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MORE THAN ANY other recent criminal case, the prosecution of three Duke University lacrosse players for the rape of a young woman at a party has exposed to a national audience an unbridled abuse of prosecutorial power. From the outset, the Durham County, N.C., district attorney, Michael B. Nifong, violated so many legal and ethical rules that the case has become a national scandal. As many observers have concluded, Nifong’s conduct portrayed a prosecutor gone amok, who manipulated a criminal complaint against Duke students as a political weapon in his race for re-election, and exploited race and class divisions at the expense of justice and the truth. Although Nifong’s participation in the case has ended, and the case has been transferred to the state attorney general, Nifong’s conduct should be closely examined, because it illuminates in many ways the ethical guideposts for a prosecutor. From the outset, it was clear that Nifong faced a difficult prosecution. On the debit side, there was only the flimsiest evidence that the complainant had been raped, as she claimed: There was virtually no corroboration; her descriptions of the event and the perpetrators were riddled with inconsistencies; one of the alleged perpetrators had a powerful alibi; and there was no DNA evidence. But this was a case in which a prosecutor could pose as a “champion” of an oppressed racial minority against the socially privileged and elite. Regardless of his ethical obligation to serve “justice,” Nifong commenced a course of prosecutorial conduct that was demagogic and in bad faith, and that has culminated in what may be his professional downfall. In the weeks after the complaint was filed, Nifong gave dozens of inflammatory interviews to the media, in clear violation of ethical rules; they are now the subject of an ethics complaint against him by the Disciplinary Commission of the North Carolina State Bar. For example, Nifong repeated the complainant’s allegations as factually accurate; asserted that “a rape did occur”; described the complainant’s “struggle in order to be able to breathe”; characterized the defendants as “a bunch of hooligans”; accused Duke lacrosse players at the party of “stonewalling” his investigation; stated that the defendants “don’t want to admit to the enormity of what they have done”; suggested that scientific tests proved the complainant’s allegations; and stated that as a representative of the Durham community, “This is not the kind of activity we condone.” Moreover, since the victim’s identification was the linchpin to the case, Nifong arranged a photographic lineup that violated virtually every accepted guideline for lineups, and set it up suggestively so that the victim would be able to make a positive identification. Initially he used only pictures of the suspects and a few others who were at the party. As she was shown the photographs, the victim’s identification was bizarre. She identified one suspect as looking like one of the perpetrators, but “without the mustache.” The person whom she identified never wore a mustache. She was shown other photos that included the defendants, and initially could not identify any of the pictures. Yet despite the weaknesses in her identification, the notorious dangers of eyewitness identifications, the capacity of lay juries to believe erroneous identifications as accurate and a prosecutor’s duty to protect innocent people from fallible identification evidence, Nifong’s position was clear, although misguided: “If she says, yes, it’s them, I have an obligation to put that to the jury.” Hiding exculpatory evidence Finally, if there was any question that Nifong was pursuing this case unfairly and in violation of ethical and constitutional precepts, it was answered clearly during the testimony of a forensic scientist, Dr. Brian W. Meehan, who tested the rape-kit swabs and underwear of the complainant for DNA. In the samples, Meehan found traces of sperm and other DNA material from several men, but, most important, none of the DNA matched the defendants’. Although Meehan immediately communicated this finding to Nifong, Nifong directed Meehan not to include it in his report. Incredibly, when the court, after reviewing the report, asked Nifong: “So you represent that there are no other statements from Dr. Meehan?,” he replied, “No other statements, no other statements made to me.” What are the ethics of criminal prosecution? Is a prosecutor the avenger of a person victimized by crime? Is he a neutral functionary who merely serves as a conduit between the complainant and the jury? Or does a prosecutor have as his principal role the gatekeeper of the system of justice, to ensure that law enforcement behaves effectively, dispassionately and in the interests of arriving at the truth? To be sure, Nifong saw himself as an avenger, with obvious political overtones, and also a functionary who could carelessly allow false and equivocal evidence to be presented to a fact-finder. What is clear is that Nifong, as seen nationwide, did not assume the mantle of a gatekeeper to the system of justice-one charged with convicting the guilty but at the same time ensuring that innocents do not suffer. Nifong’s role in the case may be history, but his legacy contains an important message about the capacity of a prosecutor to exercise and abuse his enormous power. And while his conduct was so egregious as to border on aberrational, at a time when so many wrongful convictions, including for capital offenses, are being exposed, it is indeed worthwhile to review the prosecutor’s function in order to ensure that Nifong is indeed history. Bennett L. Gershman is a professor at Pace University School of Law and the author of Trial Error and Misconduct (Lexis Law Publishing 1997). Joel Cohen is a partner at Strook & Strook & Lavan in New York who practices white-collar criminal law.

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