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Lots of Prosecutors Go Too Far. Most Get Away With It.

By Jonathan Turley
Sunday, June 24, 2007

It was an extraordinary scene when Michael B. Nifong, the district attorney in Durham, N.C., took the stand to defend his law license after his failed crusade to convict innocent Duke University lacrosse players of gang rape. He had no more success with his own defense. After being disbarred for "dishonesty, fraud, deceit and misrepresentation," he was suspended from his job last week and now faces a possible lawsuit in civil court.

What's most remarkable about the whole scene, though, is how rare it is. Nifong's misconduct was hardly unusual: Some of the most high-profile cases in history have involved strikingly similar acts of prosecutorial abuse. But instead of being punished, the worst violators are often lionized for their aggressive styles -- maybe even rewarded with a cable television show.

Nifong is a classic example of the corrosive effect of high-profile cases on a prosecutor's judgment and sense of decency. Even before the players were indicted, the district attorney had played to the passions surrounding a black stripper's allegations that she had been raped by affluent white college boys. Nifong called the Duke players "a bunch of hooligans'' and promised that he would not allow "Durham in the mind of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham."

But he had a problem. The accuser kept changing her story, and there was no evidence of a gang rape. In addition to his prejudicial comments, Nifong was accused of withholding test results showing that DNA found on the woman's body and underwear came from at least four unknown males -- but none of the 46 lacrosse team members.

Nifong isn't the first prosecutor who, in his words, "got carried away" in the glare of television lights. In 1921, the silent-film star Roscoe "Fatty" Arbuckle was tried for the alleged rape and murder of a 30-year-old showgirl named Virginia Rappe during a party in a hotel suite. The San Francisco district attorney, Matthew Brady, faced a situation almost identical to Nifong's: His chief witness was less than credible.

Rappe's friend Maude Delmont dramatically described how Arbuckle had dragged Rappe into the bedroom, gleefully proclaiming, "I've waited five years to get you." She insisted that she spoke with Rappe three days later, just before the young woman died (of peritonitis caused by a ruptured bladder), and related the too perfect account of how Rappe yelled, "I'm hurt, I'm dying. He did it, Maude." In reality, rather than staying by her dying friend's bedside, Delmont had run to send a telegram to friends that read: "We have Roscoe Arbuckle in a hole here. Chance to make some money out of him."

It didn't matter. Brady was hooked. Like Nifong's conflicting DNA report, the coroner's report in the Arbuckle case found "no marks of violence . . . and absolutely no evidence of a criminal assault, no signs that the girl had been attacked in any way." Just as Nifong insisted that he had clear evidence against the lacrosse players, Brady released a statement (soon after receiving the coroner's report) saying that the evidence "shows conclusively that either a rape or an attempt to rape was perpetrated." Notably, when Arbuckle was finally acquitted in a third trial, the jury issued a written apology for the "great injustice . . . done him."

The Duke case also has some striking resemblances to the trial of the so-called Scottsboro Boys. This case of prosecutorial abuse stemmed from a fight on the evening of March 25, 1931, in which a group of black youths threw a group of white boys off a freight train in northern Alabama. When police pulled the black boys off the train, they found two white girls dressed in men's clothing also riding the train. The girls claimed that they had been held against their will, beaten and raped by the black youths.

Like Nifong, the Scottsboro prosecutors ignored the conspicuous absence of forensic and medical evidence supporting the rape charges -- particularly the lack of bruises or torn clothing. (One girl later admitted that they had made up the story to avoid getting in trouble with the law themselves.) All nine Scottsboro defendants were convicted in one-day trials and sentenced to death, with the exception of a 13-year-old boy who was spared death by one holdout juror. (After the Supreme Court intervened and after multiple trials and pardons, the accused were released years later.)

