA were willing to do their jobs and to enforce the laws of the land as they claim to be doing, this blog would not exist, or it would cover other subjects. Instead, because prosecutors are permitted to be lawbreakers, someone has to speak out, and that is what I am doing.
As I have written before, American prosecutors, both state and federal, generally face no consequences for illegal, immoral, and unethical behavior, and this situation tends to create two effects:
- Prosecutors are more likely to employ a "win at all costs" strategy, including knowingly prosecuting innocent people, because there are rewards for winning, while there are no negative consequences if the prosecutor is caught;
- There will be a "Gresham's Law" effect over time in which the dishonest and unethical prosecutors will "drive out" the honest people, so that prosecutors will tend to be bad or incompetent lawyers who could not make it on the outside, but who enjoy bullying and getting away with wrongdoing.
His strategy almost worked, but the North Carolina State Bar intervened during the case, something that almost never happens. Nifong had to remove himself from the case and after North Carolina Attorney General Roy Cooper led a real investigation (as opposed to the dishonest "sham" investigation conducted by Nifong and the Durham Police Department), the charges were dismissed and Cooper declared that the players were "innocent."
In an interview with The Atlantic, Radley Balko pointedly noted that Nifong's fate was an exception and a huge exception to the rule. The usual occurrence, even when prosecutors clearly have lied and engaged in illegal conduct, is for nothing to happen. The Tonya Craft case is proof that dishonesty pays, even when the defendant is acquitted, as none of the wrongdoers faced any punishment, despite the fact that the judge (if we can call brian outhouse a "judge"), the prosecutors, and the police literally conspired to fabricate a document DURING the trial that they hoped would fill a huge hole in the case. That is outright criminal conspiracy, and a representative of the Georgia State Bar told me that she was fine with it, so we can see that the Georgia authorities have no interest at all in reining in criminal behavior on behalf of Georgia prosecutors.
Carol Chambers
This brings me to the latest revelation from the office of Colorado's most unethical prosecutor, Carol Chambers. If ever there were a "win at all costs" prosecutor, it is Chambers, who has set up a bonus schedule in her office that reeks of moral hazard.
The Denver Post reports:
Eighteenth Judicial District Attorney Carol Chambers has created an unusual incentive for her felony prosecutors, paying them bonuses if they achieve a predetermined standard for conviction rates at trial.Granted, the bonus money is not that much, which tells me that her office is full of people who have spent six figures in pursuit of a law degree but then earn the pay of a manager at a fast-food restaurant. In other words, most of them probably are sub-standard lawyers who are likely to manipulate the system for their own benefit. They win cases not because of their legal talents, but rather because the rules are overwhelmingly stacked in their favor.
The threshold for an assistant district attorney to earn the average $1,100 reward: Participate in at least five trials during the year, with 70 percent of them ending in a felony conviction. Plea bargains or mistrials don't count.
While it is true that the conviction rate in Chambers' district is comparable to what it is elsewhere in Colorado, nonetheless the perverse incentives are there and Chambers seems to be encouraging unethical behavior. What else can explain her decision to charge a 10-year-old with felony arson in a situation that openly and clearly did not warrant such charges?
(To find other examples of prosecutorial misconduct from Chambers, this blog has more information. To quote a jury foreman in one of Chambers' cases, this one ending in acquittal:
“In the DA’s office’s agenda to prosecute so overzealously, it seems that the facts of a case aren’t really an objective,” says Chris Cashbaugh, foreman of the jury that cleared Ruth Tsehaye at trial.There is much more from Chambers' record that demonstrates to me that she is an out-of-control prosecutor, someone who is fundamentally dishonest, but who gives a "law-and-order" front to the conservative Republicans in her district.)
As for paying prosecutors for winning convictions, Chambers creates the worst kind of moral hazard. On the one side, even if her prosecutors are caught lying and breaking the law, they face no penalties because no one will discipline them. On the other side, if they win, they get money.
There is a reason that Radley Balko nominated Chambers for the "Worst Prosecutor of 2010" in his blog. Yet, the real problem is that Chambers never has to pay a price for her dishonesty and abuse of the law and of innocent people.
If authorities in the USA were willing to do their jobs and to enforce the laws of the land as they claim to be doing, this blog would not exist, or it would cover other subjects. Instead, because prosecutors are permitted to be lawbreakers, someone has to speak out, and that is what I am doing.
