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Mike Nifong Bankruptcy:

Speaking of the the Duke Lacrosse case, this is a bit of old news, but back in January Mike Nifong had to file bankruptcy to deal with the civil lawsuits that have been brought against him by the exonerated Duke lacrosse players. He lists assets of $243,000 and liabilities of $180 million (presumably contingent claims).

On the other hand, it is far from clear that bankruptcy will help Nifong very much in the long run. Section 523(a)(6) of the Code makes nondischargeable debts incurred for "willful and malicious injury" to others. This traditionally has been defined as something like an intentional tort, as in Kawaauhau v. Geiger. I'm not familiar with the details of the players' complaint against him (please flesh this out in the comments if any of you are familiar with it_ but I assume that it includes counts for claims such as defamation and libel and other intentional torts, so I would think 523(a)(6) has a good chance of applying. In the meantime, he does get some benefit from the automatic stay, however.

According to this website, Nifong lists about $5000 per month in "pension and retirement" income (which it appears that he is claiming as exempt from the tort claims of the lacrosse players), "and describes himself, charitably, as retired."

His full bankruptcy schedules are here.

Skyler (mail) (www):
Good. I hope he ends up living in a gutter and washing the insides of dumpsters for the rest of his life. The scum.
5.8.2008 11:31pm
none_:
the bankruptcy code allows the Court to stop civil claims and estimate their value, in lieu of litigating them. he may be trying to simply avoid the expense and publicity of going to trial on these claims by submitting them to the bankruptcy judge to fix a value to.
5.9.2008 12:13am
John (mail):
I think this is the suit.
5.9.2008 12:14am
Pedant:
As gross as Nifong's offenses apparently were, remember that allowing this kind of suit means that all prosecutors will now have to worry about needing to spend money defending themselves against even meritless suits that will ultimately fail. Are we sure we want to go down this road? (I haven't thought through all the ramifications, but certainly it doesn't seem self-evidently a good thing.) In some respects this reminds me a lot of the suit against John Yoo: the important issue is not so much what the individual in question did, but whether we want to put similarly-situated individuals in the position of having to defend themselves against lawsuits that they might ultimately win but can't get dismissed at the pleading stage.
5.9.2008 12:41am
Hei Lun Chan (mail) (www):
allowing this kind of suit means that all prosecutors will now have to worry about needing to spend money defending themselves

No, just the ones who lie and hide exculpatory evidence from suspects.
5.9.2008 12:48am
Sean M:
The run-of-the-mill suit against prosecutors will be defended and paid for (if there ever is a judgment) out of state coffers. It's only the truly aberrant suit like this one that would actually expose a prosecutor to personal liability.
5.9.2008 12:53am
Alan Gura:
As gross as Nifong's offenses apparently were, remember that allowing this kind of suit means that all prosecutors will now have to worry about needing to spend money defending themselves against even meritless suits that will ultimately fail.

On the same logic, criminals should not be prosecuted, regardless of guilt. Because it will encourage the prosecution of even innocent people, who will have to spend money defending themselves against meritless cases that will ultimately fail.

In fact, let's just do away with all litigation, civil and criminal. That way nobody has to worry about silly legal actions.
5.9.2008 12:58am
Oren:
People don't use 'retired' as a verb enough. Nifong isn't retired, he was retired. Makes a big difference.
5.9.2008 1:28am
Alligator:
Are all non-negligent torts considered intentional torts? My memory of torts class is a bit fuzzy, and I was surprised to see defamation classed as an intentional tort because liability requires only reckless disregard for the truth.
5.9.2008 1:53am
Mike& (mail):
Slander and libel are intentional torts, dude.
5.9.2008 2:22am
Kazinski:
Nifong's motivation clearly wasn't justice, it was the political gain of locking in a crucial anti-dukewhiteboys component of the electorate for his campaign for district attorney. He miscalculated the risk, and now it is time to pay.
5.9.2008 2:26am
Nathan_M (mail):
Alligator, I think you hit upon why Zywicki said "something like an intentional tort" instead of using stronger language.

