Rape charges against the Duke lacrosse players were dropped last April, and Michael Nifong, the District Attorney who brought the charges in March 2006, was disbarred in June 2007. The rape charges were dismissed after the state’s Attorney General took over the investigation and determined that the defendants were innocent and that there had been a “tragic rush to accuse and a failure to verify serious allegations.”
On August 31st, Mr. Nifong was sentenced to 24 hours in jail and a $500 fine for criminal contempt. A week later, he served his day in jail. He is not eligible to be reinstated to the bar until 2012. But, is Mr. Nifong’s punishment sufficient, given that the young athletes must spend the rest of their lives coping with the consequences of his conduct?
The case was recently back in the headlines because last month, the players filed multi-million dollar lawsuits against Nifong, alleging that his reckless and false prosecution destroyed their reputations. But even if he is held accountable through the players’ civil lawsuit, will his punishment be sufficient given the damage he caused to public confidence in our criminal justice system? And is he an exception or are there other prosecutors solely bent on winning, no matter what the evidence says?
An exhaustive 1999 study by the Center for Public Integrity found that, since 1963, the homicide convictions of at least 381 defendants nationally were thrown out because prosecutors concealed evidence suggesting that the defendant was innocent or presented evidence they knew to be false. Not one of those prosecutors was ever convicted of a crime. Not one was ever barred from practicing law. Instead, many were promoted or have become judges. Of those 381 defendants, 67 had been sentenced to death. Nearly 30 of those 67 were subsequently freed.
According to the study, “[w]ith impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases. They have prosecuted black men, hiding evidence the real killers were white. They have prosecuted a wife, hiding evidence her husband committed suicide. They have prosecuted parents, hiding evidence their daughter was killed by wild dogs. They do it to win. They do it because they won't get punished.”
Little has changed in the nearly ten years since that study. State bar associations routinely discipline lawyers for misappropriating even small amounts of funds held for their clients. But when a person's liberty —or life— is at stake and prosecutors withhold evidence so significant that its disclosure would have created "a reasonable probability of a different outcome,"
Kyles v. Whitley, 514 U.S. 419, 434 (1995),
it is hard to imagine any more reprehensible conduct by a lawyer, and yet this behavior goes unpunished.
Astonishingly, this practice of withholding relevant evidence occurs right under the noses of the judges who make these findings of misconduct. And these judges know exactly what they should do when prosecutorial misconduct occurs. The American Bar Association’s Code of Judicial Conduct instructs the courts to inform the appropriate authority whenever a judge knows that a lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as an attorney.
Unfortunately, the only conduct in criminal cases that ever seems to be referred to state bar associations involves that of defense counsel. One searches nearly in vain for referrals of wayward prosecutors, let alone criminal prosecutions of them.
In the Duke case, it appears that the system did work. These three young white men, with families wealthy enough to send them to Duke and resources sufficient to hire lawyers and investigators, successfully challenged Mr. Nifong’s outrageous conduct. Their sustained efforts led not only to the students’ complete exoneration, but also to the investigation and eventual disbarment of their out-of-control prosecutor.
Why is it that the system worked for them, and for virtually no one else?
Too often, the distressing reality is that it takes wealth to ensure effective lawyering, and that those with insufficient resources end up with inexperienced and under-resourced, or even no, lawyers. In cases involving prosecutorial misconduct, in which the defendant does not have the resources to mount a defense and challenge the misconduct, the result is vastly different from that of the Duke case.
We should demand more from our prosecutors, whose obligation is to do justice. We should demand more from our courts and bar associations, institutions entrusted with policing the legal profession and protecting us from lawyers who take unfair advantage or even cheat. The wealth of the accused should not determine whether an unethical prosecutor is turned over to the bar association for investigation and prosecution. Our criminal justice system owes us no less if we are to be truly a land of “equal justice under the law.”