Legacy of Duke case: a rein on prosecutors?

Wronged lacrosse players seek, in any settlement, more state oversight of district attorneys' offices.

from the September 14, 2007 edition

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But on the legal front, Nifong painted himself into a corner as it became evident that the story of the alleged victim didn't hold water. He nevertheless proceeded with kidnapping and sexual assault charges, a tactic that eventually got him disbarred on ethics violations and earned him a day in jail last week for contempt of court for not sharing evidence with defense attorneys.

In April, North Carolina Attorney General Roy Cooper not only dropped all charges against the three men – Reade Seligmann, Collin Finnerty and David Evans – but called the prosecution a "tragic rush to judgment." Nifong also apologized.

Critics say that the Duke case, added to a growing number of death-row exonerations around the country, shows that prosecutors have gotten too powerful, capable even of scaring judges in some cases, experts say.

"There are very few prosecutors who descend to that level of depravity, but there are more prosecutors who cut corners in order to convict people they think are guilty and who are usually guilty," says Stuart Taylor, who on Friday will discuss his new book, "Until Proven Innocent," with three Duke law professors at a William and Mary College forum. "What gets exposed is just the tip of the iceberg."

One of the ironies in the Duke case is that North Carolina has some of the most progressive courthouse regulations in the US. For one, it passed an open-discovery law in 2004, which requires prosecutors to type up and share even casual comments about cases with defense attorneys.

At the same time, the Tarheel State's grand-jury system contains what critics call an unusual and crucial loophole that played a role in the Duke case: No records are kept of grand-jury proceedings, which makes it appear that a prosecutor can say virtually anything without any evidence to hold him or her accountable, says Mike Adams, a law professor at the University of North Carolina-Wilmington. "We're seeing how the criminal justice system works together with a free press, and it's a pretty powerful combination."

Under the $30 million settlement reportedly proposed by the three Duke players and their lawyers, the city of Durham would have to pass resolutions urging that the state create ombudsman positions to hear misconduct complaints about district attorneys and other criminal-justice reforms, including mandatory videotaping of police lineups and recording of grand-jury proceedings.

The problem for most people – including, those on post-Duke juries – is accountability, or lack of it, says Bennett Gershman, a professor at Pace Law School in White Plains, N.Y. "This is the way the wind is blowing; it's blowing toward reform."

But states are also resisting: This summer, North Carolina lawmakers curtailed parts of its open-discovery law to make it easier for prosecutors to operate.

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