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http://www.investors.com/editorial/editorialcontent.asp?secid=1501&status=article&id=247364133328660
Prosecutors Gone Wild

INVESTOR'S BUSINESS DAILY

Posted 11/2/2006

The Law: The Duke University lacrosse players still twist in the wind, as does Scooter Libby, accused of lying about a crime that never occurred. Justice should be blind, not those supposedly administering it.

District Attorney Mike Nifong is on Tuesday's ballot in Durham, N.C., and the lacrosse players he has charged remain under indictment, unable to get on with their lives, forever tarnished even if they do.

They are charged with raping an "entertainer" at a party, and Nifong continues to pursue the case despite an absence of physical evidence that a rape occurred, contradictory testimony from another "exotic dancer" and an accuser's story that has, by one defense lawyer's account, changed a dozen times.

As of early this week, Nifong had not even personally interviewed the accuser. It's not required — others can do it. But given the high-profile case, he should have done it, since the credibility of the accuser is a prime consideration in even bringing charges.

"There is almost no evidence that could be construed as corroborating the alleged victim's accusations," said Rob Warden, director of Northwestern University Law Center on Wrongful Convictions.

"The prosecutor appears to have acted precipitously, without due consideration of evidence to the contrary — evidence that does not fit into their theory."

That also seems to be the case in Special Prosecutor Peter Fitzgerald's pursuit of Libby, former chief of staff to Vice President Dick Cheney. He is not charged with outing alleged secret agent Valerie Plame, but with essentially having a different recollection of conversations with reporters telling the story than the reporters did.

As we've noted, Fitzgerald's star chamber actions may yet get his picture in the dictionary next to the phrase "prosecutorial misconduct." He knew "outing" Valerie Plame was no crime, and charged no one for it. He also probably knew who did the outing, one Richard Armitage.

Fitzgerald knew no underlying crime was committed. But he felt compelled to come up with something, so he indicted Libby for obstructing an investigation that never should have occurred into a crime for which no one has been charged — indeed, a crime that never happened.

These and other cases like them — too many cases like them — are pursued every day by prosecutors who are acting from a personal or political agenda, or both, or from a typical human fault — the inability to admit a mistake.

A major 2003 study by the Center for Public Integrity called "Harmful Error" found 2,012 cases of serious prosecutorial misconduct since 1970, serious enough to dismiss charges at trial, reverse convictions or reduce convictions.

Prosecutorial misconduct in these cases included mishandling of physical evidence, failing to disclose exculpatory evidence, using false or misleading evidence and "harassing, displaying bias toward or having a vendetta against the defendant . . . (including) instances of denial of a speedy trial."

Sometimes justice corrects the error. In high-profile political cases, such as the persecution, er, prosecution of Libby, the charge itself is punishment, a tool used to see that justice is done, but to drive the targets from political power.

Witness Tom DeLay and Newt Gingrich. One still has, we hope, the presumption of innocence. The other was actually found innocent.

Sometimes prosecutors can be as selective as they are malicious. Witness the pursuit of Rush Limbaugh after he became addicted to prescription pain killers. Compare his fate to that of Sen. Edward Kennedy, who in 1969, after consuming a legal drug, alcohol, left a young woman to die at Chappaquiddick.

All Americans, from Scooter Libby to the Duke lacrosse players, are entitled to a speedy trial, and in the absence of evidence of a real crime, a speedy exoneration.

Justice delayed is justice denied. Injustice extended is persecution.