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Nifong & Fitzgerald's Prosecutorial Abuse

By Jack Kelly

CBS's "Sixty Minutes" broadcast Sunday showed many people the gross abuse of prosecutorial power in the Duke rape case.

Durham district attorney Michael Nifong indicted three Duke University lacrosse players last April after a stripper who performed at a team party claimed she had been raped.

The accuser picked the three defendants from a photo lineup consisting only of lacrosse players, a violation of police procedures. (Clearly innocent people are supposed to be mixed in with suspects.) The players she selected did not match the description of the alleged attackers the accuser had given police earlier. Two of the accused had alibis.

The only evidence against the lacrosse players is the testimony of the accuser, who was inebriated at the time of the alleged assault, and who has changed her story in significant ways on multiple occasions.

DNA from five men was found on the accuser, but none of it belonged to the three defendants. Mr. Nifong knew this before he indicted the trio.

He and Brian Meehan, the director of the lab where the DNA testing took place, concealed the exculpatory test result from defense attorneys, a violation of procedure and perhaps of the law.

The case has drawn national attention because the accuser is black, and the accused are white males.

Mr. Nifong's reason for pursuing such a flimsy case seems clear. The electorate in Durham is more than 40 percent black. At the time the accuser made her accusation, he was trailing in the Democratic primary to a woman he once had fired. If he lost, it was unlikely the winner would keep him on, and his pension has not vested.

Mr. Nifong won the election. But short term gain likely will be followed by long term pain. Last week he bowed to pressure to recuse himself. He faces a hearing before the North Carolina bar association that could result in his disbarment.

Another trial featuring questionable use of prosecutorial power is beginning in Washington, D.C. I. Lewis "Scooter" Libby, then chief of staff to Vice President Dick Cheney, is charged with having lied to a grand jury about from whom he learned that Valerie Plame Wilson worked at the CIA.

Ms. Plame's husband, former Ambassador Joe Wilson, charged that President Bush lied in his 2003 state of the union address when he said Saddam Hussein had tried to buy uranium in Africa. (The Senate Intelligence Committee, the Silberman-Robb commission, and the British Butler commission all concluded the president's statement was "well founded."

When columnist Robert Novak revealed that Ms. Plame worked at the CIA, Mr. Wilson accused the White House of leaking this information to get even with him. Democrats and the news media joined the brouhaha, and a special prosecutor, Patrick Fitzgerald, was appointed to find the leaker, and to determine whether the Intelligence Identities Protection Act had been violated.

Mr. Fitzgerald had been on the job only a few days before he learned that Ms. Plame had been manning a desk at Langley for more than five years, which meant she wasn't a covert operator as defined by the statute, and that Mr. Novak's source was then Deputy Secretary of State Richard Armitage.

Despite this, Mr. Fitzgerald proceeded as if Mr. Wilson's accusation of White House persecution were true. He subpoenaed reporters and jailed one (Judith Miller, then of the New York Times) to get notes of their conversations with Mr. Libby. (Mr. Libby was indicted for perjury because he told the grand jury he learned of Ms. Wilson's day job from journalists. Mr. Fitzgerald maintains he actually learned of it from CIA and State Department officials.)

Liberals rushed to condemn the Duke lacrosse players because they loved the narrative: rich white guys abuse poor black woman. Some furious backtracking is taking place as evidence of their innocence mounts. A new verb, to "nifong," has been coined. It's a synonym for "to frame."

Liberals also loved the original narrative in the Plame case: Bush aides persecute whistle blower. But the disclosure that Mr. Armitage was the source demolishes it as thoroughly as the DNA evidence has discredited Mr. Nifong.

Those who wonder why Mr. Nifong went forward with the Duke prosecution after receiving the DNA results should wonder also why Mr. Fitzgerald has persisted despite learning that no crime was committed when Ms. Plame's name was leaked, and that Mr. Armitage (who has not been indicted) was the leaker. Is to "fitzgerald" a synonym for to "nifong?"

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