"The Good Old-Fashioned Way"

During the course of the lacrosse case, three of Mike Nifong's statements should have outraged every lawyer in the country--and every person who holds even a sliver of respect for civil liberties:

1. "One would wonder why one needs an attorney if one was not charged and had not done anything wrong." (March 31)
2. "None of the 'facts' that I know at this time, indeed none of the evidence that I have seen from any source, has changed the opinion that I expressed initially.” (June 13) [Nifong expressed his initial opinion on the case on March 27, before most of the evidence in the case came in.]
3. "DNA results can often be helpful, but, you know, I've been doing this for a long time, and most of the years I've been doing this, we didn't have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them." (April 11)
   

In yesterday's New York Times, attorney Thomas Schlafly offered the only possible retort to Nifong's "old-fashioned" comment:

There’s a big difference between convicting a defendant without DNA evidence because the technology did not exist and convicting a defendant when DNA evidence is available and the DNA results are negative.

In the first instance, there would have been no DNA evidence to counter the testimony of witnesses. In the second, such DNA evidence exists and is exculpatory.

It would seem as if three plausible explanations exist for Nifong's statement.

1. The Wilson/Glater approach in the New York Times: deem Nifong's statement credible based on assurances from unnamed "outside experts." Such a strategy prompted Stuart Taylor to wonder if the Times had transformed itself into a "witness for the prosecution."
2. The likely approach: evaluate Nifong's statement in light of his behavior throughout the case, and recognize that he was desperate for any theory to explain away evidence he promised would identify the guilty parties. He made his DNA statement a day after defense attorneys publicly revealed that DNA tests that the district attorney had promised would identify the guilty and exonerate the innocent matched no lacrosse players.
   
3. The excessively charitable approach: assume that, perhaps, Nifong was expressing a mistaken, if sincere, belief. After all, it's been some time since he prosecuted a rape case. He hasn't handled one since becoming D.A., and I strongly doubt that any rape cases crossed his desk during the half decade he spent in Traffic Court before an appointment from Governor Mike Easley revived his career.

Nifong might want to familiarize himself with the Innocence Project, which has distinguished itself for exonerating the wrongfully convicted, especially the indigent and minorities, by using postconviction DNA testing. Among the items the Project lists as causing false convictions? "Mistaken eyewitness identification." "Prosecutorial/police mistakes or misconduct."

Or the district attorney could examine the work of the NAACP's Legal Defense Fund, which similarly has championed the value of DNA evidence over "the good old-fashioned way" of doing things. The LDF joined the defense team in the first Supreme Court case, House v. Bell, to consider the question of whether DNA can be used to determine actual innocence.

The recent efforts of groups like the LDF or the Innocence Project show why Nifong's peculiar legal theories are of relevance beyond this case. Its high profile and the aggressiveness of the prosecution's actions mean that the case will provide a precedent, at least for North Carolina if not beyond.

The Nifong theory of DNA is a simple one: this scientific evidence can prove guilt but, apparently, can never exonerate. If his vision of justice prevails, groups like the Innocence Project would have no purpose, since DNA evidence could be used solely to help get convictions.

Is there any responsible legal figure outside the Durham County District Attorney's office who would embrace such an "old-fashioned" belief? If not, they should start speaking up, before the Nifong Rules extend beyond Durham and expose more innocent defendants to the pernicious effects of "old-fashioned" justice.

Hat tips: J.S., Nancy Kidder