For example, suppose I mistakenly pickup your umbrella, because I think it's mine. That's an intentional act, so conversion is an intentional tort. But I haven't intentionally harmed you, which is why Kawaauhau said conversion can sometimes be dischargeable.

I think your problem is that "intentional" is being using in two different ways. When we say something is an intentional tort we mean the act is intentional (that's why defamation always qualifies), but in bankruptcy the question is more whether the harm caused was intentional (so a recklessly false slander would presumably be dischargeable).
5.9.2008 2:46am
Paul Milligan (mail) (www):
Full fillings at http://www.dukelawsuit.com

"As gross as Nifong's offenses apparently were, ..... Are we sure we want to go down this road? (I haven't thought through all the ramifications, but certainly it doesn't seem self-evidently a good thing.)"

He tried to put 3 men he knew to be innocent in prison for many years, in order to make good local PR for himself in a re-election campaign. In the process, he broke every rule in the book, and suborned others to do the same, which they did. And you're not sure 'if this is a good thing', that he be made to answer in civil court, and pay damages for his crimes ????
5.9.2008 2:52am
Nathan_M (mail):
I just realized my last comment contradicts what professor Zywicki said when he suggests 523(a)(6) has a good chance of applying if the plaintiffs are claiming in liable. If the plaintiffs are not public figures they can succeed with a defamation claim if they can show Nifong's statements were false, even if he believed them to be true and he wasn't reckless. If they are public figures, they need only show that Nifong was reckless, not that he knew his statements were false.

The court in Kawaauhau specifically said that "We hold that debts arising from recklessly or negligently inflicted injuries do not fall within the compass of §523(a)(6)." I think that suggests it is extremely possible, even likely, that §523(a)(6) would not apply to defamation verdict against Nifong, unless the plaintiffs can show he knew his statements were false. I imagine that would be difficult to prove.


























































































































































































































































































































































































































































































































































































































































We hold that debts arising from recklessly or negligently inflicted injuries do not fall within the compass of §523(a)(6).
5.9.2008 2:59am
Nathan_M (mail):
Sorry, I don't know how my last comment got messed up like that. I hope someone can edit it or delete it.
5.9.2008 2:59am
David Schwartz (mail):
allowing this kind of suit means that all prosecutors will now have to worry about needing to spend money defending themselves
Perfect. It's quite clear that Nifong wasn't sufficiently worried about adverse personal consequences, so more worry among those similarly situated is a good thing.
5.9.2008 8:21am
guru guy:
End of the world! You can't pull a perjury anymore, without fear of actually paying with you own money!

Are there any homeless shetlers in Nifong's residence area?






Just a note. Nifong lied again in bankruptcy filing. Since there were no judgmnets in favor of his victims, he owes NOTHING to them yet. Thus, can't claim as liability.
5.9.2008 9:24am
Justin_F (mail):
He should have filed a chapter 13, where they would be dischargeable because 523(a)(6) doesn't apply. But he would be over the jurisdictional debt limit if he really owes $180,000,000. Tough choice.
5.9.2008 9:44am
PersonFromPorlock:
Pedant:
...allowing this kind of suit means that all prosecutors will now have to worry about needing to spend money defending themselves against even meritless suits that will ultimately fail. Are we sure we want to go down this road?

Why not? That 'road' is the street the rest of us live on.
5.9.2008 9:53am
Brad Ford (mail):
"allowing this kind of suit means that all prosecutors will now have to worry about needing to spend money defending themselves"

No. I am a former prosecutor and wouldn't fear facing suits like this. If anyone read's Stuart Taylor's book on the debacle knows, Nifong's behavior was nowhere near an honest mistake of prosecutorial judgment. Frankly, he is lucky he is not in jail.
5.9.2008 10:03am
Lively:
OJ did it.
5.9.2008 10:13am
Keith Jackson (mail):
Justin, actually he would not have been over the jurisdictional limit. That limit only applies to non-contingent debts, so these cases do not count towards the limit. Had they been settled, or a verdict given, then they would be non-contingent and would count towards the limit.

