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.

< D.A. Mike Nifong: Disbarment | DOJ Bleeds Again >
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    The Duke case is an exeption??? (5.00 / 1) (#2)
    by Shadowmasterv01 on Sun Jun 17, 2007 at 02:23:33 AM EST
    I have observed many trials and been involved in one in my home state of Texas and from what I saw the Duke case is the norm.
    I have personally seen
      Prosecutors suddenly finding "evidence" that was lost the day of the trial and the judge letting it in without defence being allowed to see it first.
      Prosecutors delaying a trial for years but hauling the defendant in front of the judge to repeatidly offer a "deal" if the defendant will plead out.
       A prosecutor telling a defendant thet it is not his job to determine the guilt or innocense of a defendant. It is his job to put them in jail.
      A judge telling a defendant "If you continue to represent yourself I will hold you to a higher standard than I do the people."
    ]   And my personel favorite, the judge telling a defence lawyer" If your cliant continues to plead not guilty and this case goes to trial make sure he understands he will see significant jail time."
    Not if found guilty mind you, but if it goes to trial.
    In the real world of the U.S. you are guilty until proven innocent and if you think the criminal court system is bad you shold take a look at the civil system.
    And please before you blast me for this post go spend a week in a court room that is doing misdemeanor cases. It may open your eyes a bit.

    Can you explain why "misdemeanor" cases? (none / 0) (#3)
    by jerry on Sun Jun 17, 2007 at 03:18:30 AM EST
    Shadowmasterv01, can you explain why you say misdemeanor cases?  Is there a difference for felony cases?

    misdemeanor (none / 0) (#10)
    by Shadowmasterv01 on Sun Jun 17, 2007 at 11:28:03 AM EST
    misdemeanow cases are usually shorter. you can see 3 - 4 a day.

    the exception (none / 0) (#11)
    by Jeralyn on Sun Jun 17, 2007 at 11:38:14 AM EST
    is that in this case innocence has resonated with the public and the media and there finally is outrage.

    Nifong (none / 0) (#1)
    by Amaliada on Sun Jun 17, 2007 at 02:09:32 AM EST
    While I agree that Nifong wasn't a very good prosecutor in this instance (I have no information about his other cases), I did like the fact that he was willing to listen to someone without power reporting a crime allegedly committed by those with all the power.

    An African American stripper accusing college students of rape rarely gets any attention.

    Too bad that after he stuck his neck out he wasn't smart enough to bring it back in when the accusation seemed to be without merit.

    re power (none / 0) (#16)
    by zaitztheunconvicted on Sun Jun 17, 2007 at 08:26:14 PM EST
    "An African American stripper accusing college students of rape rarely gets any attention."


    How often do AA strippers accuse college students of rape?  And, of those, how often are charges brought?

    Let me put it another way.  Examine the statistics for rape.  What % of reported rapes are of the type: stripper sexually assaulted while stripping at a party?

    Is it 1 in 1000, or 1 in 10,000?

    For what it matters, doesn't it occur to you that
    persons who pay for a stripper to come and strip at their party are not normally the type who rape,
    and, what it more, the crowd environment, with some otherwise less lustful spectators, is not the easiest and most likely environment for a successful rape?  For out of 20 or 30 or 40 American college-aged spectators, will not 1-5 have some sort of conscience about seeing an unwilling female being dragged into a bathroom?

    Have you been to a strip club, or a batchelor party with a stripper?  How many of the men there are of the raping "type?"

    Some persons have a negative view of me because of my views re "child pornography."  At the same time, my Christian upbringing encourages me to report possible drunk drivers on the road, and to report suspected physical, emotional or other abuse of kids if I should encounter evidence of it, while doing something as simple as door-to-door solication for a cause.  

    Out of 35 partygoers who were seeing a stripper strip in good conscience (viewing it as harmless fun), how many--raised in churches in America--might feel bad if she were dragged away to a bathroom?  How many might dail 911?  How many might stand with her against the bullies?


    Maybe Nifong has become too honest to practice law (none / 0) (#4)
    by Michael News on Sun Jun 17, 2007 at 04:25:54 AM EST
    It sounds like Mike Nifong suspected that an underprivileged woman had been mistreated somehow, so he was going to make sure justice was done, even if it meant he had to lie a little bit. Where else have we seen that philosophy?

