What should happen to Mike Nifong? Nothing good, according to just about everyone who has weighed in on the fate of the North Carolina district attorney. Responding to the fallout from the poorly supported rape charges Nifong filed last spring against three former Duke lacrosse players, Gov. Mike Easley recently called the district attorney his "poorest appointment." The North Carolina State Bar has brought new ethics charges against Nifong, accusing him of withholding DNA evidence that could have exonerated the defendants and then denying that he knew about it. Nifong had previously been charged with making prejudicial statements to the press and is scheduled go on trial for all the violations in May or June.
A prosecutor screws up and faces public disgrace and the prospect of real punishment—most of us wouldn't want it any other way. As University of North Carolina professor Joseph Kennedy put it, "If these allegations are true and if they don't justify disbarment, then I'm not sure what does." Yet much of the time, prosecutors accused of withholding evidence don't face ethics charges or any other sort of public censure. That's the case even if their misconduct leads not only to shaky indictments, as happened in the Duke case, but to years in prison for people who turn out to be innocent. The latest chapter of the Nifong saga is thus the exception to a long-standing rule: Prosecutors are rarely punished for breaking the rules designed to ensure that defendants get a fair trial.
It's hard to track a nonoccurrence, but here are the results of a couple of efforts. A Chicago Tribune series found that between 1963 and 1999, 381 state murder defendants received new trials because of prosecutorial misconduct like withholding evidence or suborning perjury. But no prosecutor was publicly sanctioned or disbarred by the state bar in connection with any of these cases. The Center for Public Integrity, an investigative journalism group, has found 2,012 cases since 1970 in which appeals judges threw out an indictment, conviction, or sentence based on a prosecutor's error or flouting of the rules. Using a separate data set, the center found only 44 cases during the same time period in which prosecutors appeared before a state bar because of allegations of misconduct.
There's an argument that the small number of disciplinary actions against prosecutors is the right number. To begin with, it's rare to see a lawyer punished for anything other than taking a client's money or leaving his case to die for want of attention. And in many cases, accusations against prosecutors rest on hard-to-prove subjective determinations. Did a prosecutor know the witness he put on the stand would give false testimony? Did he realize the significance of the evidence he failed to turn over to the defense? Frivolous charges can become a form of harassment. And most district attorneys' offices would rather handle a prosecutor's misbehavior internally than invite the outside scrutiny of a bar association or state grievance committee. Miscreant prosecutors may well get demoted or fired more often than they get disbarred.
But given prosecutors' broad discretionary powers—they get to choose whom to indict for what—the threat of a reprimand or even a lost job may not be a stiff enough penalty when a district attorney encourages a witness to give false testimony, plants false evidence, or, more commonly, keeps secret evidence that's supposed to be shared with the defense. Unlike other lawyers, prosecutors swear not only to do their best to win, but also to "seek justice." They're supposed to turn over all exculpatory evidence to the defense—as Nifong seems to have failed to do—in order to ensure that the proceedings against the defendant are fair.
It's an odd demand, really: Give the other guy your best stuff. But the prosecutor's obligation to hand over evidence that's helpful to the defendant has been constitutional law since the Supreme Court decided Brady v. Maryland in 1963. Ethical standards are one of the only tools for ensuring the enforcement of this rule and others that bind prosecutors. Particularly because since 1976, the Supreme Court has protected prosecutors from lawsuits. The justices reasoned that prosecutors shouldn't have to put up with suits that would distract them from their duties, force them to prove that they acted in good faith, or discourage them from fighting hard for convictions. Instead, the court relied on the state bar to keep misbehaving district attorneys and U.S. attorneys in line, because of the prosecutor's "amenability to professional discipline by an association of his peers."
But if the state bars rarely take prosecutors to task, even when they hide or fabricate evidence, then the check the Supreme Court counted on isn't really in place. This has become of particular concern in Texas, where defense lawyers are starting to wonder if there's any line that a prosecutor can't cross. They point to fiascos like the trumped-up drug busts in Tulia, where it's hard to believe the prosecutors didn't realize they were relying on a dishonest cop, as well as a string of recent convictions in which it's now known that prosecutors won by putting on false testimony or withholding exculpatory evidence.
In the case of Franklin Alix, for instance, who is sitting on death row for murder, exculpatory DNA tests conducted before trial were never shared with the defense. (The tests excluded Alix as a contributor of DNA to the crime scene.) One prosecutor elicited testimony from a crime-lab worker that this test had not been done. The crime worker testified instead about a different DNA test that implicated Franklin—and which was later proved to be false. According to Alix's attorney, Robert M. Rosenberg, when Alix later challenged his conviction, the prosecutor said she'd reviewed all the relevant DNA testing and had no reason to think the original results were incorrect. She was not punished by the state bar or by her office—and she is now a felony trial judge, Rosenberg says.
The Nifong case seems like the perfect counterexample. If anything, the North Carolina State Bar may have moved too aggressively. By charging Nifong with ethics violations now, it swooped in to disrupt an ongoing criminal case brought by a duly elected district attorney. If you think the former Duke students should never have been indicted, that's not especially troubling; still, it's probably not a good precedent, either. State disciplinary authorities should pay more attention, to cases like Franklin Alix's—in which after a trial it appears the prosecutors twisted the rules during it. Usually the problem isn't premature charges. It's little or no threat of sanction at all.