Suing the prosecutor.

• Author: Van Patten, Jonathan K.

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, at whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. (1)

1. THE PROBLEM

   The capacity to do great good is accompanied by a corresponding capacity to do great evil. Each virtue may be said to have a dark side--love and hate, trust and deceit, freedom and slavery, self-rule and tyranny. The latter of each of these pairs is like an evil twin, closely related, but ultimately the opposite or the perversion of the good. Robert Jackson's description of the good and evil uses of the power lodged in a prosecutor is as contemporary as the morning headlines. This Article will focus on the dark side of criminal prosecution and what, if anything, can be done about it.

   Before turning to the dark side, however, the first part of Jackson's proposition must be acknowledged and embraced. The prosecutor at his or her best is indeed one of the most beneficent forces in our society. Whether it is the prosecution of small-time crooks or large-scale swindlers, (2) the conviction of murderers, (3) serial killers (4) or terrorists, (5) or the rooting out of corruption, both small and large, (6) the prosecutor's diligence helps to ensure that no one is above the law. No diagnosis of the problem, nor prescription for cure, can ignore the indispensible role played by the prosecutor. It would be foolish to view the problem of the rogue prosecutor in isolation. Any diagnosis and prescription must take care not to jeopardize the independence and courage of the prosecutor who does the right thing. The problem of the rogue prosecutor, however, is not so uncommon as to be insignificant. Power brings the possibility of its abuse. This can be illustrated by looking at two cases, the first of which is the Duke Lacrosse case. (7)

   1. THE DUKE LACROSSE CASE

      This was a case that, from the outset, had plenty of blame to go around. Members of the lacrosse team planned a party that turned into a "perfect storm." An exotic dancer told authorities that she had been raped at the house where the party was held and this set things in motion. Although it later became clear that no rape had taken place, the story took on a momentum of its own through the assistance of a nurse trainee with an agenda, a policeman who intensely disliked Duke students, a rogue prosecutor who seized on the case in order to bolster his chances for election, an academic community (with certain notable exceptions) that rushed to judgment to satisfy their own political views, and an eager media with preconceived scenarios that assumed guilt from the outset.

      The storm that eventually led to a catastrophic breakdown of the criminal justice system began with a familiar occurrence--a gathering of college students for a house party near campus. This party was organized by a few members of the nationally ranked Duke lacrosse team, which was back on campus during spring break in order to practice for several important upcoming games. (8) One team tradition was a bonding party during that week. The prior year involved a visit to a local strip club and, due to a recent crackdown on underage patrons, some seniors decided to bring the strippers to the team. (9) Two young women were hired, through an escort service, to dance in the late evening on March 13, 2006, at the house party. (10) One of the women, Crystal Mangum, was African-American, a single mom, with a history of psychological problems, as well as alcohol abuse. (11) She and another dancer, Kim Roberts, arrived separately at the house by 11:40 p.m., where they met for the first time in the backyard. (12) They went inside and prepared for the dance, which began at exactly midnight. (13) Mangum, however, had been drinking for most of the day (14) and could neither dance nor speak coherently. (15) She almost immediately fell to the floor and remained there while Roberts tried to save the situation by pretending to "dance" with her. (16) The reactions from the players ranged from boredom and discomfort to disgust and anger, and a nasty exchange between several players and Roberts ensued. (17) Roberts then stormed out of the house, followed by Mangum, who stumbled and banged into walls as she left. (18) As time-stamped photos would later show, the performance lasted four minutes. (19)

      Two of the players, Dan Flannery and Dave Evans, followed the women outside to apologize for some of the comments that had been made and Flannery persuaded the women to go back into the house, saying that there would be apologies made by all. (20) Roberts went into Evans's bathroom with Mangum following. (21) While Flannery and Evans were talking with Roberts and Mangum, another player, Reade Seligmann made calls on his cell phone. He made eight calls, including six to his Duke girlfriend, between 12:05a.m. and 12:14. The last call hailed a taxicab, whose driver, Moezeldin Elmostafa, picked up Seligmann and another teammate at 12:19. (22) Meanwhile, the women had locked themselves in the bathroom for several minutes. When they left the bathroom, sometime between 12:15 and 12:20, the women took most of their belongings. (23) Roberts went to her car, where she changed her clothes. (24) Mangum, who had been driven to the house, also went to Roberts' car. (25) By this point, many of the players, including Colin Finnerty, had left the house. (26) A neighbor, who observed the scene at about 12:25, later told police: "I noted that the skimpily dressed woman [Mangum] had exited the car, saying something to the effect that she would go back into [the party house] to retrieve her shoe." (27) Mangum went around the house to the backyard, where she made a call on her cell phone at 12:26 to another escort service. (28) Between 12:30:12 and 12:31:26, there are five time-stamped photos, showing Mangum standing on the back stoop, without one shoe, but otherwise not distraught. (29) There followed a six-minute, photo-free period, during which Mangum pounded on the back door, yelling for her shoe. (30) The players did not let Mangum back in the house. During this time, Dave Evans left the house through the front door. (31) Some players then heard a thump outside and found Mangum sprawled on the back stoop, apparently passed out. (32) One of the players carried Mangum to Roberts' car, helping her into the passenger seat in a 12:41:32 photo. (33) Roberts noticed that Mangum did not have her purse and asked if she had the money from the job. (34) Mangum answered her incoherently and so Roberts went back into the house to look for the purse. (35) Finding nothing, Roberts headed back to her car at about 12:50. (36) There was another exchange of racial insults between Roberts and the remaining players, with Roberts screaming: "F**k Duke. I'm calling the cops. That's a hate crime." (37) Roberts then drove off, with the apparently passed out Mangum in the passenger seat. (38) At 12:53, Roberts called 911 on her cell phone, saying that she and a friend had been passing by the party house, located at 610 North Buchanan, and that some guys had yelled racial slurs at them. (39)

      As Roberts drove, she asked Mangum if she had her money. There was no response. She asked her where she lived. Again, there was no response. (40) Mangum was "basically out of it," Roberts later told the police. (41) Roberts then drove to a convenience store to get assistance, asking a security guard for help with her passenger. (42) The security guard called 911. A Sergeant Shelton responded to the scene and he called in that the woman in the car was "just passed-out drunk." (43) Shelton and another officer helped Mangum into one of the patrol cars. (44) Shelton decided that Mangum met the criteria for involuntary commitment and told the other officer to take her to the Durham Access Center, a facility for processing patients with mental illness or drug issues. (45) At the Center, she was asked if she had been raped, to which she nodded affirmatively. (46) Although this was the first time that she had said anything about a rape--nothing had been said to Roberts at any point--this was her ticket out of the Durham facility. (47)

      Mangum was taken to the emergency room at the Duke University Medical Center for treatment and a sexual assault workup. (48) During her time there, her story changed several times. (49) The story told to Nurse Tara Levicy (50) was particularly detailed. She named "Adam," "Brett," and "Matt" as her attackers and described the encounter with specificity. (51) The doctors, however, found no physical evidence of the attack described by Mangum. (52) Three days later, Mangum was back at a strip club where she danced, saying: "I'm going to get paid by the white boys." (53)

      With the rape charge now out there, the Durham police began their investigation. Taking the lead was Sergeant Mark Gottlieb, a detective who hated Duke students and who had an ugly history of abusing them. (54) Gottlieb and Detective Hinman interviewed Mangum on March 16, two...