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FORUM: The Nifong case - how rare?

- The Washington Times - Sunday, July 29, 2007

Soon after prosecutor Michael Nifong was disbarred by the North Carolina Bar Association, the National District Attorneys Association issued its take on the case. "Nifong's case is rarer than human rabies," claimed Joshua Marquis, vice president of the group. "The defense bar is piling on and trying to claim this is typical behavior," he bitterly complained.

So was Michael Nifong merely a "rogue" prosecutor, a feckless bad apple amidst a scented orchard of ethical and civic-minded district attorneys?

Let's take rape, for example. Experience reveals rape is a red-meat accusation that triggers an aggressive prosecution.

You may remember the 1989 rape of the Central Park jogger and the charge five "wilding" teenagers perpetrated the attack. But when the DNA test results did not match, the prosecutor had to claim the semen came from a sixth "mystery" gang member. Despite that dubious explanation, the five were convicted.

But 13 years later DNA evidence proved another man had committed the crime and the five were set free. Sorry about that, fellas.

Fifteen years ago, civil rights attorneys Barry Scheck and Peter Neufeld established the Innocence Project, a group dedicated to protecting the innocent through post-conviction DNA testing. Earlier this month the group registered its 205th exoneration, most of the cases involving false convictions of rape. Prosecutorial misconduct is a factor in 42 percent of DNA exonerations, they reveal (www.innocenceproject.org).

Child sexual abuse is another charge that juices up any prosecutor with political aspirations.

In 1994, the small town of Wenatchee, Wash., was seized by a wave of sex abuse hysteria. Parents and Sunday school teachers were accused of child rape. Over two years, 43 adults were arrested on 29,726 charges of sex abuse involving 60 children (http://seattlepi.nwsource.com/powertoharm/accused.html).

Not a scrap of physical evidence was presented to support the charges and some witnesses later recanted their testimony. But that didn't keep 17 of the accused from going to jail.

As early as 1995 Washington Gov. Mike Lowry asked U.S. Attorney General Janet Reno to investigate the zealous prosecution of the case. But Miss Reno had her own baggage, given her wrongful prosecution of child sex abuse cases from her Florida days. Miss Reno refused Mr. Lowry's request.

Eventually, all 17 were released. Wenatchee is now synonymous with the worst witch hunt in U.S. history.

In 1996, Pittsburgh Post-Gazette reporter Bill Moushey began to examine abuses in the federal witness protection program. Before long his work mushroomed into a full-blown investigation of more than 1,500 complaints of prosecutor misconduct around the country.

His 10-part series "Win at All Costs" concluded, "Hundreds of times during the past 10 years, federal agents and prosecutors have pursued justice by breaking the law.... Rarely were these federal officials punished for their misconduct."

Two years later Chicago Tribune reporter Maurice Possley published a series, "Trial and Error," that probed the reasons behind appellate court reversals of 381 homicide convictions. His research documented two common types of prosecutorial misconduct: suppression of evidence of innocence and intentional use of false testimony. Mr. Possley explained, "[Prosecutors] have incredible responsibility. Unfortunately, a lot of them take it kind of casually."

A decade later, Michael Nifong's malfeasance has thrust the problem of prosecutorial abuse back into the public eye.

Jonathan Turley of George Washington University Law School recently said: "Nifong's misconduct was hardly unusual: Some of the most high-profile cases in history have involved strikingly similar acts of prosecutorial abuse. But instead of being punished, the worst violators are often lionized for their aggressive styles."

And the New York Times quoted Bennett Gershman, former prosecutor in Manhattan who now teaches law at Pace University, as saying: "You have rogue prosecutors all over the country who have engaged in far, far more egregious misconduct, and in a pattern of cases. And nothing happens."

But the most damning evidence comes from the Center for Public Integrity, a group of investigative journalists that has analyzed more than 11,000 appellate court opinions in which prosecutor abuse was alleged.

The CPI concludes, "Since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences in over 2,000 cases. ... In thousands more, judges labeled prosecutorial behavior inappropriate, but upheld convictions using a doctrine called 'harmless error.'" (www.publicintegrity.org/pm.)

So is prosecutorial abuse "rarer than human rabies"? No, not by a long shot.

We can only hope that one of these days, the National District Attorneys Association will change its tune.

CAREY ROBERTS

A Washington-area writer and commentator on political correctness.