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Prosecutor ProtectorThe ethics charges against District Attorney Mike Nifong are a rarity.

By Emily BazelonPosted Wednesday, Feb. 7, 2007, at 3:59 PM ET

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Emily Bazelon details the earlier travails of Mike Nifong in the Duke case. Dahlia Lithwick explores why we care about it. David Feige worries not about prosecutors, but about the defense bar.

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.