The Duke Case: Nifong On Trial

Lawyer Andrew Cohen analyzes legal affairs for CBS News and
Do you really care what happens now to Michael Nifong, the Durham (North Carolina) district attorney whose colossal misjudgments in the Duke lacrosse case left a scattered trail of misery in their wake? I don't. No matter what happens as a result of his disciplinary hearing which begins today in Durham, Nifong is as a practical matter finished as a trial attorney in the State. Would you want him representing you in court? Me neither. No judge or future juror ever will be able to listen to him again without thinking of the mess he helped create.

Curiously, though, Nifong is not under the gun for his infamously poor judgment. Instead, he is in trouble for other aspects of the sex assault case. He is charged with withholding evidence from the defense, making false statements about it to the court, and of making unduly inflammatory out-of-court comments about the defendants and the evidence. The hearing is expected to last the rest of the week and could result in his disbarment. He won't be prosecuted and I'm not sure he's vulnerable either to a civil case brought by the students—governmental immunity goes a long way.

But the hearing is important anyway because Nifong is expected to testify in his own behalf and if he does he will be in a position to finally tell us what we really need to know about his role in the scandal. Just what was he thinking when he endorsed the accuser in the case even when there was such strong direct evidence undercutting her story? Just what was he thinking when he went so aggressively public with his accusations at the very start of the case, even before his investigators had completed their work? And just why exactly did he play fast and loose with the rules that govern the transfer of evidence from government to defense?

If Nifong answers those questions, he will have finally provided a public service to the people he purported to represent (and to the rest of us). He also will have offered a valuable lesson to prosecutors all over the country, who ought to be following the sorry Duke story with a "there but for the grace of God go I" mentality. In fact, if Nifong truly is repentant he ought to now dedicate the next few years of his life to traveling around the country talking to trial lawyers about how not to handle a high-profile case. He is after all more than anything else now a grand symbol of failure, of overzealous prosecutorial power, and of just plain bad judgment.