District Attorney Found Guilty in Duke Case

July 24, 2007

Mike Nifong, the prosecutor in North Carolina who filed charges on the members of the Duke Lacrosse team, has been found guilty of unethical conduct and removed from the membership of North Carolina lawyers. It’s about time.

For too long, prosecutors have used the criminal charging process for political gain or other advantage. Prosecutors are given wide discretion in whether to file any criminal charges, how to file them, against whom to file and when. There is little oversight from the courts or anywhere else. The worst that can usually happen is the criminal charge is dismissed. But nothing ever happens to the prosecutor who wrongfully, deliberately files a criminal charge that is baseless, in bad faith. So, with so little oversight, there can be a lot of misuse of power. Now, for once, a prosecutor got punished. That is very rare, almost unheard of.

It took a flagrant case of misuse or power, of repeated misuse of power, to get Mr. Nifong disciplined by the North Carolina Bar Association. Of course, Mr. Nifong does not have to spend any time in prison, like those persons who are wrongfully accused and wrongfully convicted by the prosecution, but that would be asking too much. Mr. Nifong was not punished by the courts like those who are wrongfully charged with a crime, like those whom he wrongfully charged and tried to send to prison. At least Mr. Nifong was officially declared wrong, his license to practice law has been taken from him, and he cannot therefore continue to hold his office as District Attorney.

Had Mike Nifong’s victims been the usual accused person with no money, perhaps already convicted of a felony, with no family who could help, no friends of any prominence, then in that case, no one would have noticed Mr. Nifong’s wrongful conduct. No one notices the misuse of power routinely pursued in every part of the United States today when the victims are just “criminals”. Who would listen to them? But Mr. Nifong made the mistake of charging well-to-do students who had excellent alibis, who hired good lawyers to defend them from the outset.

And the fire that prosecutors usually use for their own benefit turned against Mr. Nifong in this case-the media. Prosecutors always use the media to inflame the public by leaking selected parts of the evidence, so the case will look the worst against the accused. Prosecutors always use the media for their own purposes. But in this case, as Mr. Nifong sought media coverage for his activities, it all turned against him. It was the defendants’ lawyers who kept giving the media facts that showed the defendants were not guilty. Over and over, the media showed evidence that was apparently insuperable, facts that were never answered by Mr. Nifong, from airtight alibis to inconsistencies in the various stories from the complaining witness. The contradictions in the prosecution’s case continued and worsened. Over and over, the media revealed inconsistencies, contradictions. At every turn, the media was asking how this prosecution could go forward.

Ultimately, in this case, the prosecution would have preferred less media coverage, less investigation by the media than the usual case. The media, the usual tool of the prosecution, had turned against the prosecution as the media published nightly the baseless charges Mr. Nifong had filed against the Duke students.

In this case, the administration and faculty of Duke University also got caught passing judgment on the accused Lacrosse team members simply on the basis of the accusations filed by Mr. Nifong. The administration barred the students from playing Lacrosse, and the faculty published a newspaper accusation against the students. So much for letting the courts decide guilt. The college professors were just too smart for that.

Unfortunately, for the students, this was an example of being punished for something before even being proven guilty…. the exact opposite of the way our country is supposed to work.

The bright spot is that through media attention and vigorous defense of the accused students, a person with the power to make false charges, was revealed…. a light was shown on his unethical actions taken for personal or political gain. Finally, “What goes around, Comes around”– with punishment for a prosecutor, who used to get away with wrongfully accusing innocent people.

What Good are Criminal Defense Lawyers Anyway?

July 13, 2007

There is no such thing as “too tough on crime.” That is the attitude of some people, certainly in Oklahoma, and it is in that climate of “no such thing as too much” that false evidence flourishes, like the false evidence that we are now able to prove is false by DNA testing. Prosecutions aimed at “win-at-any-cost” follow this “no such thing as too much”, nothing is too tough on crime” replaces a system designed with restraints. The power of the law is no longer a balance of fairness but simply a tool to get bad guys – no matter what, no matter how.

Today, there are many citizens in Oklahoma who think the legal system is too soft on criminals. By “criminals”, these people think of anyone accused of a crime. Legal technicalities and long delays have frustrated these citizens. These citizens just know that everyone accused of a crime is pretty much guilty. Certainly, many in law enforcement take this attitude.

Many in law enforcement believe that they, and they alone, are the ones who know who is guilty of crime and what to do about it. That is the climate that produced the perjury and corruption of the legal justice system in the Joyce Gilcrest string of false convictions.

Don’t Attorneys Just Try to Get Guilty People Off?

