By Douglas J. Brocker

Introduction

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict.” Comment [1], RPC 3.8. No other legal ethics issue resonates as deeply with the general public as when a prosecutor misuses or abuses this power and responsibility. As a result, no other issue has the potential to threaten or undermine lawyers’ privilege to regulate themselves if the public perceives that such cases are not being handled properly.

The recent disciplinary case against Durham District Attorney, Michael B. Nifong (Nifong) involved numerous interesting issues of legal ethics and self-regulation. I had the privilege of being retained as special counsel to prosecute the Nifong case, along with the State Bar’s counsel, Katherine Jean. This matter was tried before the Disciplinary Hearing Commission (DHC), the trial body of the North Carolina State Bar.

In a series of three articles, I will explore the three main sets of important ethical issues involved in the Nifong disciplinary case: (1) the prejudicial effect of extrajudicial statements; (2) the critical importance of truthful and accurate statements by lawyers to the court, defense counsel, and others; and (3) the necessity for full and timely disclosure by attorneys of all evidence and information, particularly of potentially exculpatory evidence by prosecutors. Mr. Nifong’s systematic abuse of his prosecutorial power and discretion by violating all three of these important ethical principles resulted in his unprecedented disbarment as a sitting District Attorney (DA). This article focuses on the prejudicial nature of the pretrial statements made by Mr. Nifong to the media, and the constitutional bases for barring such statements. The next two articles will address the second and third sets of issues above.

The Durham prosecutor’s investigation and eventual charges against three Duke Lacrosse players (hereinafter “the Duke Lacrosse Case”) was paraded on local and national television, and in all forms of public media. Mike Nifong, a virtually unknown DA at the time, granted interview after interview touting his confidence that a horrendous crime had taken place on March 14, 2006 at the house rented by three Duke Lacrosse players. Over a year later and after a five-day trial, a panel of the DHC concluded that Mr. Nifong’s conduct violated, among other rules, Rules 3.6(a) and 3.8(f) of the Rules of Professional Conduct, which concern pretrial publicity. The DHC specifically found that his extrajudicial comments were motivated by a political reelection campaign for the District Attorney of Durham County.

Prohibited Trial Publicity and Its Constitutional Foundations

Rule 3.6(a) prohibits a lawyer from making an “extrajudicial statement that the lawyer knows, or reasonably should know, will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Rule 3.8(f) prohibits prosecutors from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused. It is clear that both rules are designed to protect the right to a fair trial by preventing trial by media. The prohibitions in these rules are based on essential, constitutionally-guaranteed rights.

Right to a Fair Trial

The prohibition contained in Rule 3.6 is designed to preserve and protect the Sixth Amendment constitutional right to a fair trial by an impartial jury as noted in Comment [1] to the Rule. If the jury pool is tainted by one-sided media coverage which shapes the resulting public opinion, this constitutional guarantee is eroded or nullified. Exactly 100 years ago, Supreme Court Justice Oliver Wendell Holmes, addressing the right to a fair trial, wrote:

The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.

Patterson v. Colorado, 205 U.S. 454 (1907). Justice Holmes’s comments of course were made before the invention of the broadcast media and Internet, which pose significant additional risk to constitutional rights if the necessary prohibitions and limitations on extrajudicial comments are not strictly observed.

Comment [5] to Rule 3.6 sets forth specific but nonexclusive examples of the types of statements which are presumed to have a substantial likelihood of materially prejudicing an adjudicative proceeding. Several of these specific examples are based on other important constitutional rights and guarantees in criminal cases, such as a suspect’s right to silence, right to counsel, and the presumption of innocence.

Right to Silence and Counsel

For example, Mr. Nifong made repeated statements concerning Duke Lacrosse team members’ silence or refusal to make statements to law enforcement authorities. Specifically, Mr. Nifong commented to the media “if it’s not the way it’s been reported, then why are they so unwilling to tell us what, in their words, did take place that night?” Section 2 of Comment [5] to Rule 3.6 specifically prohibits an attorney from commenting on a defendant or suspect’s refusal or failure to make a statement. This prohibition is based on a criminal defendant’s Fifth Amendment right to remain silent and against selfincrimination.

The basis for the rule prohibiting the use of a suspect’s silence against him is that it runs counter to the presumption of innocence. This presumption, which is fundamental to the criminal justice system, prohibits any attempt by the State to infer or otherwise suggest in any way that a suspect’s silence is motivated by guilt. Repeated comments made by Mr. Nifong, such as the one noted above, suggested that guilt should be presumed from the players’ alleged silence.

Some of Mr. Nifong’s most egregious statements were directed at the players’ exercise of their Sixth Amendment right to counsel. For example, Mr. Nifong commented: “and one would wonder why one needs an attorney if one was not charged and had not done anything wrong.” This extrajudicial statement suggests that the only reason someone not charged with a crime would hire an attorney is that they are guilty. Of course, another good reason to hire an attorney is to adequately defend yourself if you were unjustly accused or charged. Ironically, we now know that this is precisely what occurred in the Duke Lacrosse Case.

