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Wednesday, June 20, 2007

Nifong and the Community

Scales_of_justice The past few weeks have presented me with one of my favorite topics:  overzealous and unethical prosecutors.  (I've written about this previously discussing Nancy Grace).  I'm talking, of course, about Mike Nifong, the now disbarred and disgraced D.A. formerly in charge of the Duke lacrosse case.

For those no longer following the story, Nifong was disbarred by the North Carolina Bar this past Saturday, and plans to resign his post as D.A.  The NC Bar found him guilty of fraud, dishonesty, deceit or misrepresentation; of making false statements of material fact before a judge; of making false statements of material fact before bar investigators, and of lying about withholding exculpatory DNA evidence, among other violations.  Unsurprisingly, Nifong did not dispute the disbarment.

There's been acres of print and blogging expended on Nifong and the Duke lacrosse case, much of it speculating why Nifong continued to pursue the case after it began to fall apart.  But one aspect little discussed is the interesting role Nifong played in trying to simultaneously mediate the norms and social values of two communities in one area. 

Traditionally, most elected D.A.'s have a mediating function between the formal demands of state and local law and the community's role as moral arbiters of local punishment.  But Nifong had a particularly tricky role to play, one which involved balancing the two rather different views of punishment embodied in town and in gown.  These two communities saw the lacrosse team members through entirely different lenses--as playful fraternity brothers vs. despoilers of young, working class women--to which was added a strong racial component, further complicating things.  So if Nifong is supposed to reflect the values of the community through his job as D.A., which community should that be?  Are you allowed to pick one community over the other (as Nifong clearly did), or should you try to balance?  If you balance, do you do it case by case?  Issue by issue?  Or just by your own internal ethical pendulum? 

I'm not advocating what Nifong did, of course.  But I do have some sympathy for those elected prosecutors who represent a multitude of communities and must balance their competing needs.  Robert Morgenthau, N.Y.'s long-running D.A., provides one example of how this can be done, but it's no easy task.   

(cross-posted on Legal Ethics Forum)

Posted by Laura I Appleman on June 20, 2007 at 02:44 PM in Criminal Law | Permalink


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On the other hand, there is this depressingly self-righteous piece in the WSJ Online:


If the upshot of this case is that the kind of "moral community" represented by this article triumphed, I pity the DA who has to make the choices you describe.

Posted by: md | Jun 20, 2007 4:53:55 PM

Laura--I think you make a good point that Nifong did get caught up in the pressures of the social or moral community that wished to punish these players. That community was made up of a complex amalgam that crossed cultural, racial, and even socio-economic lines. The causes of resentment against the lacrosse players were many and had been festering for years. But to my mind, even after the initial buzz of the case wore off -- as you say, in the middle -- and for that matter until fairly late in the decay of the case, there was really only one moral community exerting pressure here. From what I saw (again, only one alum's perspective), the school (certainly the bulk of its faculty, but the students too) remained as substantially persuaded of the players' moral culpability (after all, that's what moral communities are best suited to judge, right?) as was the town, even as their criminal culpability was becoming more doubtful. So yes, Nifong made his choice. But there wasn't a competing moral community from which he could choose, whether at the beginning or middle of the case. Do you think that a moral community was ultimately vindicated? The lacrosse players may have been exonerated but it seems strange to cast that in terms of a "moral" victory. It seems to me that very few in Durham, at Duke or in town, are doing that. Thanks again for the post.

Posted by: md | Jun 20, 2007 3:52:09 PM

MD, I take your point--perhaps the town vs. gown aspect is a little overstated. But putting aside the initial outraged reaction, when the facts began to come out about this case, didn't we see a difference in the town's reaction vs. the university community's? My point--and maybe I didn't make this clear enough--was that the hard work for the prosecutor is after the initial incident, when evidence arises that may undercut the case being built. That's where we often see prosecutorial misconduct--not at the beginning, but in the middle. Nifong's mistake, as I see it, was not so much that he got caught up in the beginning, but that he doggedly stuck to one "moral community" even when it became clear that there was not enough evidence to support it.

Posted by: Laura | Jun 20, 2007 3:25:32 PM

Laura - Sorry I didn't notice that you just had posted on Nifong before I pressed "save" on my own. Great post and questions!

Posted by: Brooks | Jun 20, 2007 3:22:45 PM

This observation may be valid in some situations -- for some prosecutors in some communities. But I think it doesn't really work at all in this situation. "Town" and "gown" were almost uniformly against the lacrosse players here. "Gown" did not, in the main, think of the lacrosse players as "playful fraternity brothers." Having graduated from Duke sometime in the mid-'90s, my own observation is that very few of the students and faculty thought of lacrosse players in these terms. And the outcry at Duke from students and faculty alike when it was supposed that the players were guilty bespeaks a single "moral community" -- one that wanted very much (and for some, at all costs) to punish the players. So the choice for Nifong as to which "moral community" he was going to support was, in effect, not really a choice at all. As I say, none of this means that this post might not have bite in other circumstances -- perhaps, as you say, in New York City in some cases. But there wasn't much moral balancing to be done by the DA here.

Posted by: md | Jun 20, 2007 3:08:27 PM

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