Law Prof: Nifong has “conflict of interest”

In an op-ed in today’s Raleigh News & Observer UNC School of Law professor Joseph E. Kennedy explains “Why the D.A. should be off the case.”:

Whether the defendants in the Duke lacrosse case are guilty or innocent, Durham District Attorney Mike Nifong should disqualify himself, or be disqualified, from the case.

On Friday, Nifong's own witness essentially accused him of breaking the law. An actual conflict of interest now exists between Nifong's need to defend himself against possible charges of misconduct and his obligation to prosecute the case fairly and effectively.

In court Friday, the head of a lab that Nifong retained to analyze DNA samples testified that he and Nifong intentionally decided to exclude from the expert's report the fact that DNA analyzed from the clothes and body of the accuser did not belong to any of the defendants but came instead from unidentified males.

N.C. General Statute 15A-903 requires that a prosecution expert provide a report of
the results of any tests performed and that the prosecutor furnish that report to the defense. Deciding to exclude these results is deciding to violate this law.

A prosecutor also has an obligation under the U.S. Constitution and under N.C. Rule of Professional Conduct 3.8 to disclose to the defense evidence which tends to suggest the innocence of a defendant -- including evidence that calls the credibility of a state witness into question.

DNA results showing the absence of DNA material from the accused and the presence of DNA material from other men goes to the credibility of the accuser's account and therefore needs to be disclosed.

In addition to these disclosure requirements, a prosecutor has an ethical obligation not to ignore evidence which suggests the innocence of the accused.

A comment to Rule 3.8 provides that "a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused." It is not clear that Nifong has ever followed up on the DNA evidence described.

North Carolina law provides for the disqualification of a prosecutor from a case only in the event of an actual -- not just potential -- conflict of interest. An actual conflict of interest appears to exist in this case because Nifong must either challenge the credibility of his own DNA expert's testimony or he must admit to intentional misconduct. […]

Kennedy makes a powerful case. You can read the rest of what he says here.

Kennedy’s brief for Nifong’s disqualification will strengthen those opposing what is clearly a frame-up of three innocent young men by Nifong and certain Durham Police officers. It will also weaken whatever public standing Nifong has left.

Those are two important consequences.

But I believe Kennedy’s speaking out in the N&O will have an even more important consequence: by tomorrow morning NC attorney general Roy Cooper will most likely have read Kennedy’s op-ed; and surely most assistant attorneys general and NC State Bar leaders will have read it, too.

They’ll recognize that what Kennedy has laid out is law and fact-based, carefully reasoned and undeniable. They very likely will not act on it soon. Many of them may not want to act against Nifong at all.

But Kennedy has just very publicly stated why NC’s elected attorney general, his office and its state bar charged with protecting the public from its members’ malfeasance must act.

Our leaders charged to protect us from district attorneys like Nifong and police officers like Sgt. Gottlieb and Inv. Himan can continue to duck their responsibilities. But after today they can't hide.

Kennedy’s op-ed gets a big Hat Tip from me and I’m sure most of you.

One other big Hat Tip is due today. That’s to historian KC Johnson who as far back as June told us Nifong’s conduct raised very troubling conflict of interest questions. Here’s part of what Johnson said then:

The appearance of a conflict of interest regarding Nifong’s electoral prospects has been well-documented: there seems to be no motive other than political for his decision to seek pre-primary indictments before the second round of DNA testing was in, given that he had earlier affirmed to the court that DNA evidence would identify the guilty parties. (The results of the second round of testing, which ultimately contained no match to the two players Nifong had earlier indicted, were not due until after the primary.)

There’s also a lesser-covered apparent conflict of interest: In the primary campaign, Nifong won the backing of an influential African-American attorney, Mark Simeon, who represents the second dancer, Kim Roberts a/k/a Pittman. Roberts a/k/a Pittman first made news in the case with an email to a New York publicity agent asking for help in how to “spin” affairs to her financial advantage, and Simeon has expressed interest in representing both Roberts a/k/a Pittman and the accuser in a civil suit.

Quite beyond the fact that Nifong’s pursuit of criminal charges seems to assist Simeon’s intended civil action, an appearance of a conflict of interest certainly exists: Roberts a/k/a Pittman told a dramatically different version of events, one favorable to Nifong’s preferred tale, shortly after the district attorney secured for her a favorable bond settlement on an unrelated arrest—and Simeon endorsed Nifong’s renomination.

In their different ways Duke President Richard Brodhead and Durham Herald Sun editor Bob Ashley continue to prop up Nifong.

Then there are people like Professors Kennedy and Johnson trying to get Nifong off the case.

Vote Kennedy/Johnson.