has a very alarming piece in Slate on the Duke Lacrosse story. Feige says that prosecutorial misconduct of the kind that has now destroyed Michael Nifong is in fact routine, and that only a "perfect storm" of special circumstances ("powerful defendants, a rapt public, and demonstrable factual innocence") produced a just outcome.
There are, of course, a few particularly egregious cases that leave visible traces in appellate records. A 2003 study by the Center for Public Integrity found nearly 11,500 such cases. Of them, four out of five were shrugged off as harmless errors. And as previously noted in Slate, of the 2,012 cases since 1970 in which appeals judges actually threw out an indictment, conviction, or sentence because of prosecutorial malfeasance, in only 44 did prosecutors even appear before state ethics boards to answer for their actions. Another indicator: A Chicago Tribune investigation found 381 Illinois murder convictions that were reversed because prosecutors withheld evidence or prompted witnesses to lie. The number of those prosecutors publicly sanctioned or disbarred as a result? Zero.
In other words, a lot of prosecutors behave just like Nifong, and get away with it. This calls out for reform if anything does. But I note the peculiar politics of rape accusations.
Mike Nifong did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution. The fact is that few if any prosecutors wait for corroborating evidence or insist on more than one person's say so before initiating a sexual assault prosecution. Indeed, they'd be vilified if they did. The cardinal rule of sexual assault complaints is "believe the victim," and since anyone who complains is deemed a victim, even a semi-credible complainant can generate an arrest and prosecution in the absence of physical evidence, additional witnesses, or even a prompt accusation. This isn't just the case in Durham; it's true almost everywhere. The widespread support for this questionable practice is such that if the Duke case had gone to a jury and the defendants had been convicted, Nifong would not only still have his law license—he'd have been lionized for his dogged pursuit of rich white kids.
This is not an institutional problem, it is a political problem. Rich kids like the Lacrosse players have some remedy. God help those without such resources.
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