Mosteller on the Case

A few months ago, I posted on the disappointing early coverage of the case from law reviews. The most recent Fordham Law Review corrects the problem, in a lengthy article by Duke Law professor Robert Mosteller. He astutely argues that the lacrosse case shows the insufficiency of ethical rules requiring prosecutors to do justice and to not prosecute cases without probable cause, and concludes with some sensible recommendations to make ethics rules more likely to protect the innocent.

Mosteller opens bluntly: “Often a full examination of the facts of a notorious case reveals that events were ambiguous and the reality is not as bad as early reports suggested. This case does not fit that pattern; it gets worse on inspection.” Indeed, he contends, “The Duke lacrosse case is extraordinary both in the clarity of its facts and in the violation of the prosecutor’s fundamental duty to do justice.”

The Duke Law professor also has no doubt as to the identity of those responsible for the fiasco: Mike Nifong and Crystal Mangum. He writes,

Mangum’s story of rape and kidnapping was a total fabrication—either a hoax or a false allegation based on delusion. Mangum’s separate conduct does not diminish Nifong’s responsibility as the public prosecutor controlling the case, and, indeed, it made his ethical duty to do justice even more important. Instead, Nifong either vitally aided a hoax or caused an unfortunate delusion to have serious societal and legal ramifications.

Mosteller summarizes the case, Nifong’s withholding of DNA evidence, the DA’s ethically improper statements, and the Bar’s prosecution of Nifong. But he focuses his article on the most disturbing element of Nifong’s conduct—the DA’s decision to prosecute without probable cause, to attempt to try people who were demonstrably innocent. Mosteller notes that the Bar—correctly—did not charge Nifong with violating Rule 3.8(a), which states that “[t]he prosecutor in a criminal case [shall] . . . refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

The language of that rule, Mosteller suggests, makes a violation almost impossible to prove. How, in effect, could the Bar prove that the prosecutor “knew” that the case lacked probable cause—especially in a state like North Carolina, where the prosecutor could argue that a grand jury indictment proved that probable cause existed?

Mosteller reasons that if Nifong couldn’t have been prosecuted under the rule’s provisions, it’s hard to imagine a more egregious case anytime soon. (“The attorney general’s lengthy list of reasons to question the accuser’s version of events,” he writes, “makes objectively based belief in guilt quite difficult. Indeed, it appears that the attorney general’s report makes an effort to avoid overstatement and thus may be modest in its presentation. When one examines the mass of questions regarding the accuser’s reliability presented by the defendants’ motions to suppress identification, objective belief in guilt becomes even less supportable.”) Therefore, he concludes, the current ethical rules requiring prosecutors to “do justice” are “completely inadequate,” and the Bar needs to find ways to address the issue in other ways.

Mosteller is particularly penetrating in his discussion of Nifong’s March 31, 2006 to order the police to run a third lineup—only this time, to be confined to lacrosse players. Sgt. Mark Gottlieb, who presided over the affair, went out of his way to tell Mangum that she would be shown photos only of people the police believed attended the party. He ridicules as “weak” the various excuses that the DPD leadership, Gottlieb, Det. Himan, and Nifong offered for the “outrageous” April 4 procedure.

According to Mosteller, “A prosecutor with ‘a mindset of the true skeptic, the inquisitive neutral’ would not have organized the procedure that was utilized. Regardless of whether it was suggestive, it provided the investigation with no real test of the accuracy of the accuser’s identification. Furthermore, it did nothing to rule out a hoax or delusion.” Indeed, by creating a lineup with no real fillers, “it enabled the hoax or delusion to proceed.”

Mosteller engages in a long and interesting discussion about the unreliability of current legal doctrines to guard against witnesses who are either delusional or intent on perpetrating a fraud. Courts, he notes, are extremely reluctant to suppress in-court ID’s, even if they came from outrageously suggestive procedures.

The lacrosse case, in this respect, is yet again an exception—he argues that the “masterful” defense motion to suppress the lineup, by concentrating “on the shifting versions given by the accuser of the events and the strong reasons to doubt a rape took place at all,” powerfully suggested “that the story, which includes the identification, is simply not reliable.” As Lane Williamson did at the Nifong ethics hearing, Mosteller argues that Judge Smith would have suppressed the lineup at the never-held February hearing, which would have ended the case.

Mosteller concludes his discussion of the lineup with a powerful point:

Regardless of its aberrant facts, the Duke lacrosse case teaches an important lesson regarding identification procedures: more than just actions that relate to the due process standard can deny justice. I assume that prosecutors generally do not violate their most basic duty to “do justice” and accusers do not often attempt to perpetuate frauds or suffer from a total and persistent delusion, and it should be rare that both happen simultaneously in the same case. But here we have one such case.

He praises the legislature’s decision to impose uniform lineup standards throughout the state, and to give judges authority to instruct juries on the potential unreliability of identifications when police or prosecutors violate the procedures. But Mosteller adds that judges and legislators should seriously consider how suppressing any identification, including in-court ID’s, might be the only way to “do justice” when identification processes are sufficiently flawed.

All in all, the article is a fascinating read, and I recommend it highly.