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09:17 am June 20th, 2007
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All of a sudden, it's wrong.
A story in Slate sheds some light on what I've been wondering: isn't prosecutorial misconduct like Mike Nifong's pretty routine? I thought it was practically in a prosecutor's job description to play fast and loose with the evidence. I truly didn't even realize that what he did was illegal because I hear about it so often. It's nice to know that the North Carolina State Bar cares so much about prosecutorial ethics. But Nifong only got fired and disbarred because the Duke lacrosse players he prosecuted (and their daddies) actually had some pull, and they're supported in public opinion by the kind of people who can't stand the thought that it's a crime for white jocks to rape a black stripper.

That's just how I feel. And it's one reason why I don't want to move to Durham.

For more of what I'm talking about, here's an excerpt from yesterday's online chat with Eugene Robinson, my favorite columnist at the Washington Post:
Washington: My recollection is that you wrote a column about the wider implications of the Duke lacrosse team "incident." Now that three players have been vindicated, Duke University has paid them some unknown amount of money to avoid a lawsuit and Mike Nifong has lost his job, his law license, and whatever credibility he might have once had, what are you current thoughts on this event?

Eugene Robinson: My views are that Nifong was an out-of-control prosecutor who brought charges against three young men without reliable evidence that they had committed a crime. Also, that I'm still disturbed by the idea of these well-to-do college jocks hiring strippers for their evening's entertainment.
And then:
Washington: College fraternities or sports teams hire strippers all the time. You in the media are just as guiltiy as Nifong for jumping on the "three white kids vs. one black woman" train and using the media to destroy three lives. You saw the ratings that come from a "white vs. black" situation and exploited them for your benefit. Have you even apologized, sir? I hope this women is prosecuted to the full extent of the law. If the three kids were black and the womam white, this situation would be called racism. So why isn't this racism?

Eugene Robinson: I don't have anything to apologize for. And when I pay $40,000 a year to send my kid to college, I don't want him spending his weekend nights in drunken parties featuring strippers.

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Thread started by miketroll
miketroll From: miketroll Date: June 20th, 2007 04:51 pm (UTC) (Link)
I'm not familiar with the details of this case, but I do find the ethics of prosecution fascinating. As a rule of thumb, I would say prosecutors should neither fabricate evidence nor suppress evidence that favours the defence case. How that translates into law (if indeed it does) I don't know.

Here in the UK we have a Crown Prosecution Service in England & Wales, following the example of Scotland's Procurator Fiscal system, where the PF operates independently from the police. Alas, this does not always stop the police from trying to put their chosen candidate in the frame.

South Wales is notorious for this. There have been about a dozen overturned murder convictions in the past 20 years involving suppressed or fabricated evidence, ably assisted by incompetent judges and moronic juries. It's why I don't believe in the death penalty.

Perhaps not surprisingly, I have not heard of a single criminal prosecution of a police officer resulting from the revised verdict on appeal.
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florafloraflora From: florafloraflora Date: June 20th, 2007 05:19 pm (UTC) (Link)
Short rundown of the case: some Duke University lacrosse players had a party, for which they hired two strippers, in an off-campus house in Durham, North Carolina. After leaving the party one of the strippers told police she had been gang-raped in a bathroom. Mike Nifong, the District Attorney (head prosecutor) for Durham County, brought charges against three of the players, and announced the indictments in the media. The case was tried mostly by way of statements back and forth in the media between the defense and the prosecution. Duke canceled the rest of the lacrosse season and suspended the defendants (not sure whether they were suspended from classes or just from the team). In the end apparently the DNA collected from the accuser didn't match any of the defendants and the case was dropped. It seems Nifong also withheld exonerating evidence from the defense team, which is a crime.

While Nifong was obviously overzealous in pursuing a case for which there wasn't enough evidence and deserves some kind of punishment, so do most prosecutors, I think. As I understand it, the job of a prosecutor (at least as it is usually practiced, though not necessarily according to the law) is to win convictions regardless of the evidence or the facts in the case, just as a defense attorney is bound to get his client acquitted, doing his best to get unfavorable evidence suppressed.

In a recent review of death penalty cases in Illinois, so many convicts on death row were shown by DNA evidence to be innocent that the governor of the state suspended enforcement of the death penalty indefinitely. And that's just the death-penalty cases; there are lots more inmates imprisoned for life who also claim they are innocent and that DNA evidence will exonerate them, but the free legal help tends to go to the flashier death penalty cases so the lifers are out of luck. No, I'm not saying we should go soft on real criminals, but given the blind eye that is usually turned to prosecutorial misconduct and the lack of effective legal representation for indigent defendants in many parts of the country, I'd say the deck is stacked in favor of the prosecution most of the time. Mike Nifong's firing and disbarment was a freak occurrence that happened only because the wrongly accused and their families had the money to make a stink about it.
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