LOS ANGELES – By now, I think I may be the only "expert" commentator who has not given up completely on the prosecution in the Duke rape case.
Even my friend Greta, who tends to be the fairest of the fair, albeit a former defense lawyer, is shaking her head in disgust.
The prosecutor has totally lost the public trial. First he talked too much. Then he didn't talk at all. The result is that in the court of public opinion, he has been totally outmaneuvered by the high-priced defense lawyers who the student defendants and their wealthy supporters have been able to retain.
Is Mike Nifong, the local prosecutor, really any match for Bob Bennett, the legendary Clinton defender hired by the Duke team parents? Should we expect him to be? So why not hire Bennett's equal to represent the state?
The prosecutor himself has not paid for his mistakes. Quite the contrary. Having won the Democratic primary for District Attorney, he is on his way to reelection. The price to date has been paid by the accuser, who has been called every name in the book, starting with a liar, even though she herself has said nothing publicly; and potentially by other victims, who cannot be blamed if they wonder if they will meet a similar fate, particularly if they complain about men who are richer and more powerful than they are.
It is bad when that happens in a public trial. It is far worse when it happens, and it does sometimes, in a courtroom.
To ensure that it doesn't, this is one of those cases where the public prosecutor needs to step aside and bring in a private attorney as a special prosecutor. There simply must be a fancy lawyer or law firm in North Carolina that has not been involved in this case to date, and would agree to take it on, devote the resources necessary, match the defense in every way, and give the accuser and the people the same high quality representation that the defense will receive.
That is precisely what happened when the State of Indiana tried Mike Tyson for rape. And the prosecution was successful, unlike so many other high profile trials in recent years that have been mishandled by local prosecutors.
Think William Kennedy Smith, a complete mess of a trial, where Roy Black totally outlawyered the prosecution. Or think Michael Jackson, another prosecutorial abomination. Or think about the granddaddy of them all, O.J. Simpson, a slam-dunk winner of a case that became a clear loser, because the dream team beat the home team.
In the legal hierarchy, federal prosecutors (for instance, the Enron team) have far more resources at their disposal than the local prosecutors who are responsible for rapes and murders. That isn't a problem, as a general rule, since defendants in rapes and murders are mostly poor people, who have even fewer resources at their disposal than the local prosecutor, so the deck is still stacked — some would say unfairly so — in the prosecution's favor.
But there are exceptions, and date rape is generally one, as is middle class spousal murder. Even so, most of these cases get plea bargained away, so the exception doesn't count for as much. It is when these cases go to trial, and when they command enormous public attention, that the exception turns the tables. It is in those cases that the defendant is in the commanding position, and the public – not just the victim – may find itself on the short end of the stick.
It doesn't have to be this way. Virtually every jurisdiction allows the prosecutor to "deputize" private lawyers to serve as "special" deputy district attorneys, even if the district attorneys hate to admit it. Even where there is no specific provision allowing special prosecutors, where there is a will, there is a way.
In the immediate aftermath of the arrest of O.J. Simpson, as the defendant was assembling his "dream team," I suggested that the prosecution should do the same. My idea, then as now, was that the D.A. should reach out to the legal community in Los Angeles for the best trial attorneys, appellate specialist, forensic experts, etc – from outside the government, from private law firms and academia, so that "the people" would be as vigorously represented as the defense.
Then District Attorney Gil Garcetti, who was otherwise a good friend, called into my radio show (in those days, liberals were allowed to have their own radio shows on the top AM stations in L.A.) to complain about my brilliant idea.
How dare I suggest that his office wasn't up to the task, he asked. No offense intended, I responded. But in high profile cases, the public interest in a successful prosecution is much higher than in the usual, invisible case; and because of the high profile, the case became all the more attractive to a private firm, which will see a publicity benefit in taking on the project. He, obviously, didn't agree. The rest, as they say, is history.
A successful prosecution doesn't have to mean that a conviction results. It means that the public is convinced that the case is being handled correctly, fairly, aggressively, but also judiciously. That simply doesn't exist now. Because of Nifong's early comments and subsequent silence, whatever he does now is suspect.
Consider his decision not to accelerate trial in this case, but rather to schedule it in the usual course, which will result in a trial sometime next year.
Because the defendants are out on bail, rather than being held in prison, they have no claim to be at the front of the line. Missing a semester of school does not give rise to a constitutional speedy trial claim, although it may cause universities to rethink their own treatment of such cases. But to hear the so-called "experts" on television, you might think Mr. Nifong had changed the law and violated the basic code of prosecutors. He's put off the trial unfairly, I heard one commentator say with great outrage. It's totally wrong, agreed her equally uninformed colleague.
The only way all sides will ever be convinced that this case has been handled fairly is if someone other than Mike Nifong handles it. The defendants deserve that; the accuser deserves that; and most important, the people deserve that.
Let Nifong pick the prosecutor; if his handpicked choice believes there is no case, or no case against one or more of the defendants Nifong has indicted, then so be it. Nifong should have no reason to complain if his own choice disagrees with him.
But if one or more of the finest lawyers in North Carolina decides to go forward, and does, then at least we can stop hearing about how this whole thing was just an effort by Mike Nifong to keep his job. And for that alone, the special prosecutor will have earned his or her pay.
Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.
Estrich's books include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders," "Making the Case for Yourself: A Diet Book for Smart Women" and "Sex & Power," currently a Los Angeles Times bestseller.
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the Fox News Channel.