No Excuses Now For Nifong In Duke Case

CBS News.com Legal Analyst Andrew Cohen: Hold District Attorney Accountable For "Grievous Errors"

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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Having pleaded in vain in the court of public opinion for people to wait for the evidence to come in before convicting Durham County District Attorney Michael Nifong of malicious prosecution, and having watched month by month as his rape case against three Duke lacrosse players fell apart, let me now say this: Just as the defense lawyers for the young men had screeched for a year, there really was no there there. No evidence or testimony worthy of bringing before a jury with the hope of proving a case beyond a reasonable doubt. Nifong now deserves to be held accountable for his grievous errors in judgment and tactics.

In the wake of Wednesday's report by North Carolina Attorney General Roy Cooper, it is clear beyond debate that Nifong handled the sexual assault case terribly — unprofessionally to an almost unbelievable degree. He did stupid things that should not have been done and did not do obvious things that should have been done. That's simply not good enough in any case — let alone a case with as much tinderbox potential as this one presented from the very beginning. Why he did it or how he thought he could ultimately get away with it is beyond me. If he is wondering today how and why he got himself into the professional mess he's in, he has no one to blame but himself.

Using remarkably blunt language, Cooper blasted Nifong over and over again during Wednesday's dramatic news conference. He called the district attorney a "rogue prosecutor" who proceeded with "bravado" rather than with "caution" in evaluating the case. He accused Nifong of jumping the gun in the case — "a tragic rush to accuse," he said — and of failing to verify the accusations with any sort of strong evidence. But Cooper went further. He didn't just declare that the young men could not be convicted beyond a reasonable doubt, Cooper said outright that the defendants were "truly innocent" and that "there was no credible evidence that an attack occurred in that house that night." In a matter of minutes, the Attorney General thus gutted the District Attorney like a fish.

Nifong is done as a prosecutor — and perhaps as an attorney, too. You can make book on it. By far the worst mistake he made was his failure to promptly interview the alleged victim in the case to determine for himself from the outset whether her story would or could withstand the scrutiny they both knew would come. When you prosecute a case like this, with little scientific evidence to support a serious crime, you are essentially putting your reputation, and the reputation of the justice system, on the line when you endorse the complaining witness' story. Consistent with your ethical obligation never to bring to trial a case you don't believe you can win, you are telling the world, and potential jurors, that you believe her beyond a reasonable doubt.

It thus makes absolutely no sense to me that Nifong would have decided to go to war with this alleged victim without thoroughly and personally evaluating her credibility and reliability. It is no argument to say that Nifong trusted his subordinates to do this work on his behalf. He was in charge of this case; it was his responsibility to make sure things were done right. They weren't — not by a long shot. Rape cases are notoriously tricky and alleged victims in sexual assault cases bear burdens that few other complaining witnesses bear. But in the interest of justice, a prosecutor still has to ensure that the story of a crime holds up. This one apparently didn't.

Worse, Nifong made certain inflammatory comments shortly after the story broke last March that enabled the herd of defense attorneys involved to characterize him as violating the state's ethical rules. In other words, he raised the ante before he knew what kinds of cards he held. He called the students "a bunch of hooligans' and said that racial slurs against the alleged victim made "an extremely reprehensible attack even more reprehensible." No reasonable prosecutor should have stepped out upon that limb without being sure that the person supporting it had a rock-solid grip. Turns out she didn't. Her fault, certainly — but Nifong's as well.

That Nifong waited for months and months and months to interview his complaining witness seems particularly negligent and inexplicable because it became clear fairly early on in this process that there were significant discrepancies in her story against the students. The eyewitness procedures were fouled up. Many witnesses contradicted the prosecution's case. The DNA didn't match, and even the complaining witness changed her tune.

These inconsistencies eventually led to the charges being dropped; they obviously played a role in the Attorney General's conclusions as well. If so many of the rest of us were left scratching our heads last spring and summer and fall over the evolving nature of the case, and the lack of supporting physical and scientific evidence (not to mention the other stripper's account), then why in the world did Nifong wait so long to check it out?

That's one serious question. There are others. For example, the head of a private DNA firm testified last December that he and Nifong agreed not to tell the defendants that test results did not link them to the alleged victim in the case. Nifong promptly denied that any conspiracy was afoot but failed to adequately explain why the test results were not immediately given to the defense — as the law requires. In fact, looking back, those test results could have given Nifong a perfectly legitimate excuse to get out of the case. Instead, he chose to press ahead and play unfairly. That's just not good enough — not nearly good enough.

For the students, today is the first day of the rest of their lives. Unlike other defendants unfairly accused, unlike other victims of an imperfect justice system, they never had to spend decades in prison waiting for some witness recantation to spring them. In fact they never spent a single night in jail. Unlike other defendants, they were able to muster aggressive defense attorneys who swarmed like bees over the prosecutor and the media in this case. Unlike other defendants, they emerge from their misfortune young and healthy with compelling stories to tell and sell. Perhaps at some point they will disclose to the rest of us what really happened that night last year at that off-campus apartment, when a large group of student athletes hired two strippers to come over for a party.

For the alleged victim, today is the first day of the rest of her life, too. She now can try to begin to move on from this sorry episode and make meaning out of it. Is she a victim, too, a victim of her status as a stripper and a hazy memory? Only she and the young men know for sure. Perhaps in time she, too, will be able to share with us her version of events from that seedy night. One thing, however, is beyond any spin and needs no hindsight for clarity: Young lives were shaped immeasurably by what went on at that party that night. The wrong people met at the wrong time, and a social and political and legal fire sparked. The decisive action by North Carolina's attorney general douses all but a few embers from that blaze.

