Duke Case: Support for Prosecuting the Rogue Prosecutor
Joseph Kennedy is an associate professor of law at the University of North Carolina School of Law and a fellow at UNC's Parr Center for Ethics who wrote the article entitled "Prosecuting the Prosecutor: Did the DA in the Duke lacrosse case commit a crime?," posted at Slate on April 13, 2007 (a Friday the 13th that was a very bad day for rogue Durham County District Attorney Michael B. Nifong).
Welcome to my perspective, Professor Kennedy.
In "The Deplorable Duke Political Prosecutions," posted on May 23, 2007, I seconded the conclusion of Stuart Taylor, Jr., America's top legal commentator, that Mr. Nifong was a rogue prosecutor who should be investigated.
"Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.
"Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape."
In "Duke case: Does the prosecutor need prosecuting" (no question mark), posted on June 30, 2006, I noted that the DNA testing showed that false accuser Crystal Gail Mangum was a multiple male DNA depository on March 14, 2006 and wrote:
"Mr. Nifong should have wondered about the credibility of the accuser when the DNA samples were eagerly provided, or at least when the DNA found inside the accuser was determined not to have come from any of the Duke lacrosse players but from several other males.
"And the DNA results should have led Mr. Nifong to conclude that the indictments should be dismissed.
"But, Mr. Nifong, for whom the black vote was decisive in his Democrat primary win last April, still has to face the voters in November, and pretending that he has a case may seem preferable to admitting an egregious mistake.
"The key question now is not whether any of the Duke Three are guilty of any of the charges against them — they are not — but whether Mr. Nifong is reckless and stubborn, or worse.
"Mr. Nifong should be polygraphed. Ironically, he may be one who should be prosecuted."
Professor Kennedy agrees:
"When does a prosecution itself become a crime? It is well understood that prosecutors enjoy broad immunity from civil suit for their actions as prosecutors. That immunity, however, does not protect them from criminal liability. North Carolina District Attorney Mike Nifong faces possible disbarment for allegedly violating the rules of legal ethics in the Duke lacrosse case. A number of members of Congress have asked the Department of Justice to investigate his conduct, and the North Carolina attorney general has not ruled out criminal charges. Should Nifong face prosecution for his handling of the case?
"Maybe. Nifong has not yet had a chance to present his defense to the ethics charges—that will happen in mid-June. But if Nifong indeed committed all of the acts alleged in the ethics complaint, he may also have obstructed justice in violation of state law and committed a federal civil rights crime."
Professor Kennedy proceeded to offer guidance on prosecuting the rogue prosecutor:
"The strongest basis for a prosecution on either charge would probably be the allegations that Nifong tried to suppress DNA test results that suggested the innocence of the defendants (three Duke lacrosse players he charged with raping a dancer whom the team hired to perform). Those results ruled out the defendants as the sources of DNA material found in the clothes and on the body of the accuser. Obstruction of justice extends to actions by attorneys aimed at suppressing evidence in criminal cases. Such cases are unusual but not completely unheard of...."
Then Professor Kennedy summarized the applicable North Carolina law as applied to Mr. Nifong's conduct in the Duke case:
"Obstruction of justice is a felony in North Carolina if it's committed with the intent to deceive. The state bar has accused Nifong of intentionally excluding the exculpatory DNA results from his expert's report and of subsequently misleading the trial judge as to their existence. If Nifong really intended to deceive the judge and the defense in order to prevent the introduction of those results into evidence at trial, he committed this felony."
Agreed, Professor Kennedy.
Professor Kennedy further noted that Mr. Nifong has a possible federal criminal charge about which to worry:
"A federal charge of depriving the defendants of their civil rights would get to the same issues by a different route. According to federal statute, it is a crime for any person acting 'under color of law' to willfully deprive a person of a constitutional right. Acting 'under color of law' essentially means using the power of the government, and it includes the actions of state prosecutors in criminal cases. The constitutional right at issue would be the defendants' well-established due process right to disclosure by the prosecutor of exculpatory evidence. Nifong would only be guilty of the federal civil rights charge if he specifically intended to deprive the defendants of their constitutional right by suppressing the test results. The statute does not require Nifong to have believed he was prosecuting innocent defendants—and to have gone after them anyway. Deliberately depriving a defendant of his constitutional rights is a crime if you believe him to be guilty."
