Where's the Justice? Disbarment Doesn't Restore Reputations of the Accused

Jun 20, 06:20 AM

Current Headlines: The following editorial appeared in the Charlotte Observer on Tuesday, June 19:

Neither Durham District Attorney Mike Nifong's tearful apology and resignation nor the N.C. State Bar's excoriation and disbarment Saturday of the out-of-control prosecutor accomplished this goal of our courts system: Justice.

Former Duke lacrosse players Collin Finnerty, Dave Evans and Reade Seligmann have, it is true, been exonerated by N.C. Attorney General Roy Cooper. An investigation showed no crime had occurred and the trio are innocent of accusations of kidnap, assault and rape.

The sad fact is that Nifong, appointed by Gov. Mike Easley and facing his first election campaign, rode the bogus charges against the players to victory. Nifong did win his election, but long before the votes were counted, every reasonable person familiar with the case realized the prosecutor seemed determined to railroad the players into prison for a long time.

The false charges Nifong brought against the three will follow them all their days _ in part because the prosecutor was so reckless in his emphatic pronouncements that a rape occurred and the players were uncooperative hooligans. The N.C. Bar Disciplinary Commission made it clear Saturday that Nifong's handling of this case was "truly a fiasco" marked by contemptible behavior, self-deception and indifference to the truth. Nifong wanted to win and was willing to sacrifice three innocent people to get his way.

How did this happen? Two reasons: Nifong displayed unethical behavior. And North Carolina prosecutors have too much power. They can set the dates of trials. They can in effect shop for judges. They even can avoid preliminary hearings to determine whether there is enough evidence to proceed with charges, by going directly to a grand jury to bring charges.

U.S. 11th Circuit Court of Appeals Judge Gerald Bard Tjoflat, a Duke Law School graduate, recently explained how N.C. prosecutors' control of trial dates also means judges are not assigned to cases, but to courtrooms on specific dates. Thus no judge was in control when Nifong was busy tainting the jury pool and prejudicing the case against the players. Prosecutors, Judge Tjoflat said in a recent speech, "don't do what he did unless they are absolutely confident that the court will give them free rein." That must change.

Fortunately, the defendants' families were wealthy enough to hire the best lawyers. Those lawyers discovered Nifong had not turned over evidence clearing the players. The State Bar saw this pending miscarriage of justice and filed ethics charges against Nifong, in effect moving him out of the case and allowing the attorney general to take over.

In this case, the system did not work. It failed the players, the state of North Carolina and the public interest in truth and justice. Legislators must learn from this situation and rein in the power of a prosecutor to run roughshod over justice.

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(c) 2007, The Charlotte Observer (Charlotte, N.C.).

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PHOTOS (from MCT Photo Service, 202-383-6099): Nifong

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