"A Rogue Prosecutor"

So says North Carolina Attorney General Roy Cooper in describing Durham County prosecutor Michael Nifong, who is the subject of pending ethics charges for prosecutorial misconduct in the Duke rape case.

Two things stand out for me in Cooper's press conference:

First, Cooper was willing to criticize, in genuinely scathing terms, a sitting District Attorney for abusing defendants' rights. I practiced as a public defender for three years in New York City's Legal Aid Society, doing criminal appeals. I had several cases that presented instances of DA misconduct at the trial level. It takes a high showing before the State admits error, and it certainly seldom does so so overtly, and in such detail.

Second, and more importantly, Cooper went far further than I envisioned; a cautious state lawyer would have merely said that there was "insufficient evidence to support a conviction beyond a reasonable doubt" and dismissed the charges. Cooper went remarkably far to try to give the accused their reputations back, going so far as to state:

Based on the significant inconsistencies between the evidence and the various accounts given by the accusing witness, we believe that these three individuals are innocent of these charges," Cooper said at the news conference today. Although rape victims often give accounts that contain inconsistencies, he said, in this case they were overwhelming and could not be reconciled with other evidence. Eyewitness identification procedures used in the case were unreliable, no DNA evidence or other witness confirmed the accuser's story, and "she contradicts herself," Cooper said. All this "led us to the conclusion that no attack occurred," he said.

Interestingly, this crucial language is not contained in the Times story, and only appears at the bottom of the Washington Post article's second page. To me, it is so strikingly unusual as to be the story. Combined with the brutally candid criticism of Nifong, it actually goes some way toward establishing the defendants' wrongful prosecution cause of action against the state. (Not so much against Nifong, though; under federal and most state law, prosecutors enjoy absolute immunity--don't know about NC, however).

Finally, Cooper's statement that the case shows the need for statutory reform to put the brakes on runaway prosecutors (didn't see that in either article!) was extraordinary. Absent some taint in Cooper's review of the process and evidence, the factual summary to come of the evidentiary weaknesses is clearly going to be a humdinger; prosecutors just don't argue that they cannot be trusted on a regular basis, absent a spectacular train wreck of a case--the Titanic of criminal justice.