The United States Justice Department has been asked to conduct an investigate not only by Michael Cornacchia , an attorney for Collin Finnerty, but by Congressman Walter Jones, a North Carolina Republican. Senator Barack Obama of Illinois, a leading Democrat presidential candidate has supported that call, and Congressman Jones renewed that call after North Carolina Attorney General Roy Cooper announced not only that the remaining charges in the Duke case mwere being dismissed, but the evidence showed that the defendants were innocent and there had been a rush to accuse.
It seems to me that it was even worse than a rush to accuse.
So the United States Justice Department should investigate now.
Better late than never.
Professor Kennedy was dubious about Mr. Nifong's prospects as a criminal defendant:
"Nifong has repeatedly claimed that he ultimately did nothing wrong because the defense eventually received the DNA results. North Carolina's discovery law, however, clearly required the results to be included in a report prepared last April, not handed over months later. It is less clear when a prosecutor needs to produce exculpatory material under the federal constitution. In deciding whether or not a defendant is entitled to a dismissal or other remedy, many courts have found no violation of federal constitutional rights when the material was produced at trial, on the theory that the defendant was not ultimately prejudiced by the timing of the disclosure.
"These court decisions, however, do not rule out criminal liability for a prosecutor who deliberately tries to withhold evidence that ends up eventually getting produced anyway. The 'no harm, no foul' defense doesn't fly here. Obstructing justice does not require that you suppress evidence, only that you try. Federal civil rights law is similar. This should mean that in the Duke lacrosse case, the defense's ultimate success in getting the raw data of the DNA tests would not save Nifong."
But, as Professor Kennedy explained, a fact finder needs to decide what Mr. Nifong intended to do:
"The timing of the disclosures is relevant...as to whether Nifong in fact intended to suppress the DNA results. If Nifong was simply trying to delay production of the tests as long as he legally could, he would not be guilty of the federal charge. He might even avoid liability on the state charge on the theory that intending to 'delay justice' is different from intending to obstruct it. To win, the prosecution would have to prove that Nifong was trying to suppress the test results in the hope that they would never be disclosed.
"Could criminal prosecutors surmount that hurdle? If the state bar complaint is true, they very well might. That complaint accuses Nifong of making intentional misrepresentations to both the trial judge and to state bar investigators. If the prosecution can convince the jury that Nifong lied in a cover-up, the district attorney will have a hard time arguing that he was not trying to cover up exculpatory evidence in the first place. Also, the weaker the original evidence against the former lacrosse players, the more reason for a jury to think that Nifong was trying to permanently withhold the test results out of fear that otherwise he would never win a conviction. The fact that the North Carolina attorney general did not just dismiss the original rape case, but actually found the defendants to be innocent, suggests that the evidence of their guilt was weak indeed."
Mr. Nifong's prosecutor could introduce Mr. Nifong's declaration on his campaign website as to how he as a prosecutor favored open discovery long before it was North Carolina law. It's really hard to believe that Mr. Nifong's plan was to delay, not obstruct justice, or to overlook the concept that justice delayed is justice denied.
Finally, Professor Kennedy asked and answered the critical question:
"Even if Nifong did commit a crime, should he be charged? Do we want our prosecutors worrying about becoming defendants themselves? If they deliberately suppress evidence of innocence, I think we do. The law is written to ensure that charges will be brought only against a prosecutor who was deliberately trying to completely withhold evidence that suggests innocence. Prosecutors who made a mistake, or stalled, are off the hook.
"And consider this parallel: In securities cases, we indict corporate officers for obstruction of justice when they delete e-mails if we think they are trying to hide material from government investigators. Rogue prosecutors merit the same treatment. The prosecutor's obligation to disclose evidence suggesting innocence protects innocence. Prosecutors should know that when they deliberately thwart that protection, they do so at their own great peril."
Agreed, with one caveat: prosecutors who stall for personal or political reasons have no business being prosecutors.
In the Duke case, Reade Seligmann, Collin Finnerty and David Evans were victims of Mr. Nifong's lack of integrity and perceived dependency on black votes to win an election. Professor Kennedy is right about the scholar-athletes' due process rights being violated, but there is more to it: they were victimized because false accuser Crystal Gail Mangum is black and they are white and Mr. Nifong chose to play the race card at the expense of the white guys.
If Mr. Nifong's behavior is not treated as criminal, what message will that send?
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.