This abuse occurred because the critical safeguard of prosecutorial discretion -- the decision whether to pursue a case -- didn't protect the suspects. Despite what you see on television, the chances of being convicted in a criminal case are extremely high. Grand juries are said to be willing to "indict a ham sandwich," and it's not uncommon for prosecution offices to have conviction rates of 90 percent or higher. Some prosecutors grow callous and cavalier about their role. When told that he had secured the death penalty against an innocent man, a Texas prosecutor once reportedly boasted that "any prosecutor can convict a guilty man; it takes a great prosecutor to convict an innocent man."

History is rife with such "great prosecutors" convicting the innocent to satisfy the public. In the 1913 Leo Frank trial, Atlanta chief prosecutor Hugh Dorsey pursued a Jewish factory owner for the rape and murder of 13-year-old factory worker Mary Phagan. It was a period of intense anti-Semitism, with crowds chanting "Kill the Jew" outside the courtroom. Prosecutors ignored the fact that all the evidence pointed to a janitor, Jim Conley, as the killer. Instead, they repeatedly rewrote Conley's conflicting statements to help him manufacture a coherent account for trial. Conley was identified years later as the killer by a witness, but it was too late for Frank. He was kidnapped from prison by vigilantes (including many leading lawyers) and hanged near Mary's grave.

Prosecutors are sworn to protect the rights of the accused as well as the accuser, to refuse to pursue cases that would not serve the interests of justice. Yet in today's environment, it appears that prosecutors can never be too tough, the way models can never be too skinny.

Consider the career of Nancy Grace. Before becoming a CNN and Court TV anchor, she was a notorious prosecutor in Alabama. In a blistering 2005 federal appeals opinion, Judge William H. Pryor Jr., a conservative former Alabama attorney general, found that Grace had "played fast and loose" with core ethical rules in a 1990 triple-murder case. Like Nifong, Grace was accused of not disclosing critical evidence (the existence of other suspects) as well as knowingly permitting a detective to testify falsely under oath. The Georgia Supreme Court also reprimanded her for withholding evidence and for making improper statements in a 1997 arson and murder case. The court overturned the conviction in that case and found that Grace's behavior "demonstrated her disregard of the notions of due process and fairness and was inexcusable." She faced similar claims in other cases.

You might have expected Grace to suffer the same fate as Nifong. Instead, she has her own show on CNN, and the network celebrates her as "one of television's most respected legal analysts." On TV, she displays the same style she had in the courtroom. (In the Duke case, her presumed-guilty approach was evident early on, when she declared: "I'm so glad they didn't miss a lacrosse game over a little thing like gang rape.")

The Grace effect is not lost on aspiring young prosecutors who struggle to outdo one another as camera-ready, take-no-prisoners avengers of justice. Grace's controversial career also shows how prosecutors can routinely push the envelope without fear of any professional consequences. Often this does not mean violating an ethics rule, but using legally valid charges toward unjust ends.

Take the case of Genarlow Wilson. An honors student and gifted athlete, he was preparing for college in 2005 when he was charged in Georgia with aggravated child molestation for having consensual oral sex with a 15-year-old girl.

Though Wilson was only 17, Douglas County District Attorney David McDade and Assistant D.A. Eddie Barker secured a 10-year sentence for an act committed by thousands of teenagers every year. It's not a crime in most states, and Georgia recently reduced it to a misdemeanor. But the prosecutors are now fighting a judge's efforts to release Wilson. They can't be charged on ethical grounds, but they've used the criminal justice system to brutalize a young man who should have received a stern parental lecture, not a 10-year prison term.

Nifong's disbarment may deter some prosecutorial abuse, but until less visible cases are subjected to more scrutiny, it may prove to be an isolated event -- driven by the same publicity that led to the abuse in the first place. If the case hadn't been so high-profile, it's doubtful that Nifong would have been charged, let alone disbarred, for his misconduct. The Duke case should teach us that a truly fair criminal justice system must strive to protect the rights of the accused as vigorously as it does those of the accuser.

jturley@law.gwu.edu

Jonathan Turley is a professor of law at George Washington University Law School.

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