On December 28, 2006, the North Carolina State Bar filed ethics charges against Durham, North Carolina District Attorney Michael B. Nifong for public statements made related to the so-called Duke University rape case.
As most everyone now knows, Nifong was a career prosecutor until he got appointed District Attorney to fill out an uncompleted term. He liked the top job. He decided to run for election to keep it. At the time, he had some competition. He needed a political edge.
Nifong got that edge when, in March 2006, a stripper hired to perform at a party for the Duke lacrosse team claimed she had been gang raped there.
Talk about a prosecutor's political dream. The stripper was black, poor, a single mother working her way through college. The lacrosse players were mostly rich, mostly white, going to that school of privilege and prestige. In the...South! (Harper Lee, call your agent.)
Nifong went public, talking, talking, talking. The media, scandal-starved after months of not discovering the dastardly deed or doers thereof to little Natalee in Aruba, took the story global. The Duke University administration, after years of carefully cultivating its reputation to match its ivy-covered facades, looked ever so presumptuously at the prosecutor's edge and decided to jump over it with him. (Now, Duke is clumsily trying to jump back.)
What could easily have been merely a rush to judgment became a gang rape of justice. Of the three students actually charged. Of the facts, which are still not fully understood, but sow so much reasonable doubt as to make any case other than potential ones against Nifong and the alleged "victim" unprosecutable. And yes, of the considerable ethical restraint required of prosecutors who have obligations that supercede getting elected.
The ethics charges filed against Nifong thus far cover only violations resulting from his public statements. Based on subsequent developments, including collusion with a DNA lab to obfuscate exculpatory evidence, amended complaints and other actions should soon follow.
As Duke Law professor James Coleman, one of the very few at Duke to distinguish himself in the controversy, has said, "I don't see how any member of the public can have confidence in this case. I think it's making a mockery of our criminal justice system to permit this guy to keep fumbling along. It's either total incompetence or it's misconduct on a scale that is extraordinary."
For those who pay attention to such arcane proceedings, several aspects of the North Carolina State Bar complaint against Mr. Nifong are noteworthy.
First, the State Bar said that it opened a case against Nifong only weeks after the original rape charges were made. Second, the State Bar seems to have initiated the ethics action itself. Third, the complaint is about as public as any could get, while most such actions by state bars are secret.
All three of those initiatives – speed, responsibility, transparency -- are to be commended, because all are so rare.
As CFIF can readily attest from some experience and a lot of observation, this country's state bars rank way down in the lower depths of disciplinary organizations. Short of being caught on You Tube doing a dead judge or a live client (with the latter subject to mitigating circumstances), many members of the bar have come to believe that they may roam our legal system pretty much ethics-free.
Until the action by the North Carolina State Bar against Mr. Nifong, there has been little evidence to contradict that belief.
To be sure, Nifong's actions are a lot more obvious (and odious) than most and, in the view of many legal authorities, should have been dealt with before now. Still, in a New Year, one garners hope where one finds it, and we hope that other state bars will follow the lead of North Carolina and truly begin acting as the disciplinarians of their own that they claim, not now very convincingly, to be.January 4, 2007