Obstruction of Justice

In an April 13, 2007 article at Slate, Joseph Kennedy, associate professor of law at the University of North Carolina School of Law, considered whether Mike Nifong should face criminal prosecution for hijacking the Hoax. While Kennedy, a fellow at UNC's Parr Center for Ethics, outlines the case for prosecution of the former District Attorney, he left open the possibility that the State Bar Ethics trial would offer absolution for Nifong. The recently released Order of Discipline against Nifong makes clear that the crimes suggested by Kennedy merit investigation by the State Bureau of Investigation and the Department of Justice.

Did the DA in the Duke lacrosse case commit a crime? - Joseph Kennedy, Slate

When does a prosecution itself become a crime? It is well understood that prosecutors enjoy broad immunity from civil suit for their actions as prosecutors. That immunity, however, does not protect them from criminal liability. North Carolina District Attorney Mike Nifong faces possible disbarment for allegedly violating the rules of legal ethics in the Duke lacrosse case. A number of members of Congress have asked the Department of Justice to investigate his conduct, and the North Carolina attorney general has not ruled out criminal charges. Should Nifong face prosecution for his handling of the case?

Maybe. Nifong has not yet had a chance to present his defense to the ethics charges—that will happen in mid-June. But if Nifong indeed committed all of the acts alleged in the ethics complaint, he may also have obstructed justice in violation of state law and committed a federal civil rights crime.

The strongest basis for a prosecution on either charge would probably be the allegations that Nifong tried to suppress DNA test results that suggested the innocence of the defendants (three Duke lacrosse players he charged with raping a dancer whom the team hired to perform). Those results ruled out the defendants as the sources of DNA material found in the clothes and on the body of the accuser. Obstruction of justice extends to actions by attorneys aimed at suppressing evidence in criminal cases. Such cases are unusual but not completely unheard of. Last year, the Department of Justice charged one of its own prosecutors with obstruction of justice for allegedly failing to disclose exculpatory evidence. In that case, the prosecutor argued in a terrorism trial that he had sketches by the defendants of a Jordanian hospital targeted for attack. The charge is that the prosecutor also had photographs of the hospital that contradicted his claims about the sketches, and that he didn't disclose them. This may be the first time that a prosecutor has been charged with obstructing justice for failing to turn over exculpatory materials—evidence that suggests a defendant's innocence.

Obstruction of justice is a felony in North Carolina if it's committed with the intent to deceive. The state bar has accused Nifong of intentionally excluding the exculpatory DNA results from his expert's report and of subsequently misleading the trial judge as to their existence. If Nifong really intended to deceive the judge and the defense in order to prevent the introduction of those results into evidence at trial, he committed this felony.

A federal charge of depriving the defendants of their civil rights would get to the same issues by a different route. According to federal statute, it is a crime for any person acting "under color of law" to willfully deprive a person of a constitutional right. Acting "under color of law" essentially means using the power of the government, and it includes the actions of state prosecutors in criminal cases. The constitutional right at issue would be the defendants' well-established due process right to disclosure by the prosecutor of exculpatory evidence. Nifong would only be guilty of the federal civil rights charge if he specifically intended to deprive the defendants of their constitutional right by suppressing the test results. The statute does not require Nifong to have believed he was prosecuting innocent defendants—and to have gone after them anyway. Deliberately depriving a defendant of his constitutional rights is a crime if you believe him to be guilty.

The Disciplinary Hearing Commission’s findings of fact make clear that several of Nifong’s actions were intended to deceive the court and the defendants thereby constituting multiple instances of Obstruction of Justice as defined by Kennedy and required by Statute. The DHC also makes clear that Nifong, while "acting 'under color of law'," "specifically intended to deprive the defendants of their constitutional right by suppressing the test results."

Findings of Fact, Conclusions of Law, and Order of Discipline

The representations contained in Nifong's May 18 written discovery responses were intentional misrepresentations and intentional false statements of material fact to opposing counsel and to the Court...

Nifong's response to Judge Stephens' question was a misrepresentation and a false statement of material fact...

Nifong's representations to Judge Stephens at the June 22 hearing were intentional misrepresentations and intentional false statements of material fact to the Court and to opposing counsel...

Nifong did not comply with Judge Stephens' June 22 Order...

Nifong's statements and responses to Judge Smith at the September 22 hearing were intentional misrepresentations and intentional false statements of material fact to the Court and to opposing counsel...

Nifong's representations that he was unaware of the existence of DNA from multiple unidentified males on the rape kit items and/or that he was unaware of the exclusion of such evidence from DSI's written report, were intentional misrepresentations and intentional false statements of material fact to the Court and to opposing counsel...

Following his exoneration of the Duke Innocents, Attorney General Roy Cooper suggested that criminal charges against Nifong were a possibility to be considered after letting “the process work with the North Carolina State Bar” with the expectation that the State Bar’s investigation and hearing would offer more information on whether criminal charges were warranted.

Q: What about Mike Nifong? Do you think that his actions warrant a criminal investigation?

COOPER: Well, I think it's important that we let the process work with the North Carolina State Bar. Our investigation dealt mostly with the facts of this case and making a decision. Their investigation is dealing more with the pretrial comments and with the discovery issues on the DNA that our investigators really did not get into the details of that.

I think once the bar finishes that hearing process, then we will know more about that process when it comes.

Q: Is it a possibility?

COOPER: It's certainly a possibility, but I don't want to -- to speculate at this point. I think all options are certainly on the table.

If Cooper was genuinely looking to the State Bar for guidance before addressing criminal charges of obstruction of justice, it would appear that he now has the answers he was waiting for. In light of the DHC’s findings that indicate clearly that the defrocked DA committed felony obstruction of justice, Cooper now has no excuse for delaying a decision on pursuing criminal charges against Nifong. Given his public suggestion that the possibility of criminal charges remained up and the more would be known about whether charges are warrant upon conclusion of the State Bar investigation and hearing, the AG must now either commence a criminal investigation or explain why he has decided, after waiting for findings which clearly indicate that charges are warranted, to give Nifong a pass for his felony.

As with AG Cooper and the pass given to Nifong on felony obstruction of justice charges, the Department of Justice remains silent on federal charges despite the clear outline presented by the DHC.