In light of the Duke lacrosse case, many are wondering: What can be done? How can we prevent another Duke lacrosse case? Because of the incredible power prosecutors wield, nothing in our legal system prevents a prosecutor like Mike Nifong from indicting anyone reading this post. Nothing. That needs to change. What can be done?
I can think of a two reforms that no one should have any objection to. First, reform grand juries. In those states that indict via grand juries, no defense lawyer is allowed to attend grand jury hearing. The prosecutor alone explains the relevant law and facts to the grand jury. Plus, the grand jury need only find that probable cause (less than a 25% chance) of criminal wrongdoing exists.
Grand juries should not be allowed to indict unless there is clear and convincing (about 75%) chance that the person indicted is guilty. Moreover, the lawyer for the person the prosecutor is seeking to indict must be present during the grand jury's proceedings.
Second, prosecutorial ethics reform. Under the American Bar Association's Model Rules of Professional Conduct (which are non-binding but influential), "The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause []." M.R.P.C. 3.8 (a). How does it feel knowing that if there were a greater than 75% chance that you were innocent of a crime, a prosecutor could, according to the ABA, turn you into a Duke defendant? How would you like to be forced to mortgage your home and face the constant terror of becoming a convicted sex-offender when it's much more likely you are guilty than innocent? That's shameful, but that is the state of affairs.
Indeed, in the Duke lacrosse case, there was probable cause that the defendants were guilty. Under existing law, an accusation (no matter how unbelievable) creates probable cause that you are guilty. In the Duke case, a woman said three specific men raped her. As anyone following the case knows, she made this allegation under very suspicious circumstances. Nonetheless, she made the allegation. Hence, probable cause. Hence, three men lost jobs, had their lives threatened, were expelled from school, had job offers rescinded, and lived in sheer terror for over a year. That's some system we have here, 'eh?
These two reforms should not meet any resistance from prosecutors. An ethical prosecutor should not file charges unless he is certain that he has, in hand, admissible evidence that would persuade a reasonable jury that the defendant is guilty. That is, before filing charges, the prosecutor be certain he has the right man.
Will the National Association of District Attorneys support these reforms? If they will not, what does that say about the organization and its members?
What good reason is there to allow someone to have his life ruined based on a less than 25% chance that he is guilty? What good reason is there to prevent defense lawyers from ensuring that prosecutors do not lie to grand juries?
Inquiring minds want to know.
