Duke and cover.

Duke and cover.

Duke and cover.

The law, lawyers, and the court.
May 1 2006 3:56 PM

Duke and Cover

When election-time politics overtake the pursuit of justice.

Durham, N.C., District Attorney Mike Nifong. Click image to expand.
Durham, N.C., District Attorney Mike Nifong

This Tuesday, residents of Durham, N.C., will head to the polls to vote in one of the country's most closely watched local races. In it, incumbent Mike Nifong will face two Democratic challengers for a nomination that will all but ensure the victor's November election to the post of Durham district attorney. The race is hot, of course, because Nifong has been at the epicenter of a racially polarizing rape case in which a working-class African-American complainant alleged that she was raped by three privileged white lacrosse players from Duke University. The case has all the elements of the explosive tabloid story it has become—race, sex, drugs, and class—but it also reveals what can go wrong when the naked politics of prosecution begin to co-opt the mechanics of justice.

Unlike most criminal cases in which the battle lines are drawn between easily vilified criminal defendants and sympathetic self-proclaimed victims, the Duke case splits across racial and class lines, in a town long-simmering with class resentments. A few things in the case aren't at issue: On March 13, two female strippers were dispatched to a party at a house rented by some Duke University lacrosse players. Some time later, one of those women was discovered in a parking lot. Originally described by a security guard as "passed out drunk," she subsequently claimed to have been raped by three white men at the party.

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It was not long after this incendiary allegation that things in Durham began to go off the rails. Seizing on what must have appeared initially to be a credible complaint backed by corroborating physical evidence of a struggle and apparent sexual assault, DA Nifong called the perpetrators "hooligans" and declared in public that he was confident that a rape had occurred. Nifong then granted somewhere around 70 media interviews and appeared at a violence-against-women rally at a local black college. It doesn't take much more than these facts to conclude that as a prosecutor, Nifong was exploiting a sensational case, not just to bring about justice in a specific dispute, but also in an attempt to spread the news of his tough-on-crime ways with the voting public.

Prosecutors tend to be a cautious lot—particularly about public pronouncements concerning an unresolved case. With their enormous power to charge and jail people, they tend to let their actions speak for them. And rightly so. While the codes of professional responsibility place some limits on what lawyers can say about their cases in public, in North Carolina, as in many other states, there are also specific rules that apply to prosecutors in criminal cases. Rule 3.8 of the North Carolina Rules of Professional Conduct thus demands that prosecutors "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused," except when those statements are "necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose."

And although prosecutors—in pursuit of the votes necessary to retain their jobs—regularly stretch, and occasionally flout, ethical dictates like Rule 3.8, the fact that Nifong's 70 interviews and his public endorsement of the stripper's claims of rape haven't seemed to generate either a formal ethical complaint, or an official investigation into his conduct, may suggest just how widely accepted the practice of riding public condemnation of criminal defendants to electoral victory has now become.

Of course, while Nifong was on his media tear, the potential defendants were far from mute. The members of the lacrosse team retained a posse of very aggressive lawyers, highly effective investigators, and even a famous spin-meister (Bob Bennett of Clinton-era fame) who together launched a very public and very vigorous defense. Of course, lest one think these lawyers as reprehensible as Nifong—that all's fair in love and criminal prosecution—it is important to remember that the specific dictates of Rule 3.8 are not directed at lawyers generally; they apply specifically to prosecutors in criminal cases.

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While the media war heated up and as the investigation crept forward, it became increasingly clear that the district attorney of Durham had a serious evidentiary and political problem: It appeared not only that he'd spoken too soon, but that perhaps he'd even yoked his wagon to the wrong horse. And as more and more information came to light through the strategic leaks of both sides—first an absence of a DNA match between the alleged perpetrators and the assailant, then pictures indicating that the injuries claimed to have been sustained by the victim were present even before she arrived at the party—Nifong and the complainant's supporters found themselves increasingly on the defensive.

As Nifong's case began to collapse, having publicly dug himself in, the district attorney did what electoral victory seemed to demand: Bush-like, he not only stayed the course but actually ratcheted up the pressure on the players. First he executed seemingly frivolous search warrants, and then, in the most egregious ethical lapse of the case, he dispatched police officers to the dorms where the lacrosse players lived—players who were represented by counsel—in an attempt to procure statements from them. And, of course, Nifong sought and secured indictments against two players, charging each with rape and kidnapping. After all that, in a move reminiscent of Rudy Giuliani, he refused to let the defendants voluntarily surrender, insisting instead on an arrest with no legal purpose beyond more tough-guy posturing and obvious perp-walk photo ops.

The arrests of course did nothing to end the media frenzy. And, no surprise, within days of the indictments, even more interesting and possibly exculpatory evidence surfaced. Lawyers for Reade Seligmann, one of the defendants, released documents suggesting that he had an airtight alibi, supported by independent witnesses, credit-card receipts, and timed keycode logs, and both the prosecution and defense confirmed that the complainant not only had a criminal record and a history of drinking but had, in 1996, made another rape complaint against three men who were never charged.

Nifong's response? To break a long self-imposed media silence in order to declare that he intended to go back to the grand jury and indict yet another lacrosse player.

Whether this pandering by vigorous prosecution lands Nifong another term remains to be seen, as soon as tomorrow. He is surely viewed in the African-American community as a champion of the complainant—and in a district that is almost 40 percent African-American, that certainly won't hurt him. The downside to all this, though, is that when politics drive a prosecution, publicly crusading district attorneys often turn a blind eye to inconvenient facts.

This is precisely the problem with trial by media. Americans seem to have an insatiable appetite for criminal-justice stories. Unfortunately, with that appetite comes a certain measure of moral flabbiness. No one does the hard work of thinking or checking. They simply consume what they are fed. And the solution may just be a crash diet. Our Canadian neighbors have a fully functioning criminal-justice system that is as skeptical of press coverage as ours is amorous. In Canada, no one talks or writes about the evidence in a criminal case until a verdict is rendered. And while adopting such a rule here might well be unconstitutional (and could put me out of business), some stricter rules limiting permissible attorney comment on pending cases are probably long overdue. Who knows, maybe if prosecutors were prevented from staging perp walks and making grandiose declarations in high-profile cases, the debate in DA campaigns might actually turn toward critical substantive matters like whether incarceration or drug treatment is more effective; or whether the purpose of punishment is rehabilitation, deterrence, or purely retribution.

In the end, between his media mania, harassing search warrants, and the outrageous attempt to interrogate individuals already represented by counsel, Mike Nifong has exposed a reality of the criminal-justice system that can often escape our attention: Prosecutors captivated by the beneficial glare of the media spotlight are often ready to ignore convincing evidence of innocence in the politically motivated pursuit of criminal defendants. The Durham district attorney's actions raise the question of whether prosecutors really are willing to win elections at the cost of wrongful prosecutions. Sadly, for Durham and Duke and for all of us, the answer in this case seems to be "yes."