Guru - not sure where your getting that from. I'd cite the code section but I start my products liability exam in 15 mnutes. :) Basically, claims in bankruptcy can be contingent. Not only did he not lie on his schedule, he was actually required to list those contingent claims.

As a procedural note, once these students file claims, there will be a mini-trial, most likely in district court (unless the parties agree to have the bankruptcy court do it). After the District court decision is made, it will be remanded back to Bankruptcy court with the fixed amount.
5.9.2008 10:16am
Iolo:
Frankly, he is lucky he is not in jail.

Which is where he should be!
5.9.2008 10:28am
AMac:
allowing this kind of suit means that all prosecutors will now have to worry about needing to spend money defending themselves against even meritless suits that will ultimately fail. Are we sure we want to go down this road?
Some history of the Hoax/Frame is relevant to this concern. ABy N.C. statute, Nifong had very broad immunity in his role as prosecutor. In his zeal (an overly-kind description), Nifong also took on the role of lead investigator, directing the Durham Police detectives who were attempting the frame-up. In doing so, he lost much of the shielding that protects D.A.s from liability.

At the time, he thought he had a winner on his hands, and cutting this corner wouldn't have any adverse effects. It's hard to lament that it isn't working out that way.
5.9.2008 10:42am
Houston Lawyer:
I also think that he should have filed Chapter 13. You can even discharge fraud claims under Chapter 13. A former client of mine was quite successful in this regard.
5.9.2008 10:48am
Brian Mac:
Isn't it punishment enough that his name is Nifong?
5.9.2008 11:37am
Bad (mail) (www):
I'm no fan of Nifong, but the state he's in seems awful severe compared to the countless other law enforcement members and prosecutors who haven't simply failed at convicting innocent people with unethical behavior, but have actually succeeded and yet face no hardship or punishment at all. You can't help but suspect that, without the wealth and national influence that the Duke kids brought to bear on Nifong, he would have gotten away with it quite easily.

Oh, Nathan_M's 1:59am comment contains like ten pages worth of empty space in my browser for some reason.
5.9.2008 12:47pm
Thales (mail) (www):
"Are all non-negligent torts considered intentional torts?"

No. There are also strict liability torts where mental state is not an element, e.g. for manufacture and design of defective products, conducting ultrahazardous activities that result in personal injury, etc.
5.9.2008 1:31pm
Railroad Gin:
The blank space in Nathan M's comment was actually a list of all the evidence Nifong had against the lacrosse players.

As someone who has worked as a prosecutor, I don't see this case as having any sort of chilling effect on a prosecutor's decision making. Anyone who followed this case knows that Nifong's conduct goes well beyond the typical lawsuit brought against a prosecutor. In the vast majority of cases, the county/city has a lawyer that files a rule 12 or 56 motion and the prosecutor himself is hardly even involved. At worst he spends half a day being deposed.

That Nifong conspired to conceal exculpatory evidence is beyond any doubt. His pretrial publicity was not the normal shooting off at the mouth, but actually contained false prejudicial statements.

He consistenly refused to meet with defense counsel even after it had been established that one of the defendants had a rock solid alibi. Prosecutors want to know the defendant's story or theory of the case. That way they don't prosecute the innocent, waste time on cases that are unprovable or at least are able to anticipate what the opponent will do at trial He didn't meet with Mangum until months into the case and then kept encouraging her to change her story. None of this reflects a guy whose concern was for the truth.

