Topic: Professions & Institutions

Ethics Train Wreck: District Attorney Nifong and the Duke Lacrosse Rape Case

From the North Carolina Bar’s Rules of Professional Conduct:

The prosecutor represents the sovereign and, therefore, should use restraint in the discretionary exercise of government powers, such as in the selection of cases to prosecute. During trial, the prosecutor is not only an advocate, but he or she also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all. In our system of criminal justice, the accused is to be given the benefit of all reasonable doubt. With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice; the prosecutor should make timely disclosure to the defense of available evidence known to him or her that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, 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.

How Durham District Attorney Mike Nifong can reconcile his handling of the Duke lacrosse rape case with this explanatory comment from his bar association’s rule governing the ethics of prosecutors is a mystery. But it is no mystery what his violation of these principles has created: one of the worst ethics train wrecks of the past ten years, a mess that can stand with such recent ethics fiascos as the Terri Schiavo dispute and the Valerie Plame Affair. In fact, Nifong’s handiwork may have caused more human wreckage than either of these. But like all ethics train wrecks, this one had more than one shaky hand on the throttle:

The Duke lacrosse team: While not earning their horrific treatment by Nifong, many of the players on the team were irresponsible in their conduct, disrespectful to the hired exotic dancer who ultimately became their accuser, and reckless in their disregard for the reputation of the university and its sometimes contentious relations with the Durham community. For example, a few hours after the alleged rape, team member Ryan McFadyen sent an email to his team mates in which he fantasized about murdering and sexually abusing strippers. It may well have been composed as a tasteless joke, but it was certainly evidence of an unacceptable level of contempt and callousness toward the human beings the team had hired to entertain them at the party, not to mention strong evidence of a brain-pan insufficiency. McFadyen was suspended after a team mate, in another ethically questionable move, decided to circulate the disgusting e-mail so that it wound up in the hands of the police and, worse still, the media. Did it have any probative value in the case? No—McFadyen wasn’t one of the players implicated or indicted. Still, he ended up suspended from school, the local media used the e-mail to make the team look like a tribe of cannibals, and the seeds of racial conflict were sown and fertilized. The e-mail effectively threw gasoline on an already incendiary situation, and contributed mightily to the lacrosse team’s coach resigning and Duke canceling the lacrosse season.

Nice work, guys.

The Accuser: Crystal Gail Mangumis the hired stripper whose accusation set Nifong off on his unethical prosecution. It is unlikely that someone with Mangum’s past could ever convict anyone of rape based on her testimony. She is a defense attorney’s dream cross-examination target: a habitual thief, fraud, and liar, and a serial source of dubious accusations. She also had a reputation for erratic behavior at the strip club where she worked.

But even if she had been a nun and Nobel Peace Prize winner, her constantly changing account of the alleged rape would guarantee a finding of “reasonable doubt” by any jury that wasn’t a lynch mob in disguise. She has altered the timeline repeatedly; the number, names and descriptions of the men has changed several times; most recently, she announced that she was no longer certain that she had been penetrated by a male body part, precipitating the dropping of all rape charges. Her statements weren’t all that undermined her story, or more accurately, stories. Mangum went days without mentioning the supposed gang rape. The strip club’s security officer said that the accuser told co-workers four days after the team party that she “was going to get money from some boys at a Duke party who hadn’t paid her.” The second stripper who accompanied her to the Duke party denied that she Mangum had been raped, saying that she fabricated the incident. Videotape of the party fails to support Mangum’s ever-changing accounts and timelines.

Given all of this, there is still a miniscule possibility that Mangum really was raped, for bad things do happen to unreliable, dishonest people. But even a legitimate crime victim needs some shred of credibility to prevail unless the evidence against those accused is over-whelming. The most reasonable analysis of Mangum’s conduct, however, compels the conclusion that she engaged in a series of lies out of malice or in pursuit of financial gain, without any concern for the people hurt, resources wasted, and reputations damaged as a result.

The Press: Early on in this protracted saga, the mainstream press decided to frame the story as “spoiled, out-of-control white college athletes exploit and assault poor, black woman” without bothering to consider the many holes in the accuser’s story. This left it to conservative pundits to reflexively frame the story as “politically correct witch hunt uses the word of a black stripper to destroy innocent white kids.” Neither version was fair at the time, and both were motivated by political biases rather than facts. As it happened, the right-wing version was closer to the truth. But the press behaves unethically any time it characterizes a crime story before the evidence is in, or presumes to know who is telling the truth. That is what trials are for.

There is another ethical issue in the press coverage, a familiar one. Even now, after she has been thoroughly and repeatedly discredited, most media sources will not reveal Mangum’s name. As the Scoreboard has noted before, giving a rape accuser press anonymity while openly revealing the names of those who have been accused is ethically indefensible. The stigma and shame attached to the accusation for a man is every bit as devastating as the potential embarrassment to the accuser. The only approach that makes ethical sense is to reveal everybody’s name or no one’s. This case, in which there is every reason to believe that the accuser’s story was substantially or completely fabricated, should prompt a reconsideration of the media’s archaic policies regarding the anonymity of alleged rape victims.

