Flashback: Ethics Train Wreck: District Attorney Nifong and the Duke Lacrosse Rape Case (2007)

I alluded to my post on the old Ethics Scoreboard about the infamous Duke lacrosse team rape case in a recent EA post, suggesting that it may be a template for what we are going to see transpire in the still developing Cornell frat house gang rape saga. Fred Davidson, a cherished reader and commenter here, tracked down the essay on The Wayback Machine and sent the link in the comments. I’m reposting that essay here. If ever a prosecutor was a candidate to be just as unethical as Mike Nifong (who was disbarred), Letitia James is it. I want to acknowledge my webmaster for Ethics Alarms who edited and formatted all my posts, the talented Lauren Larson. Would that she was still working with me now.

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From the North Carolina Bar’s Rules of Professional Conduct:

“The prosecutor represents the sovereign and, therefore, should use restraint in the discretionary exercise of government powers, such as in the selection of cases to prosecute. During trial, the prosecutor is not only an advocate, but he or she also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all. In our system of criminal justice, the accused is to be given the benefit of all reasonable doubt. With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice; the prosecutor should make timely disclosure to the defense of available evidence known to him or her that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.“

How Durham District Attorney Mike Nifong can reconcile his handling of the Duke lacrosse rape case with this explanatory comment from his bar association’s rule governing the ethics of prosecutors is a mystery. But it is no mystery what his violation of these principles has created: one of the worst ethics train wrecks of the past ten years, a mess that can stand with such recent ethics fiascos as the Terri Schiavo dispute and the Valerie Plame Affair. In fact, Nifong’s handiwork may have caused more human wreckage than either of these. But like all ethics train wrecks, this one had more than one shaky hand on the throttle:

The Duke lacrosse team: While not earning their horrific treatment by Nifong, many of the players on the team were irresponsible in their conduct, disrespectful to the hired exotic dancer who ultimately became their accuser, and reckless in their disregard for the reputation of the university and its sometimes contentious relations with the Durham community. For example, a few hours after the alleged rape, team member Ryan McFadyen sent an email to his team mates in which he fantasized about murdering and sexually abusing strippers. It may well have been composed as a tasteless joke, but it was certainly evidence of an unacceptable level of contempt and callousness toward the human beings the team had hired to entertain them at the party, not to mention strong evidence of a brain-pan insufficiency. McFadyen was suspended after a team mate, in another ethically questionable move, decided to circulate the disgusting e-mail so that it wound up in the hands of the police and, worse still, the media. Did it have any probative value in the case? No—McFadyen wasn’t one of the players implicated or indicted. Still, he ended up suspended from school, the local media used the e-mail to make the team look like a tribe of cannibals, and the seeds of racial conflict were sown and fertilized. The e-mail effectively threw gasoline on an already incendiary situation, and contributed mightily to the lacrosse team’s coach resigning and Duke canceling the lacrosse season.

Nice work, guys.

To Defenders of the Biased Mainstream Media: Ethics Alarms Challenges You to Find An Innocent Explanation For Why the NYT and WaPo Don’t Regard This Story As News [Expanded]

Heck, even CNN reported it (but not MSNBC). Crystal Mangum, the exotic dancer who in 2006 accused three Duke lacrosse players of rape launching an ethics train wreck that ended up costing the city of Durham damages, derailed the academic careers of the three students, got the lacrosse team coach fired, and resulted in a rare instance of a prosecutor being disbarred, finally admitted what everyone should have figured out by now.

“I testified falsely against them by saying that they raped me when they didn’t, and that was wrong. And I betrayed the trust of a lot of other people who believed in me,” Mangum announced on the podcast “Let’s Talk with Kat.” “I made up a story that wasn’t true because I wanted validation from people and not from God.”

Oh.

What?

Continue reading →

It’s Time To Fire And Discipline Marilyn Mosby

Mosby in 2015, ruining lives, pandering to the mob, and undermining justice...

Mosby in 2015, ruining lives, pandering to the mob, and undermining justice…

The third (of six) indicted Baltimore police officer charged in the death of Freddie Gray was acquitted last week, and how the rest of the trials, if they even occur, will play out is now a foregone conclusion. To be fair, this was a forgone conclusion from that moment that Baltimore City Attorney Marilyn Mosby charged the officers a year ago without sufficient justification beyond her own political ambitions, those of her husband (who is now running for mayor), racial bias and a desire to mollify rioters. Most commentators believed the charges were premature, rushed to avoid civic unrest. To say that is really to say that she allowed a mob to dictate to law enforcement. This was unethical, dangerous and despicable then, and remains so today.

If officer Caesar R. Goodson Jr., who drove the police transport van in which Gray suffered the spinal cord injury that killed him, could not be found guilty of intentionally killing Freddie Gray, nobody can. Says the New York Times,

“His acquittal on seven counts leaves the state without any convictions after three trials, in one of the nation’s most closely watched police misconduct cases — and continues to leave open the question of what, exactly, happened to Mr. Gray inside the van….Judge Barry G. Williams, who presided over the Goodson trial, issued the verdicts to a hushed, packed courtroom. He drew no conclusions about exactly when during the van ride Mr. Gray got hurt, saying there were several “equally plausible scenarios.” And he rejected the state’s contention that the officer had given Mr. Gray an intentional “rough ride” and knowingly endangered him by failing to buckle him into the van or provide medical help.” 

