Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“A society that gets rid of all its troublemakers goes downhill.”     Robert A. Heinlein

January 24, 2007

An Out Of Control Prosecutor

by Doug Mataconis

Many of my fellow contributors have written about the abuses of police departments in various parts of the country, but the Duke University Lacrosse case highlights another problem in our legal system, the out of control prosecutor:

RALEIGH, N.C. — The state bar has added ethics charges to a complaint filed against the prosecutor who brought sexual assault charges against three Duke lacrosse players, accusing him of withholding DNA evidence and misleading the court.

The new charges by the North Carolina State Bar against Durham County District Attorney Mike Nifong were announced Wednesday and could lead to his removal from the state bar, according to a copy of the updated complaint.

Nifong’s office arranged for a private lab to conduct DNA testing as part of the investigation into allegations three men raped a 28-year-old woman hired to perform as a stripper at a party thrown by the lacrosse team last March.

Those tests uncovered genetic material from several men on the woman’s underwear and body, but none from any lacrosse player. The bar complaint alleges those results weren’t released to defense lawyers in a timely fashion and that Nifong repeatedly said in court he had turned over all evidence that would potentially benefit the defense.

In other words, Nifong had in his hands evidence that pretty much excluded then men he was prosecuting for rape from even having had sexual intercourse with the accuser. And he choose to not only not release them to the defense as required by law, but to lie about it to a Judge.

And it’s even worse than that, because Nifong apparently had exculpatory evidence in hand before he even filed charges:

[A]ccording to the bar complaint, testing conducted at DNA Security Inc. had concluded by April 10 that none of the samples provided to police by 46 lacrosse players matched any material recovered from the accuser’s “rape kit.” A week later, Nifong charged Collin Finnerty and Reade Seligmann with rape.

If these allegations are true, then Nifong should most certainly be disbarred. Whether there remain grounds after that for criminal prosecution or civil liability is uncertain. In either case, though, it’s clear that an out of control prosecutor can be as much a danger to civil liberties as a cop with an itchy trigger finger.

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  1. [...] The so-called Duke Rape Case has many of these unfortunate elements of our criminal justice system. The MSM had largely made up its mind that the Duke lacrosse players David Evans, Collin Finnerty, and Reade Seligmann had raped and/or sexually assaulted a stripper by the name of Crystal Gail Magnum (the name has largely been not mentioned in the MSM). Without any trial or any kind of finding of facts, Duke students and faculty protested in favor of Magnum’s allegations holding up signs and shouting about how these boys should be neutered. The president of Duke University also reacted by canceling the remainder of the team’s games. [...]

    Pingback by The Liberty Papers»Blog Archive » The Scales of Justice Need Rebalancing — January 24, 2007 @ 12:28 pm
  2. New Ethics Charges For Duke Prosecutor (AP)
    “The state bar lodged …… lying to both to the court and bar investigators.”
    “If these allegations are true and if they don’t justify disbarment, then I’m not sure what does,” said Joseph Kennedy, a law professor at the University of North Carolina. “It’s hard for me to imagine a more serious set of allegations against a prosecutor.”

    Comment by Brock Townsend — January 24, 2007 @ 4:11 pm
  3. In either case, though, it’s clear that an out of control prosecutor can be as much a danger to civil liberties as a cop with an itchy trigger finger.

    It could be argued that any public official can be such a danger when their role is overly politicized. Nifong, in order to become a prosecutor, “first had to be a politician. You don’t need me to tell you politicians, often playing the media like a fiddle, can be dangerous to liberties.

    Comment by — January 25, 2007 @ 5:13 pm

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