Of course I'm reading about the Mike Nifong ethics trial with great interest. I think he'll be lucky to come out of it with his law license and job as Durham DA.
I've been pondering a statement one of Nifong's attorneys, David Freedman, made Tuesday: "It is not unethical to pursue what someone may believe to be an unwinnable case."
I think that statement is true, but not in all circumstances.
A district attorney might realize he has a difficult case to prove, a case that other observers regard as unwinnable. But maybe he sees an opportunity to demonstrate a defendant's guilt that others miss.
Or maybe he believes that, despite poor odds of proving the charges beyond a reasonable doubt, there's still enough evidence to air it all out and let the jury decide. Wasn't it better for O.J. Simpson to have been tried, even though he walked, than not to have been tried at all? The prosecutors owed it to the victims to bring him to trial even if their case wasn't air tight.
But then there are other circumstances, like those at play in the Duke lacrosse case.
When Nifong should have listened to others telling him he didn't have a winning case.
He should have analyzed why they came to that conclusion.
Other than the inconsistent statements and identifications made by an exceedingly unreliable accuser, there was no evidence that the alleged crimes even occurred, much less evidence against any of the specific defendants. In fact, there was strong evidence showing one of the accused wasn't even at the scene of the alleged crime at the time it supposedly occurred.
It is unethical to pursue a case despite such compelling information refuting the basis for your prosecution.
It is even more unethical to try to turn the odds in your favor by making inflammatory, prejudicial and inaccurate public statements about the accused, creating a climate of animosity and potentially poisoning the objectivity of a jury pool.
And it is heinously unethical to deny evidence to the defense that would further render your case unwinnable.
Those are the issues before the N.C. State Bar in Nifong's ethics trial.
I think he's in trouble. If he had simply initiated a difficult prosecution in good faith based on the original accusations made by his witness, and also launched a thorough examination of the facts, he would have done what was reasonable and expected.
Instead, he made immediate assumptions, drew quick conclusions and began to try his case in the media before all the facts were known. Then, when enough information did emerge for any reasonable person to conclude that the case wasn't just unwinnable but wrong, he stubbornly continued his prosecution until he was forced to give up the case.
The attorney general, after his own investigation, later dismissed the charges, proclaimed the defendants innocent and declared that no crime had occurred.
Nifong had ample opportunity, and every reason, to do the same months earlier. He didn't. Was he guilty merely of poor judgment, or of unethical conduct? We'll see what the State Bar says, but my guess is the conclusion won't be pleasant for Nifong.