Of course, Nifong times the announcement so it gets the minimal press coverage possible - the Friday before the Christmas weekend. Absolutely despicable.

Despicable is indeed the only word to describe this guy. He has to know by now his witness is completely unreliable. Is this how we prosecute now? Fill a shotgun full of charges and whatever manages to not be completely blown out of the water by exculpatory evidence is what goes to trial?

At this point in time Nifong is probably no longer concerned with any convictions, he is trying to save his own skin.

John Grisham's newest book (non-fiction) deals with a man wrongly convicted of murder and details the efforts of the DA to withhold exculpatory evidence (quite a bit).

This needs to go to trial soon. It seems that is the solution the courts have to what might otherwise be termed "malicious prosecution".

"Declining to expand the tort of malicious prosecution, a unanimous Supreme Court in Sheldon Appel, supra, 47 Cal.3d at page 873, observed: "While the filing of frivolous lawsuits is certainly improper and cannot in any way be condoned, in our view the better means of addressing the problem of unjustified litigation is through the adoption of measures facilitating the speedy resolution of the initial lawsuit and authorizing the imposition of sanctions for frivolous or delaying conduct within that first action itself, rather than through an expansion of the opportunities for initiating one or more additional rounds of malicious prosecution litigation after the first action has been concluded." (Accord Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 638-640[255 Cal.Rptr. 18]; see also Tellefsen v. Key System Transit Lines, supra, 198 Cal.App.2d at p. 615 [Court of Appeal has remedies for frivolous appeals]; Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1122-1123 [255 Cal.Rptr. 315]

glangston, please tell a non-lawyer why 'going through a trial' that will destroy the assets of almost any family in America is a desirable solution to the problem of a malicious investigation/charges.

Its sad that it takes a case with relatively well-off defendants to get people to pay attention. If Nifong is running amok in this case (and it certainly appears he is), how likely is it that he displays a similar disregard for proper procedure and the rights of potentially innocent suspects in other cases?

Something else I don't understand, and maybe prosecutors can fill me in - I've always liked to believe that prosecutors will not prosecute someone unless they themselves believe the person is actually guilty beyond a reasonable doubt. Given Nifong's apparent "hands off" approach to interacting with the accuser or the accused, how is it that he can have made a determination concerning the defendants' guilt? Or do prosecutors just not care, operating under the theory that if the evidence comes down to a credibility battle between the accuser and the accused, they will just put the case in front of a jury and let the chips fall where they may?

Zooba, those aren't accurate quotes.

Sexual act " does not include vaginal intercourse," but it "also means the penetration, however slight, by any object into the genital or anal opening of another person's body."

Federal Dog:
So the DA's office down there finally interviewed the complainant?

If you can believe it, they talked with her in late March and then again on 11 April. Of course on 10 April, Nifong and the DPD learned that contrary to the victim's statement, DNA from 5 unknown men were found in her panties and anal area. They talked with her on the 11th and didn't ask about the discrepancy. Then waited 8 months and after the coverup of evidence fell through, they go back and ask again. she waffles and backs down.

Nifong hopes that by dropping the rape charge he can avoid having his victim's story torn up and also having his witness (Meehan) testify about how Meehan conspired with Nifong to commit crimes. However the Victim's statement seems pretty inflexible, She previously stated that she was penetrated anally, vaginally and orally, and that her attackers ejaculated. Specifically, she claimed that the rapist ejaculated in her mouth, and she spit the semen out on the bathroom floor, and could taste the semen afterward. Of course no semen was found on the floor or on oral swabs.

How she backs off that statement with credibility is amazing. If it wasn't so expensive for the players and risky, it would be a great show to watch the cross examination.

David M.: Thanks for pointing out the grammar ambiguity in my editing. It needs a comma or re-arranging.Either way, the "penetration" by an object inherently means there is penetration, so I don't see what you are proving here.

Zooba, I'm saying that your analysis was wrong. The sexual assault charge includes penetration by objects (but not penis). What he did was twist her arm to change her story so that it didn't directly conflict with the forensic evidence.

Bill, in his first sentence, Taylor writes: 'Nifong has made fans of limited government confront an ugly truth. Despite the sensible urge not to federalize every issue, sometimes only another layer of government can fix bad government.'

Perhaps he does not include himself among 'fans of limited government,' but he does not say that anywhere.

I grew up in the South, the descendant of South Carolinians who worshipped John C. Calhoun -- one of my grandfathers was named for him. I am not 'a fan of limited government.' Been there, done that, didn't care for the results.

Being drunk doesn't excuse someone from raping another person.

So, does being drunk protect you from the consequenses of false accusation? What options are available to the victims... by that I mean the defendants?

Waxx - in Oregon (possibly in other states), being drunk does indeed make the "victim" unable to claim rape, assuming she in conscious and ingested the alcohol willingly.

Or so the DA's office told me when I made a complaint.

Thanks, A.P. There's no party or faction that fits me, but libertarians make me feel less unwelcome than any of the others.

Instrumentally, intervention of the federal government in southern prosecutions has a good record with me, going all the way back to a murder trial in Georgia in 1893 where my grandfather was the witness against the Klan. If it had been up to the sheriff in Dalton and not the Attorney General in Washington, I'd never have been born.

Kidnapping is very easy to prove. Any small restraint of physical liberty could be enough. Maybe Nifong has other witness statements saying that the accused held down the "victim." A second or two would typically be enough.

Nifong has been a walking example of prosecutorial misconduct in this case, but cheating prosecutors still win cases, and they are rarely disciplined.

