shouldRE: Ther North Carolina (Duke lacrosse) case/OfflinePlease

[Lynne Henderson]

As a former defense attorney (and a short stint as a D.A.) I can say it  
is next to impossible to  prevail against a DA  on "malicious  
prosecution" (the tort)  *And* there is an extensive literature on the  
scope of prosecutorial discretion which protects all kinds of  
decisions, representations, etc.  Unfortunatley I am on the road and my  
"stash" of articles, etc. on prosecutorial discretion are at my office.  
   The crim pro/crim law folks are the ones who know this literature the  
best;  there have been repeated calls for limits on prosecutorial  
discretion over the past 10 years or so, none of which  have   
influenced  laws much.  IOW, DAs have *enormous* discretion and the  
political process is what the courts usually refer to for keeping htem  
in line unless there is a blatant civil rights violation.  (And  
remedies for violations of *Brady,* *Batson* etc.depend on trial and  
conviction.  DA's participation in iffy search warrants doesn't result  
in much because of "good faith" exceptions.  Etc.)
Lynne Henderson

PS:  As a baby DA, I was once assigned a misdemeanor cattle theft case.  
  (I did a great job with it if I do say so myself--these morons for one  
rustled dairy cows, number two dated the meat in their freezer, number  
three little hoofprints led from newly-tied wires ot their barn . . .)   
The Sacramento/Yolo county ranchers went nuts.  An office memo issued,  
"henceforth, *all* cattle rustling cases SHALL BE felonies. . .

On Apr 14, 2007, at 9:30 AM, Paul Finkelman wrote:

> This is all beyond what I know; but is there a case here for "false
> arrest"; is there a libel suit because the prosecutor went public with
> false evidence and false information (such as claiming things when the
> DNA evidence which he had proves he was lying to the public); while
> probably judgment proof, is the a suit against the original complaining
> witness.
>
> Finally, if police can be sued for false arrest and police brutality,  
> is
> it time to develop a similar tort for false prosecution and outrageous
> behavior by prosecutors.  If Nifong is not personally at risk, is the a
> cause of action against his office or the state?  And if not, is this
> the case the try to create such an action?
>
> Paul Finkelman
>
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
>      and Public Policy
> Albany Law School
> 80 New Scotland Avenue
> Albany, New York   12208-3494
>
> 518-445-3386
> pfink at albanylaw.edu
>>>> Douglas Laycock <laycockd at umich.edu> 04/14/07 10:24 AM >>>
>
>
>   Failure to disclose evidence is probably prosecutorial and within
> the scope of immunity from damage suits.  But there is no immunity to
> criminal prosecution.
>
>   Quoting wasserma at fiu.edu:
>
>> Professor Joseph Kennedy of UNC has this article on Slate
> discussing
>> the possibility of criminally prosecuting Nifong, either for
>> obstruction of justice or for civil rights violations (through the
>> criminal counterpart to s. 1983). The link is here:
>>
>>    http://www.slate.com/id/2164061/pagenum/all/#page_start[1]
>>
>> In the piece, he describes the constitutional right at issue as a
>> general due process right to have disclosed exculpatory
> information,
>> not tied (as Larry suggests and as Justice Scalia intimates in
>> BUCKLEY) to its use at a trial. Determining the scope of that right
>
>> is going to be the key to any private civil rights suit as well.
>>
>>
>> Howard Wasserman
>> FIU College of Law
>>
>>
>>
>
> Douglas Laycock
> Yale Kamisar Collegiate Professor of Law
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI  48109-1215
>   734-647-9713
>
> Links:
> ------
> [1]
> /horde/services/go.php? 
> url=http%3A%2F%2Fwww.slate.com%2Fid%2F2164061%2Fpagenum%2Fall%2F%23page 
> _start
>
>
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