Nifong should've done jail time for his actions.
5.9.2008 1:47pm
hattio1:
Bad says;

I'm no fan of Nifong, but the state he's in seems awful severe compared to the countless other law enforcement members and prosecutors who haven't simply failed at convicting innocent people with unethical behavior, but have actually succeeded and yet face no hardship or punishment at all. You can't help but suspect that, without the wealth and national influence that the Duke kids brought to bear on Nifong, he would have gotten away with it quite easily


So because some people get away with it, we should let him get away with it? Some people get away with murder too. That doesn't mean we shouldn't lock up those who commit murder that we can catch and prove a case against.
5.9.2008 1:57pm
philo:
What Nifong needs, to avoid any punishment at all, is a meta-narrative which places himself, qua victim, in the bathroom, along with the Duke 88, Duke Women Studies faculty, Duke Af.Am. Studies faculty: these are the true victims. Bloggers and critics, in fact all white males, in this meta-narrative, are the frat. house, stripper-hiring rapists. He's got to hope that any judge/jury are not committed to "facts" and are not "reality" based.

That's gotta be some big bathroom.
5.9.2008 2:10pm
Yephora (mail):
What I want to know is when is that perjuring skank ho' going to get what SHE deserves??? She tried to destroy those boys' lives every bit as much as Nifong did. Why does she get a pass, hmmmm......????
5.9.2008 2:40pm
Stacy (mail):
"What I want to know is when is that perjuring skank ho' going to get what SHE deserves??? She tried to destroy those boys' lives every bit as much as Nifong did. Why does she get a pass, hmmmm......????"

Nah, she's a run-of-the-mill moral retard who, unlike the rest of her cohort, accidentally hit the lottery with Nifong. She is, to quote my salty ancestors, not worth the bullet to shoot her.

What I'm more interested in is some kind of psychoanalysis of Nifong. Here's a guy who seems to have taken a good long look at that cliff right in front of him, licked his lips, rolled up his sleeves and took off at a full gallop, somehow expecting not to fall to his metaphorical death. It doesn't make sense -- what in the universe was he thinking?
5.9.2008 2:54pm
Janna Blanter (mail):
I am curious about $500 valuation for clothes. Even at the deep discount stores men's suit costs at least few hudred dollars and as I recall, Mr. Nifong looked very dapper for all of those initial TV appearances wearing a number of different snappy suits. Did he have a garage sale?
5.9.2008 2:56pm
pete (mail) (www):

Here's a guy who seems to have taken a good long look at that cliff right in front of him, licked his lips, rolled up his sleeves and took off at a full gallop, somehow expecting not to fall to his metaphorical death. It doesn't make sense -- what in the universe was he thinking?


The universe where most of the media and many other prominent members of the community like the Duke 88 were supporting him. Also he would probably not have been reelected in the first place had he not so publically prosecuted this case. I suspect, like most criminals, he thought he had a good chance of getting away with it.
5.9.2008 3:03pm
quasimodo (mail):
What would have happened to Nifong if all his shenanigans had come to light after the young men were convicted and had spent time in the big house? My guess ... not much.

Are there cases where prosecutors have had to pay the piper in such circumstances?
5.9.2008 3:12pm
Justin_F (mail):
Keith Jackson,

I stand corrected. But there still could be problems with a 13 if he doesn't have regular income (Although maybe his wife does). I guess the idea might be to see if his debts can be discharged in a 7, and if not, convert to a 13. I'll be curious how if that works out.
5.9.2008 3:23pm
Marie Reilly (mail) (www):
For an explanation of the effect of Nifong's bankruptcy case on his liability to Duke lacrosse players and others, see my January 2008 post on Red Lion Reports
5.9.2008 3:31pm
Ryan Waxx (mail):
That's a good question, quasimodo. I'd also like to know.

Oh, and does anyone think that the judge could do anything about that 5000$ per month that Nifong claims is immune? Hard to properly dumpster dive on 5k a month...
5.9.2008 3:34pm
Teh Anonymous:
Yephora: Suing the stripper would not be terribly brilliant PR. Sue the prosecutor who scapegoated you and dragged your name and rep through the mud, and you're the victim of a miscarriage of justice.

Sue the stripper, and everyone will remember when you were being characterized as a bunch of dumb frat boys with dubious morals. Also it (I think - IANAL) becomes part of the public record that you hired the stripper in the first place. And all the rest of it, like the (IIRC) underage consumption of booze. Better to let all that be forgotten by most of the public, and be remembered as the men who fought a power-hungry prosecutor.

