Prosecutorial Indiscretion

Sunday, December 31, 2006

"THE PROSECUTOR has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated, and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations."

Robert H. Jackson, then the U.S. attorney general, spoke those words to a group of federal prosecutors in 1940. But they ring disturbingly true today about the conduct of Durham County, N.C., District Attorney Michael B. Nifong in prosecuting three Duke University lacrosse players. Just before Christmas, Mr. Nifong dropped rape charges after the accuser said she "could no longer testify with certainty that it occurred." But the three men remain charged with kidnapping and first-degree sexual offense, which carry equally severe penalties. Mr. Nifong should drop those charges as well.

It's been clear for months that Mr. Nifong's case -- to the extent he has a case -- is riddled with flaws that raise serious questions about his motives and ethics. The accuser's story has been inconsistent and unreliable -- and that was even before the latest interview with the prosecutor's office, in which, according to his filing, she said she could no longer be certain she had been penetrated with a penis. The physical evidence was scant at best; the identification procedure -- the woman was shown photographs of only Duke lacrosse players -- was shockingly shoddy; one defendant seems to have an alibi.

In recent weeks, Mr. Nifong has admitted that he failed, as required, to turn potentially exculpatory information over to the defense: test results that showed the presence of semen from several other men, but not the Duke players, in swabs taken from the woman's body and clothing. Mr. Nifong says it was an accidental oversight. Yet the director of the DNA laboratory says that he and the prosecutor agreed to leave that information out of his report because it was so "explosive." If so, Mr. Nifong has a bigger problem than a botched prosecution. He should be subject to further ethics proceedings by state bar authorities, who filed charges Thursday against him for making inflammatory and misleading comments about the case in its early days.

In an interview with the New York Times, Mr. Nifong said that "until [the alleged victim] tells me these are not the right guys, we're prosecuting this case.'' But Mr. Nifong badly misconceives his job as a prosecutor, which is not simply to robotically prosecute claims or seek a conviction at all costs but to make an independent analysis of whether justice would be served by continuing with the case.

The prosecutor, as Robert Jackson said so many years ago, "can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just." Those are not adjectives anyone would use to characterize Mr. Nifong's behavior.

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