UNC law professor Joseph Kennedy, a former public defender, wrote this op-ed piece calling for Mike Nifong to recuse himself or be disqualified from the prosecution of the Duke lacrosse players. I agree. I've noted previously that it's not clear we've heard Nifong's side of the story regarding the decision to withhold key exculpatory information from the DNA report. But, as Kennedy notes, the testimony was so implicating as to Nifong that he has a compelling motive to attack the DNA expert. (And, bear in mind, the witness's testimony was self-damaging, so it comes with more indicia of credibility than most testimony.) I agree with Professor Kennedy that Nifong's continued participation seems untenable. I also commend Kennedy's article for clearing laying out the key ethics and procedural violations that occurred if the existing testimony is credited. As I discussed in this blog, rule 3.8 is one of those key rules.
But I cannot agree with this comment by Professor Kennedy, "Disqualifying Nifong from the case should not be interpreted as a victory for the defense or as a defeat for the accuser." It would be an enormous victory for the defense. At the same time, as Professor Kennedy notes, Nifong's continued participation is also quite helpful to the defense. In short, Nifong has created a no-win situation for the prosecution, for the complainant, and for the people of North Carolina. He may have also damaged the cause of rape victims more generally. Even if we were to look at the issue simply from the state's point of view without considering its mandate to seek justice, every official act Nifong takes on the matter can be seen as compounding the risks of civil liability for the government, professional discipline for Nifong and others on the case, and the loss of long term credibility of the prosecutor's office in general. When you find yourself at the bottom of a deep hole, stop digging.