The web’s best site for informed legal commentary is Volokh Conspiracy, run by UCLA law professor Eugene Volokh with contributions from 15 other high-powered law professors from around the country. I read the site every day.
Volokh recently posted an item admitting he hasn’t followed the lacrosse case closely, but was troubled by the revelation that Nifong had sought charges without ever speaking to the accuser. The post triggered a number of thoughtful replies from current and former prosecutors, providing a glimpse of how some of the better minds in the legal profession view the district attorney’s conduct.
I should note that all of these remarks occurred before Nifong’s stunning claim, first reported Saturday by Benjamin Niolet in the N&O: “If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself is an indication that a case needs to be tried.” [emphasis added]
I prosecuted a number of rape cases and other sex crimes. It would be inconceivable not to have met with an adult rape victim early on, usually with a victim assistance person present, to go through the details of what had happened. Then, you would meet a couple of times prior to trial to go through what she could expect at trial, on direct and cross. This goes double for a case where the victim has given obviously conflicting statements which are contained in the police reports . . .
In this case either a number of the cops have screwed up, or this woman has told a large number of different and diametrically opposed stories to almost everyone she talked to. You bet I would go through all of those inconsistent statements with her. A prosecutor needs to know what she said and why she said it, and also to prepare her for cross, because you can bet the defense will be asking her.
I have been skeptical of Nifong’s behavior from the beginning (if his pre-indictment comments didn’t violate the rules of professional conduct pertaining to pretrial publicity, then they just need to be repealed because they mean nothing). Maybe that colors my thoughts here too—I suspect that he doesn’t want to meet with her because any story she tells could be inconsistent with what she’s said before and therefore become Brady material. In my opinion that’s lazy, counterproductive, sneaky, and disgraceful. I think that he will create more problems for himself doing it this way. I think he has tried to take the easy way out every chance he’s gotten.
I’ve been a prosecutor for 31 years. The police do investigate, but the prosecutor makes the charging decision, and at least here (
Wayne County, including ) it would be unheard of to make the charging decision in a serious assaultive case, particularly a case of this sort, without interviewing the complainant (other than a homicide, of course). I’ve never heard of such a thing. Detroit