Thomas Metzloff poses a question: In re: Nifong: We had a case in Durham, we had a prosecutor who was saying lots of things on TV, everyone remembers the quotable quotes. What is the message that's learned from Nifong?
More lessons not learned than lessons learned. Brady and lying to court, he was going to be disbarred anyway. (Lists the nuances of the rules on what a prosecutor can say.) Because Nifong agreed to waive right to appeal, we didn't get to reconsider those rules.
True believer that 99.9% of USAs and AUSAs do believe that US does not accomplish justice by arrests, it's whenever justice is done in the courts.
The lesson that hasn't been learned is that a criminal defendant has a right to be tried in the court room, media doesn't have the right to try a criminal in the public.
Loretta Lynch Hargrove
A former prosecutor, also grew up in Durham (African American), how do you find that balance? Interacting with the press is one of the ways a prosecutor can be accountable to the community, whether elected or not. There seemed to be a stunning lack of clarity on what could and couldn't be said. Need to find balance.
The media seemed to become part of the story, the media coverage fueled the actions against Nifong.
Metzloff: Would it be okay for a prosecutor to say "I'm going to be tough on Duke kids"?
If any group is singled out, they'll have an equal protection claim down the road. Going after the Duke students is inappropriate--saying you'd go after the black people would be recognized as improper.
Makes a case that you have to be able to say, "I find this conduct appalling."
What we're hearing when he says that is that he has determined that the Duke kids did the crime, and I find it appalling.
Different rules for prosecutors and defense attorneys?
Little reluctant to have one rule for defense and prosecutors. Tit for tat rule gives defense attorneys free reign.
Unclear what it means when something is in the public record. There are certain things that Nifong said that were in the public record. Depending on which way you construe public record.
We don't have a panel for victim's rights. I had a case where the victims were out speaking, but we couldn't tell them anything.
Metzloff: What do you do when a law enforcement person is a source? [this was a question I wanted to ask--let's talk about the FBI leaking like a sieve]
There's a sense that prosecutors control the agents and cops working for you, but you don't. You have little control when the investigative team chooses to leak something.
Lots of the law enforcement leakers are tangential to the case. So you need to be very careful to guard the files in high profile cases.
I don't like to try the case in the public, because it may hurt your case.
Also, cops like to talk, they have the scoop.
In high profile cases we grand jury the case. We tell people it's a criminal violation if they leak. That seems to work.
Metzloff: Why do we let lawyers comment on either side?
I think you have to make a public comment, as a responsible member of the executive branch you have to let the taxpayers know you're doing something. [he he--what a novel idea] We're responsible to taxpayers.
Media tries to pitch you to leak by saying, you have to or your side of the story won't get out. Sometimes the press will give you a conclusion, sometimes the press will give you something that no one in a million years would have thought was in a case.
I asked whether the grand jury system was under challenge, given that two of the big first amendment cases in recent years pertains to grand jury. Connolly responded that GJ ends up protecting people more often than it doesn't. (I really wanted the traditional media to respond as well.) Eh.
When his name showed up on one of Gonzales' firing story, the headline was "Connolly caught in Gonzales scandal." And he went to the editor and introduced him to his kids, and pointed out that the kids had to get teased at school because of the inaccurate headline.