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The North Carolina State Bar’s Disciplinary Hearing Commission has done the legal profession a great service. It has not simply disbarred Mike Nifong but has also given us a nuanced explanation of how a lifelong public servant came to commit ethical violations so serious that they required disbarment. Now that the Schadenfreude has dissipated, those of us involved in the justice system should try to understand exactly why one prosecutor stepped so far over the line and ask what might be done to prevent it in other cases. Though it may be comforting to dismiss the case of the Duke University lacrosse players as the fault of one bad apple, that would be a mistake. AN ETHICAL COLLAPSE Nifong, then Durham, N.C.’s district attorney, chose to prosecute three students from Duke University based solely on the testimony of a mentally ill woman who substantially revised her account of the supposed attack numerous times, changing the start, duration, and nature of the assault as well as the role of each attacker. Her story was not supported by another stripper at the lacrosse team’s party. Neither the rape kit nor the scene turned up any DNA linking these men, or any other member of the lacrosse team, to the victim. Forensic testing did find the DNA of other, unknown men on the woman. The physical evidence also contradicted her assertion that the attackers had obliterated any DNA evidence by wiping her, themselves, and the scene with a towel. One defendant established a strong alibi — including a photo from an ATM camera, the testimony of a cab driver, and cell phone records — that he was elsewhere at the time of the supposed assault. The lack of DNA did force Nifong to drop the rape charges, but he continued to prosecute the men for kidnapping and sexual assault. Only because they came from families of means and were well represented by their lawyers did the lacrosse players discover exculpatory DNA evidence that had been withheld. Not only had Nifong instructed the lab technician to omit this information from his report, but he had also falsely represented to the court on multiple occasions that all relevant information had been turned over to the defense. Nifong made detailed statements to the press about the case, which became a national story. The defense attorneys likewise cultivated the media. It became apparent that the charges were based solely on the testimony of a highly unreliable witness, whose multiple versions of the attack were contradicted by the physical evidence. Nifong’s persistence could not be explained by the evidence, appearing instead to be tied to his campaign for re-election. Finally, the North Carolina Bar, under some pressure because of criticism that it had gone too easy on prosecutors in two other recent cases, took the extraordinary step of filing ethics charges related to a pending prosecution. Nifong recused himself from the case, and North Carolina Attorney General Roy Cooper dropped the remaining charges and stated publicly that the three men were “innocent.” Nifong was disbarred for three broad categories of ethics violations: (1) failing to disclose exculpatory information ( Brady violations); (2) misrepresenting to the court and to opposing counsel that all Brady material had been disclosed and then falsely claiming that he didn’t know that it had been withheld; and (3) making media comments likely to prejudice the case and heighten public condemnation of the accused. While others have already written about the egregious Brady violations and the misrepresentations intended to conceal exculpatory evidence, it is the public comment violations that may hold the key to Nifong’s descent. THE SEDUCTION OF TV Nifong faced a conflict between his ethical duty to follow where the facts led and his self-interest in generating favorable publicity for his re-election campaign. Social science research tells us that even well-meaning people are not very good at recognizing and filtering out their own biases. Lawyers — that is, advocates who specialize in constructing narratives that make behavior seem reasonable — may be particularly prone to this. The Disciplinary Hearing Commission was exactly right: “It seems that at the root of it is self-deception arising out of self-interest.” Nifong, I suspect, did not set out to railroad innocent young men, nor did he deliberately decide to sacrifice their rights to his political goals. He probably saw himself as standing up for a powerless black single mother who had been abused by privileged white men. He may have told himself that his inflammatory public comments would reassure African-Americans in Durham that, unlike in the past, justice would be done. We may have Rudy Giuliani to thank for the modern practice of prosecutors courting television coverage with perp walks and press conferences, rather than dry written announcements of indictments. In many jurisdictions, the chief prosecutor routinely comments on high-profile investigations and prosecutions. Locally, Douglas Gansler, then a state’s attorney for Maryland and now its attorney general, was reprimanded by the Maryland Court of Appeals in 2003 for public comments that had a substantial likelihood of depriving defendants of fair trials in three cases; he was reciprocally censured by the D.C. Court of Appeals. The D.C. Rules of Professional Conduct make clear that all lawyers have a duty to avoid media comment that is substantially likely to impair the