By RICHARD MEEHAN
The Cool Justice Report
June 13, 2007
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
North Carolina prosecutor Mike Nifong finds himself on the defensive in an ethics complaint brought against him by the North Carolina Bar Association.
Nifong indicted three members of the Duke University Lacrosse team for the alleged rape and kidnapping of a prostitute. The fallout was devastating, not only for the three young men, but for the University as well. Last year, following the indictment, Duke suspended its nationally ranked Lacrosse program and the coach resigned. The three accused left the University and began the arduous process of defending themselves against the allegations.
Many years ago the United States Supreme Court, in Brady v. Maryland, ruled that constitutional due process required prosecutors to inform defense counsel of evidence that would tend to either negate guilt or mitigate punishment for an accused. The phrase "Brady material" came to describe exculpatory evidence that must be revealed. There have been numerous cases, on both the federal and state levels, discussing what may be exculpatory. Often the issue is debated in the breach.
Most courts will defer to the judgment of a prosecutor on what is or is not exculpatory. The reason for this is found in the Code of Professional Responsibility-the rules of ethics that govern the practice of law.
In Connecticut, rules relevant to this issue require that a lawyer be candid toward the tribunal hearing a matter:
"A lawyer shall not knowingly . . . make a false statement of fact . . . to the tribunal. . . ."
"A lawyer shall not . . . unlawfully obstruct another party's access to evidence . . . or conceal . . . material having potential evidentiary value."
The code has very clear proscriptions that govern the conduct of prosecutors. They are the charged with enforcing the law and the means by which they do so must be in keeping with the requirements of due process. Convictions obtained by false evidence or where exculpatory evidence has been withheld are a corruption of the criminal process.
The code mandates that a prosecutor:
"Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. . . .
"Make timely disclosure to the defense of all evidence or information . . .that tends to negate the guilt of the accused or mitigates the offense. . . ."
Nifong's sin is that he knew that DNA evidence of others and not the accused was found on the complainant, but failed to inform the defense. In addition he is being charged with issuing inflammatory statements to the press.
Nifong used the case and the publicity that it generated to further his own political ambitions. It is a credit to the integrity of the North Carolina Bar that he is being held to answer for his egregious conduct.
Our own Supreme Court has often remarked that a prosecutor's responsibility is not to merely seek convictions, but to seek justice. Many capable lawyers have chosen the less lucrative field of prosecution because they believe in the importance of enforcing the law within the boundaries of due process. Nifong's conduct stands as an insult to their dedication.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, American Academy of Trial Counsel. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com