Wednesday, September 15, 2010
Me no Nifong!!
During the decisive Battle of San Jacinto in April, 1836, when Texans under the command of Sam Houston were routing the Mexican army under Santa Anna, frightened Mexican soldiers threw down their arms and yelled, "Me no Alamo!" Today, prosecutors around the country are paraphrasing that call for mercy with their "Me no Nifong!" claims.
Yet, as I watch Buzz Franklin and his gang of criminals at work, I can see that these are people who actually learned from the Master Himself: Nifong. It was Nifong, after all, who knew that early on, he had no case against any of the Duke University lacrosse players, even going so far as to tell one of his investigators, "We're fu*ked," and then trying to figure how in the world he could make his frame work.
One of the things he did rivaled anything Franklin and Chris "Alberto-Facebook" Arnt, Len "Racist-Misogynist-Homophobe-The Man" Gregor, and Alan "Wannabe" Norton might think of doing. When it became clear that Nifong wanted to indict Reade Seligmann for the alleged rape (that never happened) of Crystal Mangum, Mr. Seligmann's defense desperately tried to get Nifong to look at clear, photographic and digital evidence that Reade was not even at the place where and when the alleged rape was supposed to have occurred.
However, Nifong, claiming he did "not have the time to read fiction," refused even to look at anything that Mr. Seligmann's attorney provided. After Mr. Seligmann was indicted, his attorney, the late Kirk Osborn, posted the material on the Internet (something that openly enraged Nifong, who went on an obscenity-screaming rampage at the Durham County Courthouse). Furthermore, CNN and other news outlets did an interview with Moez Elmostafa, the immigrant African cab driver who had given Reade a ride to the bank, where his digitized photo was taken at an automated teller.
When I saw the interview, I immediately wrote a letter to Bill Thomas, an attorney representing other lacrosse players, and told him that Mr. Elmostafa was in grave danger, and that Nifong would try to trump up charges against him. My instincts were on the mark, unfortunately.
Shortly after the interview, Nifong's investigator, Linwood Wilson (who now faces criminal charges on another matter in Delaware for felony threats against his estranged wife) found that there was an outstanding shoplifting warrant against Mr. Elmostafa. (As would be found out later, the charge was unfounded, but I don't want to get ahead of myself.)
Mr. Elmostafa had given a ride to a woman who, it turned out, had shoplifted some purses from a department store. That Mr. Elmostafa had cooperated with police in helping them arrest the woman apparently had fallen through the evidence cracks. When he was arrested, Nifong's people asked him if he was willing to change his story on giving Mr. Seligmann a ride; he refused, and Nifong had him arrested and charged.
The woman in question by then was out of jail, but Nifong sent Durham police to raid her home, and police found items they believed MIGHT have been stolen. They they charged her with theft, but promised her a great deal: she could be let off the hook IF she would testify that Mr. Elmostafa was her accomplice.
As it turned out, the woman refused to lie (unlike the "officers of the court" who are sworn to tell the truth) and the prosecution's case against Mr. Elmostafa crashed and burned at trial. Even though Durham police officers sat behind Elmostafa, trying to stare him down and intimidate him, the judge ruled him not guilty and Nifong's attempted frame-up fell apart.
What it took was an honest man who refused to lie and another person who was a thief, yet would not commit perjury in order to send an innocent man to jail. The authorities were dishonest and craven but even though they had a lot of power, they could not win. That would not be Nifong's last defeat, and in the end, he destroyed his career and did millions of dollars of damage.
In Tonya Craft's case, it took honest people like Kim Walker, who was pressured and threatened by LMJC officials and Sandra Lamb, yet refused to have her child used as a pawn in Buzz Franklin's Nifongesque scheme to wrongly convict someone. It took teachers from Chickamauga Elementary School who were willing to testify for Ms. Craft, despite opposition from the authorities and their own principal, who clearly was inNifong's Franklin's camp.
(These same teachers have received what effectively were letters of reprimand in their personnel files. Yes, the letters came from Sandra Lamb, but any letter in one's file is an official document, and legally speaking, it is no different than a reprimand coming from the principal or some other school official.)
The teachers showed courage and integrity. Buzz Franklin and the rest of the LMJC, people who are sworn always to be truthful when operating in a court of law, showed dishonesty, no integrity, and arrogance that told everyone they KNEW they were above the law. To be honest, while I think that arrogance plays a part in all of this along with, well, lack of intelligence, there are other factors, too. (Let's face it; "judge" Brian Outhouse probably got a raise in pay when he became a judge, as he seems not to have the intelligence of a real lawyer.)
