INNOCENT: Can Nifong Be Prosecuted?

"... these three individuals [David Evans, Collin Finnerty and Reade Seligmann,] are innocent of these charges."

North Carolina Attorney General Roy Cooper, Apr. 11, 2007
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This past April in Slate UNC – Chapel Hill Law Professor Joseph Kennedy considered the question of whether Nifong can be prosecuted for criminal acts. Key portions of the article follow, including Kennedy’s conclusion.

What Kennedy said in April was extremely informative and interesting then. It’s even more so now that we’ve seen four days of Nifong’s State Bar trial and heard him resign his office on the witness stand [excerpts]:

According to federal statute, it is a crime for any person acting "under color of law" to willfully deprive a person of a constitutional right. Acting "under color of law" essentially means using the power of the government, and it includes the actions of state prosecutors in criminal cases.

The constitutional right at issue would be the defendants' well-established due process right to disclosure by the prosecutor of exculpatory evidence. Nifong would only be guilty of the federal civil rights charge if he specifically intended to deprive the defendants of their constitutional right by suppressing the test results.

The statute does not require Nifong to have believed he was prosecuting innocent defendants—and to have gone after them anyway. Deliberately depriving a defendant of his constitutional rights is a crime if you believe him to be guilty.

Nifong has repeatedly claimed that he ultimately did nothing wrong because the defense eventually received the DNA results. North Carolina's discovery law, however, clearly required the results to be included in a report prepared last April, not handed over months later. (Emphasis added. Kennedy's statement concerning what the law requires was affirmed frequently this week by attorneys testifying and prosecuting at Nifong’s State Bar trial. – JinC)

It is less clear when a prosecutor needs to produce exculpatory material under the federal constitution. In deciding whether or not a defendant is entitled to a dismissal or other remedy, many courts have found no violation of federal constitutional rights when the material was produced at trial, on the theory that the defendant was not ultimately prejudiced by the timing of the disclosure.

These court decisions, however, do not rule out criminal liability for a prosecutor who deliberately tries to withhold evidence that ends up eventually getting produced anyway. The "no harm, no foul" defense doesn't fly here. Obstructing justice does not require that you suppress evidence, only that you try. Federal civil rights law is similar.

This should mean that in the Duke lacrosse case, the defense's ultimate success in getting the raw data of the DNA tests would not save Nifong.

The timing of the disclosures is relevant, though, as to whether Nifong in fact intended to suppress the DNA results. If Nifong was simply trying to delay production of the tests as long as he legally could, he would not be guilty of the federal charge. He might even avoid liability on the state charge on the theory that intending to "delay justice" is different from intending to obstruct it. To win, the prosecution would have to prove that Nifong was trying to suppress the test results in the hope that they would never be disclosed.

Could criminal prosecutors surmount that hurdle? If the state bar complaint is true, they very well might. That complaint accuses Nifong of making intentional misrepresentations to both the trial judge and to state bar investigators. If the prosecution can convince the jury that Nifong lied in a cover-up, the district attorney will have a hard time arguing that he was not trying to cover up exculpatory evidence in the first place.

Also, the weaker the original evidence against the former lacrosse players, the more reason for a jury to think that Nifong was trying to permanently withhold the test results out of fear that otherwise he would never win a conviction.

The fact that the North Carolina attorney general did not just dismiss the original rape case, but actually found the defendants to be innocent, suggests that the evidence of their guilt was weak indeed.

Even if Nifong did commit a crime, should he be charged? Do we want our prosecutors worrying about becoming defendants themselves?

If they deliberately suppress evidence of innocence, I think we do.

The law is written to ensure that charges will be brought only against a prosecutor who was deliberately trying to completely withhold evidence that suggests innocence. Prosecutors who made a mistake, or stalled, are off the hook.

And consider this parallel: In securities cases, we indict corporate officers for obstruction of justice when they delete e-mails if we think they are trying to hide material from government investigators.

Rogue prosecutors merit the same treatment. The prosecutor's obligation to disclose evidence suggesting innocence protects innocence. Prosecutors should know that when they deliberately thwart that protection, they do so at their own great peril.

I’ll have more to say soon. In the meantime, Kennedy’s entire article is here.

I’d like to hear what you think.