Many Questions Remain in the Duke Rape Case

DURHAM, N.C. – There's not much middle ground in the legal community when it comes to opinions of local prosecutor Mike Nifong's most famous case.

His law school classmate Patricia McDonald, citing "an utter lack of evidence that a crime even occurred," wrote to Gov. Mike Easley and urged him to pressure Nifong into stepping aside in the Duke University lacrosse rape case.

"Mr. Nifong has lost his moral compass despite his claim that he is a `committed advocate for the truth,'" wrote McDonald, a former assistant in the Maryland Attorney General's office.

That's not the Durham County district attorney whom John Bourlon knows.

The criminal defense lawyer has faced off against Nifong hundreds of times over the past three decades. He's seen the prosecutor drop a weak case the day before trial.

Despite the supposed flimsiness of the evidence in the Duke case, Bourlon keeps coming to the same conclusion:

"I'm CONVINCED he has something."

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Untold hours of television air time and countless drums of ink have been spent parsing what the Duke case — with its three white, private-college defendants and the poor, black stripper who accused them — says about race and class in our society.

More recently, the question has been: What does the case say about the fairness of our justice system — and the power of those who run it?

If the American legal system is a machine, the prosecutor is the On/Off switch. The prosecutor decides whether a person should be charged with a crime and, if so, which among a wide array of statutes should be used. Ultimately, it's his choice whether to go to trial or drop the case.

These are decisions, of course, that can upend a person's life, says Joshua Marquis, a vice president of the National District Attorneys Association. "Accusing a man of sexual misconduct ... is just about the worst scarlet letter you can paint on somebody. And there is enormous responsibility that comes with that."

Nifong's critics say he has abused his discretion, prejudicing the case with unethically loose talk, stubbornly refusing to acknowledge contradictions in the accuser's statements and ignoring strong exculpatory evidence. The players' defense lawyers accuse Nifong of using the case to woo black voters in a tight election.

But fellow prosecutors say the job's wide discretion cuts both ways.

"What happens if he decides, `I'm not going to present it to the grand jury. I'm going to play judge and jury, and these guys are going to walk'?" says Charles M. Hatcher Jr., a former West Virginia prosecutor who successfully overcame a misconduct complaint. "Damned if he does and damned if he doesn't."

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The particulars of the Duke case were an explosive mix to begin with:

Black accuser, white athletes. Southern town, walled campus. Racial epithets. Protest rallies. National media.

Then Nifong lit the fuse.

In the weeks following the March 13 party where the alleged rape occurred, Nifong referred to the players in interviews as "hooligans" used to having "expensive lawyers" get them out of trouble. He denounced the "blue wall of silence" that had supposedly formed around the perpetrators and said DNA would reveal exactly who had committed the rape.

Even after DNA tests failed to establish a link between the players and the woman, Nifong took the case to the grand jury, which returned indictments against three men: Dave Evans, Collin Finnerty and Reade Seligmann.

Defense lawyers and bloggers have been picking apart his case ever since.

The alleged victim — a single mother who attends historically black North Carolina Central University — has told at least a dozen different versions of her story, by one defense lawyer's count. Toxicology tests failed to show she was given a date-rape drug, as Nifong suggested in one article. Seligmann's attorney says Nifong refused to look at cell phone logs, ATM video and taxicab receipts that supposedly prove his client couldn't have committed the crime.

Nifong's public statements "almost certainly" violated a state bar rule that forbids prosecutors from making comments outside court that have "a substantial likelihood of heightening public condemnation of the accused," wrote K.C. Johnson on the Web log Durham-in-Wonderland.

"Few prosecutors in history have publicized their case and condemned potential defendants as egregiously as Nifong did," wrote Johnson, a Brooklyn College constitutional history professor.

Suggesting that Nifong was grasping at anything to keep his case alive, critics noted that the second dancer at the party allegedly changed her story after the prosecutor personally intervened to have her bail reduced in an old embezzlement case. Others faulted the supervising detective's 33-page report — which was handed over to the defense four months after the alleged attack, and which contradicts what the rape nurse and others remembered about the accuser's early statements.

"There is almost no evidence that could be construed as corroborating the alleged victim's accusations," says Rob Warden, director of Northwestern University Law Center on Wrongful Convictions. "The prosecutor appears to have acted precipitously, without due consideration of evidence to the contrary — evidence that does not fit into their theory."

