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Sunday, January 18, 2015

The Prosectutal Career of Mike Nifong: Using Immorality to Examine Differences in Ethical Theory

The Prosectutal Career of Mike Nifong: Using Immorality to Examine Differences in Ethical Theory

In 2006, Mike Nifong chose to prosecute three college students for a crime he knew they did not commit. He chose to prosecute them for the personal reason of winning an election. In doing so, Nifong clearly demonstrated that the violation of ethical standards can illuminate not only the choice an attorney makes to act as a legal agent or a moral agent, but also the underlying concepts of moral thoery. Moral theory can be understood in terms of meta-ethics and decsribed by normative ethics
Cohen speaks on the differeance between a legal agent and a moral agent. “I then distinguished between two concepts of a lawyer, the pure legal advocate and the moral agent, and I argued that, whereas moral agent lawyers would be good persons according to the aforementioned standards, pure legal advocates would not. “(Cohen, 2002, para. 2) and “This is in contrast to the effective moral agent lawyer whose allegiance to law is informed by the morality of his representation and who is, therefore, "effective in morally as well as legally advocating his client's cause. “(Cohen, 2002, para. 3) Nifong, as a DA, had the public as a client. His duty was to serve the public by punishing criminals; this was his duty as a moral agent and as a legal agent. Instead, he chose to use the power of his office by exacerbating racial tension with the goal of keeping political office; F. Lane Williamson, chairman of the disciplinary panel that disbarred Nifong for his immoral activities stated, “We have found as aggravating factors dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge wrongful nature of conduct”(The New York Times, 2007,para. 8) and that “...we can draw no other conclusion that that those initial statements that he made were to forward his political ambitions. (The New York Times, 2007, Para 6) One of the charges against Nifong was that he “...made approximately 150 statements to the media that he 'knew or reasonably should have known… had a substantial likelihood of prejudicing the criminal adjudicative proceeding.'” (Findlaw, 2007, para 1) These media comments were judegd by the disciplinary panel in the following light; “Williamson said that racially inflammatory remarks Nifong made last year 'were to further his political ambition.' The three athletes are white, and their accuser is black. “ (CNN Law, 2007, para. 11) This was not the first case in which Nifong engaged in unethical behavior; “yet more egregious misconduct by Nifong has been exposed as a result of the 1995 murder conviction of Darryl Howard being overturned for Nifong’s prosecutorial misconduct. “ (Locke, 2014, para.2) A moral attirney, acting either as a legal or as a moral agent, would have dismissed the charges against the accused and prosecuted Ms. Magnum the monent that exculpatory evidence was presented.; yet Nifong cintinued his case.
How can Nifong's moral failure be explained in meta-ethical terms? Metaphysical moralism is based on the concept that “ethical terms such as 'right' and 'good' and the ethical statements containing then refer not to natural properties such as pleasure or happiness...but to certain metaphysical properties which are not directly observable because they belong to things in another or supernatural order” (Hall, Dennis, & Chipman 1999, p.150). Metaphysical moralism attempts to define “ethical terms in nonethical terms” (ibid, p. 151) Ideal Observer Theory has another take on the observation of ethics; in the analysis of the statement “X is right”, Brandt quotes Firth , “If there were a person who was omniesct, omniperceptent, disinterested and dispassionate, but in other respects normal, then he would have a certain experience (e.g feel approval, experience an apparent requiredness, etc) with respect to 'X'”; Brandt goes on to say that “ethical predicates are absolute, although relational, dospositional, objective, and observable or emprical”. Basically, if the statement “X is right is made, then an ideal observer would agree with that statement.(Brandt, 1955, para 1) Intuitionism makes three claims: first, that "good" is indefinable, secomd, that there are objective moral truths, and finally, that the basic moral truths are self-evident to a mature mind. In contrast, emotivism suggests that moral judgments reflect feelings, leading to the idea that since moral judgments are reflections, they can't be true or false.
In terms of normative ethics, either utilitarian or deontological, Nifong clearly failed in his moral duty. “An important aspirational principle of the American public prosecutor is that he or she should first seek justice rather than being motivated simply to win the case. A subpart of that command is that the prosecutor should not charge or convict an innocent person. Often this command is stated in terms of the importance of the prosecutor reaching his or her own conclusion about the guilt of the defendant.” (Mosteller, 2008, p.309) The consequences of failing to uphold that principle include the severe repercussions to the defendants as well as the public's loss of faith in the court system. He failed in his specific duties as both a moral agent and as a legal agent; in doing so, his intent was clearly wrong. Mosteller, contends that “Brady is not felt as a moral command, unless something stunning is observed. It is rather part of the requirements of the job” (ibid), and yet Nifong violated the “Brady doctrine 'to play hide and go seek with evidence' .” (Spencer, 2007, para. 16)

Brandt, R. (1955, March) The definition of an "Ideal Observer" theory in ethics. Philosophy and Phenomenological Research, Vol. 15, No. 3. Retrieved June 6, 2012 from http://www.jstor.org/stable/2103510
CNN Law Center. (2007). Duke lacrosse prosecutor disbarred. Retrieved June 6, 2012 from http://www.cnn.com/2007/LAW/06/16/duke.lacrosse/index.html

Cohen, E. (2002). Pure legal advocates and moral agents revisited: A reply to Memory and Rose. Criminal Justice Ethics , Vol. 21, No. 1. Retrieved June 6, 2012 from http://www.questia.com/library/journal/1G1-136076304/pure-legal-advocates-and-moral-agents-revisited-a 2002

FindLaw. (2007, January 24) N.C. Bar files amended ethics complaint against D.A.who prosecuted Duke lacrosse team rape allegations: North Carolina State Bar v. Michael B. Nifong. Retrieved June 6, 2012 from http://news.findlaw.com/cnn/docs/duke/ncbnifong12407cmp.html

Hall, R., Dennis, C., & Chipman, T. (1999) The ethical foundations of criminal justice. CRC Press. Retrieved June 6, 2012 from http://books.google.com/books?id=MOwtajg4OD4C&lpg=PA143&pg=PA150#v=onepage&q&f=false

Locke, P. (2014, May 27). More Mike Nifong prosecutor misconduct exposed. The Wrongful Convictions Blog. Retrieved June 6, 2012 from http://wrongfulconvictionsblog.org/2014/05/27/more-mike-nifong-prosecutor-misconduct-exposed/

Mosteller, R. (2008). Eculpatory evidence, ethics, and the road to disbarment of Mike Nifong: The critical importance of full open-file discovery. George Mason Law Review ,Vol 15:2. Retrieved June 6, 2012 from http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2486&context=faculty_scholarship

The New York Times. (2007, June 17).Comments of Disciplinary Panel’s Chairman Retrieved June 6, 2012 from http://www.nytimes.com/2007/06/17/us/17duke-text.html?pagewanted=all

Spencer, J. (2007, March 13). The Duke wrongful prosecution case and the importance of criminal discovery. Austin Criminal Defense Lawyer. Retrieved June 6, 2012 from http://blog.austindefense.com/2007/03/articles/evidence-and-criminal-procedur/the-duke-wrongful-prosecution-case-and-the-importance-of-criminal-discovery/

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