Nifong & Prosecutorial Misconduct

Two serious studies of Mike Nifong and prosecutorial ethics have recently appeared. The first, a quite extraordinary CQ Researcher issue with a feature article by Kenneth Jost, positions the Nifong affair as part of a broader national debate about how extensive prosecutorial misconduct is and what can be done to prevent it. The second, a forthcoming article by Boston College Law School associate dean Michael Cassidy, builds off Cassidy’s presentation at Duke Law School, contending that some of Nifong’s statements ought not to have been considered ethical violations.

As the Jost article points out, “formal statistics showing the extent of prosecutorial misconduct or the frequency of discipline are all but nonexistent.” In general, the defense attorneys Jost interviewed see the Nifong affair as illustrative of a broader problem; most prosecutors consulted for the article contend that Nifong was an anomaly. The answer is probably in between—since, as Jost also notes, the line between ethical and unethical conduct can sometimes (not, of course, for Nifong) be murky.

His article is organized around three questions:

1) Should courts make it easier to reverse convictions resulting from prosecutors’ mistakes?

2) Should state bars increase penalties and sanctions for mistakes by prosecutors?

3) Should prosecutors be subject to civil lawsuits for misconduct?

Of the above issues, Jost discovered the most consensus on the third question, with the danger of frivolous suits seeming to guard against changing current law, which gives prosecutors all but total immunity. Commented Oregon district attorney Josh Marquis, one of Nifong’s leading prosecutorial critics, “If every prosecutor thought that every defendant with a grudge could bring a civil action against them, a lot of crimes would go unprosecuted.”

(It’s worth remembering that Nifong is being sued not for actions that he took as DA but for his behavior in his role as supervisor of the police investigation, a position he assumed on March 24, 2006, eight days into the case.)

On the second point, former Maine attorney general James Tierney doubts the power of State Bar Associations to regulate prosecutors. In the end, prosecutors themselves need to do the work: “The most important mechanism is the prosecutorial world itself. Prosecutors should not join ranks behind a fellow prosecutor without thinking about it. There should be increased debate within the prosecutorial community about these issues.”

(On that point, the Duke case leaves a mixed legacy: while the North Carolina Conference of DA’s issued a critical late December letter demanding that Nifong recuse himself from the case, the organization also offered, privately, to assist Nifong as late as September 2006, well after much of his ethical misconduct already was in the public record.)

It would seem that the most effective way to limit prosecutorial misconduct would be for judges to toss out convictions in cases where the prosecutor had misbehaved. A precedent for such behavior exists: the exclusionary rule, one of the hallmarks of the Warren Court’s civil liberties jurisprudence. The principle: even though guilty people might go free as a result of such rulings, it’s more important to preserve the integrity of the system and to provide a deterrent effect against police breaking the rules in how they obtain evidence.

Yet, as Jost uncovers, tough-on-crime judges have proven very reluctant to overturn verdicts based on prosecutorial misconduct. In this respect, it might be not prosecutors themselves or even state bar organizations but judges who can do the most to redress the problem exposed by the Nifong case.

Jost also ties the Nifong case into broader debates—such as former AG Alberto Gonzales’ decision to force the midterm resignations of nine U.S. attorneys—about prosecutorial discretion. As the article observes, prosecutors possess enormous power. The Nifong affair provide a case study of how the system can break down entirely when prosecutors abuse their discretionary authority.

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Jost’s work is worth reading for anyone with access to CQ Researcher. Cassidy’s, on the other hand, is no more persuasive than when he presented it in abridged form at the September conference.

Cassidy cites Minnesota Republican Party v. White to suggest that the North Carolina Bar’s ethics rules limiting a prosecutor’s ability to publicly comment on a case are too broad.

Minnesota Republican Party invalidated a state law limiting what judicial candidates (Minnesota elects its judges) could say about issues upon which they might have to rule as judges. The principle behind the law was to preserve judicial integrity: we like to think that judges base their decisions on the facts and the law, not on their political beliefs. In oral arguments, however, Justice Antonin Scalia foreshadowed the Court’s eventual ruling, essentially saying that if states were foolish enough to have elected judges, they’d have to live with the consequences, rather than expect the Supreme Court to alter the First Amendment on their behalf.

Cassidy argues that, as Nifong was a candidate for election during the time of the lacrosse case, the Minnesota Republican Party precedent suggested that some of his remarks constituted protected speech. Minnesota Republican Party forbade judges from commenting on issues that might appear before the bench, a much broader restriction on speech than that limiting a prosecutor from commenting on a specific case that he himself plans to try. That said, I could have imagined a Scalia-like critique of the Bar’s ethics code, suggesting that if North Carolina is foolish enough to elect its DA’s, it has to live with the consequences of a DA who politicizes a case to advance his own electoral interests.

Cassidy, however, doesn’t make that argument. His first problem is a difficulty in concealing a bias about the case itself. For instance, he criticizes the “Disciplinary Commission’s rush to disbar Mike Nifong for very badly mishandling a high profile criminal case.”

Yet his article presents no evidence that the DHC “rushed” its process. More important, the charges against Nifong went well beyond his “very badly mishandling a high profile criminal case”—which could suggest that Nifong was merely an incompetent, perhaps North Carolina’s version of Inspector Clouseau, not a poster child for unethical behavior.

Meanwhile, as he did at the September conference at Duke, Cassidy peculiarly refers to Crystal Mangum as “the victim.” He never explains how—if a crime did not occur—an accuser can be “the victim.” In this case, of course, the description is particularly outrageous, since the Attorney General publicly declared the players innocent, even as “the victim” offered myriad contradictory and wildly implausible tales. Indeed, his willingness to label Mangum “the victim” makes it hard to take seriously anything else Cassidy says.

