Rime of the Ancient Prosecutor
Durham County District Attorney Mike Nifong, the prosecutor in the Duke lacrosse case, has been disbarred by the North Carolina State Bar. (See here and here). The Bar found that Nifong's actions involved "dishonesty, fraud, deceit or misrepresentation." Among his most egregious actions were withholding DNA evidence from the defense, calling the students rapists in the media, and conducting a photo identification that used only pictures of the lacrosse team members.
The Committee Chairman called the entire matter a "fiasco," and even Nifong seems to agree at this point. And it's true, it was a fiasco--the Duke case is now remembered mostly as a failing of the criminal justice system, rather than as a case of entitled, indulgent Dukies exploiting their privilege within the community.
But the Sports Law Blog makes a case on Nifong's behalf, arguing that what Nifong did was try to "protect women from being raped and promote their coming forward by taking them seriously even when the only witnesses are them and the alleged broomstickers."
I completely disagree with that post's idea that Nifong is owed any kind of apology--he deserved disbarment. But, I can't help but ask the same question Sports Law Blog asks: "So when will the next prosecutor take a case where it’s his word against hers?" The next time there is an accusation of rape, and it has the potential to roil an entire community, will the prosecutor take the preliminary steps necessary to reach a sensible decision? Or will s/he think about Duke, and about Mike Nifong, and decide it probably isn't worth the trouble or worth the risk of false accusations?
Nifong used the media to prosecute and denied the defendants basic due process rights, and for that he deserves disbarment. He also ignored a mountain of exonerating evidence. But, at least until that exonerating evidence became obvious, I can't blame him for believing a distraught young woman's accusations. It is, after all, often nothing more than a prosecutors' willingness to believe a victim that gives a rape law its efficacy. I only hope that the Duke case does not cast a shadow over future allegations of rape, and that prosecutors investigating rape allegations avoid wearing a Nifong-sized albatross round their necks.
The Committee Chairman called the entire matter a "fiasco," and even Nifong seems to agree at this point. And it's true, it was a fiasco--the Duke case is now remembered mostly as a failing of the criminal justice system, rather than as a case of entitled, indulgent Dukies exploiting their privilege within the community.
But the Sports Law Blog makes a case on Nifong's behalf, arguing that what Nifong did was try to "protect women from being raped and promote their coming forward by taking them seriously even when the only witnesses are them and the alleged broomstickers."
I completely disagree with that post's idea that Nifong is owed any kind of apology--he deserved disbarment. But, I can't help but ask the same question Sports Law Blog asks: "So when will the next prosecutor take a case where it’s his word against hers?" The next time there is an accusation of rape, and it has the potential to roil an entire community, will the prosecutor take the preliminary steps necessary to reach a sensible decision? Or will s/he think about Duke, and about Mike Nifong, and decide it probably isn't worth the trouble or worth the risk of false accusations?
Nifong used the media to prosecute and denied the defendants basic due process rights, and for that he deserves disbarment. He also ignored a mountain of exonerating evidence. But, at least until that exonerating evidence became obvious, I can't blame him for believing a distraught young woman's accusations. It is, after all, often nothing more than a prosecutors' willingness to believe a victim that gives a rape law its efficacy. I only hope that the Duke case does not cast a shadow over future allegations of rape, and that prosecutors investigating rape allegations avoid wearing a Nifong-sized albatross round their necks.
posted by Max Power at 3:38 PM
7 Comments:
I wish charges were publicly pursued against the accuser, or at least the possibility were seriously considered. There is nothing that young professional men are more helpless against than a false accusation of rape.
I hate the idea of women being "chilled" from coming forward, but the reality that some woman can merely point a finger at me after a consensual sexual encounter and effectively destroy my career is frightening.
I worked for awhile in criminal defense and I have read extensively about the "medical evidence" of rape and it is a bunch of scary bullshit with little technical validity. Most of the evidence that they point to as indicative of rape occurs naturally during sex in a MAJORITY of women. Granted, when a women comes in all black and blue there is a valid inference, but it is scary what prosecutors get away with using as medical evidence of rape sometimes.
Couple that with the fact that the nurses who perform the preliminary sexual assault response examanation are far from the most unbiased people to be writing a report, and you end up with a somewhat flawed system.
Honestly Max, I just don't see it.
