When does a prosecution itself become a crime? It is well understood that prosecutors enjoy broad immunity from civil suit for their actions as prosecutors. That immunity, however, does not protect them from criminal liability. North Carolina District Attorney Mike Nifong faces possible disbarment for allegedly violating the rules of legal ethics in the Duke lacrosse case. A number of members of Congress have asked the Department of Justice to investigate his conduct, and the North Carolina attorney general has not ruled out criminal charges. Should Nifong face prosecution for his handling of the case?
Maybe. Nifong has not yet had a chance to present his defense to the ethics charges—that will happen in mid-June. But if Nifong indeed committed all of the acts alleged in the ethics complaint, he may also have obstructed justice in violation of state law and committed a federal civil rights crime.
The strongest basis for a prosecution on either charge would probably be the allegations that Nifong tried to suppress DNA test results that suggested the innocence of the defendants (three Duke lacrosse players he charged with raping a dancer whom the team hired to perform). Those results ruled out the defendants as the sources of DNA material found in the clothes and on the body of the accuser. Obstruction of justice extends to actions by attorneys aimed at suppressing evidence in criminal cases. Such cases are unusual but not completely unheard of. Last year, the Department of Justice charged one of its own prosecutors with obstruction of justice for allegedly failing to disclose exculpatory evidence. In that case, the prosecutor argued in a terrorism trial that he had sketches by the defendants of a Jordanian hospital targeted for attack. The charge is that the prosecutor also had photographs of the hospital that contradicted his claims about the sketches, and that he didn't disclose them. This may be the first time that a prosecutor has been charged with obstructing justice for failing to turn over exculpatory materials—evidence that suggests a defendant's innocence.
Obstruction of justice is a felony in North Carolina if it's committed with the intent to deceive. The state bar has accused Nifong of intentionally excluding the exculpatory DNA results from his expert's report and of subsequently misleading the trial judge as to their existence. If Nifong really intended to deceive the judge and the defense in order to prevent the introduction of those results into evidence at trial, he committed this felony.
A federal charge of depriving the defendants of their civil rights would get to the same issues by a different route. According to federal statute, it is a crime for any person acting "under color of law" to willfully deprive a person of a constitutional right. Acting "under color of law" essentially means using the power of the government, and it includes the actions of state prosecutors in criminal cases. The constitutional right at issue would be the defendants' well-established due process right to disclosure by the prosecutor of exculpatory evidence. Nifong would only be guilty of the federal civil rights charge if he specifically intended to deprive the defendants of their constitutional right by suppressing the test results. The statute does not require Nifong to have believed he was prosecuting innocent defendants—and to have gone after them anyway. Deliberately depriving a defendant of his constitutional rights is a crime if you believe him to be guilty.
Nifong has repeatedly claimed that he ultimately did nothing wrong because the defense eventually received the DNA results. North Carolina's discovery law, however, clearly required the results to be included in a report prepared last April, not handed over months later. It is less clear when a prosecutor needs to produce exculpatory material under the federal constitution. In deciding whether or not a defendant is entitled to a dismissal or other remedy, many courts have found no violation of federal constitutional rights when the material was produced at trial, on the theory that the defendant was not ultimately prejudiced by the timing of the disclosure.
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.