Prosecutorial Indiscretion

Of all the strange, shoot-self-in-foot statements from Durham, N.C., District Attorney Mike Nifong in the last few days—and there are so many—one stands out. In explaining why he is continuing to prosecute three former Duke lacrosse players on kidnapping and sexual offense charges—despite dropping rape charges—Nifong told the New York Times, “If she says, yes, it’s them, or one or two of them, I have an obligation to put that to a jury.” Nifong is talking about the woman who says she was attacked in the bathroom after being hired to dance at a lacrosse-team party last March. In other words, the district attorney is claiming that as long as she continues to accuse any of the Duke guys, he must press charges against them. That’s so basic a misunderstanding of his own job that it raises questions about whether he is even qualified to hold it.

Prosecutors don’t have an obligation to take a professed victim’s accusations to a jury. They have an obligation to listen to her story, test it against the other evidence, and then decide whether to move ahead. This is the root of prosecutorial discretion. Victims don’t decide when to press charges in criminal cases. District attorneys do. And much of the time, that means a victim’s accusation doesn’t get anywhere near a courtroom. This makes prosecutorial discretion an alarming sort of power. Prosecutors do their most important work outside of public view and are free to make decisions that they never have to explain. That’s one reason they’re either elected or appointed by a governor or the president—we don’t give this authority to officials who simply move up the bureaucratic ladder. More to the point, the discretion they exercise is necessary. Courts don’t have the resources to sort through every allegation. And they shouldn’t have to, given the damage criminal charges can inflict to the accused’s reputation, even if they fall apart at trial or earlier.

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Prosecutorial Indiscretion
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