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December 24, 2006

Merry Christmas, Mr. Nifong: Duke "Sexual Offense" Lawyer To Seek "Specific Legal Steps" To Sanction Or Remove DA From Case

Must-reed round-up from JOM if you're interested in this. Nifong's making noises that he may drop the charges, saying he'll go where the evidence may take him.

Well, there's always a first time.

And the Duke players' lawyers are switching to offense -- an acquittal is virtually in the bag. Now it's time to put Nifong, and his lying whore "victim," on trial.

Question for practicing attorneys: From this point out, it's nothing but bad news for Nifong. Maguire speculates -- probably correctly -- that Nifong would like this case to just sort of go away before a judge can begin ruling on his behavior, such as the improper photo array identification.

So Nifong, if he had his druthers, would like to dismiss the charges -- without prejudice, so that he could conceivably bring the charges again at a later date if, um, the evidence should warrant. This would just be a way to try to coerce the Duke players and their attorneys and families into dropping further action against him -- a way to tell them "let it lie, or else I just may put you on trial."

But I'm not sure if this is possible at so late a date. Does anyone know when a DA is barred from this action? When he's committed to either going to trial or dismissing charges with prejudice?

An interesting question: Is it in the Duke players' interests to have the criminal procedings stop at this point, or to continue? A dismissal of charges, without a formal declaration by the DA that his witness is a lying shakedown whore, is not full vindication. Sure, most will see it that way, but merely not being convicted of rape is hardly getting your reputation back.

How much pain do the Duke players need to inflict on Nifong, not as vengeance (though that will feel awfully good) but simply to fully clear their names?

An Answer... Sort Of. In Iowa, at least, Fierce Scorpion says a DA can do this.

I've been a practicing lawyer for 20 years. At least in Iowa the prosecutor has absolute, no questions asked discretion to decide not to proceed. But Nifong has the political calculation to deal with. He's nothing but a disgusting politician anyway.

I thought there was a point at which double jeopardy considerations attach. Is that actually at the trial? At some point in the trial? Never, at least not until a verdict?

If that's the case I Boldly Predict (as Maguire did) that that's what Nifong will attempt -- trying to coerce the defendants-turned-prosecutors into dropping any further action by offering them a dismissal... with the possibility of resuscitating the charges later.

I truly hope the defendants don't take the deal. Sure, they have their futures to consider. But this is important, and they won't be fully vindicated until Nifong is disbarred.

So: Next question. If the DA attempts to dismiss the charges without prejudice (i.e., preserving the option of bringing them later), can the defendants object to this motion and force an actual trial or dismissal with prejudice?

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posted by Ace at 06:12 PM

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