Even if Nifong did commit a crime, should he be charged? Do we want our prosecutors worrying about becoming defendants themselves? If they deliberately suppress evidence of innocence, I think we do. The law is written to ensure that charges will be brought only against a prosecutor who was deliberately trying to completely withhold evidence that suggests innocence. Prosecutors who made a mistake, or stalled, are off the hook.
And consider this parallel: In securities cases, we indict corporate officers for obstruction of justice when they delete e-mails if we think they are trying to hide material from government investigators. Rogue prosecutors merit the same treatment. The prosecutor's obligation to disclose evidence suggesting innocence protects innocence. Prosecutors should know that when they deliberately thwart that protection, they do so at their own great peril.