Rogue Prosecutors

[Jims]

Rogue Prosecutor?

   Durham, North Carolina, District Attorney Mike Nifong has been called a “rogue prosecutor” by many media broadcasters. The sad fact is, he is not as rogue as we would like to believe. Prosecutors who seek convictions at the expense of truth and justice are endemic to the group as a whole. Rare are the district attorneys who understand that the prosecutor is the voice of the people, not the victim, and that their goal is to find and convict the person who did the crime; not concoct (or withhold) evidence in order to obtain a conviction against the person they’ve pre-judged as being guilty.  Prosecutors are not supposed to be out for blood, but that is exactly what Mike Nifong did when he continued to seek convictions against three Duke University lacrosse players now known to have been falsely accused of rape.

Is it overly harsh to accuse Nifong of being out for blood? Not at all. This man, this servant of the people, withheld vital DNA evidence from the defense that he knew could be exculpatory. Namely, that DNA from a source other than the three accused men had been found on the clothing of the accuser. Prosecutors are legally required to turn over exculpatory evidence to the defense, but there is also a question of moral obligation and integrity. Mike Nifong failed miserably on all counts. How often do such violations occur? No one, aside from police officers and/or district attorneys involved, knows. The failure to disclose possible exculpatory evidence is known as a Brady violation, after the 1963 “Brady v. Maryland” SCOTUS case. The Court held that withholding evidence violates a defendant’s due process, Fourteenth Amendment rights "where the evidence is material either to guilt or to punishment". It is impossible to determine how often such evidence is thrown away by police, or not turned over by the prosecutor.

According to The Center for Public Integrity, a Washington D.C. based investigative journalism organization, [http://www.publicintegrity.org/default.aspx] since 1970 over 2,000 cases involving prosecutorial misconduct have resulted in reversed convictions, sentence reductions, or dismissed charges. In thousands of other cases, appellate judges cited inappropriate prosecutorial behavior but upheld the convictions (citing “harmless error”). Disturbingly, the Center found that prosecutors in many of the more than 2,300 jurisdictions across the nation had received multiple citations for inappropriate prosecutorial behavior and/or misconduct and yet continued to prosecute cases. Such cases have resulted in innocent men and women receiving lengthy prison sentences for wrongful convictions before being exonerated. But they have also resulted in putting guilty defendants back on the street after having cases dismissed due to prosecutorial misconduct.

According to the Center’s statistics, fully 95% of cases in most jurisdictions never go to trial. Deals are made out of the view of public scrutiny; police interrogation rooms become courtrooms; and prosecutors and detectives don the hats of judge and jury. It is impossible to know how often laws are bent or broken by overly zealous law enforcement officials eager to score convictions and to “solve” cases. The younger and/or more inexperienced the suspects being interrogated are, the more egregious the violations become.

The Duke rape case was not a case of David vs. Goliath. It was more a case of Godzilla vs. King Kong. The resources available to the three young men provided by financially secure families were extraordinary. There can be no mistaking the fact that had the accused boys been from a lesser socioeconomic stratum, there would now be three young lives wasting away in maximum security prisons serving 30 years or more. Now that the Duke students have attained at least some level of justice (allowing for the fact that the experience has no doubt left an indelible mark on their lives, the effects of which cannot yet be measured), this country should be talking about the injustices suffered by countless defendants who do not have unlimited resources to fight against false accusations.
 
Mike Nifong is facing possible criminal charges for his role in withholding exculpatory evidence in this case. That may be the loophole needed for the families to file a lawsuit against him personally as well as against the county he represents. At the very least, Nifong is facing disbarment.

Perhaps a more equitable punishment would be to sentence him to spend the next 30 years practicing pro-bono criminal law. After all, he worked hard to obtain a conviction against the three Duke students that would have come with a 30-year prison sentence for each.
And wouldn’t it be wonderful if the families did litigate and receive an enormous settlement that they then used to open and fund an organization whose mission it was to provide high quality pro-bono legal assistance to low-income defendants?

