Sunday, April 15, 2007
From slate.com: University of North Carolina School of Law CrimProf Joseph Kennedy recently had an article titled: "Prosecuting the Prosecutor: Did the DA in the DUke Lacrosse Case Commit a Crime?" published on slate.com. Here is an excerpt frm the article:
When does a prosecution itself become a crime? It is well understood that prosecutors enjoy broad immunity from civil suit for their actions as prosecutors. That immunity, however, does not protect them from criminal liability. North Carolina District Attorney Mike Nifong faces possible disbarment for allegedly violating the rules of legal ethics in the Duke lacrosse case A number of members of Congress have asked the Department of Justice to investigate his conduct, and the North Carolina attorney general has not ruled out criminal charges. Should Nifong face prosecution for his handling of the case?
Maybe. Nifong has not yet had a chance to present his defense to the ethics charges—that will happen in mid-June. But if Nifong indeed committed all of the acts alleged in the ethics complaint, he may also have obstructed justice in violation of state law and committed a federal civil rights crime.
The strongest basis for a prosecution on either charge would probably be the allegations that Nifong tried to suppress DNA test results that suggested the innocence of the defendants (three Duke lacrosse players he charged with raping a dancer whom the team hired to perform). Those results ruled out the defendants as the sources of DNA material found in the clothes and on the body of the accuser. Obstruction of justice extends to actions by attorneys aimed at suppressing evidence in criminal cases. Such cases are unusual but not completely unheard of. Last year, the Department of Justice charged one of its own prosecutors with obstruction of justice for allegedly failing to disclose exculpatory evidence. In that case, the prosecutor argued in a terrorism trial that he had sketches by the defendants of a Jordanian hospital targeted for attack. The charge is that the prosecutor also had photographs of the hospital that contradicted his claims about the sketches, and that he didn't disclose them. This may be the first time that a prosecutor has been charged with obstructing justice for failing to turn over exculpatory materials—evidence that suggests a defendant's innocence."
Rest of Article. . . [Mark Godsey]