Not Even Nifong?

Not that it’s the worst example of abuse ever, but when you look prosecutorial misconduct up in the dictionary, you see a picture of MIke Nifong, the former Durham, North Carolina district attorney.  His prosecution of three innocent Duke University lacrosse players remains a shining example of why prosecutors can’t be left to their own devices.

And yet, even Nifong’s outrageous conduct may not be enough to get a Fourth Circuit panel to let the case proceed, as appears from oral argument.  From the Durham Herald-Sun :



Federal appeals judges reviewing the lawsuits spawned by the Duke lacrosse case voiced unease Tuesday about the chances of their becoming a flawed precedent for the law in five states.

“The question I have about this whole case is whether a bad case makes for some very bad law,” said Judge Harvie Wilkinson III, who’s chairing the three-judge panel that will rule on the city of Durham’s government-immunity claims.
The fear is that stripping Nifong of qualified immunity could lead to, well, bad prosecutors not having qualified immunity, followed shortly thereafter by the sun colliding with the earth.



“What we do here is not just the Duke case,” noted Judge Roger Gregory, the panel’s third member. “It’s going to apply to everybody.”

The notion of prosecutors, or more precisely, the government entities for whom they work, being held accountable for their deliberate wrongdoing clearly shook up the judges.  While it might be one thing for Nifong, already outed, disbarred and jailed for a day, the judges recognize that their ruling will stand as precedent against prosecutorial misconduct, to be used against others whose conduct isn’t as well known or universally reviled.

Lawyers for Durham made the usual arguments, that a grand jury indicted and immunity attaches.  After all, it’s not like there was no evidence to support the case, as there was always stripper Crystal Mangnum’s allegation that she was raped.  It’s not Nifong’s fault it wasn’t true.



Motz summed up the players’ countering argument. “Conspiracy to frame people, I don’t think there’s qualified immunity for that,” she said.

But Wilkinson signaled that he’s uncomfortable with the conspiracy arguments because they could impinge on the normal, day-to-day interactions between police and prosecutors.

“The whole criminal-justice system depends on fairly free and open communication between police and prosecutors. It’s absolutely basic,” he said. “You inject civil liability into the midst of that communication, you could disrupt the candor of it.”
Here lies the crux of the problem, that the law is more concerned with the ease of prosecution, of police/prosecutor communications, then it is with its integrity.  “Get it done” is elevated over “get it right.”

This is where many people fail to appreciate the extent of deference the law, and the judges, show cops and prosecutors.  This is what gives rise to the anger that “ignorance of the law” is a one-way street, where defendants are prosecuted, convicted and imprisoned for hypertechnical violations of trivial laws and regulations while police and prosecutors can get the law wrong, often way wrong, with impunity.

To some extent, those charged by government to enforce law, and thereby prevent crime and maintain order in society, must be given certain latitude to do their job without fear that they will held personally accountable for a mistake.  If that were the case, it could paralyze law enforcement, and thus prevent its ability to function and fulfill its purpose. 

Whenever something goes terribly wrong, it’s easy to understand why people demand better.  At the same time, it’s critical to remember that they don’t exist for their own sake (even though it often seems that way), but for ours.  There are bad people out there, violent people, and we need law enforcement to protect us from them.  When a cop stares down a rapist, it’s absurd to demand that he first check his pocket book of statutes to make sure all the elements have been met before preventing insertion.  Given the focus on police and prosecutorial misconduct and abuse, it’s easy for forget that they also do good.  And sometimes, in the course of doing good, they make mistakes.  But they do so on our behalf.

Yet that doesn’t give rise to carte blanche, for a prosecutor bent on playing out a public fraud for a crime that he should have known never happened, and hanging out three students, not to mention smearing the rest, while making himself a national hero standing atop an indictment built on lies.

The dividing line appears to be objective good faith, where a cop or prosecutor can no longer hide behind the pretense that he thought he was on the side of the angels when he knew damn well what he was doing.  Clearly, subjective good faith would never work, as it’s far too easy for scoundrels to hide behind the claim that they believed, and often still do, that an innocent person was guilty.  Even in many of the DNA exoneration cases, prosecutors maintain that the failure is in the proof, not in the fact of guilt.  They remain absolutely convinced that the person they put on death row was guilty, though the DNA says otherwise.

The problem with such a test is that it would require courts to do something for which they have proven themselves particularly poorly suited: concluding that a cop or prosecutor has crossed the line. Given any chance, any explanation no matter how facile, to chalk up a disastrous prosecution to an innocent mistake by otherwise honorable prosecutors, and that’s where they go.  Calling out a prosecutor for deliberate impropriety is like ripping out their heart, something judges just can’t seem to do.

