<p>In the discussion about Nifong and how he should be judged, there seems to be little dispute about what he did. Instead, as is often the case in the law, the disputed issues concern his state of mind when he acted.</p>
<p>Did Nifong, as some posters have suggested, intentionally frame three innocent young men because, for political or other reasons, it appeared to be in his self-interest to do so? Or did he, as latetoschool and kluge have suggested, act not with the intent to frame innocent young men, but with some other state of mind? </p>
<p>If you accept latetoschool and kluge’s approach, that then leads to another question: If Nifong wasn’t acting intentionally, how would you describe his state of mind and assess the extent of his culpability?</p>
<p>Another term that’s sometimes used in the criminal law to characterize a culpable state of mind may be useful here: “recklessly.” In the hierarchy of culpability, someone who acts recklessly is usually thought to be less culpable than someone who acts intentionally or knowingly, but more culpable than someone who acts negligently. See, e.g., <a href=“http://en.wikipedia.org/wiki/Mens_rea[/url]”>http://en.wikipedia.org/wiki/Mens_rea</a> (discussing the concept of “mens rea,” or guilty mind [lawyers, as you may have noticed, like to employ Latin terminology whenever possible, in an effort, apparently, to make their much-maligned profession appear more learned]). Recklessness is usually defined as conscious disregard of a known risk.</p>
<p>If Nifong did not act with the intent to frame innocent young men, I think that a strong argument could be made that he acted recklessly. In other words, he acted in conscious disregard of the risk that he was prosecuting individuals who were innocent. Failing to consider exculpatory evidence (the one guy’s alibi evidence, for instance) would appear to constitute acting recklessly. So too would failing to question the complaining witness personally with respect to the various inconsistencies and outright contradictions in her stories.</p>
<p>Besides recklessness, another legal principle that might be relevant here is the one that underlies a jury instruction that is often given in white-collar criminal cases - the “ostrich” instruction. See, e.g., <a href=“http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/05/here_comes_an_o.html[/url]”>http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/05/here_comes_an_o.html</a>.
The idea behind this instruction is that if the crime in question requires for guilt that a defendant acted with knowledge of, say, the falsity of certain information, actual knowledge that the information was false need not be established if it can be shown that the person “deliberately avoid[ed] acquiring . . . [such] knowledge” (quoted language is from a case cited in the previous link). A strong argument could be made that this principle would apply to Nifong’s conduct. That is, like an ostrich, he deliberately avoided knowledge that would have tended to show that these guys were innocent. Again, his failure to consider exculpatory evidence and his failure to question the complaining witness personally would be relevant.</p>
<p>These are the kinds of issues that, I’m sure, are going to be very much on the minds of the State Bar ethics folks when they analyze Nifong’s handling of this case and decide his fate.</p>