impartiality of the judge and jurors. Prosecutors are subject to a stricter standard. Beyond informing the public of the nature of the charges, Rule 3.8 requires them to refrain from public comments that will “heighten public condemnation of the accused.” The comment to the latter rule cautions that a prosecutor should be especially careful about televised press conferences. Expressions of opinion about the accused’s guilt or the accuser’s credibility are improper, as are detailed descriptions of evidence or confessions. Gansler was disciplined for commenting in one case that police were able to determine definitively that the accused committed the crime and predicting that the case would be strong, and for stating in another case that the accused had confessed and provided details that only the murderer would have known. We usually think of these rules as intended to avoid inflaming the public and prejudicing the pool of potential jurors. But they serve another salutary purpose by preventing the prosecutor from locking himself into a view from which he cannot deviate without losing face politically. Nifong repeatedly expressed his personal certainty that the victim had been sexually assaulted, dismissed the reported absence of DNA as inconsequential, and offered scenarios to explain it that were not consistent with the victim’s account. He suggested that the attack was racially motivated, condemning it in various interviews as “reprehensible,” “absolutely unconscionable,” “abhorrent,” and “one of the worst things that’s happened since I have become district attorney.” He also compared it to a quadruple homicide and a series of cross burnings. He gave a vivid description of the supposed assault and disparaged the denials of the accused. Had Nifong avoided repeated public commitments to this increasingly improbable tale, he might have been able to maintain a more open mind about what the evidence was saying. As the commission observed, once he made his initial statements, “having seen the facts as he hoped they would be, in his mind the facts remained that way in the face of developing evidence that that was not in fact the case.” Indeed, even during the disciplinary proceedings, Nifong resisted conceding that the three students were innocent. In many ethics cases, it becomes clear in retrospect that the lawyer had an opportunity to change course, to avert the problem, or at least to mitigate the damage. Some lawyers do not take these opportunities because they cannot admit, even to themselves, that they are headed down the wrong path. Others know that they are wrong but cannot see any way to handle the situation except to press forward. A trail of television sound bites exacerbates this dilemma by making it very hard for a prosecutor to change course precisely when it is most important to do so. WHAT’S THE PRESCRIPTION? Mike Nifong did not violate the rules out of ignorance, and all the ethics training in the world would not have stopped him. He blew right past the ethics rules because he was, in the words of the Blues Brothers, “on a mission from God.” He lost his ability to evaluate the evidence objectively and simply refused to entertain the possibility that no assault had taken place. He failed to imagine that he might be wrong. And as the district attorney, he had no supervisor to challenge him. Particularly in a case that is high-profile, politically charged, or socially volatile, a conscientious prosecutor must regularly ask himself, “What if I’m wrong? Would my actions be, and appear to be, appropriate if the defendant did not do what I think he did?” The stronger the prosecutor’s certainty that he’s right, the greater the need to consider the consequences if he’s wrong. The ethical prosecutor should also beware the lure of the television cameras. Passion and reason each have a place in the administration of justice, but you cannot fit both into a single sound bite. And too often it’s the judicious second thought that doesn’t get said. Of course, a prosecutor should strive to evaluate the evidence from the defendant’s perspective. Asking an experienced colleague for a reality check is usually a good idea. Institutionalizing these practices within the office reinforces their importance. And the chief prosecutor himself must submit to them, especially in cases of public pressure. It is the rare case that exposes and examines prosecutorial misconduct as closely as the Duke fiasco did. The Disciplinary Hearing Commission did us a great service by going beyond condemnation of Nifong’s appalling acts to explore the human failings behind them. As the commission noted, “[T]he person who is most powerful in the criminal justice system is not the judge, and except at the end of the process, it’s not the jury. It’s the prosecutor who makes the charging decision to start with. The prosecutor, as any defense lawyer will tell you, is imbued with an aura that if he says it’s so, it must be so.” To exercise that power responsibly, to ensure that justice is done, prosecutors must acknowledge that they, too, may be wrong.
Deborah Jeffrey is a partner at Washington, D.C.’s Zuckerman Spaeder and co-chairwoman of the firm’s professional services practice. She is also a member of the D.C. Board on Professional Responsibility. The views expressed are those of the author and are not offered on behalf of the board. Zuckerman Spaeder assisted in the defense of one of the Duke lacrosse players.

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