I mean, it would be one thing if Nifong was being disbarred for bringing a case that ultimately did not result in the conviction of the alleged rapists. But that's not why he's being disbarred. He's being disbarred for the reasons you alluded to at the beginning of your post. He withheld DNA evidence, he made gross and inaccurate statements to the media, used an improper photo identification, and who knows what else.
I certainly would hope - and I certainly believe - that Nifong's disbarment won't have a chilling effect on potential rape charges. What I hope - and believe - is that Nifong's disbarment will have a chilling effect on prosecutors who are willing to go way, way, way over all legal and ethical lines to make their cases. If nothing else comes out of this, maybe Nifong's legacy should simply be this: if you're a prosecutor, and you have DNA evidence that is exculpatory towards one of the defendants in your case, ummm, you should probably turn that evidence over to that defendant. And you should probably drop the charges too.
There's lots of evidence out there that rape is woefully underreported, and woefully underprosecuted. That's a real problem. But that problem didn't come from, and won't be made worse by, Nifong being shit-canned and disbarred.
"entitled, indulgent Dukies exploiting their privilege within the community."
Lame. Sometimes it's easier just to complain than to think about what you're actually saying.
The families of the players used their wealth to attempt to prove the boys' innocence. It worked. And they *were* innocent. It's hard to see that as "exploiting" anything.
One of the boys even expressed fear in his statement, after the charges were dropped, that people without resources were being railroaded by excessively aggressive prosecutors. Seems like a very valid concern to me, and a very noble one.
wt, I think you misinterpret what I meant by that comment. I'm not criticizing them for using their resources to prove their innocence. I think what happened to them is terrible. In fact, I've thought Nifong deserved disbarment from about the first week or two of the case, when he went on tv and said the boys shouldn't have needed lawyers before talking to him if they were really innocent.
But, that doesn't change the fact that many of them are a bunch of entitled, indulgent assholes--or lacrosse players, as they are sometimes known. Would it really have been unfair to disband the team after they hurled racial insults at two strippers they hired? Would it have been unfair for a student to be kicked out of school after sending an email saying he wants to skin the strippers alive?
I think it's terrible what Nifong did, and there is no reason that these kids should have gone through all this. But calling them indulgent, entitled, and privileged, as a general matter (not as to how they conducted their defense), is being pretty kind, actually.
My point was that this whole episode was something that might have allowed for an honest discussion of the role athletes play on campuses, as well as the relationship between a university and its surrounding (often poorer) town. That discussion got lost, however, because of a rogue prosecutor. I think that's too bad, because it would be a good discussion to have.
Yes, there's really nothing those poor, defenseless young professional (rich, white, racist, violent) men (i.e. boys who were hiring strippers for their booze-fueled frat part) could have done. Cry me a f'in river.
Now, I don't mean to come across as the prototypical, white-male-hating Boaltie leftist - I'm really not - but honestly, those dumb kids got a much needed wake up call.
"[T]he Duke case is now remembered mostly as a failing of the criminal justice system, rather than as a case of entitled, indulgent Dukies exploiting their privilege within the community."
I'm happy to hear you don't mean what I thought you meant initially. But I think the words you used were sufficiently imprecise that no other interpretation was possible.
The email about skinning strippers alive wasn't part of the "Duke case," not were the racial insults. These weren't from Finnerty, Evans, or Seligman. Other students at the party used the n-word, and one brought out a broomstick as a suggested "sex toy." None of this is part of the "Duke case." Or at least not part of the common understanding of what the "case" involved, namely the prosecution of the 3 players.
Your other point---about whether these acts justify cancelling the Lacrosse season (they do)---is a red herring, but also one that doesn't help your case. The Lacrosse players *couldn't* exploit their resources to get their season back. It was lost for all of them when 3 of them were charged.
Your broader argument about how the fact that bona fide instances of racism are being ignored because the prosecutor abused his discretion is obviously correct. And of course it's sad that that's the case. But accusing the 3 players of exploiting their privilege (which you didn't, apparently, do, but which was the reasonable understanding of your words) doesn't help this at all.
Nifong is an angel compared to the bold felonies of the prosecutor descibed in the below Court brief.
-- scott huminski
http://prosecutorialmisconduct.blogspot.com/2007_07_01_archive.html
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