With the case of Mike Nifong before them, the Fourth Circuit has the poster boy for prosecutorial misconduct, perhaps the one district attorney whose heart they would be willing to rip from his chest and hold in their hands.  But then, their ruling will be precedent for others, the lesser-known, lesser-hated bad prosecutors whose conduct isn’t all that different from Nifong’s.  Are they up to the challenge?

Added: A  twit by Edward Wiest on this post made a great point:


Hard cases can/will make bad law–either way.
H/T FritzMuffKnuckle

8 comments on “Not Even Nifong?

  1. Jim Majkowski

    The answer, one may say, is that recourse is left not to the judicial, but the political, process. We can choose prosecutors who are less rash than a Nifong. We can hire police command officers who insist on seeking truth instead of making cases. We can elect officials who provide legislatively for restitution to wrongfully prosecuted persons. We seldom do. Whom do we have to blame for our ballot choices?

  2. SHG

    No one runs for office promising to pander to public ignorance and engage in unethical or wrongful conduct if it makes the voters happy.  They just promise to make the voters happy.  But having done so, the question of liability to those they’ve harmed remains to be addressed.

    This is the back-end problem of a front-end choice.  Even if people were inclined to vote more thoughtfully, I’m not sure they could or it would make much of a difference.  The victims of prosecutorial wrongdoing still need an opportunity for redress, no matter what the voters think about it.

  3. Nigel Declan

    The problem is that by refusing to remove immunity in such an egregious case, the court is also setting a precedent, passing the buck of prosecutorial responsibility further down the road. The court can – and should – construct a decision sufficiently narrow to try and limit such stripping of immunity to cases of clear and deliberate misconduct, but the fact that someone may, in the future, interpret a decision in a way that the 4th Circuit did not anticipate is hardly reason to deny appropriate judicial remedy now. The possibility of future “misapplication” of a decision is an inevitable consequence of any decision rendered.

    One would think that a Court, bearing the function of delivering justice, would want to send a clear, unequivocal message that prosecutors, who likewise bear the mantle of justice, cannot and shall not abuse the system that the Court is charged with upholding and protecting. By not making Mike Nifong and his ilk personally responsible for the wrongs he has committed, the message is clear: police and prosecutors are not held to the same standards as regular citizens; they are free to pursue those they deem to be criminal without having to bear the costs of their recklessness or malice.

    And that is, truly, a shame.

  4. Jim Majkowski

    That recourse, if not found in the political (legislation) must be found in the Constitution (or “natural law”). Then again, immunity in America was also a creature of the judges, even if its genesis (since the crown is the source of law it cannot be made to submit to it: l’etat c’est moi, a fortiori, loi c’est moi< -i>) is inconsistent with the concept of the state being the creature of the public.

  5. Chavez

    Don’t forget that the prevailing judicial mindset is that all’s fair in love, war, and prosecutions before the trial stage. “”Fabrication Of Evidence During An Investigation Does Not, By Itself, Violate The Constitution” (Elena Kagan, brief as Solicitor General). “”We do not see how the existence of a false police report, sitting in a drawer in a police station, by itself deprives a person of a right secured by the Constitution and laws.” (Pottawattamie vs. McGhee)

    In the rarified world of a judge’s chambers, such thoughts may be innocuous. But in the real world, in which the overwhelming majority of criminal cases are resolved through plea bargains, the above mind set grants prosecutors a license to do virtually anything (a la Scarlet O’Hara–”lie, steal, cheat, or kill”) to force a plea.

    Defendant’s rights and protections? To quote one final movie: “Defendants’ rights? What rights? We don’t need no stinkin’ defendants’ rights!”

  6. SHG

    I would like to think that your comment is an exquisite and subtle attempt at irony. I would like to, but I can’t. Plucking lines out of context doesn’t illuminate anything, and paraphrasing the Treasure of Sierra Madre is best used at non-lawyer blogs, where it will be better received.

  7. Chavez

    Having just listened to the audio of the oral arguments, it becomes apparent that the principle concern of the judges is not that in 21st century America innocent persons could be framed and prosecuted for a crime which never happened,

    but that prosecutors and police might be subjected to claims of civil liability.

  8. SHG

    Oral argument is just that, argument. It is not a decision. In some instances, it provides insight into a judge’s thinking. In others, it’s a means to test the validity of an argument, or to persuade another judge as to the strength of an argument. But it is only argument.

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