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The Cost of Rogue Prosecutors


Michael B. Nifong was the state prosecutor in Durham, North Carolina, who brought and trumpeted rape charges against a group of Duke University lacrosse players. The charges were false, and the decision to hype them to the media was unconscionable. Now the state of North Carolina has brought charges against Nifong seeking to hold him to account for his misdeeds as a prosecutor. The state argues that his motivations were corrupt: he pursued the charges not because he really believed that the lacrosse players were guilty (indeed, he had strong evidence, including DNA tests, which conclusively established their innocence) but because he expected that the case would have strong political appeal to the Black community in Durham and would therefore assure his re-election to office.

This case is an extremely important demonstration of the responsibilities of prosecutors and a demonstration of the sort of damage a rogue prosecutor can do. It helps us remember that a prosecutor holds office to seek justice, and not to develop a scorecard of “kills” which can then be hyped in a political context. The Nifong case is an egregious demonstration of these principles on many fronts.

As the public considers the Nifong case it should also give careful thought to the conduct of the Department of Justice under John Ashcroft and, even more starkly, under Alberto Gonzales. There has been a consistent pattern of bringing political prosecutions, not motivated by a sense of justice, but rather by a desire to bring political benefit to the Republican Party. This includes bringing roughly seven cases against Democrats against every one against a Republican–at a time when Democratic officeholders were an increasingly endangered species–and bringing a number of high-profile and exceedingly dubious cases against political figures in the heat of election campaigns while hyping them to the media.

These cases frequently result in convictions through gross miscarriage of justice, and therefore require intense scrutiny on review–one, out of Milwaukee, was overturned by a panel of Republican judges on the Seventh Circuit from whose opinion a single word rang out: “preposterous,” they said. Another gross abuse, in Alabama, still demands careful attention which will very likely establish the Faustian bargain that prosecutors struck with Karl Rove. The names of individual units within the Department of Justice–for instance, the “Civil Rights Division” and the “Public Integrity Unit” have now assumed positively Orwellian dimensions in that their work now seems directed to accomplishing exactly the opposite of what the label suggests.

But consider also the sustained practice of giving sensational press conferences announcing the capture of “terrorists” usually linked to Al Qaeda or other international terrorist groups, frequently involving the Attorney General himself or other senior Administration spokesmen. Very few of these accusations have panned out. In a great number of them we now know that the charges leveled at the press conferences were known to be false when they were uttered, but were trotted out anyway, for purposes of fear-mongering and political titillation.

As the nation’s leading newspaper editorialized on Monday:

The Justice Department is in shambles. Top officials have left under a cloud and have not been replaced. Morale is said to be terrible. And the department’s credibility is shot. The public has every reason to suspect that if a United States attorney brings an indictment with political overtones–or fails to indict–the reason is politics, not the law.

The truth of these lines is now manifest and is accepted by large majorities of the American public. In a sense, the Department of Justice–once one of the proudest and most highly regarded of all the institutions of our federal government–has been vandalized by those to whom its reputation and integrity were entrusted.

The Department of Justice should be an Argus-eyed institution looking out for the security of the nation, and seeking justice on its behalf. At this point there can be very little doubt that the Department of Justice, rather than pursuing cases for the protection of the public, targets and manages cases for the protection of the electoral ends of the Republican Party. This conduct is no less reprehensible than Michael Nifong’s, and the damage it has done to the image of justice in the country is incalculably greater. Michael Nifong is being held to account in a North Carolina trial court. The same process needs to be found to check the arrogant abuse that has now spun out of control in the Department of Justice. The clock is ticking and Congressional action is unconscionably slow.

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