Michael Nifong, the prosecutor handling the Duke lacrosse rape case, may single-handedly cause a reconsideration of ‘absolute prosecutorial immunity,’ the legal doctrine by which certain acts of a prosecuting attorney are literally immune from lawsuits or criminal charges.

The doctrine is intended to protect prosecutors from frivolous and retaliatory actions. District Attorney Nifong’s crusade to convict three white Duke students of raping a black woman (race is a key factor in the case) has been so outrageous, however, that it reveals how the immunity invites and rewards abuse.

Is Nifong absolutely immune for his bad acts, even intentional ones?

Before answering, it is useful to review some of those acts and to consider why subtleties of immunity are important at this point in the case.

Three recent revelations are indicative of Nifong’s behavior.

Last week, it was discovered that Nifong withheld "key DNA evidence" from defense attorneys for six months despite a legal requirement for immediate disclosure. The DNA results exclude the defendants but include "multiple" other men as sex partners of the accuser around the time of her alleged rape.

On Dec. 15, Brian Meehan, head of a private DNA lab, testified under oath that he and Nifong agreed not to report exculpatory DNA results to the defense. They conspired to hide evidence that weakened the prosecution’s case.

Meanwhile, as of Oct. 27 (and presumably to this day), Nifong hadn’t even interviewed the accuser about her alleged rape.

Why are subtleties of immunity so important now?

Immunity was never intended to shield intentional or egregiously bad acts by prosecutors. Check and balances in the legal system-- for example, the power of State Bar Associations to disbar -- are supposed to prevent abuse.

People have tried to have Nifong sanctioned on a state and local level. To date, the North Carolina State Bar Association has received at least 17 complaints about Nifong. Because such complaints become public only when copied to the governor or attorney general, there may be many more.

State bar associations are seen as checks upon the legal immunity granted to prosecutors because they have the power to sanction and disbar. North Carolina has not acted.

Nor will officials. For example, Gov. Mike Easley is responsible for initially appointing fellow-Democrat Nifong to the office of D.A.. Easley’s upcoming election will depend on the same voter bloc that recently elected Nifong: working-class blacks. Easley is unlikely to alienate his base.

Thus, there is a growing cry for federal intervention on the grounds that the defendants have been willfully deprived of their Constitutional rights: specifically, the 5th and 14th Amendment protections of Due Process.

Duke defense attorney Michael Cornacchia -- the chief investigative counsel into the United Nation's oil-for-food scandal -- has requested a federal investigation. Rep. Walter Jones, R-N.C., has written to U.S. Attorney General Alberto Gonzales also asking for a federal investigation.

The demand draws energy from the fact that Duke will not go away.

News stories break on a daily basis. The latest court hearing was standing-room only, with national press crowding in. For the first time, in a show of solidarity, the three defendants appeared in court together.

Even if the judge dismisses the case, the defendants will almost certainly take whatever action they can against those responsible for the ordeal.

With Nifong, they will stumble over federal precedents of "absolute prosecutorial immunity" that immunize him against consequences for his behavior as a prosecutor. The qualification is key. The main question about Nifong’s immunity is not whether he committed misconduct-- he clearly did -- but what function was he serving when he did so.

The Supreme Court case Imbler v. Pachtman (1976) is often cited in discussion of prosecutorial misconduct. There, the court distinguished between "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate" [that is, a prosecutor]. It is only as a prosecutor that a D.A. has absolute immunity.

Otherwise, his immunity is qualified; he is not automatically immunized against misconduct that he should have known was a violation of law.

In short, Nifong’s immunity hinges upon the role he was playing when he acted, not upon the actions he took. For example, most of the press conferences held by Nifong occurred before an indictment was sought-- that is, before he became an advocate in a prosecution. The case was in the investigative phase. If the defense can prove Nifong knowingly made false statements then, prosecutorial immunity won’t necessarily protect him against a suit.

Consider the tainted photo I.D. upon which the indictments drew.

It was widely reported that Nifong directed the police to violate their own suspect-identification procedures.

Namely, he omitted non-suspects from the photo lineup and the accuser was told that all photos were of Duke lacrosse players who had been at the scene of the alleged rape. If this is true, then Nifong acted as an investigator and has qualified immunity.

The very fact that it is necessary to jump through hoops in order to address Nifong’s blatant abuse, however, highlights the problem with granting blanket immunity to anyone in power.

If prosecutorial misconduct were rare, then the situation might not be so disturbing. In an essay entitled "Reconsidering Absolute Prosecutorial Immunity" (Brigham Young University Law Review, 2005), legal scholar Margaret Z. Johns observed, "a 2003 study presents alarming evidence of the frequency of prosecutorial misconduct resulting in the wrongful conviction of hundreds of innocent people. This conclusion is reinforced with the ongoing investigation by the Innocence Project…which reported that, as of January 2005, 154 people who served time in prison for crimes they did not commit have been exonerated by DNA evidence. In many of these cases, prosecutorial misconduct contributed to the wrongful convictions….[O]ne can no longer dismiss the problem of prosecutorial misconduct as infrequent nor pretend that sufficient safeguards exist in the system to protect the innocent from wrongful convictions."

Absolute immunity was never meant to suppress evidence, dilute police procedure, or violate civil rights. But when checks and balances within the system refuse to work, then it becomes a blank check on the use of power.

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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