Prosecuting the Prosecutor

When does a prosecution itself become a crime? It is well understood that prosecutors enjoy broad immunity from civil suit for their actions as prosecutors. That immunity, however, does not protect them from criminal liability. North Carolina District Attorney Mike Nifong faces possible disbarment for allegedly violating the rules of legal ethics in the Duke lacrosse case. A number of members of Congress have asked the Department of Justice to investigate his conduct, and the North Carolina attorney general has not ruled out criminal charges. Should Nifong face prosecution for his handling of the case?

This is a good analysis of Nifong's possible criminal liability in the DukeLAX case. My only complaint is that it doesn't identify the "Joseph Kennedy" who wrote it. Is he a member of the Kennedy family or some other Kennedy. It would also be nice to see what his credentials are.

A federal charge of depriving the defendants of their civil rights would get to the same issues by a different route. According to federal statute, it is a crime for any person acting "under color of law" to willfully deprive a person of a constitutional right. Acting "under color of law" essentially means using the power of the government, and it includes the actions of state prosecutors in criminal cases. The constitutional right at issue would be the defendants' well-established due process right to disclosure by the prosecutor of exculpatory evidence. Nifong would only be guilty of the federal civil rights charge if he specifically intended to deprive the defendants of their constitutional right by suppressing the test results. The statute does not require Nifong to have believed he was prosecuting innocent defendants—and to have gone after them anyway. Deliberately depriving a defendant of his constitutional rights is a crime if you believe him to be guilty

18 USC 242.

It's about time that one started being used.

Obstruction of justice for suppression of exculpatory DNA evidence? Yep, he’s guilty as sin. Is he gonna be charged and tried? Less than 50% probability - professional courtesy you know. Someone is going to say, being disbarred will be punishment enough. Not in my book. Not even close. This shit happens more often than we want to admit, and Nifong and his fellow prosecutors need to be taken down a peg or two. I happen to be at least casually acquainted with two District Attorneys here in the PRK (and I mean the DA, not his flunkies), and they both are major @ssh01e$.

“Kennedy family or some other Kennedy.”

probably this kennedy....
UNC Chapel Hill
Title: Assoc. Dean of Academic Affairs
Department: School of Law (3601)

http://dir.unc.edu/dir/search/Search.do;jsessionid=5796AE6AB3EFDA020957E9B2D9974BAC

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