1. In the comments to the preceding post, Judith asks about why we don't see more disciplinary actions of prosecutors. That puzzling lack of prosecution has attracted the attention of some thoughtful scholars, including Peter Joy, Bruce Green, and Fred Zacharias. Here's the abstract of one of Zacharias's articles:
Numerous commentators have reacted by noting the dearth of cases in which disciplinary authorities have sanctioned prosecutors. This Article approaches the issue of discipline of prosecutors from an impartial perspective. it provides an empirical and theoretical analysis of the claim that professional discipline of prosecutors has been inadequate.
The article first analyzes the range of actions for which, realistically, discipline might be imposed. It then considers whether, in reality, prosecutors are less likely than private lawyers to face disciplinary action and, if so, the possible reasons for the discrepancy. With this background, the Article attempts to identify if, when, and why more discipline of prosecutors would benefit society. The final portion of the Article assumes the validity of existing resource constraints and suggests lines disciplinary authorities might draw for disciplining prosecutors. It offers alternatives to discipline that might represent more effective mechanisms for addressing the concerns of those who lament the lack of bar action.
2. Assuming the recent news report are correct, what specific subsections of those rules might Nifong possibly have broken? (Remember: I don't think we've yet heard Nifong's full account of the meeting with the DNA expert.)
Let's look at rule 3.4. I will paraphrase the rules, but you can read them yourself. Rule 3.4(a) seems directly applicable, because it forbids a lawyer from concealing evidence or obstructing another party's access to evidence and from counseling anyone else to do so. Rule 3.4(c) seems on point as well, because it forbids violations of the rules of the tribunal and it appears from news accounts that North Carolina has some version of open discovery to the defense. Whether or not rule 3.4(f) applies is more difficult. That rule forbids (with exceptions that aren't relevant here) a lawyer from requesting a nonclient to not voluntarily give relevant information to the opponent. Perhaps Nifong can argue that he didn't request that -- he merely requested that the relevant information not be put in a particular report. I can't quite conclude that the news account would by itself establish a violation of rules 3.4(b) and (d).
Under 3.7, it's possible that Nifong could no longer be the trial lawyer on the matter, although I imagine he may have been planning to have frontline prosecutors handle the trial itself. Nifong could be called as a defense witness to severly impeach the prosecution's own expert! How often does that happen?
Rule 3.8(d) , which requires prosecutors to reveal exculpatory evidence, seems directly on target here, and I'd like to hear from Nifong why he thinks he didn't violate it.
Rule 8.4 seems applicable as well.