Chastened by the attacks, and by a judge's order to limit "extrajudicial" comments, the 56-year-old prosecutor has ceased giving interviews, though he has used court appearances to rebut his critics.

During a recent evidentiary hearing, Nifong shot to his feet when Evans' attorney Brad Bannon suggested that the prosecution had "very little evidence" other than the accuser's word.

"Your honor," Nifong said, "I object to his characterization of my case."

On his campaign Web site, alongside photos of his wife, son, and Australian shepherd, Tillie, Nifong defends himself against allegations of misconduct.

"I have never understood why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant," he wrote, saying he began giving "open-file discovery" to all defense attorneys 20 years before the state legislature required it.

"And that is why I have never had a conviction overturned for violating a defendant's right to discover the State's case against him."

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Television may conjure a "gladiatorial" image of the justice system — "two fevered champions of the truth as they see it ... going into battle," says Marquis, the National District Attorneys Association official. The reality, he says, is less noble.

"I've been a defense lawyer," says Marquis, a prosecutor in Astoria, Ore. "Your job is to protect the guilty. ... Vigorous defense of a defendant is never sanctioned. Overly vigorous prosecution is."

Until a recent state Supreme Court decision limiting their power to control the court calendar, North Carolina prosecutors were considered among the most powerful in the nation. Even with the change, district attorneys retain broad discretion.

"The prosecutor is the de facto law after an arrest, deciding whether to charge the suspect with committing a crime, what charge to file from a range of possibilities, whether to offer a pretrial deal, and, if so, the terms of the deal," wrote the authors of "Harmful Error," a 2003 study on prosecutorial misconduct by the Center for Public Integrity.

Researchers found more than 2,000 cases from the previous three decades in which judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences.

They found thousands more cases in which judges labeled prosecutorial behavior inappropriate but "harmless," and upheld convictions.

Of the 44 cases the center found in which prosecutors were brought up on disciplinary charges, 12 had their licenses suspended and two were disbarred.

Going after a law license is the only way to punish prosecutors' harmful missteps, says Warden of Northwestern's wrongful-convictions center.

"Our law makes prosecutors immune from civil liability in these cases," he says. "So no matter how egregious their misconduct, basically they can't be sued. And so there's no price to pay."

Hatcher's case was dismissed, but not without a price, he says. A former assistant DA in Cabell County, W.Va., Hatcher was accused of failing to disclose exculpatory evidence in a kidnapping and sexual assault case — specifically, that the accusers had been hypnotized. Although a disciplinary board dismissed the charges for lack of evidence, Hatcher says defending himself "cost me as much as I'd made" in 20 years as a prosecutor.

Insisting that true prosecutorial misconduct is rare, Marquis argues the prosecutor is the only member of the legal profession whose "sole allegiance is to the truth" — even if it means "torpedoing" his own case.

"One of the luxuries of being a prosecutor is the ability to look at a case at any stage of the proceedings and say, `You know what? Ixnay.'"

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To believe that Nifong is blindly forging ahead with a bogus case simply to get elected to a job he had to be nudged into taking (he was appointed when a previous D.A. became a judge) goes against what colleagues and even courtroom adversaries have said about him: That he's fair and apolitical.

Bourlon says Nifong, a former math teacher and social worker who went to work in the DA's office 28 years ago as an unpaid assistant, is not that kind of prosecutor.

"He doesn't hold cards back and play games," says Bourlon. "It's just not his way."

And he does dismiss cases; his office last year dropped 44 percent of all felony charges it filed, before they went to trial.

While Warden doesn't think Nifong can win a conviction in the Duke case, he concedes that the district attorney is under no ethical obligation to drop it "if he thinks the person is guilty."

After an indictment has been returned, it can be tough to walk away from a case, notes the prosecutor in another high-profile rape case, Mark Hurlbert of Eagle County, Colo., who brought charges against NBA star Kobe Bryant in 2003.

"Your ethical burden does not outweigh this feeling, that you put the time and effort into this case. You want to see it through," says Hurlbert, who dropped the charges against Bryant when the accuser, battered by defense leaks and media scrutiny, withdrew her cooperation.

"We were ready to go to trial," says Hurlbert, who adds he hasn't seen anything yet that makes him think Nifong should drop his case or appoint a special prosecutor.

Gov. Easley, meanwhile, has no intention of asking Nifong to step aside, spokeswoman Sherri Johnson says.

Nifong, facing election in November, says he expects to go to trial next spring, and he intends to prosecute the case himself — if he's still in office.