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Disdained, Disgraced, and Disbarred: Mike Nifong May Be Gone, But The Damage Done By Durham's Dirty Prosecutor Will Live On


Friday, Jun. 22, 2007

Every earthquake has an aftershock. Some are significant. Others, subtle.

Those who have followed the Duke lacrosse rape case closely, may think the recent - and, dare I say, swift - disbarment and firing of Durham's District Attorney Mike Nifong is itself the much anticipated aftershock of the case.

However, as I will explain in this column, I believe Mike Nifong himself is the earthquake whose aftershocks are only beginning to be measured. Thus, my joy in learning that justice was finally served in this case is mitigated by the knowledge, for example, that veteran prosecutor Nifong was likely involved in dozens of prior prosecutions - and that many parties have yet to suffer the continuing costs of Nifong's misdeeds.

Nifong May Have Committed Misconduct in Other Cases Too

Interestingly, Nifong served as an Assistant D.A. in the controversial murder prosecution of novelist Michael Petersen - another Duke graduate. (Petersen's trial is chronicled in the documentary "The Staircase.") The investigation began in 2001, and ended with a conviction in 2003. Did Nifong learn his dirty tactics then -- or earlier? Did he use his dirty tactics then - or earlier?

The misconduct revealed in the Duke lacrosse case merits an investigation into Nifong's past prosecutions, as well. Nifong would have happily sent three completely innocent young men to jail in the Duke lacrosse case. Did he happily do the same to other innocent people in the past?

From Early On, Evidence Suggested Possible Prosecutorial Misconduct

From the beginning, something seemed very wrong with this case - which I chronicled in a series of columns for this site. And it didn't just seem that the case itself was weak; it seemed that police and prosecutors were using unfair tactics from the very start.

"Abrams Report" host and Duke grad Dan Abrams deserves great credit for coming out strongly and quickly in favor of the defendants -- or at least in favor of the defendants' being treated fairly -- early on. While some said Abrams was only acting out of school loyalty, in fact he was acting upon information, paired with some strong lawyerly instincts that told him that this case stank like old fish.

Consider, for example, the absurd photo lineup procedure. Because the police employed a photo lineup composed solely of photos of Duke lacrosse players, it was impossible for the accuser to go wrong; no matter whom she picked, as long as that young man was there that night, prosecutors had a case.

The importance of a photo lineup is to show that the alleged victim is able to identify her alleged assailants - and only them.

Sometimes, even genuine victims cannot accurately identify their assailants, which is a tragedy. However, the reality is that if any victim cannot identify her assailant reliably in a lineup, just after the crime occurred, then she will not be able to identify him credibly at trial, months or years later - given that she will be cross-examined based on her initial failed identification, and grilled as to how her memory could have actually improved over time.

Accordingly, prosecutors need to know if a victim can make a prompt and accurate identification from a lineup, in order to assess whether they can assemble other proof that show guilt beyond a reasonable doubt. This case, for example, would have ended quickly had the accuser been unable to make an identification in a series of photo lineups that mixed photos of Duke lacrosse players with other young men of the same race, height, hair color, and build. The lack of a reliable identification might not itself have ended the case, but its combination with the lack of revealing DNA evidence or useful witness testimony certainly would have.

Moreover, sometimes victims who are lying get caught thanks to a lineup - when they identify the wrong person as their assailant. But in this case, there was no way the accuser could have gotten caught lying (and it now seems highly likely she was indeed lying); whichever Duke lacrosse players she picked, Nifong would have gone after them.

Some of Nifong's misconduct occurred secretly. No one could have known until much later how he encouraged an expert to submit a partial and misleading report, or how he failed to provide the defense with exculpatory evidence. But the photo lineup debacle came out early - and should have alerted all observers that we weren't dealing with a D.A. who was even remotely interested in playing fair.

How Nifong Was Disbarred, and Removed from Office

Last week, inside a Durham courtroom, representatives of the North Carolina Bar heard allegations of some two dozen ethical violations by Nifong, based upon his handling of the Duke lacrosse rape scandal. At the end of a week's consideration, the Bar imposed the ultimate punishment available to it: Mike Nifong was disbarred.

The disciplinary committee conducting the hearing determined that, in connection with the case, Nifong had lied to the court; made inflammatory statements about the three indicted players and their teammates; and withheld critical DNA evidence from defense attorneys.

Within 48 hours of this decision, Superior Court Judge Orlando Hudson announced he would proceed with a pending request to remove Nifong from office.

Under Bar rules, Nifong would have had a 30-day grace period before his disbarment would officially take effect. Nifong had planned to remain in office until July 13 to wind up his affairs. Judge Hudson, however, said no -- ordering that Nifong be suspended from his position as District Attorney immediately. (Ironically, however Nifong currently remains eligible to receive his retirement benefits from the state, as a nearly 30-year employee).