First, these are people who have utter contempt for the law. They are like children who are permitted to make up the rules as they go along and have a rich mommy and daddy who enable this misbehavior. In the case of judges and prosecutors in the LMJC, the oversight agencies in Georgia simply refuse to hold any of these people to any kinds of standards of competency, legality, and ethics.
Second, in economic analysis, we say that people tend to self-select themselves into certain occupations, and I think more and more, we are seeing people who both are incompetent AND who love to bully others become prosecutors. Since most people come out of law school with a lot of debt, no one is going to settle for the kind of crappy pay that new assistant district attorneys (ADAs) receive unless there are promises to help pay off the debt AND there are other personal rewards for the prosecutors.
Think about it. Why else would Len Gregor write in a public post:
(Of course, Gregor also brags about his father being a West Point graduate. I have a colleague who went to West Point and I can tell the readers that he believes that Gregor's dishonesty is even more shameful because at least his father had some pretense of honor; Gregor has none. Notice that he and "Alberto-Facebook" Arnt ran and hid from the media after the trial like scared children, and then went on Channel 9 and outright lied again during their interview while the "reporter" asked them pathetic, softball questions. Yeah, Gregor really is "the man.")
Interestingly, the behavior of Gregor and Arnt before, during and after the trial actually mirrored what we saw from Mike Nifong. There never was a time when Nifong was not lying, and suborning perjury. Likewise, throughout the pretrial proceedings, during the trial, and afterward, the Dishonest Duo lied and lied and lied. Unlike Nifong, Arnt and Gregor work under a Georgia State Bar that refuses to discipline prosecutors no matter how illegal and unethical their behavior.
So, if "Alberto-Facebook," "the Misogynist-Racist-the man," and "Wannabe" declare "me no Nifong," don't believe them. One wonders of they have a shrine to Nifong in the Catoosa County Courthouse, complete with incense and candles. Maybe it is in the "secret room."
Yet, as I watch Buzz Franklin and his gang of criminals at work, I can see that these are people who actually learned from the Master Himself: Nifong. It was Nifong, after all, who knew that early on, he had no case against any of the Duke University lacrosse players, even going so far as to tell one of his investigators, "We're fu*ked," and then trying to figure how in the world he could make his frame work.
One of the things he did rivaled anything Franklin and Chris "Alberto-Facebook" Arnt, Len "Racist-Misogynist-Homophobe-The Man" Gregor, and Alan "Wannabe" Norton might think of doing. When it became clear that Nifong wanted to indict Reade Seligmann for the alleged rape (that never happened) of Crystal Mangum, Mr. Seligmann's defense desperately tried to get Nifong to look at clear, photographic and digital evidence that Reade was not even at the place where and when the alleged rape was supposed to have occurred.
However, Nifong, claiming he did "not have the time to read fiction," refused even to look at anything that Mr. Seligmann's attorney provided. After Mr. Seligmann was indicted, his attorney, the late Kirk Osborn, posted the material on the Internet (something that openly enraged Nifong, who went on an obscenity-screaming rampage at the Durham County Courthouse). Furthermore, CNN and other news outlets did an interview with Moez Elmostafa, the immigrant African cab driver who had given Reade a ride to the bank, where his digitized photo was taken at an automated teller.
When I saw the interview, I immediately wrote a letter to Bill Thomas, an attorney representing other lacrosse players, and told him that Mr. Elmostafa was in grave danger, and that Nifong would try to trump up charges against him. My instincts were on the mark, unfortunately.
Shortly after the interview, Nifong's investigator, Linwood Wilson (who now faces criminal charges on another matter in Delaware for felony threats against his estranged wife) found that there was an outstanding shoplifting warrant against Mr. Elmostafa. (As would be found out later, the charge was unfounded, but I don't want to get ahead of myself.)
Mr. Elmostafa had given a ride to a woman who, it turned out, had shoplifted some purses from a department store. That Mr. Elmostafa had cooperated with police in helping them arrest the woman apparently had fallen through the evidence cracks. When he was arrested, Nifong's people asked him if he was willing to change his story on giving Mr. Seligmann a ride; he refused, and Nifong had him arrested and charged.
