Feige on Nifong, Prosecutorial Misconduct & Attorney Discipline

I caught an interesting piece on Slate this morning, “One-Off Offing,” written by David Feige, whom I met during our days as public defenders in the Bronx. David writes about Mike Nifong’s disbarment following the Duke rape case debacle, and argues that “you won’t see a disbarment like Mike NiFong’s again,” because “it is tempting to chalk the whole incident up to an unusual and terrible mistake — a zany allegation taken too seriously by a run-amok prosecutor.” In reality, David opines, “[p]rosecutors almost never face public censure or disbarment for their actions,” and “the [Duke case] drama leaves prosecutorial misconduct commonplace, unseen, uncorrected, and unpunished.”

David writes a sharp, insightful piece, and I don’t dispute his points that prosecutorial misconduct happens too often and that the legal profession has been unfortunately disinclined to treat even serious instances of prosecutorial misconduct as a disciplinary issue. But, I think David may overstate his case for prosecutorial misconduct in a way that undercuts the strength of his overall position.

David’s Slate piece may convey the impression to many readers that shady practice is the cultural norm for many if not most prosecutors — an impression consistent with the impression he often coveys of the criminal justice system as a whole on his blog, Indefensible, and in his identically-titled book describing his practice experience in the Bronx. David acknowledges in his Slate piece that that “[h]ow often [misconduct] actually happens is hard to say,” but he suggests that “in the rollicking back and forth of a normal state trial, it is a rare case in which problems involving the withholding of potentially exculpatory evidence (as Nifong was accused of doing) don’t arise.”

I practiced from 1994-2005 as a public defender in the Bronx and Manhattan, where David practiced too, and I simply have a different big-picture impression of prosecutors. Prosecutors are asked to strike a pretty tough balance: vigorously advocate against the guilty, but remain objective and even non-committal too, so as not to overlook evidence of innocence or mitigation. I have thought that some defense attorneys too easily criticize how most prosecutors conscientiously endeavor to strike this balance that the defense bar itself is not asked to replicate. In my experience, most prosecutors work very hard to achieve a fair balance, and generally do a pretty good job at it — even in the many cases where I disagreed in some way with a prosecutor’s decision of how to handle a client’s case. I just don’t recall too many prosecutors who wouldn’t listen to what I had to say, wouldn't think hard about their cases, or who wouldn't share exculpatory evidence. In other words, I haven't met too many prosecutors who acted anything like Nifong.

When a mistake or oversight did happen, it was generally just that — a mistake or oversight. No doubt, lawyer mistakes and oversights can harm people seriously, especially in a criminal case, and better training and and a more balanced culture in some prosecutors' offices surely would help to prevent mistakes. But, when mistakes happened in my cases, my client’s interests generally were remedied by the relief David himself indicates courts will grant in these circumstances: defense adjournments, evidentiary sanctions, and judicial reprimands (for a good example of a judicial reprimand of a prosecutor who was not mistaken but played "fast and loose" with her evidence, see here). Of course some mistakes, even if unintentional, demonstrate the sort of ethical shortcomings worthy of disciplinary action. But all lawyers make mistakes, including defense attorneys — indeed, I've seen more defendants harmed by shoddy defense work than by prosecutorial misconduct — and not all lawyer mistakes equate with ethical misconduct, even when committed by a prosecutor. 

Perhaps the problem is that David never defines what he means by “prosecutorial misconduct.” Nifong’s an easy example of it. David, however, seems to suggest that an aggressive prosecutor who doesn’t take defense evidence at face value, and who even acts like an outcome-interested advocate, may “cross the line separating fair play from systemic manipulation.” David even appears to imply that a prosecutor who proceeds with a sexual assault case by taking a “complainant at her word” without “wait[ing] for corroborating evidence or insist[ing] on more than one person’s say” has engaged in “questionable practice.” If David merely means here that prosecutors in sexual assault bureaus and elsewhere should not become closed-minded, agenda-driven, or too personally invested in their cases and witnesses, fine — but that’s how most prosecutors act already. If David instead means to define prosecutorial misconduct as broadly as his piece suggests, I think he does his stronger point a disservice through oversell.

Don’t get me wrong: serious prosecutorial misconduct happens, as Nifong's actions demonstrate. And, the prosecutors who do abuse their position too rarely are called to the mat for it by Bar disciplinary committees. David does a service by highlighting these concerns, just as he has highlighted many other serious problems in our criminal justice system. But I think David casts too wide a net if he suggests that our criminal courthouses are filled with Mike Nifongs and Nancy Graces running amok without disciplinary oversight.