Video: Duke lacrosse D.A. guilty of ‘deceit’

By Senior legal analyst
msnbc.com
updated 6/17/2007 12:15:31 PM ET 2007-06-17T16:15:31
LEGAL ANALYSIS

While it may come as no surprise to anyone that Mike Nifong was swiftly and summarily disbarred just one day after his ethics hearing concluded, make no mistake: this is no small thing. For a panel of lawyers to strip another lawyer of his license to practice law is a rarity indeed.  This is the legal equivalent of a unicorn sighting. Lawyers usually try to understand a fellow practitioner’s blunders and usually reprimand their colleague without issuing the ultimate penalty, the death penalty for a lawyer:  disbarment.  While it is public disgrace indeed, it also says “you are the worst of the worst and do not deserve to live as a lawyer.  You are not trustworthy. The public has to be protected from you.”  Plus, it strips Nifong of the only way he knows to make a living.  Instead of collecting his pension and retiring, he will have to start from scratch.  It is a stunning fall from the height of his power.  And it is absolutely the right thing to do.  Nifong had many chances to escape this fate, yet he never chose to do the right thing. Not once.      

Even when he resigned at the eleventh hour live from the witness stand to the surprise of his own staff and attorneys, he didn’t get it right. I think it was a ploy that cost him. It was a gross manipulation of sympathies. Sympathy of the public, sympathy of the bar committee reviewing his misconduct and perhaps even of those who he accused. But I think it just showed him to be tricky. Why surprise your own lawyers? Why wait until the last minute, when the hearing is virtually done, when your testimony is almost completed, to say what everyone needed to hear months ago?

Nifong finally admitted he made mistakes and violated the Rules of Professional Conduct under cross examination, but claims they were all unintentional and the result of getting a little “carried away.” Nifong was trying to spare himself.   Nifong’s actions always serve Nifong. He used the Duke case to get re-elected, and he resigned to try to save his law license.  

Had he admitted he made mistakes, dismissed all charges in December 2006 (not just the most serious sexual assault charges), had he resigned earlier, perhaps his actions would not be seen as simply self-serving.  

I believe his tears were genuine, but I think he cried for himself, not for the damage he did to the public’s confidence in the criminal justice system, nor the damage to the three innocent young men whom he had indicted, nor the damaged reputation of Duke University or the sport of lacrosse. There are so many victims in this tragic tale of shattered lives. Not the least of whom is Nifong’s own teenage son who attended Friday’s hearing at his father’s request, only to see his father skewered on the witness stand, culminating in tears and resignation. Why put your own son through this?  More of a ploy to gain sympathy, leniency, if not pity?

As a former prosecutor, I can tell you that when I saw a defendant express genuine remorse, I felt that half my job was done.  In order to get a person to change, they have to understand and admit they did something wrong. But that is only half. The second half is to determine the appropriate punishment for the offense. It was my instinct to cut someone a break once they admitted they were wrong. But not if I felt the admission came at a time, or in a manner designed to manipulate my sympathy. And that is precisely how Nifong’s announcement struck me. He had his own lawyers convinced that he wouldn’t resign, and then sprung it on everyone from the witness stand. He couldn’t even be forthright with his own counsel.  

Image: Mike Nifong
Gerry Broome  /  AP
Mike Nifong listens during closing arguments in his North Carolina State Bar trial. Nifong will be disbarred for his handling of the Duke lacrosse rape case
The possibility that Nifong would be disbarred was real. But it took him until the bitter end to see what everyone else has seen for months.  But his realization, admissions and resignation came much too late. When asked whether he still believes a crime was committed that night, he refused to admit that “nothing” happened that night in that house. He still believes “something” happened. 

This statement supplies the bitter evidence that he was talking out of both sides of his mouth. He wanted to save his law license, but he could not completely exonerate the three young men whose lives he could have destroyed.   

Nifong cannot have it both ways.  He cannot cry, admit he made mistakes, resign, and yet still maintain that “something” happened that night. And expect to be treated with mercy.

Mercifully he wasn’t treated.

Let this case serve as a cautionary tale to all prosecutors who handle cases which receive media attention.   Don’t go “Hollywood.”  Remember your job is to keep the public informed, to try your case in courtroom, not the press, and to make sure those you accuse get a fair trial.  Don’t play fast and loose with the evidence. Play by the rules.  Prosecute mightily and fairly in the courtroom, and speak carefully and thoughtfully to the press.

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