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The prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as his obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done … . He may prosecute with earnestness and vigor-indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones.” These lofty words were written by the U.S. Supreme Court in Berger v. U.S., 295 U.S. 78, 88 (1935), more than 70 years ago, in an effort to help ensure that prosecutors wield their enormous power judiciously, not recklessly. In quickly indicting three Duke University lacrosse players for allegedly raping an African-American woman, and then engaging in what appears to be gross prosecutorial misconduct, North Carolina district attorney Mike Nifong not only violated the court’s admonition in Berger, his conduct also presents a textbook example of how a prosecutor should not proceed. Whether Nifong’s actions were the result of politics (to help his troubled election campaign), a misguided sense of “political correctness” (a poor minority stripper versus three wealthy, white college students), or simple ambition (even before his misconduct was uncovered, the case brought the formerly obscure prosecutor national fame), Nifong’s conduct also provides a timely basis for examining a fundamental, but relatively obscure, defect in our criminal justice system-that prosecutors are generally not required to present exculpatory evidence to grand juries, which are charged with the critical, and fundamental, responsibility of determining whether a case may proceed after an arrest. Like most federal prosecutors I knew, I took great pride in trying to fulfill the U.S. Department of Justice’s mission statement of prosecuting and punishing the guilty, but in doing so fairly, consistent with the Supreme Court’s admonition that prosecutors must “strike hard blows,” but “not foul ones.” Put another way, a prosecutor must do his job zealously but not overzealously-and if that means dismissing a questionable case after it is brought, or not bringing it at all, so be it. Indeed, for many of us, it was the privilege of wearing the “white hat” that made the job so appealing. Although all of the facts are not yet in, Nifong’s reported transgressions include: n Launching an aggressive media campaign against the defendants in which, among other things, he referred to them as a “bunch of hooligans” and stated that “one would wonder why one needs an attorney if one was not charged and had not done anything wrong.” n Failing to meet with or consider evidence presented by the defendants’ counsel (some of which contradicted claims made by the complainant, upon whom the state’s entire case rests). Even more problematic, and leaving aside the recently disclosed and shocking fact that his office did not even interview the complainant-the state’s star witness-until just a few weeks ago, is the revelation that Nifong did not disclose to the defense either that there was no DNA from any of the defendants on the body of the alleged victim or that her underwear did contain the DNA of other men. As any law student would know, the DNA evidence (and lack thereof) qualifies as potentially exculpatory Brady evidence requiring timely disclosure to the defense. See Brady v. Maryland, 373 U.S. 83 (1963). But while Brady affords criminal defendants the right to receive exculpatory evidence after they are indicted, under U.S. v. Williams, 504 U.S. 36 (1992), there is no such obligation at the grand jury stage, when it might matter most. This is because, unlike trial juries, grand juries are investigative, not adjudicative, bodies, whose principal role is to ferret out crime (while also, at least theoretically, protecting citizens from unfounded prosecutions; see U.S. v. Calandra , 414 U.S. 338, 343 (1974)). As the Williams court observed, “the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.” Williams, 504 U.S. at 51. Courts also do not want to saddle the grand jury process with mini-trials concerning the sometimes thorny and subjective questions of just what is “exculpatory” and whether it was adequately presented. Time to revisit ‘Williams’ These justifications ignore, however, that grand juries, which emerged from 12th century England, were originally envisioned by the founding fathers as “shields” against unfounded prosecutions rather than “swords” that would indict the proverbial ham sandwich. More practically, they ignore that about 90% of those charged with crimes are ultimately convicted. Although this statistic may well suggest that 90% (or more) of those charged are, in fact, guilty, it also reveals a need to refocus attention on the inner workings of the grand jury, which operate almost entirely in secret. Given the above, the time is ripe to revisit Williams and for legislatures to require the disclosure of exculpatory evidence to grand juries. To be sure, as the Duke debacle demonstrates, overzealous prosecutors might well ignore a mandate requiring prosecutors to disclose exculpatory evidence to grand juries, but most prosecutors do the right thing, and such a mandate may well prevent other debacles such as the Duke case. And that is an important goal, for even if the Duke defendants are exonerated, their lives will have been irreparably harmed and the damage will have been done-both to them specifically and to the system generally. Mathew Rosengart has served as an adjunct professor of law at Fordham University School of Law in New York, where he taught Criminal Procedure: Grand Jury Law and Practice. He is also a former federal prosecutor, now in private practice as senior counsel to Los Angeles-based Liner Yankelevitz Sunshine & Regenstreif.

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