Wednesday, June 13, 2007

Duke Rape Case



The Cool Justice Report
June 13, 2007

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

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,

  • Meehan law firm

    Anonymous said...

    > Nifong used the case and the publicity that it generated to further his own political ambitions.

    Good. And now he can fast track himself right into the state penitentiary for his deeds. Talk about giving the legal system another black-eye. Between he, Paris Hilton and OJ cases, I've lost all confidence in the justice system. Its a mockery.

    Anonymous said...

    I just have to comment on this story.

    Mr. Meehan, I wish you could write about how common this sort of misconduct is and how it occurs in Connecticut. It is not even considered misconduct.

    Brady material comes in very, very late and often prosecutors here won't turn it over until defense attorneys are threatening or have filed motions to demand compliance with their discovery motions. Often on the eve of trial or even during trial.

    It si SO, SO disheartening to read a story about the Duke case that doesn't bring it home to Connectiut and reveal more to us about Connecticut.

    I think readers have a right to know and should know it works the same way here as it did for those Duke players.

    Take the Krayeske prosecution for example. It was unusual for his lawyer norm pattis to request a judge-mediated meeting with the prosecutor to quicken the confrontation with the lack of evidence in his case. This was because (i speculate) he knows that prosecutors will bluff it all the way through here, with no evidence, with no probable cause, prolonging the hardship on the accused.

    Other prosecutors avoid evidence and ignore evidence deliberately. I personally know of a case where prosecutors deliberately avoided every bit of exculpatory evidence to falsely claim they were unaware of it, but as we all know, willful ignorance is knowledge.

    Look, the Connecticut greivance panel WILL NOT discipline prosecutors for this, period.

    IF there is certain political pressure or publicity in certain cases that go to the grievance panel then and only then might they be forced to seriously consider it. Everyone knows that the way prosecution is played here and everywhere in america, is in this cynical, horrible way. The idea that the Duke prosecutor was motivated by political ambition and acted differently than he usually would comes off as dubious to me. Surely he had political ambitions, but what makes us think he acted any differently in his prosecution standards and procedures in the Duke case than he did in general. If anything, considering how high profile the case was, he was probably more scrupulous and careful, which just goes to show you how screwed up criminal prosecution is in this country and what appetites we have for press narratives that are fantasies and feed our sense that everything is mostly OK rather than mostly not OK.

    It is conventional practice, and that's why it happened in the Duke case. That case was in pretrial. This wasn't unusual, sorry, and if you are a defense lawyer here, it would not be credible AT ALL for you to act surprised at that. You either know it is true here, or you are a lousy defense lawyer.

    So write about it -- why don't you guys write about it?