Finally, wouldn’t it be wonderful if this near-tragedy began a much needed dialogue about the injustices that are now rampant in our legal system? Surely such a subject merits discussion more than the crude remarks of a crude broadcaster; or the paternity of a (now dead) celebrity wannabe’s child. We can only hope. No, we can do more than hope. We can bombard news programs with emails imploring them to discuss the serious issues:

http://www.cnn.com/CNN/Programs/larry.king.live/ (Larry King Live)
http://www.msnbc.msn.com/id/10285339/ (Today Show, Hardball, Tucker, - all MSNBC news programs)
http://www.cnn.com/feedback/ (CNN programs)
http://www.cnn.com/CNN/Programs/nancy.grace/ (Nancy Grace)
http://www.foxnews.com/story/0,2933,77538,00.html (Fox News programs, including Greta Van Susteren and O’Reilly)
http://www.courttv.com/contact/ (Court TV programs)

[Dazzler]

Unfortunately, this mindset with prosecutors is running rampant in our country...especially Illinois.  The media and the prosecutors are so anxious to 'solve' crimes and convict someone they often ignore valuable pieces of evidence, probably to coverup their rush to judgement....good editorial, Jims.

[klo]

Thanks Jims!  My husband was the victim of this breed of prosecutor.  When a victim has to be continually harassed to get something that can be prosecuted there is a problem.  Cases like Duke are exactly what is wrong in this country right now...an inflamatory story that sells at the expense of those accused.  Those guys have already been convicted whether the case went forward or not.  They cannot get their season back and their lives have been disrupted.  Who will pay?  No one.  The prosecutor will get off on immunity and the alleged victim will never be charged with a crime.  Our media likes a scandal and the public buys the papers.  Until people wake up and read the Constitution, nothing is going to change. Freedom of the press is not freedom to destroy a person's good name.  Way to go Jims!

[wifey]

I definitely agree!  My husband was tried in the media the day he was arrested.  The prosecutor called my husband everything under the sun. Not only was his whole livelihood and reputation destroyed, his ability to defend himself was wrought with denied motions of being  able to disclose  the credibility of the alleged "victims" because of their "rights"! They not only changed their story before the trial but also during the trial! They were treated like royalty. The prosecutors kept asking what motive they would have to accuse my husband but they never let us actually answer that question-it was a rhetorical ploy to get the jury to warm up to them! It seems if you are accused of a "hot topic" crime in some Illinois counties, there is no end to the witchhunt!  The system does not provide a level playing field. Someone once told me about the press , "if it bleeds, it leads" !  I sat with media all day long for several weeks.  They conspire with each other about what points to highlight in their articles.  If it is a "slow" day in the trial, they will just get notes from someone else.  It is amazing how irresponsible journalism has become.  I read the paper and watch the news much differently now.   

[Jims]

It becomes a witch hunt. And the public is so easily led, which is something I don't understand. This mentality of the masses to convict the accused before trial. There simply is no more "innocent until proven guilty." Today's sensationalist inspired and ratings driven media rivals that of the late 1890's and early 1900's. Prosecutors are lionized and feed on the attention they receive. Wifey, I am sorry you, your husband and your family were victims of such a circus. I wonder how much it affected his sentence.

[JDsMom]

[bExcellent editorial.........and I fully agree, had these been poor folk, they would have been sent to prison. And don't forget, alot of these Prosecuters have higher goals, such as State Attorney or better, when it's election time, watch out that you dont have a loved one facing one of these guys. Unfortunately, my son did in McDonough County, so I know all too well how these guys workl.....][/b]

[Jims]

Can you imagine having Birkett for a prosecutor?? Just bend over and kiss your ass goodbye.

[Baby girl since 66]

JDs Mom. I totally agree with your comment. It happens every day in Illinois. My loved one went before the courts just before a election and got 120 years for a crime most get 6-12 years. There are no more innocence till proven guilty, your guilty the moment you walk in to that court room. Money plays such a big role in who walks and who don't. I use to have so much faith in our legal system but through all of this I no longer trust. :-(

[Dazzler]

Unless of course, Jims, you hire one of Birkett's friends' law firms...then it's a different story....or, any of the lawyers who are on the Dupage Republican Committee.....

As a journalist it bothers me what the press has been reduced too....it's more about selling papers than practicing good journalism....and ethics!!  I'd rather investigate both sides of a story and look for injustices than just jump on a bandwagon and appease public opinion...or form it....however, there have been some very good reporters who have uncovered the truth in a few miscarriages of justice and been responsible for exonerations....I think it's a matter of personal ethics....tenaciousness and good journalism. 

[Jims]

And I will say that for the most part, print journalists have retained their integrity. Especially the big publications. But cable TV "news" - whoa. It's as if Faye Dunaway's character in "Network" is running all the programs!