In my community, defense lawyers have a joke:

<blockquote>
What do you call a proescutor who cheats?

Your honor.
</blockquote>

Many people seem to think that the prosecutor should not take this case to trial to protect his reputation, but his reputation is already shot regardless of whether he dismissed everything now or took the case to trial.

From his selfish point of view, taking the case to trial is a no-lose situation. If he loses, he's no worse off. If he wins anything, he's vindicated.

Independent RESPONSIBILITY is something elected officials and public employees abhore.

Yeah, look at all those CEO's who said, "my company didn't do all that well this year, so I don't deserve my $100M bonus." Corporations, their CEO's, and their employees do their fair share of avoiding personal (or corporate) responsibility. The main purpose of "tort reform" is to help companies not have to take responsibility for their misdeeds.

You know, a good way to deter prosecutorial misconduct would be to jail the prosecutor for the minimum (maximum?) term required for the crime he was prosecuting.

That'd put an end to this stuff.

It is nice to see that a lot of Volokh readers like to rush to judgment on this case. Very admirable.

So, the rape charges have been dropped because the victim doesn't know what the guys used to penetrate her. Does this increase or decrease her credibility? I say increases it.

First of all, while nuance with respect to observation can be fabricated, on the whole, more nuance is an indicator of truth. That is, when you say X happened, but I don't know about small detail Y, this is a sign of truth telling. Most liars fill in every detail you ask for. Someone who is telling the truth is probably not going to have a grasp of every detail. That is simply not how the human mind works.

Second, when someone is penetrated from behind, it is not reasonable to expect them to know with certainty what they have been penetrated with. Or is the concealing of this information from a victim by her attackers some kind "I get to rape you for free" card?? It is unreasonable to expect victims to have knowledge of every detail. In this case, the victim claims to have knowledge of the important detail, that she was sexually penetrated from behind, with something, against her will. That she didn't observe WHAT was penetrating her is simply a function of the direction from which the attack occurred. If she assumed it was a penis, but it later turns out to be something else, that is not really damaging to her credibility.

Third, penetration by an object rather than a penis would explain the lack of DNA evidence.

Fourth, if this woman's accusations are true, from a moral perspective, the actions of these men are as morally repugnant as ever. That they penetrated her with an object rather than a penis may be the basis for dismissing rape charges, that does not change their moral culpability of this story is true.

Ultimately, what VC readers and everyone else should do is not pretend they are in a position to judge the evidence in this case, unless they have actually seen it and heard all the relevant testimony. It is called not rushing to judgment.

elChato,

First, please link to the relevant testimony by the witness stating that she was ejaculated on. Second, note the possibility that ejaculation occurred, but penetration with a penis did not. Note also that the rape charge was dropped because she did not actually see whether a penis penetrated her. It is possible that she was penetrated by a penis. But there just is no proof of that beyond a reasonable doubt. Hence the dropped charge. Third, what happened 10-years before this case is not exactly dispositive. Lack of a conviction is not proof of lack of a crime 10-years ago. (For example, probabilistically speaking, OJ Simpson is guilty of murder. That he was not convicted when the burden of proof beyond a reasonable doubt lies on the prosecution does not change that.)

But if you proudly want to rush to judgment without hearing all of the testimony and seeing all the evidence, that is your problem. I thought that is what we had trials for, but maybe we are better off going to the age of lynching. Hey, rumors are as good as evidence, apparently.

It is nice to see so many people make up their mind before they are fully informed. Unfortunately, this says a lot about the people making up their minds, and very little about the reality of what did or did not happen.

The bottom line is this. The only intelligent course of action is to evaluate all of the evidence and all of the testimony, keeping in mind that people who are sexually assaulted typically behave in an erratic manner after such an event. The acused will have the opportunity to confront their accuser in court.

Public Defender sez: 'By contrast, journalists demand the privileges of professional status (legally protected private communications), but they are unwilling to pay the price that true professionals pay (regulation and the loss of the privilege for unethical behavior).'

Fair point, although protecting sources is not unethical but ethical behavior for a journalist; just because a lawyer on a fishing expedition in a trumped-up civil case wants my notes, it does not suddenly become unethical for me to protect them.

But, in any case, I am not guilty. I oppose shield laws. (On several grounds; two are: I don't want government or quasi-government oversight, because I believe in a free press; and, I don't know how to define 'journalist.')

I dispute that lawyers are often sanctioned for ethical lapses. Theft, yes. Ethical lapses, almost never in any jurisdiction I've worked in.

Too late, ragerz. The prosecutor's misconduct was conducted in public, so we have seen all the evidence there.

It appears that even if the AV did have a crime committed on her, there is now no chance of obtaining a conviction, because of Nifong's screwups/bad faith/whatever it was.

This would be upsetting if there was any evidence that the AV did suffer a crime. Since her own statements have been published and are impossibly contradictory, and since the DNA evidence excludes anyone on the team, it is not obvious what a trial would be a trial of.

It is abundantly clear that Nifong has behaved in an inexcusably unethical and evil manner. What is not clear to me is that his behavior is in any way unusual for prosecutors, other than for sloppy incompetence.

It is also clear that the North Carolina Bar and the feds have no intention of stopping this travesty. The gangs protect their own. What is true for the Crips and Bloods is also true for the Bar.

After seeing this I will be forever ineligible to serve on a jury in any criminal case, because I am unable to believe that prosecutors and judges in Texas are any different from those in North Carolina, and that everything they say must be assumed to be a self-serving lie.