Prosecutorial Misconduct:
Dorothy Rabinowitz had an excellent essay in yesterday's Wall Street Journal, available free on, about the Duke rape case entitled, The Michael Nifong Scandal. Her essay places this incident in the context of the prosecutorial abuses that she did so much to combat in the 1980s and '90s:
For all the public shock and fury over his behavior, there is little that is new or strange about Mr. Nifong. We have seen the likes of this district attorney, uninterested in proofs of innocence, willing to suppress any he found, many times in the busy army of prosecutors claiming to have found evidence of rampant child abuse in nursery schools and other child-care centers around the country in the 1980s and throughout most of the '90s. They built case after headline-making case charging the mass molestation of small children, and managed to convict scores of innocent Americans on the basis of testimony no rational mind could credit. Law officers who regularly violated requirements of due process in their effort to obtain a conviction, they grasped the special advantage that was theirs: that for a prosecutor dealing with molestation, and wearing the mantle of avenger, there was no such thing as excess, no limits to what could be said of the accused. In court, rules could be bent, any charges presented, and nonexistent medical evidence proclaimed as proof positive of the accusation.
I believe this disturbing phenomenon is distinct from "normal" prosecutorial overreaching in ordinary cases. This sort of misconduct is fueled by publicity and politics, whereas normal prosecutions take place in almost complete obscurity. On the one hand, fewer people--in particular the press--are looking over the prosecutor's shoulder. On the other hand, the lack of publicity reduces the incentive to dig in and go for broke, which makes it all the more mysterious to me when prosecutors have done so. In large offices, prosecutors must get supervisors to sign off on reducing or dropping charges precisely to prevent them from getting out of trying cases that are not dead-bang winners. But like the psychology of defense, the psychology of prosecution is far more complex than this.

Some commentators on other threads have criticized the lack of blogging on the Duke case here at the Conspiracy. In my case, as a former criminal prosecutor (in the Cook County State's Attorney's Office), I am very interested in the issue of prosecutorial misconduct and incompetence in general, and in this case in particular, and have been following events on Durham-in-Wonderland. But I also know that, aside from the issue of prejudicial statements to the press, accusations of prosecutorial misconduct depend entirely on the state of the evidence available to the prosecutor and that, at this stage in the proceedings, no one besides the lawyers really know what evidence exists. So ordinarily there is nothing to do but wait and see how the evidence unfolds at trial. It is highly unusual for a case to implode in this manner at this stage. Above all, this is a credit to the defense team.

As I have said for many years, our adversarial system depends for its effectiveness on the competence of the lawyers on both sides of the case. Where persons are wrongly convicted (as opposed to being wrongly accused as here) this is usually the result of incompetent defense lawyering, rather than some nefariousness on the part of the prosecutor. Where the criminal justice system is in greatest need of reform is ensuring competent counsel to all accused, regardless of their guilt. In my opinion, and having watched considerable portions of the trial, the OJ Simpson case is a rare example of severe prosecutorial incompetence; to be sure, the defense counsel were competent, but hardly a Dream Team as advertised. Prosecutors with experience in high profile cases, such as those who tried the Gacy case in Chicago when I was an ASA, should have prevailed. It was all-too-easy and a pity to blame the jury in the Simpson case for the failings of the prosecutors. As I said at the time, the Simpson prosecutors were either the best that the LA DA's office had to offer, which would be shocking (and which I do not believe), or they were not, which would be equally shocking (and a poor reflection on Gill Garcetti, the District Attorney who selected them). On the issue of incompetence of the Simpson prosecutors, I recommend Vincent Bugliosi's Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder.

But the scandal of Duke case is not about the incompetence of either line prosecutors or ordinary criminal defense attorneys, but the politically-motivated misconduct of an elected District Attorney. And it is also about how one's life can be ruined, or at minimum forever altered, not to mention bankrupted, by a false accusation from which one is eventually vindicated.