The Prosecutor and the Press: Lessons (Not) Learned from the Mike Nifong Debacle

I INTRODUCTION Former District Attorney Mike Nifong made several statements to the media during the Duke lacrosse case that were overzealous and clearly contrary to a prosecutor's dual responsibilities to seek justice and to preserve a defendant's right to a fair trial. Notable among Nifong's more outlandish public comments were his characterization of the rape as "totally abhorrent" and "reprehensible," his analogizing the case to a "cross burning," his expression of personal confidence and satisfaction that a rape had in fact occurred, and his criticism of the targets for "refus[ing] to speak to investigators" upon "advice [of] counsel." (1) After a hearing, the North Carolina State Bar Disciplinary Commission ruled that these comments violated North Carolina State Bar Rules of Professional Conduct (N.C. Rules) 3.6(a) ("substantial likelihood of materially prejudicing an adjudicative proceeding") and 3.8(f) ("substantial likelihood of heightening public condemnation of the accused"). (2) The Commission ordered Nifong disbarred. (3) After the disciplinary hearing, Nifong essentially acknowledged that the disbarment sanction was appropriate and agreed not to appeal. (4) In all likelihood Nifong accepted this sanction because other misconduct charges against him--for failing to disclose exculpatory DNA evidence that showed the presence of multiple unidentified males on the rape kit specimen (in violation of N.C. Rule 3.8(d)), and for lying to the court about his compliance with discovery requests (in violation of N.C. Rule 3.3(a))--were so serious that they probably would have led to disbarment even absent claims of improper statements to the media. (5) The lack of an appeal in the Nifong disciplinary case is unfortunate in at least one respect--it deprives the Supreme Court of North Carolina of an opportunity to clarify the line between permissible and impermissible public comment by elected prosecutors during criminal investigations. Several of the statements that Nifong admittedly made to the media about the rape investigation and that the Commission both alleged and found to be improper seem entirely consistent with a prosecutor's duty to inform the public about the priorities of his office, the nature and status of criminal cases, and the reasons for the discretionary law-enforcement decisions he has made. For example, Nifong was determined to have acted improperly in making a statement to the media that the alleged victim's demeanor at the time of the medical examination was consistent with sexual assault, (6) in asserting that he might consider filing charges against players present at the party who failed to come forward with information, (7) in stating publicly that a medical examination revealed evidence consistent with rape, (8) and in revealing to the media that the accuser was able "to identify at least one of the alleged attackers." (9) These are the very types of statements that prosecutors across this country routinely make about pending criminal cases in order to keep their communities informed about threats to public safety and the ongoing enforcement activities of government officials. Not only might some of these latter statements have been permissible under a narrow reading of the pertinent North Carolina Rules, but they may have been protected by the First Amendment. (10) Focusing on what Nifong did wrong in the Duke lacrosse case is relatively straightforward and has been undertaken by many others. His conduct throughout the investigation and prosecution of the Duke lacrosse players was egregious and reprehensible. Focusing on what Nifong may have done right in the case but was disciplined for anyway is a far riskier and more difficult venture. There may have been two "rushes to judgment" in the Duke case: the prosecutor's rush to condemn the students before considering and investigating alternative theories of what happened at the lacrosse party, and the Commission's rush to disbar Nifong for very badly mishandling a high-profile criminal case. …