These court decisions, however, do not rule out criminal liability for a prosecutor who deliberately tries to withhold evidence that ends up eventually getting produced anyway. The "no harm, no foul" defense doesn't fly here. Obstructing justice does not require that you suppress evidence, only that you try. Federal civil rights law is similar. This should mean that in the Duke lacrosse case, the defense's ultimate success in getting the raw data of the DNA tests would not save Nifong.
The timing of the disclosures is relevant, though, as to whether Nifong in fact intended to suppress the DNA results. If Nifong was simply trying to delay production of the tests as long as he legally could, he would not be guilty of the federal charge. He might even avoid liability on the state charge on the theory that intending to "delay justice" is different from intending to obstruct it. To win, the prosecution would have to prove that Nifong was trying to suppress the test results in the hope that they would never be disclosed.
Could criminal prosecutors surmount that hurdle? If the state bar complaint is true, they very well might. That complaint accuses Nifong of making intentional misrepresentations to both the trial judge and to state bar investigators. If the prosecution can convince the jury that Nifong lied in a cover-up, the district attorney will have a hard time arguing that he was not trying to cover up exculpatory evidence in the first place. Also, the weaker the original evidence against the former lacrosse players, the more reason for a jury to think that Nifong was trying to permanently withhold the test results out of fear that otherwise he would never win a conviction. The fact that the North Carolina attorney general did not just dismiss the original rape case, but actually found the defendants to be innocent, suggests that the evidence of their guilt was weak indeed.
Even if Nifong did commit a crime, should he be charged? Do we want our prosecutors worrying about becoming defendants themselves? If they deliberately suppress evidence of innocence, I think we do. The law is written to ensure that charges will be brought only against a prosecutor who was deliberately trying to completely withhold evidence that suggests innocence. Prosecutors who made a mistake, or stalled, are off the hook.
And consider this parallel: In securities cases, we indict corporate officers for obstruction of justice when they delete e-mails if we think they are trying to hide material from government investigators. Rogue prosecutors merit the same treatment. The prosecutor's obligation to disclose evidence suggesting innocence protects innocence. Prosecutors should know that when they deliberately thwart that protection, they do so at their own great peril.
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