Published December 18, 2006
This is not the way the system is supposed to operate. Prosecutors are supposed to be out for justice, not blood; committed to the truth, at all costs, not winning, without more.
Prosecutors aren’t just morally obliged but legally required to turn over exculpatory evidence to the defense.
Prosecutors aren’t just one side in a battle.
You can’t come across the smoking gun covered with fingerprints on it – come across it because you have the power of the state to collect all the evidence – and then decide to ignore it because they don’t match the fingerprints of the guy you’re prosecuting for the crime. You certainly can’t file the report from the lab for your eyes only.
You have to tell the defendant that the smoking gun has someone else’s prints on it. He has a right to know that, and the prosecutor has a duty to tell him.
There is a reason that the rules are such. The prosecutor represents the people. The people’s goal is winning, which doesn’t have to mean a perfect conviction rate.
The goal is supposed to be to convict the guy who did it, not frame the guy you’ve got.
Somebody should tell that to Mike Nifong. Or to the judge who is in a position to do something about who prosecutes the Duke lacrosse players charged with rape.
What is going on in the prosecutors’ office in Durham North Carolina is disturbing in ways that go beyond the ugly allegations that started this case.
The District Attorney has clearly lost sight of his mission, and with it the last remnants of any ethical compass. The case has been characterized, since the outset, by a clear failure to follow the office’s own procedures and practices.
The identification procedures were unduly suggestive, limiting the universe from which her selections were made to men who were members of the team, thus ensuring that she would pick someone who had been at the party, where a line up with true third parties would not, and rightly so.
As if that weren’t enough, there was a rush to indict, that turned appropriate timing of an investigation on its head, with the decision to indict made before the DNA evidence was even tested.
Wait and there might well have been a different decision. The more important the case, the more important it is to follow the rules.
But withholding exculpatory evidence moves the impropriety to a whole new level. This is not simply best practices, but basic constitutional criminal law.
According to testimony given under oath this week, the head of a private DNA lab said he and the District Attorney together agreed not to release evidence that there was DNA from other men, but not from any of the defendants, in the woman’s underwear and on her person the night of the alleged incident.
Together, they decided not to release it. Imagine. One of those people is supposed to be an officer of the court and the representative of the people, not head gladiator.
How could the District Attorney keep that information to himself, or try to?
What is he out to do here?
Enough is enough.
What will it take for Mike Nifong to be replaced on this case?
If ever a prosecutor had shown himself to be no longer capable of exercising the sort of judgment required of him to be fair, it would be this prosecutor in this case.
Whatever the outcome, it will not be accepted if this man continues to be the one pursuing it. If there is any chance of guilt, much less of innocence, it must be on someone else’s shoulders.
It is an extreme measure for a court to replace a prosecutor on a case. But this appears, increasingly, to be an extreme case of lawlessness by the prosecutors if not the defendants.
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 the just published "Soulless," "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.