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.