Presumption of Innocence

Section 4 of Comment [5] to Rule 3.6 specifically prohibits an attorney from making extrajudicial statements about his or her “opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration.” Additionally, Section 6 of Comment [5] states that a prosecutor cannot even comment that a defendant has been charged with a crime, unless he or she also explicitly states that it is merely an accusation and that the defendant is presumed innocent until proven guilty. In the face of such clear prohibitions, Mr. Nifong made repeated extrajudicial statements, such as:

• “There’s no doubt in my mind that she was raped and assaulted at this location.”
• “The guilty will stand trial.”
• “I am convinced there was a rape . . . “

Both sections 4 and 6 of Comment [5] are based on the essential principle of the presumption of innocence. This principle is fundamental to our entire system of justice, and mandates that the defendant be accorded procedural due process and that guilt be decided on the basis of sufficient evidence, presented only in a court of law, not in the media. Mr. Nifong’s extensive extrajudicial statements effectively nullified the defendants’ essential constitutional rights and guarantees to silence, counsel, and the presumption of innocence.

Rule 3.8(f) of the Rules of Professional Conduct, is the counterpart to Rule 3.6, and imposes additional obligations on criminal prosecutors. The Rule provides, “except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose,” a prosecutor shall not make extrajudicial comments “that have a substantial likelihood of heightening public condemnation of the accused….”

Mr. Nifong stated to the press that the players were a “bunch of hooligans” and that the crime was “reprehensible, abhorrent” and “racially motivated,” among numerous other similar comments. These statements served no legitimate law enforcement purpose. They were not designed to request assistance from the public in obtaining evidence, to inform the public of the nature, extent and status of the investigation, or to warn of imminent danger or substantial risk of harm to the public by a suspect at large. See Rules 3.8(f) and 3.6(a). By his own admission, Mr. Nifong’s statements were intended to put pressure on the players to communicate with law enforcement despite advice from counsel to remain silent. In other words, Mr. Nifong intentionally increased condemnation of the players to overcome the assertion of their constitutional rights.

His comments certainly heightened public condemnation of the players. They were shunned and ostracized by the media, their own university, fellow students, and community; in short, they became pariahs. One of the players actually had specific death threats shouted at him in the courtroom during his initial appearance. It is difficult to imagine a worse example of extrajudicial comments heightening public condemnation of the accused. His interviews with the local and national media outlets would have made it difficult to find an impartial jury anywhere. At one point, Mr. Nifong commented that the case would have to be moved to China to avoid the adverse effects of pretrial publicity.

Applicability of the Rule to Civil Cases and Permitted Speech

Rule 3.6 applies to all kinds of cases triable in a court of law or adjudicative forum. Certain cases, however, may be less sensitive to extrajudicial speech. Civil cases will be less affected than criminal cases, and bench trials, arbitrations or administrative hearings will be the least affected. While there is an old CPR opinion that states that the trial publicity rule does not apply to cases on appeal, it is doubtful this is still good law.

Notwithstanding the general prohibition against materially prejudicial statements to the media in Rule 3.6(a), Rule 3.6(b) specifically permits extrajudicial speech in a number of limited areas, including most significantly any matters of public record. In civil cases, the public record will always be a safe harbor. If the language in a press release is the same language that is used in a pleading or other court document, the rule specifically allows the public dissemination of that language. An attorney, however, should strictly adhere to public record information and be careful not to include personal opinions and the like. A good rule of thumb, if a case is pending (anywhere) and you are unsure whether something is contained in the public record, the better course is to remain mum.

An Exception: When can you speak?

There also is an exception for certain speech that would ordinarily raise a question under Rule 3.6. If an attorney believes that his client has been prejudiced by extrajudicial statements made publicly by another party, opposing counsel or third persons, the attorney may make public statements in response, to the extent he believes it is necessary to avoid undue prejudice to his client. Such statements must be narrowly tailored to mitigate the harm created by the prior statements, and the prior statements must have been unprovoked and solely initiated by the other party. The justification, as stated in Comment [7] to the Rule, is that “when prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding.”

In light of the extensive and prejudicial statements made by Mr. Nifong in the Duke Lacrosse Case, defense counsel had wide latitude in making responsive statements under this exception. Additionally, Rule 3.6 does not prohibit statements by a client directly. While an unusual and potentially risky move, one of the Duke defendants held a press conference announcing his innocence and the innocence of the other two indicted players immediately after his indictment. Even without this exception, the rule would not prohibit such comments by the defendant or any other party. Nonetheless, lawyers should not encourage their clients to make extrajudicial statements that would otherwise violate Rule 3.6.

Lessons Learned

The State Bar evidence in Nifong established that a prosecutor with more than 27 years of experience placed his prosecutorial and political career above his duty to his client, the people of the State of North Carolina. Mr. Nifong’s personal interests interfered with the ability to exercise professional judgment and motivated a career prosecutor to violate his unwavering duty to seek justice, not convictions. Mr. Nifong’s repeated extrajudicial statements stripped the defendants of their essential constitutionally-guaranteed rights to silence, counsel, the presumption of innocence, and the right to a fair trial. His actions effectively nullified the most important principles underlying the American system of criminal justice. Preserving this system demanded the most severe disciplinary action – disbarment.