WAPO on Prosecutiorial Indiscretion

A Washington Post editorial today calls for an end to the prosecution of the Duke Lacrosse players.

It recalls the words of U.S. Attorney General Robert Jackson in 1940:

"THE PROSECUTOR has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated, and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations."

....The prosecutor, as Robert Jackson said so many years ago, "can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just."

Relating the words to the Duke case, the editorial continues,

Mr. Nifong badly misconceives his job as a prosecutor, which is not simply to robotically prosecute claims or seek a conviction at all costs but to make an independent analysis of whether justice would be served by continuing with the case.

Now that the state bar has filed its ethics complaint against Nifong, it's time for him to step up and recuse himself from the case. Any decisions he makes from this point forward will be suspect and riddled with questions about his motives.

There does need to be a dismissal of the charges, but it must be for the reason that the alleged sexual assault and kidnapping didn't happen, not because the prosecutor decides its the expedient thing to do after being served with a bar complaint. The players are entitled to nothing less.

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    This is a dead horse (5.00 / 0) (#1)
    by plumberboy on Sun Dec 31, 2006 at 12:14:56 PM EST
    This case is dead even if those boys did misconduct themselves it will never stand in court.I personally doubt those kids did anything other than hire a stripper for a party.Nifong has killed his career as well I hope they persue the misconduct charges against him and prosecute.The power the crimnal justice system holds should always be used with caution and freedom in mind,and not be abused for some sort of witch hunt to further ones political carreer this type of crap goes on way to much and is never caught.

    dahlia lithwick has (none / 0) (#2)
    by cpinva on Sun Dec 31, 2006 at 01:58:06 PM EST
    an interesting commentary in slate magazine, regarding the prosecutor's job, vis a vis mr. nifong's performance in the duke case.

    to listen to mr. nifong, he's compelled to proceed, predicated on the accuser's word alone. of course, the heart of prosecutorial discretion is that it is the prosecutor's decision whether or not to go forward, not the accuser's.

    mr. nifong has flailed about, for the better part of a year now, as his case disintegrates around him. were it only his life and reputation being ruined, that would be livable. it's not. he should be made answerable for all the other lives and reputations he's taken down with him.

    Nigogs (none / 0) (#3)
    by koshembos on Sun Dec 31, 2006 at 03:49:06 PM EST
    How many Nifongs do we have? If death penalty cases are any indication, we do have quite a few.

    Rape allegations and Prosectorial Descretion (none / 0) (#4)
    by atlanta lawyer on Tue Jan 02, 2007 at 01:48:12 PM EST
    The current way of thinking for prosecutors provides, that, except for cases where the defendant can prove his own innocence, rape allegations are always procecuted because no woman would fabricate such a story and we went through centuries where women were victimized and nothing was done about it.  That's where the political pendulum just is on these things.  Of course, even if you generally support those assumptions, you have to admit it's possible that a woman could fabricate a rape allegation for various reason. And if it's possible, there needs to be a release valve, a way to come clean.  It's rather easy to through allegations around, it becomes harder to go through the legal process and continue the fabrications. But if there's full-blown media coverage, and a DA in a rush to indict with strong evidence of innoncence, the woman gets backed into a corner and it makes it difficult for her to come clean.
    It's all about political expediency.  They can claim "we just thought a jury should decide" sounds humble.  Of course, the trial strategy of Mike Nifong will not be to argue a dispassionate, just the facts mam, you've heard the evidence now you decide kind of case.  They will plead, cajole, beg, entertain, spin, mislead,  whatever they feel necessary to get the jury to convince the jury to convict.