Tuesday, September 05, 2006

Discretionary Daily Double

It seems reasonable to expect a district attorney to, at the very least, describe the criminal statutes of his or her state clearly and accurately.

On April 11, the day after defense lawyers revealed no matches from DNA evidence that Mike Nifong had promised would “immediately rule out” all innocent lacrosse players, a tumultuous forum occurred on the North Carolina Central campus. The district attorney assured the overwhelmingly African-American audience–the constituency vital to his renomination hopes–that he would proceed forward despite the results. What he had promised the court a scarce 19 days before no longer applied.

Indeed, Nifong implied that he was compelled to seek indictments and carry the case through to a trial. “Anytime,” Nifong told the crowd, “you have a victim who can identify her assailant, then what you have is a case that must go to the jury, which means, in this situation, a jury will get to evaluate the evidence.” [emphasis added]

In this case, of course, the accuser–to quote Stuart Taylor–“told police and hospital personnel at least five inconsistent stories of being raped by five, three, two, and zero men (depending on the version).” And her ability to identify her alleged assailants resulted from–to quote Taylor again–“an outrageously suggestive, pick-any-lacrosse-player session that grossly violated local and state rules and (in my view) the U.S. Constitution.” The case thus lacks either an accuser in the commonly understood definition of the term or an ability to identify assailants under any definition of the concept.

But leaving aside the specifics of the lacrosse case, did Nifong clearly and accurately describe North Carolina law to the NCCU forum?

He did not.

The relevant section from the North Carolina general statutes is § 15-144.1 of the criminal procedure code, “Essentials of bill for rape.” Its section (a) states the following:
In indictments for rape it is not necessary to allege every matter required to be proved on the trial; but in the body of the indictment, after naming the person accused, the date of the offense, the county in which the offense of rape was allegedly committed, and the averment “with force and arms,” as is now usual, it is sufficient in describing rape to allege that the accused person unlawfully, willfully, and feloniously did ravish and carnally know the victim, naming her, by force and against her will and concluding as is now required by law. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for rape in the first degree and will support a verdict of guilty of rape in the first degree, rape in the second degree, attempted rape or assault on a female.
This provision lays out a minimum standard, stating that (a) grand juries can indict and (b) juries can (not must) convict a defendant in rape cases solely on the basis of the accuser’s claims and her identification of the defendant. In the era before widespread use of DNA, many, if not most, rape cases amounted to the accuser’s word against that of the accused. This provision contains nothing particularly remarkable.

The provision places no requirements, of any sort, on the prosecutor. Nowhere in its wording does it say, as Nifong asserted at NCCU, that district attorneys “must go to the jury” in cases where an accuser has claimed to identify her alleged assailants. This provision is the only one in the criminal code that even remotely addresses the argument that Nifong laid out at NCCU.

While Nifong was, therefore, misrepresenting the North Carolina general statutes at NCCU, he also was ignoring (not for the first time) his requirements under the North Carolina Code of the Professional Responsibility. Far from requiring district attorneys to bring charges in any and all complaints, the code specifically obligates prosecutors to exercise discretion. Section 3.8, comment 2 couldn’t be clearer on this point: “The prosecutor represents the sovereign and, therefore, should use restraint in the discretionary exercise of government powers, such as in the selection of cases to prosecute.” Indeed, “a systematic abuse of prosecutorial discretion could constitute” misconduct in and of itself.

Was Nifong unaware of both the general statutes and the CPR’s mandate that he exercise discretion when he made his remarks at NCCU? Or was he deliberately misleading his constituents? I’m not sure which option is worse.

In recent months, in his few public comments on the case (Nifong has yet to respond to even one defense motion), the district attorney has presented a new version of the “obgligated-to-go-to-a-jury” argument. “If the prosecutor personally believes in a defendant’s guilt,” according to a statement from Nifong issued shortly after the NCCU forum, “it would be a violation of his moral responsibility to the victim and to his community not to prosecute a case because doing so was not popular, or because he was worried that he might not win at trial.”

In this particular case, of course, how Nifong reached his “personal belief” is of major concern. He boasted of having made up his mind no later than March 27, even as mounds of evidence came in after that date. Despite the clear obligations of the CPR, he refused to meet with Kirk Osborn, Reade Seligmann’s attorney, to consider exculpatory evidence. And then, when Osborn filed a motion detailing that alibi evidence, Nifong asserted that he didn’t look at it: “I just don't have as much time for reading fiction right now,” he said. (This comment came even as Nifong admitted that he finds time to read and critique blog coverage of the case). You’d more expect this kind of response from a 10-year-old who clasped his hands over his ears to avoid hearing his parents tell him to clean his room than from a figure who, as the CPR notes, “represents the sovereign.”

But leaving aside the specifics of the lacrosse case, did Nifong clearly and accurately describe North Carolina law in his April statement?

He did not.

No one, to my knowledge, has called upon Nifong not to prosecute this case “because doing so was not popular”–indeed, his handling of the case has proved to be very popular, at least with constituencies critical for his re-election. As to the latter point, however–the relationship between a “moral responsibility to the [alleged] victim” and the likelihood of prevailing at trial–the CPR is clear: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” His first “moral responsibility” is to the system, not to the accuser; he is supposed to exercise discretion on whether and how to proceed.

The CPR suggests that a district attorney's "personal belief" in a case is not sufficient to move forward. According to the ethics guidelines, no case should be brought "that the prosecutor knows is not supported by probable cause," but this belief alone does not, according to the code, waive the obligation to exercise discretion. Prosecuting a case where one of the accused is on a videotape a mile away at the time of the alleged crime all but defines abuse of prosecutorial discretion.

In Nifong’s world, prosecutors lack any and all discretion. Instead, they are compelled to lurch forward whenever they encounter an accuser (however inconsistent or incredible her stories) who can (by whatever procedurally dubious means necessary) identify her alleged assailants.

This is a convenient rationalization for the district attorney's conduct over the past five months. Unfortunately, this interpretation of a prosecutor’s obligations ignores the text of both the North Carolina general statutes and the state bar’s Code of Professional Responsibility–a daily double rarely achieved even by someone as ethically challenged as Nifong.

Update, 12.36pm: The always-sharp Talk Left forums have a post noting (correctly) that it's "alarming" that the statute allows Nifong to "go forward with little more than an accusation and a name, without the need for any coherent 'theory,'" albeit with one other requirement: a "date." The date in this case is highly problemmatic for Nifong: though he once mused about trying the case according to "my timeline," Reade Seligmann's arrest warrant says March 14 for the date of the "crime." This date hampers any hope Nifong might have had of moving the timeline forward to position the "crime" at a time when Seligmann didn't have an air-tight alibi.

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