Nifong in Law Reviews

The “Nifong effect,” obviously, will long outlast the lacrosse case. The N&O recently reported how Nifong’s behavior had affected the state legislature’s consideration of criminal justice legislation in this session. In February, Nifong was cited by different federal courts (in United States of America v. Humberto Fidel Regaldo Cuellar and Billy Slagle v. Margaret Bagley) as an example of a prosecutor run amok. And Nifong has begun to appear in law reviews, with at least five published articles discussing various aspects of the case.

With one important exception, these articles referenced Nifong in passing, as an example for the author’s main thesis. The exception—a review of the media’s coverage through the prism of feminist law—provides a troubling perspective on how the politically correct still are trying to fit the case into their metanarrative.

The most convincing of the five articles comes from Loyola (CA) law professor Laurie Levenson, a former federal prosecutor and frequent talking head on cable news legal affairs programs. Levenson’s article focused on the LA-centric theme of “celebrity prosecutions.” She offered two main lessons: that “high profile cases are more, not less, likely, to create conflict issues for prosecutors” and that “prosecutors must safeguard their objectivity when interacting with the media.” (39 Loy. L.A. L. Rev. 1237)

“Each of the lessons,” she correctly observed, “would seem to apply to Nifong’s situation, which is only the latest high-profile case to emerge.” In words that could have described Nifong’s mindset, Levenson argued that “interaction with the media, the increased zeal ‘to win the big one,’ and the reluctance to decline a high-profile assignment increase the chances that a prosecutor will face a conflict issue . . . These are the types of issues that often require third party advice from, for example, an ethics expert in the prosecutor’s office. There is too much temptation for the individual prosecutor to justify his or her decisions as one made in the best interest of the case. A person not so invested in the case is often in a better position to make that decision.”

Of course, in the lacrosse case, Nifong frequently spoke of himself as the office’s ethics expert—perhaps one reason why he had such problems.

Levenson also realized that “the one thing that distinguishes high-profile cases from other types of cases is the amount of publicity they receive. It is nearly impossible for prosecutors to avoid interaction with the media in high-profile cases. However, prosecutors can—indeed are expected to—interact with the media in a responsible manner. To ensure this, the ethical codes set standards for trial publicity.”

Of course, in the lacrosse case, Nifong’s behavior provides a case study of how prosecutors should not interact with the media.

Levenson’s perceptive conclusion: “High-profile prosecutors must be ready for prime time. Their every move will be under scrutiny . . . It is actually quite surprising how often high-profile prosecutors find themselves in ethical dilemmas.”

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Levenson’s article was the only one of the five that made its case convincingly. In the University of Richmond Law Review, Justin Curtis reasoned that “Double Jeopardy protection should be restricted to its proper scope by eliminating the protection in non-capital cases under very narrow circumstances: when new and compelling evidence arises post-acquittal that identifies the acquitted as the guilty party.”

Among Curtis’ arguments for reevaluating the Constitution’s preventing people from being twice tried for the same crimes: we live “in an age where the media and state bar disciplinary procedures serve as checks on prosecutorial misconduct.” According to Curtis, “An excellent example of this proposition is found in the so-called ‘Duke Lacrosse Rape Case.’”

Curtis obviously didn’t spend too much time reading the New York Times or the Herald-Sun, which served not as checks but as virtual cheerleaders for prosecutorial misconduct. And, indeed, in this highest-profile case of prosecutorial misconduct in modern American history, the State Bar acted immediately (rather than waiting until after trial) only because of a tie-breaking vote cast by the Grievance Committee chair.

Whatever are the appropriate lessons to take from Nifong’s behavior, ending double jeopardy because we have sufficient checks on unethical prosecutors isn’t among them.

Nor should the Nifong case reassure people, as Saby Ghoshray suggested in the New England Law Review, that “when jurors become empowered as a result of exposure to complex forensic evidence owing to their television viewing, it becomes easier for both the prosecution and the defense to present objective evidence in the form of forensic testimony, which levels the playing field of the criminal justice system.”

Ghoshray only brought up the Nifong affair in passing, when he noted that “jurors not only bring their cognitive framework and objective evaluation into the decision-making process, but they are also painfully aware that the wheels of justice take wrong turns and may be at the mercy of a manipulating police officer or a vengeful prosecutor.” He suggested that “an appropriate case” showing this point “is the heavily publicized case involving the Duke lacrosse students accused of rape.”

I wish what Ghoshray says were true. But it’s worth remembering that last November, the potential jury pool in Durham County elected Mike Nifong—suggesting that even though they were “painfully aware that the wheels of justice take wrong turns and may be at the mercy of a manipulating police officer or a vengeful prosecutor,” 49 percent of those who went to the polls basically didn’t care. That’s not a reassuring lesson.

Finally, the law review of Brad Bannon’s law school, Campbell, recently published an article examining the balance between society’s right to the fair administration of justice and the free speech rights of criminal defendants.

Mattei Radu theorized that the ABA’s Model Rule 3.6—which gives defense attorneys the right to respond publicly to counteract the effects of bad publicity for which their clients aren’t responsible—“represents a compromise between competing positions and interests. As such, not surprisingly, it has many discontents. Admittedly, the rule is not perfect. Nevertheless, Model Rule 3.6 has been given an extremely difficult task and, all things considered, it has performed that task admirably.”

In theory, the lacrosse case should bolster Radu’s argument. The defense attorneys made perfectly appropriate use of motions and other public remarks to counteract some of the effects of Mike Nifong’s unethical behavior. Moreover, from the stand in Nifong’s ethics hearing, Brad Bannon gave a great example of how attorneys could use 3.6 appropriately: when he heard from the Times’ Duff Wilson that the paper was planning a pro-Nifong piece, he and other attorneys were within their rights to give Wilson information that might show the truth. And, once Wilson ignored this information, defense lawyers were within their rights to point out publicly where Wilson was wrong.

Unfortunately, Radu spent most of his time on Nifong’s remarks, not those of defense attorneys, and therefore never really showed why the lacrosse case illustrated the merits of Model Rule 3.6.

The only law journal article exclusively published on the case came in the Southern Illinois University Law Journal. That will be the focus of tomorrow’ post.

[A full-disclosure concluding point: in several recent comment threads, Group of 88 members or sympathizers have cited the concept of peer review to suggest that outsiders, including professors who do not specialize in the field, must refrain from describing--much less expressing any critical comments about--personnel, curricular, or publication-related matters in the academy. Under this school of thought, my comments on the above pieces should carry no weight, since I am not a law professor.]