Cassidy’s article raises objections to the ethics code that might be reasonable—but had no bearing on the ethics case against Nifong.

For instance, he detects “ample room to argue that no compelling government interest supports some of the presumptively ‘off limits’ topics set forth” in the ethics code, such as the identity of witnesses. “What compelling government interest,” Cassidy asks, “justifies precluding a prosecutor from identifying the witnesses to criminal proceedings?”

Perhaps none—but the matter is irrelevant to this case. Nifong was never charged with improperly identifying prospective witnesses.

Likewise, he disagrees with the ethics code’s probation on a prosecutor publicly commenting on the “identity or nature of physical evidence expected to be presented.” “This too,” concludes Cassidy, “may be overbroad.”

Indeed it might. But, again, this issue wasn’t raised in the Nifong case.

When moving to the case itself, Cassidy has a disturbing tendency to offer hypothetical comparisons or to shade the facts of the lacrosse case to make Nifong’s conduct appear more benign than it was.

For instance, he contends that the ethics code “harbors a lurking vagueness problem,” in that it restricts prosecutors from making a public statement that “(1) refers to the character, reputation, or criminal record of a party, suspect or witness, and subparagraph (2) refers to the ‘existence or contents of any confession… or statement’ given by a defendant or suspect, or their failure to give such a statement.” [emphasis in original]

To illuminate the rule’s vagueness, Cassidy sets out the following hypothetical:

Imagine the case of an armed bank robbery committed by three perpetrators. One of the suspects is shot and killed by police as he flees the bank and dies at the scene. Could the prosecutor, consistent with Rule 3.6, talk to the media about the prior criminal record or deathbed confession of that deceased accomplice?

Incredibly, to Cassidy, this comparison is “more than a rhetorical question.” He explains,

Mike Nifong made several statements to the media that were disparaging of the Duke Lacrosse team generally, including criticizing them for being “hooligans” and for failing to come forward with information. Yet only three of these players were indicted. When one reads the disciplinary opinion and the transcript of the hearing order, one cannot help but be left with the impression that the panel believed Mike Nifong had impermissibly tainted the reputation of the entire Duke Lacrosse program. Is it permissible to discipline Nifong for comments related to suspects who were never indicted, and therefore could not have had their adjudicatory proceedings tainted? What “compelling” interest does the state have in preventing a prosecutor from discussing alleged “hooliganism” of varsity athletes at an elite university, or their tendency to stick together in the face of adversity?

But, of course, Nifong didn’t discuss the “alleged ‘hooliganism’ of varsity athletes at an elite university.” He never used the word “alleged” in any of the statements cited by the Bar in its complaint. Instead, he stated, “I would like to think that somebody [not involved in the attack] has the human decency to call up and say, ‘What am I doing covering up for a bunch of hooligans?’”

Moreover, Nifong’s repeated statements that the players had failed to come forward with information was not a generic discussion of the tendency of “varsity athletes at an elite university . . . to stick together in the face of adversity”—it was an outright lie. The captains had come forward, voluntarily, as Nifong knew before making his statements. The attorney representing most of the other players (Bob Ekstrand) had offered to share information, as Nifong knew before making his statements.

The public comments relating to this matter for which Nifong was disciplined were remarks in which Nifong had lied about the facts of a case in which he had assumed the lead investigator’s role. Cassidy’s wording, on the other hand, makes it appear as if Nifong was sanctioned for comments that might have appeared on a PBS roundtable about athletes’ sociology.

Cassidy also suggests that two other statements for which Nifong was sanctioned—“What happened here was one of the worst things that's happened since I have become district attorney” and “When I look at what happened, I was appalled. I think that most of the people in the community are appalled”—would not have survived “strict scrutiny if challenged on First Amendment grounds.”

Why? These statements “were simply expressions by a sitting district attorney, running for re-election [sic], about why he viewed the allegations in the case as serious, why the public should be equally concerned about them, and why he had chosen to prosecute the case personally rather than assign the case to a staff member.” [emphasis added]

But, of course, in neither of the statements cited by Cassidy did Nifong speak of “allegations.” In both remarks, the ex-DA definitively stated that something happened. Why, then, did Cassidy pretend otherwise? Moreover, by the time he made these statements, Nifong’s office had announced to the world that there 46 and only 46 suspects in the case—the white members of the Duke lacrosse team.

Finally, Cassidy faults the DHC for sanctioning Nifong for merely repeating items in the public record. “For example, the disciplinary complaint alleged that Nifong violated Rule 3.6 by revealing to Newsweek in April 2006 that the examining nurse on the morning after the alleged attack concluded that the victim [sic, Crystal Mangum] had suffered injuries consistent with sexual assault.” The matter, notes Cassidy, was in the public record, courtesy of the March 23 NTO prepared by Nifong’s assistant, Tracey Cline, and signed by Ben Himan.

But, of course, the description was untrue. Nothing in SANE nurse-in-training Tara Levicy’s report “on the morning after the alleged attack” concluded that Mangum “had suffered injuries consistent with sexual assault.” Levicy, of course, would subsequently make such a claim, just as she would subsequently and repeatedly shift her story about what “the victim” did or did not tell her during the SANE exam. Cassidy’s position appears to be that because the police and one of his chief deputies falsely described a key piece of evidence, Nifong should have been ethically cleared to publicly repeat this false description.

There is, in short, nothing in the Cassidy article to suggest the DHC misjudged the Nifong case. For those with access to CQ Researcher, however, the article provides an excellent jumping-off point for a discussion about how the Nifong affair can illuminate broader issues.