Another Mosteller Article

In a question-and-answer session last month, I was asked what lessons other states could draw from the lacrosse case. I suggested that the case showed the benefits of open-file discovery (without which Mike Nifong clearly would have concealed all exculpatory evidence) and the need for all states to enact due process-friendly identification procedures.

In his second major article on the case (his previous article appeared in Fordham Law Review; this one was published by George Mason Law Review), Duke Law professor Robert Mosteller tackles the first of these issues. He convincingly argues that North Carolina’s open file discovery law made possible the discovery of Nifong’s transgressions, which in turn set up the Bar’s decision to prosecute him. In this respect, Mosteller suggests, it’s best to view the Nifong affair as one step in a continuum of prosecutorial misconduct, beginning with the Gell case and including the Honeycutt case.

Broad ethics guidelines about a prosecutor’s responsibility, according to Mosteller, are extremely difficult to enforce: “These cases, including Nifong’s disbarment, demonstrate the difficulties inherent in professional discipline of prosecutors, even in clear cases of ethical misconduct. The ethical duty to ‘do justice’ is hardly a real source of discipline.” Instead, he contends, the three cases “show the importance of concrete standards of conduct, such as an obligation of full disclosure, which apply to the mundane details of the investigation as well as the exculpatory. Such requirements have the definite advantage that they can be enforced in the first instance without relying on a prosecutor to recognize, or a trial court to find, the exculpatory potential in material in the investigative file.”

Mosteller spells out the case against open file discovery more clearly than those North Carolina prosecutors who last year attempted, unsuccessfully, to weaken the state’s law. There are three arguments, he writes, against the concept: “First, broader discovery permits criminal defendants to develop effective perjured testimony to meet the revealed details the prosecution will offer; second, broad disclosures will reveal identifying information regarding prosecution witnesses and will permit witness intimidation; and third, because the defendant is protected by the Fifth Amendment, reciprocal disclosures required of the defense will inevitably be more limited. Further summarized, the traditional argument against further discovery is that broader discovery tilts the balance of advantage, which already favors the defendant because of various procedural protections such as the requirement of proof beyond a reasonable doubt, too far or unfairly to the benefit of the defendant.”

The interests of justice, nonetheless, trump these concerns. The Gell, Honeycutt, and Nifong affairs demonstrate “the paramount importance of a broad and sure disclosure requirement in criminal cases that, in the first instance, helps prevent failures of ethical standards from ever occurring because little opportunity is allowed for misjudging what is potentially exculpatory evidence. Where an initial failure occurs, such pro-visions also assist the court and opposing counsel in learning of the failure at a relatively early stage in the proceeding”—which is exactly what occurred in the lacrosse case.

Mosteller’s argues details the Bar’s difficulties in obtaining stern discipline against the prosecutors in the Gell case (who he strongly implies deserved a harsher punishment than they received) and former D.A. Honeycutt. He spends most of his lacrosse case section analyzing Nifong’s failure to turn over the exculpatory DNA evidence. Mosteller notes the stark differences between the key sections of Dr. Brian Meehan’s two reports, the first of which was issued on May 12, 2006, the second in January 2007. The sections read as follows, with Mosteller’s emphasis added:

Individual DNA profiles for non-probative evidence specimens and suspect reference specimens are being retained at DSI pending notification of the client. Three of the reference specimens are consistent with DNA profiles obtained from some evidence items and the analysis of these specimens is below.

Individual DNA profiles for evidence specimens (item numbers 15772, 15776, 15785, 15816-15818) consistent with male profiles that did not match DNA profiles from any reference specimens and DNA profiles for reference specimens . . . were being retained at DSI pending notification from the client . . . .

“The difference in the italicized language,” Mosteller observes, “is striking” (and is a critical reason why Dr. Meehan and DNA Security are facing a civil suit). “Elsewhere in the report these specimen numbers are identified as obtained from the panties, the rectal swabs, and the combing of the pubic area. The language of the first report suggests inconsequential results; the revised report’s language speaks of significant and exculpatory conclusions.”

The State Bar’s grievance committee brought charges against Nifong for two reasons (the DNA withholding and the improper public statements), but Mosteller contends that “the lion’s share of the work [in exposing Nifong] was done by the discovery statute. Its routine application produced the basis for further requests, and its standard requirement of full disclosure established an expectation of compliance that the trial judge treated as routine. The persistent work of excellent counsel moved the process of further disclosure forward step by step and established, in the process, a record of Nifong’s deceptive statements in court that was at the center of his undoing.”

Mosteller praises the defense attorneys for repeatedly pressing the issue with Nifong in court hearings—giving the DA an opportunity to come clean or seal his own fate by repeatedly lying. He astutely suggests that Nifong’s weeklong delay in handing over the underlying DNA test results (which were due on October 20, 2006, but which weren’t delivered until October 27, 2006) probably had a political motivation—the DA worried his failure to turn over exculpatory evidence would be revealed before the election.

Even once Nifong turned over Meehan’s files, Mosteller notes, “few defense attorneys, most of whom like [Brad] Bannon have minimal scientific training, would have had the ability to do what he did even if they had the perseverance and could commit that amount of time to the task, which he believed was only gaining a better understanding of incriminating but ambiguous scientific results.” The lesson: “for indigent defendants, trial courts should freely grant requests for expert services to help the defense understand the significance of the evidence. Disclosure of data under Brady means little if it cannot be understood. Moreover, if as this case demonstrates, prosecutors may not flag the significance of the data, ready access to expertise is the only meaningful alternative.”

What’s the overall legacy of not only the lacrosse case but also the Gell and Honeycutt affairs?

“Full disclosure solves, or at least helps solve, Brady issues. With regard to all these cases, there is no clear indication that any evidence was given to the defense because the prosecutor chose to provide exculpatory evidence or any court ordered the production of Brady evidence. As best I can determine, even in the Duke Lacrosse case, I can find no discretionary ruling that the trial court made in terms of discovery that was tilted in favor of the defense. Rather, the judges accepted the representations of the prosecutor and denied the innovative or unusual requests of the defense.” [Recall the rejected requests by Judge Stephens to require Meehan to memorialize his conversations, or by Judge Smith to require Nifong to specify when, exactly, he believed the “crime” occurred.] “The judges only granted what the discovery law required and did so in step by step fashion as the defense demonstrated the existence of the evidence and the law’s application to it.”

In Mosteller’s opinion, quite beyond Nifong’s complete lack of ethics, a structural problem exists: “Ethical principles, Brady, and our adversary system require a prosecutor to operate with a type of split personality.” On the one hand, the prosecutor is supposed to do justice and hand over exculpatory material. But “for a prosecutor who has reached the conclusion that the accused is guilty, which obviously should be updated as new evidence is received, there can be no true exculpatory evidence.”

The solution: full open-file discovery, which “is obvious as a remedy for the difficulty of subjective choice in a competitive adversarial environment.”

Mosteller’s conclusion is well-taken:

The disbarment of Nifong will likely help. The sanction imposed sends a strong message, and surely it will encourage future disclosures of potentially exculpatory evidence. However, the message to be taken from North Carolina’s experience, including both its failures and triumphs in prosecutorial discipline, is that broad disclosure laws make the real difference.

I will keep this post up for a few days before folding it behind the glossary; the next major posts will come in around nine weeks, unless something significant in the case occurs before then.