Legacy of Duke case: a rein on prosecutors?

The misguided rape case that canceled Duke University's lacrosse season, caused a national uproar, and sent a disgraced district attorney to jail for a day last Friday is causing a handful of states to ponder a troubling question:

Do prosecutors have too much power?

In New York, the General Assembly's Codes Committee recently held hearings on whether prosecutors need more oversight.

In California, three court-related bills, await Gov. Arnold Schwarzenegger's signature, would study or reform how police and prosecutors handle eyewitness identifications, the interrogation of suspects accused of serious crimes, and the use of jailhouse informants.

In Durham, N.C., itself, where three Duke lacrosse players were charged then exonerated over accusations of rape, the city is mulling a settlement proposed by the players' lawyers that would cost a reported $30 million and would force city officials to push for regulatory changes that would mean more oversight of prosecutors.

Some observers see a potential sea change in US attitudes over prosecutorial power.

"If you look at how American politics has developed in the last 20 years, there's a consistent pattern of getting tough on crime, reducing civil liberties, and giving more power to prosecutors," says Robert "KC" Johnson, a Brooklyn College professor who covered the Duke case through a daily blog. "This is really the first high profile event ... where there's been a very strong push by most people, regardless of ideology, in the other direction."

Other legal experts say the Duke case is an isolated incident in which an overzealous and relatively inexperienced prosecutor was thrust into a high-profile case involving a black exotic dancer who accused three white university students of rape at a boozy off-campus party.

"It became a pressure cooker where the top blew off," says Peg Dorer, director of the North Carolina District Attorneys' Conference in Raleigh.

The uproar began soon after the dancer filed rape charges in March 2006 against the three lacrosse players. Against the advice of colleagues, acting county prosecutor Michael Nifong lambasted the players in the press, calling them "hooligans," whose "daddies could buy them expensive lawyers." Mr. Nifong, who some say was playing to Durham's black majority in his bid to win election as county prosecutor, was elected to the post in May 2006.

But on the legal front, Nifong painted himself into a corner as it became evident that the story of the alleged victim didn't hold water. He nevertheless proceeded with kidnapping and sexual assault charges, a tactic that eventually got him disbarred on ethics violations and earned him a day in jail last week for contempt of court for not sharing evidence with defense attorneys.

In April, North Carolina Attorney General Roy Cooper not only dropped all charges against the three men – Reade Seligmann, Collin Finnerty and David Evans – but called the prosecution a "tragic rush to judgment." Nifong also apologized.

Critics say that the Duke case, added to a growing number of death-row exonerations around the country, shows that prosecutors have gotten too powerful, capable even of scaring judges in some cases, experts say.

"There are very few prosecutors who descend to that level of depravity, but there are more prosecutors who cut corners in order to convict people they think are guilty and who are usually guilty," says Stuart Taylor, who on Friday will discuss his new book, "Until Proven Innocent," with three Duke law professors at a William and Mary College forum. "What gets exposed is just the tip of the iceberg."

One of the ironies in the Duke case is that North Carolina has some of the most progressive courthouse regulations in the US. For one, it passed an open-discovery law in 2004, which requires prosecutors to type up and share even casual comments about cases with defense attorneys.

At the same time, the Tarheel State's grand-jury system contains what critics call an unusual and crucial loophole that played a role in the Duke case: No records are kept of grand-jury proceedings, which makes it appear that a prosecutor can say virtually anything without any evidence to hold him or her accountable, says Mike Adams, a law professor at the University of North Carolina-Wilmington. "We're seeing how the criminal justice system works together with a free press, and it's a pretty powerful combination."

Under the $30 million settlement reportedly proposed by the three Duke players and their lawyers, the city of Durham would have to pass resolutions urging that the state create ombudsman positions to hear misconduct complaints about district attorneys and other criminal-justice reforms, including mandatory videotaping of police lineups and recording of grand-jury proceedings.

The problem for most people – including, those on post-Duke juries – is accountability, or lack of it, says Bennett Gershman, a professor at Pace Law School in White Plains, N.Y. "This is the way the wind is blowing; it's blowing toward reform."

But states are also resisting: This summer, North Carolina lawmakers curtailed parts of its open-discovery law to make it easier for prosecutors to operate.