The woman in question by then was out of jail, but Nifong sent Durham police to raid her home, and police found items they believed MIGHT have been stolen. They they charged her with theft, but promised her a great deal: she could be let off the hook IF she would testify that Mr. Elmostafa was her accomplice.
As it turned out, the woman refused to lie (unlike the "officers of the court" who are sworn to tell the truth) and the prosecution's case against Mr. Elmostafa crashed and burned at trial. Even though Durham police officers sat behind Elmostafa, trying to stare him down and intimidate him, the judge ruled him not guilty and Nifong's attempted frame-up fell apart.
What it took was an honest man who refused to lie and another person who was a thief, yet would not commit perjury in order to send an innocent man to jail. The authorities were dishonest and craven but even though they had a lot of power, they could not win. That would not be Nifong's last defeat, and in the end, he destroyed his career and did millions of dollars of damage.
In Tonya Craft's case, it took honest people like Kim Walker, who was pressured and threatened by LMJC officials and Sandra Lamb, yet refused to have her child used as a pawn in Buzz Franklin's Nifongesque scheme to wrongly convict someone. It took teachers from Chickamauga Elementary School who were willing to testify for Ms. Craft, despite opposition from the authorities and their own principal, who clearly was in
(These same teachers have received what effectively were letters of reprimand in their personnel files. Yes, the letters came from Sandra Lamb, but any letter in one's file is an official document, and legally speaking, it is no different than a reprimand coming from the principal or some other school official.)
The teachers showed courage and integrity. Buzz Franklin and the rest of the LMJC, people who are sworn always to be truthful when operating in a court of law, showed dishonesty, no integrity, and arrogance that told everyone they KNEW they were above the law. To be honest, while I think that arrogance plays a part in all of this along with, well, lack of intelligence, there are other factors, too. (Let's face it; "judge" Brian Outhouse probably got a raise in pay when he became a judge, as he seems not to have the intelligence of a real lawyer.)
First, these are people who have utter contempt for the law. They are like children who are permitted to make up the rules as they go along and have a rich mommy and daddy who enable this misbehavior. In the case of judges and prosecutors in the LMJC, the oversight agencies in Georgia simply refuse to hold any of these people to any kinds of standards of competency, legality, and ethics.
Second, in economic analysis, we say that people tend to self-select themselves into certain occupations, and I think more and more, we are seeing people who both are incompetent AND who love to bully others become prosecutors. Since most people come out of law school with a lot of debt, no one is going to settle for the kind of crappy pay that new assistant district attorneys (ADAs) receive unless there are promises to help pay off the debt AND there are other personal rewards for the prosecutors.
Think about it. Why else would Len Gregor write in a public post:
Going to law school was one of the best choices I ever made. I love being a prosecutor. I love being the man. It was worth the time, effort, and money.In other words, Gregor is writing that it is all about his ego, which is monstrous. Here is someone who was screaming in a courtroom at women who testified on behalf of Tonya about "boobs" and other body parts, and then was shocked, SHOCKED when the jurors concluded he was a boob himself. What kind of egomaniac would have a picture of himself taken next to a girl who is striking a very sexually-provocative pose, yet literally be screaming that because Tonya was photographed in a tasteful evening dress, she was a "narcissist" and, therefore, a child molester.
(Of course, Gregor also brags about his father being a West Point graduate. I have a colleague who went to West Point and I can tell the readers that he believes that Gregor's dishonesty is even more shameful because at least his father had some pretense of honor; Gregor has none. Notice that he and "Alberto-Facebook" Arnt ran and hid from the media after the trial like scared children, and then went on Channel 9 and outright lied again during their interview while the "reporter" asked them pathetic, softball questions. Yeah, Gregor really is "the man.")
Interestingly, the behavior of Gregor and Arnt before, during and after the trial actually mirrored what we saw from Mike Nifong. There never was a time when Nifong was not lying, and suborning perjury. Likewise, throughout the pretrial proceedings, during the trial, and afterward, the Dishonest Duo lied and lied and lied. Unlike Nifong, Arnt and Gregor work under a Georgia State Bar that refuses to discipline prosecutors no matter how illegal and unethical their behavior.
So, if "Alberto-Facebook," "the Misogynist-Racist-the man," and "Wannabe" declare "me no Nifong," don't believe them. One wonders of they have a shrine to Nifong in the Catoosa County Courthouse, complete with incense and candles. Maybe it is in the "secret room."
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