The Lesson in the Mike Nifong Debacle
The transcript of the disbarment ruling for Durham D.A. Mike Nifong is now available here. The Sunday papers will be filled with editorials about Nifong's disgraceful conduct. But, the money quotes are these:
The prosecutor, as any defense lawyer will tell you, is imbued with an aura that if he says its so it must be so. And even with all the constitutional rights that are afforded criminal defendants, the prosecutor merely by asserting a charge against defendants already has a leg up. And when that power is abused, as it was here, it puts constitutional rights in jeopardy. We have a justice system but the justice system only works if the people who participate in it are people of good faith and respect those rights.
....It is very difficult to find any good in this situation that brings us here. I can only think of a couple things. One is that there are very few deterrents upon prosecutorial misconduct. For very good policy reasons, prosecutors are virtually immune from civil liability. About the worst that can happen to them for the conduct of a case is that the case can be overturned. The only significant deterrent upon a prosecutor is the possibility of disciplinary sanction. And here the most severe sanction is warranted.
While many, and perhaps most prosecutors don't cheat and lie, Nifong is not the only one. This happens to many defendants all over the country who don't have the resources for top-flight lawyers who will fight for them to the end.
According to the Innocence Project,
DNA exonerations have exposed official misconduct at every level and stage of a criminal investigation. This misconduct has included:
- deliberate suggestiveness in identification procedures
- the withholding of evidence from defense
- the deliberate mishandling, mistreatment or destruction of evidence
- the coercion of false confessions
- the use of unreliable government informants or snitches
On a national level, here's a chart of the states with wrongful convictions and a description of their causes, including prosecutorial misconduct.
How do we fix the system? We need Innocence Reform Commissions. In North Carolina, they are already in place. What they do:
Guilt sells in America, Innocence doesn't. The Duke case is an exception in that for once the media and the public are focusing on innocence and wrongful prosecutions. We need to apply what we've learned from the Duke/Nifong case and make sure there is an Innocence Commission in every state.
Update: Last Night in Little Rock weighs in on his 4th Amendment blog.
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