No, it's not a crime to be a dumb frat boy with dubious morals, or even, in many jurisdictions, to hire a stripper. But it's not exactly something you want to follow you around for the rest of your life. And suing the stripper would refresh people's memories. (Plus, she probably doesn't have that much in terms of assets.)
5.9.2008 3:50pm
Nunzio:
Why haven't federal prosecutors charged Nifong with violating lacrosse players civil rights under color of state law?

Can't stay a criminal proceeding under bankruptcy law.
5.9.2008 4:12pm
Stacy (mail):
pete: "The universe where most of the media and many other prominent members of the community like the Duke 88 were supporting him. Also he would probably not have been reelected in the first place had he not so publically prosecuted this case. I suspect, like most criminals, he thought he had a good chance of getting away with it."

Good then. I know how this will sound to some, but it's hard not to see the faculty support for Nifong as in some sense an attempt to extend into the real courts the kind of kangaroo-court administrative punishments FIRE is always fighting (pun intended). If true, it failed so completely that it likely won't be tried again for years, if ever. That's more than just a win for prosecutorial ethics.
5.9.2008 4:24pm
JohnMc (mail):
My understanding is most prosecutors have statutory immunity in the discharge of their duties provided their efforts are in the bounds of legal canon. Nifongs' were not.

My question is why Nifong is not already in jail serving a sentence with dating privileges with Bubba from cell block D.
5.9.2008 5:18pm
Richard A:
I find it amusing that so many folks are smitten with a man of such little experience based primarily on his ability to string together pretty sentences. Politics as entertainment, I suppose. The senator is probably a nice guy. Probably honest. And he's obviously intelligent. Okay. Nice guy, honest, smart, great public speaker. How many other of the 301,139,947 American citizens possess those attributes? The number is probably in the tens of thousands. This is not to recommend Hillary, however. She is a decidedly strange individual. And we have hundreds of thousand of those too.
5.9.2008 10:40pm
Richard A:
Prosecutors in this country have far too much power and precious little accountability to anyone. Nifong is paying not only for his own sins, but those of his colleagues as well. Call it blow back rage from a fed up citizenry.
5.9.2008 10:43pm
Paul Milligan (mail) (www):
"Nah, she's a run-of-the-mill moral retard who, unlike the rest of her cohort, accidentally hit the lottery with Nifong. She is, to quote my salty ancestors, not worth the bullet to shoot her. "

I would venture to suggest that you underestimate her by at least $ 0.25.

In the meantime, if Nifong giets his 'speculative maybe losses' from 'maybe lawsuits' cancelled pro-actively, he doens't even have to show up for the trial ( or depo or anything else ). He can just default, and wave his BK status.

Unreal.
5.10.2008 1:56am
JSwift (mail):
I think that suggests it is extremely possible, even likely, that §523(a)(6) would not apply to defamation verdict against Nifong, unless the plaintiffs can show he knew his statements were false. I imagine that would be difficult to prove.

On March 27, Nifong met with the Durham Police investigators, Sgt. Mark Gottlieb and Inv. Benjamin Himan, for the first time. The investigators had been instructed to report to Nifong in their investigative activities. Gottlieb and Himan provided an overview of the case: the accuser had told numerous versions of her story, had provided descriptions of her attackers that matched none of the players, had failed to make any identifications on two separate occasions, and had no visible injuries consistent with the allegation. At Nifong's disbarment hearing, Himan, while under oath, described Nifong's reaction to this summary: "You know, we're f***ed." In his testimony, Nifong did not dispute Himan's account, noting only that he did not remember his specific words.

Immediately after this briefing, Nifong lauched his inflammatory media campaign, in which he stated his certanty that a horrific crime had occurred and included details of the alleged attack that are known to be false.
5.10.2008 11:28am
Gaius Marius:
This couldn't have happened to a nicer guy. Now, if only Nifong would be stricken with untreatable hemmorhoids, then justice would truly be served.
5.10.2008 2:09pm