The Duke Case: The AG's "Candor And Scorn"

Lawyer Andrew Cohen analyzes legal affairs for CBS News and
In a remarkable display of both candor and scorn, North Carolina Attorney General Roy Cooper this afternoon tore into Durham County District Attorney Michael Nifong for his scandalous work in the Duke Lacrosse sexual assault case. Refusing to extend any professional courtesy to his fellow member of the bar, refusing to talk like other public officials talk about one another, Cooper eviscerated Nifong and his strategies and tactics throughout this controversial case, stopping short only when he was asked whether he thought the prosecutor himself should now be brought up on obstruction of justice charges.

What was wrong with Nifong's work? According to Cooper, the better question to ask is what was right about it. Cooper said his investigation revealed that the eyewitness evidence in the case was "faulty and unreliable." He said that no "DNA evidence confirmed" the story offered by the alleged victim. He said that "no other witnesses confirmed" her story and that "other evidence" in the case "contradicted" her story. "She contradicts herself," Cooper added in what surely could be an epitaph to this whole sordid affair. Aside from that Mrs. Lincoln, how was the play?

Cooper talked about "rogue prosecutors" and said that "these cases were the result of a tragic rush to accuse and a failure to verify serious allegations." Then he went even further. He didn't just say that there was no good evidence against the defendants, he said that they are "innocent of these charges" And finally he went furthest of all, even proposing a law— perhaps we should call it the Michael Nifong Avoidance Act of 2007—which would ensure that there are proper "internal checks" in North Carolina upon a prosecutor's core powers. Imagine doing your job so poorly as a prosecutor that the state's top lawyer pitches a law to make sure it doesn't happen again?

Maybe there is some bad blood between Cooper and Nifong. I wouldn't doubt it based upon what Cooper said today. But whether there is or there isn't, whether Cooper kicked a man while he was down, the fact is that Nifong made an extraordinary, historical mess of this highly emotional case. He arrested the young men too quickly before he had thoroughly evaluated the evidence against them. He mouthed off to the media just days after the assault. He messed around with DNA results instead of immediately releasing them to the defendants. I could go on and on. No defendant anywhere deserves to be treated the way these young men were.

I guess it is now Nifong's turn to offer his perspective on all of this—his rebuttal to the charges leveled against him today by Cooper in the court of public opinion. Unfortunately for Nifong, his bully pulpit as district attorney has been temporarily replaced with a gag order thanks to the ethics case he now faces. He will have to remain silent and discreet until that proceeding concludes and then have to hope that the sanctions he receives as a result of the charges against him are not so onerous that they drive him completely out of the profession. Based upon Cooper's point of view, that possibility isn't out of the question.