The prosecutor isn’t supposed to ruin the lives and careers of presumptively innocent law enforcement officials to try to find out what happened to Freddie Gray. The prosecutor is supposed to investigate until sufficient evidence tells her that a crime was committed, and the she has enough of that evidence to get a legitimate conviction. The three trials have shown that such evidence either doesn’t exist, or was never found. No, we don’t know what killed Freddie Gray, and that’s called “reasonable doubt.” Continue reading →

Wanetta Gibson, Elizabeth Paige Coast, Chaneya Kelly, Cassandra Kennedy and the Alkon Formula: How Should We Punish False Rape Victims?

Coast: How much compassion does she deserve?

Coast: How much compassion does she deserve?

Commenting on the case of Elizabeth Paige Coast, a Virginia woman who finally came forward last year to confess that in 2008 she had falsely accused Johnathan C. Montgomery, a former neighbor, of raping her in 2000 when she was 10 years old and he was 14, advice columnist and blogger Amy Alkorn proposes this sentencing formula:

“I feel strongly that those who falsely accuse someone of rape should spend the amount of time incarcerated that the person they falsely accused would have.”

Coast’s victim was convicted of rape and  spent four years in jail as a result of her lies. As for Coast, she was recently sentenced by Hampton Circuit Court Judge Bonnie L. Jones to only two months in jail, plus being required to pay Montgomery $90,000 in restitution for de-railing his life. The judge suspended the rest of a five-year sentence, and is allowing Coast to serve the remainder on weekends so not to unduly disrupt her life.

Coast’s lawyer had argued any jailing would send the wrong message to others who lie about false rapes. The prosecutor, agreeing with Alkon, asked for a 10-year sentence with six years suspended so she would serve the same length of time as Montgomery. It seems the judge agreed with the defense more than Alkon. I think Alkon is closer to the mark, but if we make the punishment for recanting rape accusers too severe, it is probably going to mean that some in Coast’s position will choose to let their victim rot and just live with a guilty conscience. Continue reading →

Are Conviction Bonuses For Prosecutors Ethical?

Next, how about a bonus for confessions?

Sometimes a story starts the ethics alarms ringing so loudly that it is hard to think about anything else. It is rare, however, to have this occur when it is not entirely clear what is so unethical. An unusual bonus arrangement in Colorado is in this category.

Carol Chambers, the District Attorney for Colorado’s Eighteenth Judicial District, offers financial incentives for felony prosecutors who meet her office’s goals for convictions.  Plea bargains and mistrials don’t count in the incentive program; they have to be trial convictions.  The bonuses average $1,100, and Chambers says she gives them out to encourage prosecutors to bring her district’s rates in line with other jurisdictions in the state. No other Colorado DA gives out bonuses, or bases evaluations on conviction rates. Continue reading →

The Unethical Character Assassination of Albert Gore, Jr.

Not one but two celebrities have recently had their public image and reputation battered by the publishing of police reports that they had been accused of sexual misconduct in alleged incidents that could not be confirmed sufficiently for the police to bring charges. One was New York Mets ace pitcher Johan Santana, who was already battling uncharacteristic ineffectiveness on the mound. The other was former Vice-President Al Gore, who also has more than enough problems in his life: such as a shattered marriage, a reeling climate change policy campaign, and the lingering memory that he received the most votes in a Presidential election yet somehow never got to live in the White House. Santana’s reputation will survive if he recovers the location on his fast ball. Al Gore, however, is genuinely and seriously harmed by the claims of a masseuse who says that Gore attempted to turn her professional massage into a forced sexual encounter. Continue reading →

No More Presumption of Good Will For Unethical Prosecutors

The horrible Duke lacrosse team rape prosecution in 2006 had one very bright silver lining. It finally forced the majority of Americans to accept that prosecutors are as capable of being unethical  as any other attorney, and that because their misdeeds carry the extra weight of government power, prosecutorial misconduct must be exposed and condemned.

Thus it is a relief that the recent blatant abuse of power by Commonwealth of Virginia Attorney Martha Garst is being roundly attacked. Continue reading →

Death Video Ethics

As with the video of the fatal luge run at the Olympics, as with 9-11 videos of the Twin Towers crashing down, pundits, lawyers and family members of a victim are arguing in courts of law and public opinion that the visual record of their loved one’s death should be off-limits for public. The family of Dawn Brancheau, the SeaWorld trainer who was drowned last month by a six-ton Killer Whale that held her underwater by her ponytail,  has announced that they will seek an injunction to stop the release of the death videos, captured by SeaWorld’s surveillance cameras on Feb. 24. Once the official investigation is complete, the video could be made widely available on YouTube and elsewhere. The family understandably does not want their daughter’s last moments to become a source of web entertainment. Continue reading →

Ethics Hero: Rep. Bobby Scott

A popular, effective and unethical prosecutorial practice among federal investigators is to coerce  businesses and individuals into waiving the attorney client privilege by threatening indictments. The privilege of having absolutely private communications with one’s attorneys in order to get legal advice is a linchpin of the justice system and each citizen’s access to fair treatment under the law.  Forcing individuals to give the privilege up under threat of prosecution is and has always been wrong; after all, a waiver made under a threat is hardly “voluntary.”  U.S. Rep. Bobby Scott, (D-Va.), has now introduced H.R. 4326, complementing legislation filed in the Senate earlier this year by U.S. Sen. Arlen Specter, to bar this practice. Continue reading →