The Phantom Menace

Having seen events undo Duff Wilson’s transparently pro-Nifong slant on the case, the New York Times still has missed the crux of the story. The editorial page remains silent on the highest-profile case of prosecutorial misconduct in modern American history. Meanwhile, a column by the normally first-rate Adam Liptak left the impression that the three accused players might still be getting special treatment—not because they might be guilty, but because Mike Nifong was punished for offenses that normally don’t result in disbarment.

The misconduct that cost the prosecutor in the Duke lacrosse case his career certainly seemed to call for a severe penalty: he withheld evidence from the defense, misled the court and inflamed the public.

Yet other prosecutors found by the courts to have done similar things have almost never lost their jobs or their licenses to practice law. Even in the aftermath of prosecutorial wrongdoing that helped put innocent men on death row, discipline has been light or nonexistent.

Let’s remember, again, the misconduct that Nifong committed, based on the results of his ethics trial:

1. Nifong, facing a contentious primary election, was trailing badly in the polls. After exclaiming “you know, we’re fucked” when the officers in charge told him of weaknesses in the case, he nonetheless gave between 50 and 70 interviews to the local, state, and national media, in which he expressed absolute certitude that a racially motivated gang rape occurred.
   
2. After the two main officers involved conceded the investigation had reached a “stalemate,” Nifong ordered them to run a third photo lineup, only this time bypassinfg procedures and confining the lineup to suspects.
3. Nifong sought the first two indictments without even reading the transcript of that lineup, and overriding police objections that they weren’t sure one of the accused (Reade Seligmann) was even at the party.
4. After obtaining the first two indictments, Nifong refused even to meet with lawyers for Seligmann or Dave Evans, even though the attorneys said they possessed evidence to prove their clients’ innocence.
5. After learning from a DNA lab director that the DNA of multiple unidentified males was found upon Crystal Mangum, Nifong turned over to the defense a report that didn’t contain this information, and then falsely claimed to two judges that he had turned over all exculpatory evidence.

Who, precisely, are the “other prosecutors found by the courts to have done similar things”? Liptak doesn’t say.

Take, for instance, the first element of misconduct (the false and unethical preprimary statements). What prosecutor in the last 10 years engaged in behavior “similar” to Nifong on this count? Liptak doesn’t say.

In light of the misconduct even Liptak describes, how can the Times defend its editorial page silence and pro-Nifong news slant throughout the case? Again, Liptak doesn’t say.

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The basic argument outlined by Liptak has been expressed, in far more extreme form, elsewhere. The Nifong-as-Christ letter in the Herald-Sun was the most obvious example; here are some others:

John Heath, in the Washington Post: “I wonder whether he would have faced the same public outcry had the students he prosecuted been poor, black and from, say, North Carolina A&T rather than being wealthy and from Duke University. The news is full of examples of poor or black defendants who are convicted, only to have those convictions overturned because of prosecutorial misconduct similar to Mr. Nifong’s, such as the withholding of exculpatory evidence.” [emphasis added] Heath cited no examples of “prosecutorial misconduct similar to Mr. Nifong’s.”

Boston’s Martin Evans, in the Herald-Sun: “Please tell me why the Durham district attorney is under so much fire for bringing charges against three affluent Duke students. People are exonerated every day, some after having spent up to 25 years behind bars as a result of prosecutorial and/or police misconduct. The media does zero follow-up on those stories. How were these kids harmed more than people who actually served time and lost their whole youth to jail?”

Ed Wiley, of Black Entertainment Television: “The speed at which ‘justice’ kicked into high gear for the three White men accused of committing crimes against a Black woman is dazzling. But for many African Americans, including lawyers who have represented Black men falsely accused of rape only to see their prosecutors get off without so much as a rap on the knuckles, the entire Duke case is a study in racism and classism.”

Michelle McMillan, in the Greensboro News-Record: “Mike Nifong should never have had to step down as district attorney. He did what he was elected by the people to do. I wonder if we will go after all attorneys who have prosecuted innocent men and take their licenses. Let’s consider the countless African American men who have been falsely accused of rape with no evidence against them. These men’s lives have been destroyed, but no one cares . . . I say give Mike Nifong back his job. We need fair men like him.”

Michele Alexandre, in blackprof.com: “Anyone who has worked or participated in the American justice system can’t help but to feel utter bewilderment at the announcement of Mike Nifong’s disbarment. Defense Attorneys are constantly combating the manipulative actions of prosecutors and police officials in cases involving non-white accused.”

BlogHer.com: “While it certainly is troublesome to be accused of a crime that you didn’t commit, how many other people are out there who do are incarcerated for crimes they didn’t commit? When they get out of jail, are the lawyers that prosecuted them disbarred?”

Such arguments fall flat on two grounds. First, as NYU’s Stephen Gillers observed in the Times article, “The very same facts that made this case attractive to a prosecutor up for election and a huge publicity magnet—race, sex, class, lacrosse stars, a prominent university—also led to his undoing when the case collapsed and his conduct was scrutinized in and beyond North Carolina.”

The above correspondents appear to be engaging in revisionist history, conveniently forgetting the massive early media coverage; Newsweek’s decision to place two players’ mugshots on the cover under the headline “Sex, Lies, and Duke”; or TV commentators comparing the players to Adolf Hitler. None of the correspondents indicate any displeasure with this guilt-presuming coverage. Yet if the case had attracted little or no media attention at the beginning, it’s hard to believe it would have attracted significant media attention at the end.

Second, Heath, et al., engage in the same flawed comparison as the Liptak piece in the Times. Prosecutors, they claim, routinely have engaged in behavior similar to—or even worse—than Nifong, and have escaped any punishment. Who are these flagrantly unethical prosecutors? Like Liptak, Heath, et al., don’t say.

Perhaps ferreting out these unrevealed individuals can be a new crusade for the Group of 88.