[jairod]

bluestardad: have you ever had an original thought? you keep regurgitating the same thing over and over regardless of the topic in the story. take a chill pill, dude. i'm sure you'll understand that since it comes from your era.

[mtp1985]

listen blkisin, there is absolutely no reason to not draw comparisons between the rutgers ordeal and this one. both groups are promising young athletes who were slandered and deffamated by a member of a different race. and the difference is that when the black athletes are slandered the black community at large (represented by two politically bloated and arrogant men by the names of jackson and sharpton) calls for the heads of the wrong-doers. now, im not saying that this isnt called for, imus is a racist prick who deserves what he gets. yet, he has apologized and shown some signs of remorse. sharpton and jackson are pompous, and racist and will never apologize even though they chose to denegrate three families and 3 young kids. i mean honestly they're are still kids and they are allowed to make mistakes so lets let them have an out of hand party, without unjustly condemning them for something they had absolutely no part in

[bluestardad]

Hey are Jessie Jackson, the NAAPC, and Al Sharpton going to AX and condemn this NAPPY HEAD HO that accused these white Duke Lacrosse students of racial slurs and rape now it has been found out to be a LIE! How about screaming for reparations and compensation for Legal Cost and Life Damages too! What about the Coaches Career that was ruined also! Is she going to be charged with filing a false claim like the Run Away Bride did? Be fair or not at all! These Rutgers girls are getting more attention playing the Race, Gender, Victim Card than they ever would if they won the National Championship! What kind of message is that sending to our young Women? Tell me have any of them Registered for the Selective Service like all men have to once they turn 18? Let me know when all you professional Victim rights watch dog wanna bees get on that band wagon! Be EQUAL WITH EQUAL RIGHTS AND RESPONSIBILITIES OR SHUT UP! Where the H E L L is Opra for these Duke kids?

[arvid0823]

So now we can expect Reverend Jackson and Reverend Sharpton to lead the charge ensuring that Mr. Nifongs handling of the case is fully investigated. Especially since the NC AG declared the 3 Duke students innocent of all charges. (throwing a kegger at a frat house means they are not saints. nor does it make them criminals)

This will happen the the same time that Reverend Al and Reverend Jackson apologize to the three students for falsely accusing them.

This will happen the same time Reverend Al and Reverend Jackson serve their next communion --- neither has a regular parish --- according to reports, Reverend Jackson has NEVER had a regular parish.

Hmmmm.

[smdcox]

Why aren't people talking about those two big mouths Al Sharpton and Jesse Jackson jumping on the bandwagon for their personal and political gain to falsely accuse the Duke Lacrosse boys without evidence and a fair trial? How about the fact that they were found to be %u201Cinnocent?" I havne't heard an apology coming out of their mouth! What about the stripper who accused the boys? Shouldn%u2019t she be held accountable and prosecuted for false accusations and deformation of character? It is unbelievable that Jesse Jackson even went so far to say that he would give this woman a scholarship to Duke even if the allegations were not true. What kind of message does this send? Why isn%u2019t anyone talking about that? I%u2019ll tell you why, because she is black. If it were a white women falsely accusing black Lacrosse players of rape you would see the reverse happening. The media would be digging up her past and protecting the black players until %u201Cproven guilty.%u201D Everyone is so afraid of being politically correct that injustices are happening everywhere now. It%u2019s time to start reporting both sides of the story instead of your extremely left wing "point of view."

If a apology was not accepted in the Imus court of public opinion by a few of the key noisemakers then why should it be here. I believe a good dose of financial handslapping could be in order to reimburse those three families for what they had to put out to defend their sons from false accusations. First go after the women that brought the charges and get reimbursement from her. Since she has no money (thats why she raised the charges in the first place), then go after Nifong so he will think twice about his actions, then after the City of Durham for hiring such a idiot. Once the families are fully compensated both financially and mentally, then is it over? Depends on who's definition of fair we use. CBS/MSNBC or the court of common sense.

[sanfelz]

The attorney general declared the three men "innocent", while the most a jury could do is to declare "guilty" or "not guilty".

The deeds, or misdeeds, of Imus, Sharpton, Jackson or others should not bear on the case involving these three fellows and the accuser.

Two things for sure: race matters and money changes everything.

[blkisin]

Why stop at Nifong lets hold all of the lawyers, district attorneys, juriors that falsely accused, imprisioned thousands of innocent blackmen accountable. Racism speaks when America speak up on behalf of three priveledged white men and ignore the millons of underprivledge African Americans imprisioned on a daily basis. It's amazing how some want to use this unfortunate incident to justify IMUS racist comments. If you want IMUS to remain on the air then give a African American male an open mike and free forum
to go boldly where only the white journalist go on a daily basis. IMUS is not the only journalist using his position and show to spread their racist points of view. Open up the airways and give a blackman the same opportunities to spread hate and IMUS can stay. If not he much go and never come back.

[processor2]

Don Imus was a big enough man to apologize.

Will Jesse Jackson and Al Sharpton will be big enough men to apologize to these innocent Duke boys for the false accusations and presumptions they stirred up in Durham, NC.

I won't be holding my breath.

...

[janetr9]

I am listening to the news, very glad the phony charges against the Duke students have been dropped and wondering why there isn't a cry of outrage against the woman who brought these charges against them? We should be just as livid over this as we are the Rutgers basketball team incident, come on America. Also, bring charges against this woman for the false charges that took a year away from these boys. I hope the DA is disbarred and other charges are brought against him for withholding evidence in this case