Posted by Randy Barnett:
Prosecutorial Misconduct:
http://volokh.com/archives/archive_2007_01_07-2007_01_13.shtml#1168638846
Dorothy Rabinowitz had an excellent essay in yesterday's Wall Street
Journal, available free on OpinionJournal.com, about the Duke rape
case entitled, [1]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 [2]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 Dreem 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 [3]Outrage: The Five Reasons Why O.J. Simpson Got Away With
Murder.
But the scandal of Duke case does 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.
References
1. http://www.opinionjournal.com/medialog/?id=110009507
2. http://durhamwonderland.blogspot.com/
3. http://www.amazon.com/Outrage-Five-Reasons-Simpson-Murder/dp/0440223822
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