Ken Lay Is Innocent
Hudson v. Michigan

District Attorney Mike Nifong Can Be Sued for Defamation


Ordinarly prosecutors cannot be sued for filing even a frivolous criminal complaint against someone.  The court-created doctrine of prosecutorial immunity precludes suit.  But prosecutorial immunity does not attach to statements made to the press.  See Buckley v. Fitzsimmons (holding that a prosecutor is not absolutely immune from suit for false statements made in a press conference.)  The Duke lacrosse players can sue Nifong for defaming them.

To state a claim for defamation, a plaintiff must prove that the defendant (here, Nifong) lied about them to someone else, and that this lie lowered the opinon others have of the plaintiff, i.e., that the statements caused reputational harm.  Nifong certainly lied about the Duke players at least once (and likely lied about them at least twice), and these lies harmed the plaintiffs' reputations.

The first lie concerned Nifong's statement to Newsweek.  Remember when he "hinted" to Newsweek reporters that blood and urine tests of the woman would reveal the presence of a date-rape drug?

While a rape defendant certainly has enough problems with people looking down on them, wouldn't it make us think even less of the Duke lacrosse players to think they drugged the complaining witness? Certainly it would, as currently the Duke case is a credibility contest.  The presence of date-rape drugs would make us think it's more likely that the Duke defendants are rapists.

Nifong seemed to have lied once again. One day before a medial report was printed, Nifong told reporters that the medical report would establish that a rape occurred.  If the report had not been printed, then Nifong lied about the contents of the report in an attempt to harm the Duke defendants.  Again, given that the Duke case is a credibility contest, we would think less of the Duke players if we saw medical evidence that the complaining witness was raped.

It could be the case the case that the medical-report lie was no lie at all; and that the report simply contains a typo.  Even if that's the case, Nifong's statement to Newsweek reporters is certainly actionable.

Given that Nifong can be sued, should he be sued?  I think so, and I think Edward Bennett Williams might not have called me crazy.  Here's why.

First, the players' are so thrust into the public eye that drawing further attention to them would not damage them.  If anything, it would allow them to further expose Nifong for the unethical prosecutor that he is.  Exposing governmental corruption is a useful defense strategy.

Second, Nifong has harmed the players in other - obvious - ways. Unfortunately they do not have a case against him for filing this frivolous case against them because of prosecutorial immunity.  Nifong deserves to be held accountable: Suing him for defamation is one way to hold him to account for his other bad acts.

Third, suing Nifong would offer the Duke lacrosse players a tactical advantage.  (It would likely be unethical to sue for this reason; but for the sake of scholarly inquiry, we'll consider it.)  I haven't studied North Carolina law on this point, but I'm willing to bet that Nifong, if named in a civil suit, would be required to recuse himself from prosecuting the case.  He would have a conflict of interest: His duty to "do justice" would conflict with his personal desire to convict the defendants, thus preventing them from successfully prosecuting him in a civil suit.

Nifong seemingly has no personal or professional integrity.  Putting a prosecutor with a moral compass on the Duke case would help the players much more than harm them.

What are the downsides?  My first thought was, "privilege against self incrimination."  Still, I don't see any Fifth Amendment implications. The players would not be required to give deposition testimony about what happened at the party, since that would not be relevant to whether Nifong lied about the use of date-rape drug.  They would, however, be required to state whether or not they did give the complaining witness a date rape drug.  But a good lawyer could limit the scope of inquiry.

Other than the Fifth Amendment issue, I see no downside; and I see a lot of advantages.  How about you?  What am I missing?