These decisions were correct, if sadly late in the game.

Any prosecutor who attempts to manipulate justice at the expense of three innocent lives is not only unfit to be a prosecutor, but unfit, more generally, to practice law. The Bar found that in connection with the Duke lacrosse prosecution, Nifong lied and cheated. This bad behavior could easily manifest itself in private practice as well. And that's not all Nifong did: He also used three unsuspecting kids as a platform to promote his own political aspirations, and gave prosecutors and lawyers in general a bad name. What he did to these boys, and our profession, is unforgivable.

As I noted above, we have yet to see all the costs that have been, and will yet be, paid by others as result of Nifong's misconduct. There is the emotional and financial cost to the three young men who were accused; the emotional and financial cost to the community; and the possible effects upon future rape prosecutions with very genuine victims who have suffered terrible harm.

The Cost to the Wrongly Accused Defendants - and Their Potential Civil Suits

First, let's consider the cost to the defendants, whose families have had to pay massive legal fees only so the public could learn what they already knew: Their sons were innocent.

On the very day Nifong was fired from his position as prosecutor, Duke University announced it had reached an undisclosed financial settlement with all three former students. I imagine it's hefty.

But Duke is not the only entity that is going to owe these boys some money. The County of Durham will, too. Even though most government municipalities enjoy some level of immunity from liability from civil lawsuits, this case is a bit different. Here, we are not simply talking about prosecutorial negligence; we're talking about intentional misdeeds, done in the course and scope of his employment, by the District Attorney himself. Nor are we talking about a gray area in the law; the law here was crystal-clear.

Could - and should -- the families also sue Nifong himself? It's unclear. Of course, the county is the deeper pocket. Moreover, tactically, naming Nifong as a co-defendant in a suit against the country might backfire - if Nifong's culpability for his outrageous actions dwarfs the county's liability for not stopping him, in the eyes of the jury.

One thing is certain here, though: These facts will get a jury angry enough to grant the defendants a very generous damage award - for their destroyed reputations, for the anguish and terror of their facing long jail sentences, and even for the interruption of their athletic and academic careers. How does one adequately put a price on lost innocence? It's impossible - but whatever price a jury decides upon, it will be a high one.

The Cost to the Community: Will Genuine Rape Cases Go Unprosecuted?

Regarding the cost to the Durham community, that community may look on with horror as prosecutors are reluctant to prosecute very genuine rape cases.

I believe genuine victims will still be willing to come forward. After all, the accuser in this case obviously wasn't a genuine victim, so genuine victims have little to fear. (So far, the accuser has also avoided both prosecution and the limelight. That, in my view, is a significant injustice, as I discussed in a prior column.)

But when genuine rape victims come forward, will prosecutors listen? Particularly in cases where DNA evidence is lacking (as was the situation in the Duke case), prosecutors may unfairly shy away from moving forward. The result may be that victims not only do not get justice, but must live with the fact that their rapists are still free to strike again, targeting them or other innocent women.

A System That Included a Substantive Preliminary Hearing Might Have Stopped Nifong in His Tracks

There is a saying among lawyers that a grand jury will indict a ham sandwich. And that's exactly what happened here.

Don't blame the grand jury, though. Faced with prosecutors who project total certainty, and who present witnesses not subject to cross-examination, no wonder grand juries see many cases as open-and-shut. In addition, grand juries do know that they are not the last jury that will give a verdict in the case - so they may tend to pass the buck in cases of uncertainty. And this particular grand jury was operating under a special limitation: It was deciding whether to indict on evidence that should not have been admitted (such as the profoundly unfair photo lineup identifications), presented by a prosecutor willing to do anything to push the case forward, including lie and cheat.

A change in procedure might have led to a very different result in this case - and also in others. The defendants retained talented attorneys. Let's imagine that they had had an opportunity, at a preliminary hearing, to present the evidence in their favor-- presenting time-stamped photos and cab receipts showing one defendant was not there when the rape was claimed to have occurred, pointing to the lack of DNA evidence, and noting the accuser's wildly conflicting stories given to the police the night of the attack. With the combination of this powerful evidence, and the chance to cross-examine the expert who had been unwillingly led by Nifong to offer only partial evidence, the defense might have stopped the case right there.

Instead, Duke may well go down in history as the worst "ham sandwich" of the Twentieth Century: a case that should never have been indicted, let alone prosecuted.

Jonna M. Spilbor is an attorney and legal analyst on "Kelly's Court," airing daily on the Fox News Channel. Spilbor is also the host of a call-in radio show Thursdays on WPDH FM, and is a frequent guest commentator on MSNBC, Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.

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