Advocacy Groups and Ignorant Vigilantes: The justice system does not rely on popular opinion, and the law isn’t changed by protests, pickets and rallies. Responsible prosecutors, judges and juries do not alter their conduct because of leaflets and speeches. Indeed, it is wrong to try to influence the outcome of a court proceeding by these methods. This didn’t stop the Black Panthers from demonstrating on the Duke campus in “support” of Mangum (rough translation of their message: when an accuser is black and the accused is white, it’s racist not to believe her) and other groups, local and national, from weighing in on the justice of a prosecution about which they knew very little. It did not stop self-righteous fools from sending threats and making anonymous phone calls to Duke’s lacrosse coach and team members. Such aggressive partisanship in criminal justice matters is unfair and irresponsible, though hardly unusual. Those who wore “I believe Anita Hill” buttons during the Clarence Thomas hearings, those who decided that Paula Jones or Bill Clinton was telling the truth in their dispute and those who rooted for O.J. to beat the system were no different. Cable news and websites could help wean American from this appalling behavior by banning the idiotic polls that ask, “Do you think _____is guilty?” of people who know neither the law, the facts of the case, or the nature of the evidence.

Yes, there has been plenty of unethical conduct to go around, but Nifong bestrides it all like the unethical colossus he is. Nifong brought rape and related charges against three players without making an adequate effort to determine whether their accuser was credible. He authorized a line-up ID by Mangum that only included members of the Duke lacrosse team, an inherently prejudicial violation of accepted perpetrator identification procedures. He made statements to the press that vilified the Duke players and assumed their guilt, conduct specifically forbidden by the bar’s ethics rules. When DNA tests showed no trace of genetic material from the accused players, Nifong speculated in press interviews that this may have been because they used condoms, though he knew that Mangum had said that no condoms were used. That was a black letter ethics violation, an intentionally misleading and deceitful statement. Even worse was his decision to keep from the defense the fact that while no DNA from the accused players had been found on Mangum, DNA from multiple unknown sex partners were found. His deception violated both court and ethics rules, and Nifong compounded his misconduct by lying about it, yet another clear ethics violation. Though the DNA results reached his office in April, he filed a statement in May saying that the prosecution “is not aware of any additional material or information which may be exculpatory in nature.” For these actions, the North Carolina Bar filed ethics charges against Nifong, making it necessary for him to withdraw from the case.

Nifong’s decision to bring charges that could never be proved beyond a reasonable doubt and dogged refusal to drop them when any rational prosecutor would have tossed the case in the trash could conceivably be a symptom of a dim legal mind and wretched judgement, making it one aspect of his performance that wasn’t unethical. Legal ethics rules don’t declare it unethical to be stupid, which is one reason many rules are difficult to enforce. For example, it is unethical for a lawyer to bring a lawsuit that she knows has no merit, but if she’s slow-witted enough to erroneously think it does have merit, then there’s no ethical foul. Mental deficiency is Nifong’s best defense, but there is circumstantial evidence that points to more sinister reasons for his behavior.

When the Duke lacrosse case first hit the headlines, Nifong was acting District Attorney, a long-time prosecutor who was a few months from having to win an election to keep the job he inherited when his boss was appointed to the bench. Opposing him in a likely tight race was an attorney he had once fired, and who would probably return the favor if she prevailed. The Duke case presented a perfect opportunity for Nifong to curry favor with Durham’s numerous and pivotal group African American voters, and also a chance to blow the election if he displeased them by seeming to side with the rich, white, arrogant Duke students. Many observers believe that Nifong manipulated a case that he knew was fatally flawed to guarantee his election, sacrificing the students, the reputation of the school, justice and principle for his own career. If that is true, Nifong is thoroughly corrupt and a disgrace to his profession.

A somewhat less damning interpretation is that Nifong simply did not have the courage to resolve the racially tinged case before the election and was stalling, hoping that he could both win the election and discover sufficient evidence to get convictions. This would make him both unethical and a coward. Until and unless Mike Nifong discloses his true motives, these will remain only intriguing speculations.Even without that piece of the puzzle, there is more than enough unequivocal misconduct by Nifong to warrant bar discipline, and possibly disbarment. The prosecutor is the ethical lynchpin of the criminal justice system. If he only brings cases for which there is strong evidence of guilt, if he uses his powers judiciously and fairly, if his concern is for the public good and the integrity of law enforcement rather than personal ambition or career advancement, if he discharges his duties with dignity, skill and fairness, then the community is safer, the government is respected, and justice reigns.

A shorter way to say this, perhaps, is that a prosecutor should be precisely the opposite of Durham District Attorney Mike Nifong.

[Note: Many sources were consulted for this essay. Especially useful was the extraordinarily thorough entry on the case in Wikipedia.]

Comment on this article


Business & Commercial
Sports & Entertainment
Government & Politics
Science & Technology
Professions & Institutions

The Ethics Scoreboard, ProEthics, Ltd., 2707 Westminster Place, Alexandria, VA 22305
Telephone: 703-548-5229    E-mail: ProEthics President

© 2007 Jack Marshall & ProEthics, Ltd     Disclaimers, Permissions & Legal Stuff    Content & Corrections Policy