Monday, June 18, 2007, at 6:04 PM ET
Why you won't see a disbarment like Mike Nifong's again.
By David Feige
Now that justice has prevailed in the Duke rape case, with the nice innocent boys exonerated and the prosecutor who hounded them disbarred, it is tempting to chalk the whole incident up to an unusual and terrible mistake—a zany allegation taken too seriously by a run-amok prosecutor. It would be pretty to think that Nifong's humbling suggests that our system of justice works well, harshly punishing the few rogue prosecutors who subvert the legal process. But this is simply not true.
Prosecutors almost never face public censure or disbarment for their actions. In fact, it took a perfect storm of powerful defendants, a rapt public, and demonstrable factual innocence to produce the outcome that ended Mr. Nifong's career. And because only a handful of prosecutors will ever face the sort of adversaries Nifong did or come close to the sort of scrutiny the former DA endured, the Duke fiasco will make little difference in how criminal law is practiced in courthouses around the country. Regardless of Nifong's sanction, the drama leaves prosecutorial misconduct commonplace, unseen, uncorrected, and unpunished.
As Angela Davis explains in her book Arbitrary Justice: The Power of the American Prosecutor, young prosecutors too often see their goal as winning rather than doing justice. The culture of their offices and the adversarial nature of the criminal justice system push them in this direction. Over time, they move further toward, and eventually across, the line separating fair play from systemic manipulation. How often this actually happens is hard to say. Because more than 90 percent of the criminal cases result in pleas, most instances of prosecutorial misconduct never even come to light. Nonetheless, in the rollicking back and forth of a normal state trial, it is a rare case in which problems involving the withholding of potentially exculpatory evidence (as Nifong was accused of doing) don't arise. In most of these instances, a judge deals with late disclosure by adjourning the trial to give the defense more time to respond, or by issuing an ineffectual reprimand. This isn't exactly remedying the problem.
There are, of course, a few particularly egregious cases that leave visible traces in appellate records. A 2003 study by the Center for Public Integrity found nearly 11,500 such cases. Of them, four out of five were shrugged off as harmless errors. And as previously noted in Slate, of the 2,012 cases since 1970 in which appeals judges actually threw out an indictment, conviction, or sentence because of prosecutorial malfeasance, in only 44 did prosecutors even appear before state ethics boards to answer for their actions. Another indicator: A Chicago Tribune investigation found 381 Illinois murder convictions that were reversed because prosecutors withheld evidence or prompted witnesses to lie. The number of those prosecutors publicly sanctioned or disbarred as a result? Zero.
Mike Nifong did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution. The fact is that few if any prosecutors wait for corroborating evidence or insist on more than one person's say so before initiating a sexual assault prosecution. Indeed, they'd be vilified if they did. The cardinal rule of sexual assault complaints is "believe the victim," and since anyone who complains is deemed a victim, even a semi-credible complainant can generate an arrest and prosecution in the absence of physical evidence, additional witnesses, or even a prompt accusation. This isn't just the case in Durham; it's true almost everywhere. The widespread support for this questionable practice is such that if the Duke case had gone to a jury and the defendants had been convicted, Nifong would not only still have his law license—he'd have been lionized for his dogged pursuit of rich white kids.
In addition to the charge that he temporarily withheld key evidence from the defense, Nifong faced disbarment because of his public excoriation of the former Duke students. His statements, it was alleged, crossed the ethical line by whipping up public sentiment against the young men, making it harder for them to get a fair trial. As a prosecutor, Nifong obviously had a special obligation to fairness. But in an era of breathless, round-the-clock coverage of big criminal cases, his over-the-top remarks were often defended. Within hours, a cadre of current and former prosecutors flooded the airwaves to condemn the young men, lament their devious ways, and defend Nifong's press strategy. In the heat of the moment, Joshua Marquis of the National District Attorney's Association insisted, "when someone has been arrested for a scandalous crime, the public has a right to know why you brought the charges." And Wendy Murphy, a former sex-crimes prosecutor, opined with no basis whatsoever about the physical evidence related to the sexual assault charges, "There's likely to be stuff in [the DNA report] that the defense doesn't like."
Later, of course, the same prosecutors who so vigorously defended Nifong's conduct became vocal proponents of a severe sanction. Marquis has worried over the undermining of prosecutorial authority, due to the "Nifong effect," and Murphy has also recently edged away from the former DA. What once played as reasonable conduct is now portrayed as the misdeeds of an outlier. A simple calculus explains the shift: If Mike Nifong's conduct is commonplace, then the whole system is corrupt. If other DAs do what he did, then we have to face up to how widespread and corrosive prosecutorial misconduct really is—a discussion Marquis and Murphy and other prosecutors would strongly prefer to avoid.
Though the Duke case has been spun from the outset as a parable about race, it has always been far more about class, access, and power. From the beginning, the three boys had extraordinary legal talent, unusual political access, and significant press savvy. With a steady stream of exculpatory evidence and investigative triumphs that would have eluded all but the wealthiest of defendants, the defense team mounted an extremely well-funded and successful public campaign, exerting tremendous pressure on Nifong and other state officials. In the end, the Duke defendants orchestrated Mr. Nifong's downfall and also won an outcome almost unheard of in our criminal justice system—a pretrial exoneration.
The disbarment of Mike Nifong, and the civil suit or even criminal charges that are almost sure to follow, might seem a pleasing end to a sad saga. And yet Nifong is a scapegoat. Despite their terrifying power to ruin lives, prosecutors are afforded almost unparalleled discretion to do their jobs and extraordinary deference from the courts. As a result, serious sanctions for prosecutorial misdeeds are virtually unheard of. This makes it highly unlikely that Nifong's comeuppance will deter aggressive prosecutors. Instead, his punishment will be seen for what it is: a freakish anomaly.
David Feige is the author of "Indefensible:
One Lawyer's Journey into the Inferno of American Justice".