[wifey]

The prosecution is allowed to correct errors, re-indict, harass witnesses to succumb to their line of questioning especially in the pretrial stages, constantly continue hearings because they are unprepared, and can correct testimony in open court by feeding witnesses information that assists their case.  I was amazed at language that was used in the papers, on t.v. and in closing arguments by the prosecution. What they described was so far from the truth!  As for the press, they will print what they can.  Unfortunately, as the defendant, you are unable to speak to the media without it being used against you. So as much as a great reporter would like to investigate both sides, they really can't. Without ever speaking to my husband, they surmised his character-to have had his side of the story prior to the trial would have made a world of difference.  As much as I would have loved to give an interview, (2 network news stations requested me to interview with them) I was held back by numerous family and friends who said that things would only get worse for my husband and that I would be discredited as well.  I could not put my family through anymore. 

[Dazzler]

If you're ever wanting to give that interview I have a friend that's a news anchor in Chicago....she would handle the interview from your point of view...and your story could be told...BTW...she's no fan of Birkett's either...and has already done some investigating into the county's corruptness....

[wifey]

Thanks!  I will definitely keep that one in mind!  Tell her to keep investigating.  I would love to find out something on this.
We filed today for the appeal.  I think we have a pretty good attorney.  He tries cases against jb all the time.  Now one of the plaintiffs have filed a civil suit and sources tell me that the attorney on that one is a major campaign contributor to jb. This really isn't about protecting anyone from the "bad" guys, it is about power and money.

[Jims]

Wifey, you're so right. I just cannot believe the unfairness in your husband's case. I've seen and heard about a lot of unfair cases, but really, this one takes the cake. Well of COURSE one of the "victims" wants to file a civil suit. Ching ching. That's exactly what it's all about, though they'll spin it differently. I'd just like to know the basis for their suit and why they think they're entitled to damages.

[klo]

Birkett has no soul.  Thank god he did not win the election to attorney general.  Cases should not be tried in the media and victims rights should not be at the expense of right of the accused.  Victim in my husband's case changed her story several times as well but to risk a trial meant our boys growing up without their dad.  Now we just need to fight for better sex offender laws, a tiered system.  My husband is no danger to anyone.

[wifey]

Ditto!  My  husband is a wonderful man who has always been the first to help and the first to volunteer for anything.  He is definitely not a threat either.  We love our husbands more than anything and we know that they have already lost all that they had.  We took the trial risk and it didn't work the way we thought it would but we remain hopeful that at some time the truth will prevail!

[JDsMom]

A tiered system for Sex Offenders would certainly be a start! Sadly, in the eyes of the LAW, and most people, hearing that a person was convicted of a Sex Offense , their first thought is " CHILD MOLESTER"......and in alot of cases, this is not so. If anyone has read my posts on what happened to my son you understand my anger at the system.....and Lisa Madigan's office simply passed the buck when I wrote to her about changing these stupid outdated laws....sent on .......and on.......and each one said " It's not my office that should be contacted concerning this matter"  I'm still searching for who the heck's office it needs to be directed too. I wrote all my senators, state reps........guess nobody wants to help!

[SMD]

There simply is no more "innocent until proven guilty   


 Very good saying Thanks.. sad but so true

[not the mama]

Just found this thread and could not believe how many this has happened to! In Lee county  our state's attorney (Batman) is on a power trip and what he has done to the families in Amboy is a crime in itself....we are banding together to get him censured by the bar....and guess who he chose as special prosecutor for one of the judges that opposed him and exposed him when he was our 'public defender (public defender-private inquisitor!)....right after he was elected he began an 'investigation' that lead WITH BIRKETT AS PROSECUTOR to exoneration after 2 1/2 years !! And a ruined career for a respected judge...what he has done to the children in this town is beyond belief.....17 year olds sent to prison for petty offenses! He was heard to say he would make an example of this town (home to his opponent in the election) and they would pay. We have!!
Evidence in my son in law's case was not allowed in ...oh heavens there goes my dinner!! Our son narrowly escaped his clutches, but he got a year of his life anyway.....even if you win out here you lose! And it seems it is not only here. The headlines are what he lives for and he makes sure he gets them everytime. The cheerleaders on the local paper are enough to make you sick...no investigation...but that is a newspaper...they are privately owned and can do as they please.
The other group to whom investigation is a foreign concept is our sheriff's dept. Why investigate? Get the kids in there, scare the pants off them and then get a confession....any way you can...you can lie about it in court! the judges will believe the respected members of the bar and the 'officers'  before a scared 17-18 year old and his friends, family, neighbors and even the purported victim!
Geez! Now I can't even eat dessert....this man has been the best diet I have some across in 45 years!! weighing1