    -  Michael from The U.S. Desk at TheNewsRoom.com

    WMD claims? (5.00 / 2) (#7)
    by Molly Bloom on Sun Jun 17, 2007 at 08:20:37 AM EST
    michael (none / 0) (#5)
    by cpinva on Sun Jun 17, 2007 at 06:36:19 AM EST
    what you're suggesting is that machiavelli was right: the ends justify the means.

    that's not how our system of justice is supposed to work.

    Innocence Project (none / 0) (#6)
    by jnickens on Sun Jun 17, 2007 at 06:57:18 AM EST
    Has the Innocence Project been flooded with intern applications from the the lacrosse team yet?

    Who is taking a look at his previous cases? (none / 0) (#8)
    by OkieFromMuskogee on Sun Jun 17, 2007 at 09:14:30 AM EST
    Is this the first time Nifong withheld exculpatory evidence or prosecuted without benefit of evidence?  Since he was capable of such egregious conduct in a high-profile case, what would he have been doing when no one was watching?  I guarantee that he didn't start out this unethical.  It happened a little at a time.

    And I guarantee that he put a lot of innocent people in jail.

    Prosecutorial misconduct (none / 0) (#9)
    by magster on Sun Jun 17, 2007 at 09:27:14 AM EST
    is also one of the interesting tangents in the US Attorney scandal. http://www.talkingpointsmemo.com/archives/014660.php

    Long Overdue (none / 0) (#12)
    by Electa on Sun Jun 17, 2007 at 02:20:59 PM EST
    the exposing of prosecutorial misconduct.  IMO every drug case should be reexamined as to the effect rough prosecutors misconduct has had on the millions caged on bogus conspiracy charges.  A friend's son was just sentenced to 25 yrs. in MD for conspiracy....he's 25.  No drugs were found on him, no money, no evidence that he was a slinger, he going to do 25 yrs. at the mere word of 1 person who was seeking a reduction.  I really fight hard to find compassion for these young men eventhough I strongly feel Nifong was a ding dong in the manner in which he attacked those young men and warrants the punishment.

    When I was incarcerated 98% of the women at Alderson had taken a plea bargin for fear of, as you mention, the threat of going to trial netting a greater sentence.  The majority are there on the big CONspiracy serving on average of 60 mos.  There are no support systems for these women when they hit the streets other than ill ran half way houses.  

    My eyes were opened to this so-called justice system and the Prison Industrial Complex, UNICOR and legalized slavery.  What the general public fails to understand, because they really don't give a damn, is the effects prison labor is having on everyday working class people.  If labor can be purchased at .15/hr why pay $15 + fringes.  At the time of my discharge Alderson UNICOR was negotiating a call center contract.  So between outsourcing, cheap illegal and legal immigrant labor and UNICORE middle class American is rapidly vanishing into a thing of the pass.    

    Those young men will recovery from Nifong's ungodly assult on them.  As a Black woman I apologize for the young woman allowing this beast to use her in that fashion.  Her actions will make it difficult for sistahs with ligitimate rape offenses for years to come.  The Duke Lacrosse boys are forever ingrained in this society's minds as the white boys who were falsely accused by a Black stripper and there lives ruined.  Nifong will so soom be forgotten but the sistah will live on forever in the minds.  She will not recover.  

    And, now an entire community must deal with the brand of supporting a corrupt, vicious prosecuting attorney for political purposes.  The pain and suffering extends far beyond the 3 Duke Boys.  The next challenge is to start the healing process.

    Most prosecutors don't lie? (none / 0) (#13)
    by Yes2Truth on Sun Jun 17, 2007 at 06:22:29 PM EST

    Do you know of any evidence, empirical or otherwise, in support of the notion that most prosecutors don't cheat or lie?

    Isn't the opposite more likely to be the case?  That is to say, prosecutors who don't cheat or lie are the exception, not the rule.

    I was being gracious (none / 0) (#14)
    by Jeralyn on Sun Jun 17, 2007 at 06:36:35 PM EST
    since there are no stats I'm aware of.  In my 30 plus years as a defense lawyer, I have encountered many more honest than dishonest prosecutors.  It's not their honesty I have a problem with, it's more their views on penalties and who they characterize as dangerous and needing substantial prison time.