Why should we have criminal defense lawyers involved at all? Don’t they just gum up the works? Don’t they just try to trick honest witnesses? Don’t they just stand in the way of an efficient process of capturing and convicting the guilty? Isn’t it up to the police to screen out the suspects who are not the guilty ones? How can we trust defense lawyers who question the guilt of every client, who never admit anyone charged is ever guilty? Especially when we know that at least most of those accused or a crime are, indeed, guilty, despite what their criminal defense lawyers claim?

Don’t the Police and Prosecutors Have Conclusive Evidence of Guilt before Bringing Charges?

Police make their arrests based upon the standard of “probable cause” of guilt. Prosecuting attorneys file criminal charges in court also based on “probable cause”, although such filing is discretionary and prosecuting attorneys may consider other criteria, and should, even considering the justice of such a filing. But prosecuting attorneys may file criminal charges while in possession of evidence that rises only to the standard of “probable cause”. No one and no authority in the legal system has the power to make prosecuting attorneys file, or prohibit them from filing, criminal charges. The District Attorney or Attorney General alone has discretion to make that decision.

Indeed, if only the prosecution could police itself, those accused of crimes would not need their own lawyers. For much of the time and in many places, the prosecution does fairly restrain itself without a great deal of prodding from defense lawyers. But where and when is that done? Would there be such self-restraint applied consistently in every case? How long would that restraint continue without the near presence of the defense bar of attorneys who will challenge any false testimony, any false evidence, any stretching of the truth, any omission or manipulation of the facts?

Third World countries are perfectly satisfied with systems far less complicated than ours, systems that run much more smoothly in giving the accused a good, quick trial before getting to the inevitable hanging.

If all police detectives were as conscientious as those on television, then maybe we should give the police witnesses the benefit of the doubt. If the police detectives in real life actually were always looking for the “truly guilty” person, rather than taking the first short cut to wrap up an investigation and then ignoring loose ends, stretching the truth to cover themselves and make the accused look worse, then those accused in Oklahoma would enjoy a much more thorough screening process. If such were the case in Oklahoma, the police witnesses who testified before our juries would be entitled to much more deference than is the case now.

Real Life is NOT Necessarily Like TV

Too bad some jurors believe the police witnesses they see in trials in Oklahoma are the high-principled individuals whom they enjoy watching on television. Too bad so many jurors in Oklahoma are so willing to extend unquestioning credence to police witnesses when, in fact, they should be much more skeptical. — as the skilled and experienced criminal defense lawyer knows too well…. That many innocent people ARE falsely accused.

And I, for one, feel it’s my job to fight for the rights of my accused clients, instead of letting law enforcement and prosecutors walk all over them —which many police officers and prosecutors want to do in order to get the case over fast and further their careers. After all, they’re not ALL perfect people, just because they’re in a position of authority.

That’s why defense lawyers are a necessary part of the checks and balances of our American system —and its important for every citizen to know you have the right to seek a conscientious, talented and experienced criminal defense attorney, if you happen to find yourself in such a situation. And if you do —I invite you to go to my website at http://www.edmondgeary.com for important information on the kinds of questions to ask before hiring a lawyer.


July 2, 2007

Every part of the world takes a different approach to dealing with violations of law. Dictatorships are notorious for dealing extremely with law violators. So are third-world countries. We pride ourselves in the United States on being more enlightened than those parts of the world. But it matters in just what part of the United States you are talking about.

Oklahoma likes to put people behind bars. The State of Oklahoma believes this is the best way to deal with violations of law. Last year, almost one percent (1%) of all the adult citizens in Oklahoma (18 years and above) were in prison, according to the Oklahoma Criminal Justice Research Center in its report last year. Currently the rate of incarceration in Oklahoma is 45% higher than in the United States as a whole.

Statistically, Oklahoma was the Number One jailer of women again last year, a distinction we have carried for several years.

Does this make Oklahoma a better place to live? Apparently not, since we continue to send more people away for crime. Theoretically, if we send more people away for crime, that must mean we continue to have more crime. So, if we continue to have more crime, our sending more people away must not be working to prevent crime.

What difference does this make? Ideally, it would mean that after a while the numbers would go down, that the high rate of incarceration would discourage future crime (or at least lock up everyone capable of committing any crime). That is the ideal. But there is no indication that this is taking place. Maybe we will see a difference in another hundred years, but the statistics of the last few decades show nothing of the kind.

What difference does this make? The only certain thing about this is that in Oklahoma you are statistically more likely to be imprisoned for any law violation. You are 45% more likely in Oklahoma to be imprisoned than in the rest of the United States.

Again, this brings home a point I often make, which is, how very crucial it is to get expert representation if you’re accused or charged with a crime. In order to make the best decision about that, there are a number of things you need to know about. And I invite you to go visit my web site at http://www.edmondgeary.com to discover that critical information, which could save you from mistakes that could affect you the rest of your life.