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Duke lacrosse publicity a concern to all prosecutors: The 'Nifong effect' likely to have an impact on public perception, courtroom strategy, Indiana attorneys say

June 25, 2007

Indiana prosecutors worry about heightened suspicion of any charging decision they make as a result of the recent highprofile disbarment of a North Carolina prosecutor.

Talk started months ago, but banter took a new surge following Michael Nifong's nationally televised disciplinary proceeding June 16. He was disbarred for violating professional conduct rules in his prosecution of three Duke University lacrosse players falsely accused of rape.

"Around the country and here, prosecutors are talking about the Nifong effect," said Stephen Johnson, executive director of the Indiana Prosecuting Attorneys Council. "This is a black mark against all prosecutors."

The North Carolina bar charged Nifong with breaking several rules of professional conduct, including lying to both the court and bar investigators and withholding critical DNA test results from the players' defense attorneys. The commission unanimously agreed that Nifong's actions involved "dishonesty, fraud, deceit, and misrepresentation."

The 29-year prosecutor said he would waive any right to appeal the punishment in an attempt to help restore faith in the criminal justice system and the role prosecutors serve throughout the country. A judge has suspended Nifong until his pending resignation from office takes effect July 13. Lawmakers are also considering a bill that would allow the governor to remove Nifong immediately.

In courts across the country, prosecutors are seeing fallout from the Duke lacrosse case, and defense attorneys are using the example in their own cases. For instance, a Texas defense attorney cited the case during voir dire and again in closing argument in an assault case involving a teacher accused of pinning down a female student while other students beat her.

The attorney pointed out what had happened at Duke. Other attorneys have also talked about raising the issue in court-something prosecutors say tarnishes their image, potentially hurts cases, and forces prosecutors to go on defense of their own.

"This hurts prosecutors in general, and while it doesn't change our behavior or anything we do, it might change the public perception and make people more skeptical," said Vanderburgh County Prosecutor Stan Levco.

He believes this could be potentially harmful to legitimate victims and make people more skeptical of rape victims' stories.

"I fully expect to hear that battle cry, 'Remember the Duke case' as we go forward with rape cases," Levco said. "But it reinforces that we can still win the strong ones as the evidence allows."

Cass County deputy prosecutor Randall Head believes this case will help educate the public about the Code of Professional Conduct and what prosecutors are not allowed to do, as well as impact how juries view DNA results.

"I can't even express my disgust for this guy," he said. "Nifong's behavior defies belief, but it's an aberration. Most prosecutors I know make a concentrated effort to avoid problems Nifong created, and I have never known a prosecutor who engaged in the systematic cover up of exculpatory evidence the way he did."

At the same time, he believes this case illustrates exactly why prosecutors must be hesitant to release certain aspects of cases to the media and be careful in what is said publicly. Head sends reporters with questions to court records, where basic public information can be found.

Johnson County Prosecutor Lance Hamner echoed his colleagues' disgust and disappointment regarding Nifong, but he noted that nothing here is precedent- setting-every prosecutor he knows is aware of the consequences of unethical conduct, and this reinforces that.

"This case is a horrifying example of what can happen when a prosecutor puts political ambition before the objective of seeking justice-the very reason, I want to believe, that he became a prosecutor in the first place," Hamner wrote in an e-mail.

During the disciplinary hearing, chairman F. Lane Williamson spoke about the prosecutor having the most power in a case - not the judge or jury - because he or she is ultimately the one to decide whether charges should be filed.

"The prosecutor, as any defense lawyer will tell you, is imbued with an aura that if he says it's so it must be so," he said. "And even with all the constitutional rights that are afforded criminal defendants, the prosecutor-merely by asserting a charge against defendants-already has a leg up. And when that power is abused, as it was here, it puts constitutional rights in jeopardy. We have a justice system, but the justice system only works if the people who participate in it are people of good faith and respect those rights."

Johnson found a bit of irony in this case, as North Carolina's system is similar to that in Indiana and the Hoosier lawmakers spent time this past session talking about the Nifong situation and comparing it to this state's system.

"They missed the point," he said. "What's different is that here, we're more often talking about charges not being filed. That says a lot. Justice is often served by not filing charges."
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