    Sorry. I wasn't thinking about your career ... (none / 0) (#15)
    by Yes2Truth on Sun Jun 17, 2007 at 07:17:26 PM EST

    when I posted that comment.  I certainly understand the need (for all of us) to be prudent
    and cautious in our comments.

    In general, I agree wholeheartly with nearly everything you write.  And despite my desire for someone other than Sen. Clinton to be the Democratic nominee, I have only admiration for you
    being invited to participate in that conference on blogging.  That was quite an honor and I'm sure your contributions were intelligent, reasonable, and additive to the efforts of all of us who desire a Democrat in the White House, come 2009.


    Jeralyn (none / 0) (#17)
    by Claw on Sun Jun 17, 2007 at 11:15:00 PM EST
    You have more experience than I do but I'd like to second your comment.  I have rarely come across prosecutors lying/withholding evidence.  The norm, unfortunately, is overcharging, a disregard for prosecutorial duties as "officers of the court," and the very real, very destructive trial tax.  
    I'm terribly sorry for your experience but you'll be happy to know that a prominent drug task force in my jurisdiction has been exposed as being so corrupt and dishonest that judges--who are not normally wont to do things like this--have been frankly informing prosecutors that they will presume these officers to be lying under oath (we're generally talking about motions to suppress, etc.)  Sad it had to come to that...
    You also mention reexamining cases.  It's very difficult to do so successfully.  This is why many Innocence Projects focus on DNA evidence; it's usually an absolute nightmare to exonerate someone without it.

    nusunautarch1 (none / 0) (#19)
    by cpinva on Mon Jun 18, 2007 at 05:46:47 AM EST
    that's among the more idiotic comments i've seen, regarding this issue. nowhere has there been any hint, allegation, innuendo, rumor, etc. of Klan involvement. frankly, they just aren't that competent.

    very little is mentioned of the racist comments made during the course of the evening's entertainment because, loathsome though those comments may have been, they weren't illegal. as such, they failed the relevancy test, with regards to the actual issue at hand: the alleged rape of the lady in question.

    if there's a lesson to be drawn from this sad episode (and i'm not yet convinced there is), it's that even the justice system has its limits; all you need is lots of money, for a bank of high-powered attorneys, a really flaked out prosecutor and accuser, and good media representation, to achieve it.

    aside from all that, the status is still quo.

    Huh? (none / 0) (#21)
    by Claw on Mon Jun 18, 2007 at 09:06:02 AM EST
    What on earth are you talking about?  Cpniva is right on here.  The Klan is incompetent and irrelevant.  They're a side show.  I was born, raised, and still live in the Deep South.  The Klan used to hold rallies about 20 minutes from my house.  They've given that up because they're at a point where undercover reporters practically outnumber real klansmen.  
    Your comment that "if all the men now serving time for rape and there was no DNA was let out...[ellipsis for some reason] the jails would be empty," is probably the craziest thing I've read all week.  There would still be plenty of rapists convicted by DNA, drug offenders, etc., etc.  
    Your comment regarding putting one of "our" "white female in a convertible and letting them drive around" is too stupid to address.  
    Finally, if the Duke players used foul language (and I consider the N-word to be the foulest of the foul) that is reprehensible.  It does not justify a false accusation of rape.  Have you ever been charged with a crime you didn't commit?  Convicted?  If you answered yes to either question you know that it absolutely destroys lives.  Ask yourself this: if a black man had been accused of raping a white woman with no DNA (save other contributors) and with evidence of rampant prosecutorial misconduct, would you think he was guilty?  I certainly wouldn't.  It is terrible and true that non-whites do not receive a fair shake in our justice system.  That does not justify putting innocent people in jail.      

    The lesson.... (none / 0) (#22)
    by kdog on Mon Jun 18, 2007 at 10:30:26 AM EST
    for corrupt prosecutors is to check the account balance of the person(s) you're trying to railroad before you bring the charges.

    Heh (none / 0) (#23)
    by Claw on Mon Jun 18, 2007 at 01:03:36 PM EST
    Unfortunately that may be the lesson some prosecutors learn.