Those 'Rogue' Prosecutors

Tracey Cline was removed from the position of district attorney for Durham County this week.  She thus follows in the path of her predecessor, Michael Nifong, who was similarly forced out.  But neither was removed before a great deal of damage had been done to the fabric of justice, and it is unlikely that Cline's single excision will do anything more to heal the patient than a biopsy will extinguish a cancer.

Durham County has long been a playground for the imps of injustice. The legal barriers established elsewhere to rein in prosecutorial abuse do not exist there.

North Carolina has no Speedy Trial law; a suspect may literally be jailed for years before trial.  Grand juries keep no transcripts, and a defendant indicted by a grand jury has no right to a probable cause hearing where he may contest the jury's conclusions.

In practice, a district attorney may accuse anyone before a grand jury, falsify evidence to get an indictment, and then hold his targeted suspect for years before releasing him.  This gives a prosecutor almost unlimited power to pressure defendants into accepting plea deals and inculcates in them a sense of invincibility.

Consider the hubris of Nifong in the Duke lacrosse case.  The police kept virtually no notes (for the biggest case in Durham's history), no photos of dry-erase boards, no charts; they never interviewed the suspects; the DA didn't interview the accuser for ten months; and the prosecution refused repeatedly to look at evidence of innocence offered by the defense lawyers (and, thus, Nifong was cloaked with "plausible deniability").

DNA testing proved all the players innocent two weeks before Nifong made his first arrests.  But no procedure allowed for the players to demonstrate before a court the fact of their utter and complete innocence.  ("Innocent until proven guilty" doesn't really apply nowadays in rape cases.)  Defense motions simply went unheard.  Judges -- mostly associates, mentors, or cronies of Nifong -- took everything under advisement and never ruled.  And nobody wanted the three very un-PC players to be found not guilty; it would be too socially disconcerting.  And isn't the primary goal of our judicial system the maintenance of social peace?

Absent a very narrow margin, the Duke players would have been convicted for a crime which never took place.  And nothing much has changed since, because prosecutors there haven't sought needed reforms.

Tracey Cline was part and parcel of the lacrosse prosecution.  She was scheduled to serve as "second chair" to Nifong -- to sit with him at the prosecution table and shoulder much -- perhaps even the larger part -- of the state's case.  When the case broke the wrong way -- the state's intended victims were declared innocent -- she suddenly prevaricated about her role.  Others claim she was Nifong's chief adviser.

When police officers consulted her about obtaining an order to sweep the entire lacrosse team for DNA -- something which was too broad to be constitutional (it even called for testing players known to have been out of town the night of the alleged crime), she may have told them how to go about getting it. The police say she did; she says she didn't.   (At first, she said she had never heard of it, then amended this to say she didn't recall, then amended that to say that she only offered them advice -- with the inference that she wasn't responsible for anything which happened after that.)

Certainly she did not put her name to the document -- she let an underling do that -- and neither of these employees told the boss, Nifong, that he was about to see something probably unique in North Carolina legal history for its brashness and unconstitutionality.  (Nifong -- then up for election -- claims he learned about the sweep only by accident, when he discovered a page carelessly left on a copy machine.)

Moreover, the names of Nifong, Cline, and the chief investigating officer almost never appear on any papers relating to the case.  One could examine the sparse case records -- almost nothing exists by way of investigative files -- and be hard-pressed to discover their authorizations for any actions.

But this may be the norm for Durham County.  Frankie Washington was walking home one night when he was arrested for burglary and assault.  The assailant was described as being tall and in his twenties; Washington was short and in his forties.  He requested DNA tests: "If they can convict people with DNA, then DNA should set people free," he said.  "I'm willing to give you everything that you need."

But Cline, the prosecutor, failed to forward materials to be tested to the state's crime lab for more than three years.  Washington went to prison.  When the tests were belatedly done, he was exonerated.  Cline first tried to shift blame to the police for the tardiness, then accused the state bureau.  She offered Washington a plea bargain; he refused, and an appeals court finally set him free.

Earlier Cline had prosecuted another rape case, in which a white man confessed to raping his cousin.  But then -- in a deal worked out with the prosecution -- the man received immunity in exchange for identifying a poor black man, Leon Brown, as his accomplice and ringleader.  Brown was incarcerated for a year, then tried.  Brown's DNA was not found at the scene, and the jury vindicated  him in five minutes.  The foreman took the unusual step of expressing the jury's bewilderment at why he had even been brought to trial in the first place.  "I can't understand why that man spent a year in jail when there was no evidence whatsoever against him.  It made no sense to us.  Where's the justice?"  Not mollified, Cline reiterated that she still believed that Brown was guilty.  The upshot, though, was that the confessed rapist went free, as per the bargain.

Why do prosecutors in North Carolina do these things?  Because like the proverbial Everest, the summit of conviction is there.  Nifong and Cline worked within the confines of the system, because the system has no confines. 

Cline and Nifong were not rogue prosecutors; they were not aberrations. Examples of other such prosecutors could be given.

The future will see more Nifongs and Clines (and more lacrosse players, Washingtons, and Browns), because when we give prosecutors no restraint except the moral duty to seek justice, we are effectively placing a leashless rabid dog in the front yard and pleading with him to stay put.  It is a measure of our credulity that we expect him to remain there.

R. B. Parrish is the author of The Duke Lacrosse Case: A Documentary History and Analysis of the Modern Scottsboro.