[Editor's note: Most prosecutors would not condone the below conduct. However, far too many are unwilling to police their own ranks. Indeed, as shown below, often a us-v.-them attitude causes otherwise good and ethical prosecutors to affirmatively support wrongdoers.]
Although waiting until the eleventh hour, the National District Attorneys' Association, recognizing that no one could attach themselves to Mike Nifong without also smelling like manure, issued a statement decrying Nifong's conduct. The statement read:
The recent case of the exonerated athletes in North Carolina has affirmed the importance of the ethical standards of America’s prosecutors and serves as a reminder that the primary ethical duty of a prosecutor is to seek justice, not merely to convict.
***
The confidence of the public and the very integrity of the criminal justice process depend on strict compliance with these ethical standards. To the extent that any individual prosecutor violates these high ethical standards the public confidence in our criminal justice system is undermined and the image of all prosecutors suffers.
Powerful stuff, no? This statement's sentiments might be sincere. There is just one problem. Just over a decade ago, in Kalina v. Fletcher, 522 U.S. 188 (1997), a Washington state prosecutor, Lynne Kalina, under oath, misstated material facts in a probable cause hearing. (In other words, like Nifong, Kalina lied in order to indict an innocent man.) According to the United States Supreme Court:
Kalina's certification contained two inaccurate factual statements. After noting that respondent's fingerprints had been found on a glass partition in the school [that had been burglarized, Kalina] stated that [the defendant] had "never been associated with the school in any manner and did not have permission to enter the school or to take any property." In fact, he had installed partitions on the premises and was authorized to enter the school. She also stated that an employee of an electronics store had identified respondent "from a photo montage" as the person who had asked for an appraisal of a computer stolen from the school. In fact, the employee did not identify respondent.
How did the National District Attorneys' Association respond to Kalina's perjury? Did they issue a statement reminding us that prosecutors seek justice, not convictions? Did they decry Kalina's perjury?
No. Instead, they all filed friend-of-the-court brief on Kalina's behalf! Id. at 120 ("Briefs of amici curiae [supporting Kalina was filed by] the National District Attorneys’ Association et al.")
Perhaps NDAA has had a change of heart? Perhaps they now realize that prosecutors shouldn't lie in order to obtain indictments? Or perhaps they distanced themselves from Nifong simply so that they could allow the Kalinas of the world to escape scrutiny. I can imagine a conversation whereby all agree: "We gotta blast Nifong before people get serious about holding prosecutors to their ethical duties!"
I'll leave it to readers to decide for themselves whether NADA is truly concerned with prosecutorial ethics. (Oh, and in case you're wondering, Lynne Nifong Kalina is still a prosecutor. I suspect, though have not yet confirmed, that she remains a member in good standing of NDAA.)
