Live-Blogging; Additional Charges Justified?

I’m in Raleigh today, and will be live-blogging the preliminary hearing in Mike Nifong’s ethics case. The hearing is scheduled for 4.00 this afternoon.

On the docket, a motion filed by Nifong’s lawyers to dismiss the charges relating to Nifong’s withholding of exculpatory DNA evidence. It’s the job of historians to analyze the past, not predict the future, but I feel pretty safe in forecasting that Nifong’s motion will not be granted.

The more intriguing question: in light of Attorney General Cooper’s unequivocal announcement Wednesday, will the bar amend its complaint to add additional charges? Cooper’s words and actions suggest that the Bar should consider this course.

In his remarks Wednesday, Attorney General Cooper stated,

We believe that these cases were the result of a tragic rush to accuse and a failure to verify serious allegations. Based on the significant inconsistencies between the evidence and the various accounts given by the accusing witness, we believe these three individuals are innocent of these charges . . . We have no credible evidence that an attack occurred in that house that night . . . [emphasis added] Our investigation shows that:

The eyewitness identification procedures were faulty and unreliable. No DNA confirms the accuser’s story. No other witness confirms her story. Other evidence contradicts her story. She contradicts herself. Next week, we'll be providing a written summary of the important factual findings and some of the specific contradictions that have led us to the conclusion that no attack occurred.

In this case, with the weight of the state behind him, the Durham district attorney pushed forward unchecked. There were many points in the case where caution would have served justice better than bravado. And in the rush to condemn, a community and a state lost the ability to see clearly. Regardless of the reasons this case was pushed forward, the result was wrong. Today, we need to learn from this and keep it from happening again to anybody.

Cooper, in short, was unequivocal: the players were innocent, and no evidence existed (apart from an accuser’s myriad, mutually contradictory stories) to justify the charges.

Rule 3.8(a) of the North Carolina State Bar Rules of Professional Conduct states that a prosecutor shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

The burden of proof under Rule 3.8(a) is high. But the wording of the rule—“refrain from prosecuting”—makes clear that it applies not merely to the decision to indict, but the decision to continue prosecuting a case. Regardless of what Mike Nifong may or may not have believed on April 17, then, Roy Cooper’s remarks leave little doubt that Nifong was in violation of this rule by the time he recused himself from the lacrosse case.

Cooper’s decision to accompany the dismissal of the charges with an outright declaration of the players’ innocence gives the Bar a green light to amend its complaint. The organization should seize the opportunity.