I’m back in the United States, and yesterday participated in a lacrosse-case roundtable at the SEALS conference. My views on the case are, obviously, well-known to any reader of the blog. But here’s a summary of some points presented by the other panelists.
Nifong’s behavior took the case off the rails from the start. He probably believed (or allowed himself to believe) that Crystal Mangum was raped, but did nothing right.
Coleman explained the fraudulent lineup for those in the audience who hadn’t heard of it.
He (correctly) termed Nifong “unsophisticated” in dealing with the media, and chastised the national press for turning the case into a Tom Wolfe novel.
Nifong, he noted, wasn’t incompetent—he fully understood what he was doing, at every stage of the process. The only difference: he didn’t get away with it this time. Coleman observed that the unusual aspect of the case came in the State Bar/AG intervention, and predicted that such a scenario would be very unlikely to occur again.
A lesson of the case, in his opinion: the press needs to care more generally about what prosecutors are doing. There’s no accountability for rogue prosecutors.
An inherent tension exists between a prosecutor as accountable to local voters and the need for a prosecutor to be an independent decisionmaker.
Nifong’s early actions might have been justified because sexual assault complaints by black women rarely are taken seriously. Davis excoriated Nifong for withholding the DNA evidence, but suggested the original indictment might have been justified*. (I don’t think that viewpoint can be reconciled with the AG’s finding of actual innocence.)
Davis argued that prosecutorial misconduct is rampant in the United States—she noted that in cases with plea bargains (95 percent of the total), people don’t get any sense of the prosecutor’s handling of events. She urged state bar associations to be more aggressive in going after prosecutors who violate ethical standards, and called on judges to be more aggressive in referring prosecutors who misbehave to Bar grievance committees.
Davis praised Brad Bannon’s work in the case and pointed out that his experience shows why public defenders need far more resources to do their jobs adequately.
She also chastised the press for paying more attention to the falsely accused lacrosse players than minority victims of prosecutorial misconduct. It’s worth remembering, however, that the press also paid more attention to the initial charges against the lacrosse players. Without that initial burst of publicity, it’s hard to imagine that the press would have picked up the story midstream and simply focused on Nifong.
I also pointed out that the North Carolina NAACP—which might have made the connection between the Nifong behavior and the normal victims of prosecutorial misconduct—instead aggressively sided with Nifong. But Davis suggested that the state NAACP had little power, and seemed not to see their performance in the lacrosse case as worthy of criticism.
UNC Law professor Michael Gerhardt
The case demonstrates our dysfunctional media system in covering legal events. The Duke lacrosse case perfectly played into the 24/7 news cycle, providing a good show for the media.
Nifong’s behavior also demonstrated the profound wrongs of trying a case in the public eye. Gerhardt pointed out that Nifong’s conduct caused the defense attorneys to appropriately recognize that they needed to get facts out to counter the false narrative the D.A. had created.
Gerhardt termed it a mistake to expect that the media will perform an educational role in covering criminal justice issues. Journalists, he reasoned, have too much trouble focusing on simple facts. The solution to the problem is to ensure that prosecutors have the right kind of ethics, since public accountability through elections is rarely a check for prosecutors. Davis agreed with this point.
University of Florida Law professor Lyrissa Lidsky
As Nifong gave 50+ interviews in the initial days of his involvement, it would have been hard for the media not to have taken account of what he said. But most journalists—at least early on—didn’t stop to consider the tremendous power of a prosecutor’s statement, especially in a national media firestorm.
The lacrosse case provided an “irresistible story” for many in the media, because of its dualities (differing races, classes, genders, etc.).
What should the media keep in mind in covering such cases? Journalists, Lidsky argued, needed to be particularly careful in reporting pre-indictment matters—and she believes the falsely accused players might very well have had grounds for a lawsuit against some journalists’ coverage of the case, especially since the lacrosse players in no way could be considered public figures or even involuntary public figures. She cited the Richard Jewell and Stephen Hatfill cases as illustrating the danger of the media’s rush-to-judgment culture.
Lidsky singled out the Times for criticism, noting that the mainstream media is too often like “sheep,” following the Times’ lead.
*Prof. Davis clarifies below: "I can't imagine that I used the word 'justified.' If I did, I certainly did not mean that I agreed with Nifong's decision to indict. What I said was that there was nothing illegal or improper about him bringing the indictments. My point here was that indictments are based on the low standard of probable cause, and indictments are brought every day based on the word of the complainant alone. Most states do not require corroboration in rape cases. This is the law. That doesn't mean that I personaly agree with this low standard for bringing indictments. Any person who has read my work knows that throughout my professional life (as a PD and law prof) I have criticized the low standard for bringing indictments. I was stating the law as it is, not as I would like it to be. I also offered what I believed to be a possible explanation for why Nifong pursued the prosecution in the first place (his desire to treat black rape complainants the same as he would white complainants). I then went on to say that he engaged in misconduct when he withheld the exculpatory evidence."