“With the Duke lacrosse case finally closed, many questions still remain about how the case was handled. Perhaps the most important of these is, "How can similar situations be avoided in the future?"Sadly, the Daily Tar Heel’s editorial fails to recognize that the intervention by the North Carolina State Bar was unprecedented and, as such, gives little assurance similar situations would be prevented in the future by the same extreme actions. Further, despite the filing of the State Bar’s voluminous complaint against rogue prosecutor Nifong, the system that “worked just fine and doesn‘t need to be changed” was dependant on Defendant Nifong finally choosing to recuse himself. The suggestion that the system worked also ignores and demeans the precious price paid by the innocents preyed upon by the rogue prosecutor.
“One proposal, suggested Wednesday by N.C. Attorney General Roy Cooper, would allow the N.C. Supreme Court to remove an errant prosecutor.
“Although Cooper's proposal was made with good intentions, it would be wrong to give the N.C. Supreme Court the power to remove prosecutors.
“Cooper's proposal was made in response to the problematic handling of the Duke lacrosse case by Durham County District Attorney Michael Nifong.
“Throughout the investigation, Nifong's actions were condemned with allegations of lacking sufficient evidence, having questionable motives and withholding crucial DNA evidence from the defense.
“The result of Nifong's mistakes was that the N.C. Bar Association filed ethics charges against him Dec. 28. And on Jan. 12, Nifong, feeling the heat, stepped down as prosecutor for the case.
“The unofficial system for disciplining prosecutors worked in this case, making the need for a codified system unnecessary.
“Under N.C. General Statute 84-23, the N.C. Bar is given the authority to "regulate the professional conduct of licensed lawyers" and "take actions that are necessary to ensure the competence of lawyers." This regulation is exactly what took effect in the Duke lacrosse case.
“Many accuse Nifong of getting caught up in the limelight of a re-election campaign and taking improper actions to rush the prosecution of the case.
“So the N.C. Bar stepped in and charged Nifong with making improper pretrial public statements, withholding DNA evidence and making false statements in court and to the N.C. Bar. These charges could result in Nifong's disbarment.
“Many people wanted Nifong removed from the case faster, but it is unreasonable to think that the N.C. Supreme Court, or any other component of the justice system, would have acted faster than the N.C. Bar did.
“It also would be a bad idea to have the N.C. Supreme Court interfering with a case that it might need to make judgment on later if the case is appealed.
“Nifong botched the case, but his mistakes were noticed and action was taken by the N.C. Bar. In that respect, the system worked just fine and doesn't need to be changed.”
Finally, the UNC newspaper’s argument fails to recognize the State Bar’s standard policy to defer “to the concurrent jurisdiction of the court to rule on questions of professional conduct” in matters regarding the disqualification of counsel. In the Nifong/Mangum Hoax, a motion seeking the removal of the district attorney was filed many months prior to the State Bar’s eventual intervention and was based on many of the same instances of professional misconduct ultimately cited by the Bar in its initial complaint against Defendant Nifong. Filed on May, the motion went unheard and was eventually withdrawn in December. During the many months the May 1 recusal motion went unheard, the State Bar methodically conducted an investigation which began with the opening of a file on Nifong in March 2006 and concluded with the filing of an official complaint in late December.
Championing the so-called speed with which the Bar intervened, by pointing to the December 28 filing of the complaint and Nifong’s January 12 decision to remove himself from the case, distorts the actual length of time it took for the State Bar to intervene and the suffering the innocent victims of the Nifong/Mangum Hoax endured in the interim. It's difficult to accept the argument that the State Bar’s lengthy grievance and discipline procedure was intended to be or should be the appropriate vehicle for removing a rogue prosecutor from a blatantly malicious prosecution. Imagine yourself in the place of the innocent victim of a rogue prosecutor willing to imprison you for thirty years in exchange for a larger pension. And now imagine that your avenue of relief depends on the mere hope of an unprecedented State Bar intervention following nine months of investigation.
Perhaps most disturbing, the motion for the removal of Defendant Nifong from his hijacked Hoax currently appears to be the official means of removing a rogue prosecutor. Yet, such a motion filed last May went unheard. And if ever heard, it would have been decided by the same local judges who failed to cite Defendant Nifong for his in-court misrepresentations and his other misconduct, despite their concurrent jurisdiction with the State Bar on questions of professional conduct. Adding to our reluctance to support a call for leaving the responsibility of removing a rogue prosecutor in the hands of either a State Bar that has no immediate nor direct means of doing so or a local court that has demonstrated a reluctance to act is the willingness of Superior Court Judge Orlando Hudson to defy statutory directives requiring him to act on the pending 7A-66 affidavit before him. If the State Bar defers in every other case to the Court’s concurrent jurisdiction and if the local Court defers to the locally elected District Attorney, as has been the case throughout the Nifong/Mangum Hoax, it becomes impossible to accept the suggestion that the State's response to the Nifong/Mangum Hoax has demonstrated that “the system worked just fine and doesn‘t need to be changed.”
NC Attorney General Roy Cooper’s recent proposal to allow Supreme Court intervention may or may not be the ideal solution. Yet, the Nifong/Mangum Hoax has shown the extreme toll exacted from Nifong’s innocent victims, the reluctance of the local court to sanction or remove the DA despite his obvious misrepresentations and other misconduct, and the willingness of Superior Court Judge Hudson to defy statutory directives. Each of which inequivocably demonstrate that change in the form of additional oversight of elected district attorneys is necessary to mend a system that worked quite the opposite of "just fine."