No Excuses Now For Nifong In Duke Case

Durham County District Attorney Mike Nifong listens to questions from reporters at the Old County Courthouse in Durham, N.C. Tuesday, May 2, 2006. Nifong, the lead attorney in the case against members of the Duke lacrosse team won the race for District Attorney by a narrow margin.(AP Photo/Gerry Broome)
AP Photo/Gerry Broome
Attorney Andrew Cohen analyzes legal issues for CBS News and

Having pleaded in vain in the court of public opinion for people to wait for the evidence to come in before convicting Durham County District Attorney Michael Nifong of malicious prosecution, and having watched month by month as his rape case against three Duke lacrosse players fell apart, let me now say this: Just as the defense lawyers for the young men had screeched for a year, there really was no there there. No evidence or testimony worthy of bringing before a jury with the hope of proving a case beyond a reasonable doubt. Nifong now deserves to be held accountable for his grievous errors in judgment and tactics.

In the wake of Wednesday's report by North Carolina Attorney General Roy Cooper, it is clear beyond debate that Nifong handled the sexual assault case terribly — unprofessionally to an almost unbelievable degree. He did stupid things that should not have been done and did not do obvious things that should have been done. That's simply not good enough in any case — let alone a case with as much tinderbox potential as this one presented from the very beginning. Why he did it or how he thought he could ultimately get away with it is beyond me. If he is wondering today how and why he got himself into the professional mess he's in, he has no one to blame but himself.

Using remarkably blunt language, Cooper blasted Nifong over and over again during Wednesday's dramatic news conference. He called the district attorney a "rogue prosecutor" who proceeded with "bravado" rather than with "caution" in evaluating the case. He accused Nifong of jumping the gun in the case — "a tragic rush to accuse," he said — and of failing to verify the accusations with any sort of strong evidence. But Cooper went further. He didn't just declare that the young men could not be convicted beyond a reasonable doubt, Cooper said outright that the defendants were "truly innocent" and that "there was no credible evidence that an attack occurred in that house that night." In a matter of minutes, the Attorney General thus gutted the District Attorney like a fish.

Nifong is done as a prosecutor — and perhaps as an attorney, too. You can make book on it. By far the worst mistake he made was his failure to promptly interview the alleged victim in the case to determine for himself from the outset whether her story would or could withstand the scrutiny they both knew would come. When you prosecute a case like this, with little scientific evidence to support a serious crime, you are essentially putting your reputation, and the reputation of the justice system, on the line when you endorse the complaining witness' story. Consistent with your ethical obligation never to bring to trial a case you don't believe you can win, you are telling the world, and potential jurors, that you believe her beyond a reasonable doubt.

It thus makes absolutely no sense to me that Nifong would have decided to go to war with this alleged victim without thoroughly and personally evaluating her credibility and reliability. It is no argument to say that Nifong trusted his subordinates to do this work on his behalf. He was in charge of this case; it was his responsibility to make sure things were done right. They weren't — not by a long shot. Rape cases are notoriously tricky and alleged victims in sexual assault cases bear burdens that few other complaining witnesses bear. But in the interest of justice, a prosecutor still has to ensure that the story of a crime holds up. This one apparently didn't.

Worse, Nifong made certain inflammatory comments shortly after the story broke last March that enabled the herd of defense attorneys involved to characterize him as violating the state's ethical rules. In other words, he raised the ante before he knew what kinds of cards he held. He called the students "a bunch of hooligans' and said that racial slurs against the alleged victim made "an extremely reprehensible attack even more reprehensible." No reasonable prosecutor should have stepped out upon that limb without being sure that the person supporting it had a rock-solid grip. Turns out she didn't. Her fault, certainly — but Nifong's as well.

That Nifong waited for months and months and months to interview his complaining witness seems particularly negligent and inexplicable because it became clear fairly early on in this process that there were significant discrepancies in her story against the students. The eyewitness procedures were fouled up. Many witnesses contradicted the prosecution's case. The DNA didn't match, and even the complaining witness changed her tune.

These inconsistencies eventually led to the charges being dropped; they obviously played a role in the Attorney General's conclusions as well. If so many of the rest of us were left scratching our heads last spring and summer and fall over the evolving nature of the case, and the lack of supporting physical and scientific evidence (not to mention the other stripper's account), then why in the world did Nifong wait so long to check it out?

That's one serious question. There are others. For example, the head of a private DNA firm testified last December that he and Nifong agreed not to tell the defendants that test results did not link them to the alleged victim in the case. Nifong promptly denied that any conspiracy was afoot but failed to adequately explain why the test results were not immediately given to the defense — as the law requires. In fact, looking back, those test results could have given Nifong a perfectly legitimate excuse to get out of the case. Instead, he chose to press ahead and play unfairly. That's just not good enough — not nearly good enough.

For the students, today is the first day of the rest of their lives. Unlike other defendants unfairly accused, unlike other victims of an imperfect justice system, they never had to spend decades in prison waiting for some witness recantation to spring them. In fact they never spent a single night in jail. Unlike other defendants, they were able to muster aggressive defense attorneys who swarmed like bees over the prosecutor and the media in this case. Unlike other defendants, they emerge from their misfortune young and healthy with compelling stories to tell and sell. Perhaps at some point they will disclose to the rest of us what really happened that night last year at that off-campus apartment, when a large group of student athletes hired two strippers to come over for a party.

For the alleged victim, today is the first day of the rest of her life, too. She now can try to begin to move on from this sorry episode and make meaning out of it. Is she a victim, too, a victim of her status as a stripper and a hazy memory? Only she and the young men know for sure. Perhaps in time she, too, will be able to share with us her version of events from that seedy night. One thing, however, is beyond any spin and needs no hindsight for clarity: Young lives were shaped immeasurably by what went on at that party that night. The wrong people met at the wrong time, and a social and political and legal fire sparked. The decisive action by North Carolina's attorney general douses all but a few embers from that blaze.

By Andrew Cohen