WASHINGTON, August 31, 2007 — On June 16, the Disciplinary Hearing Commission of the North Carolina State Bar applied its maximum penalty to Mike Nifong, the Durham County prosecutor who attempted to frame three innocent students for a “crime” that did not occur. The commission disbarred Nifong, who, a day earlier, had announced that he would resign.

The hearing amply demonstrated the extent of Nifong’s prosecutorial misconduct. Nevertheless, Lane Williamson, who chaired the commission, noted in his final remarks that the outcome of the Durham prosecutorial misconduct case — upon which the fate of three innocent young men depended — was a near-run thing. “The justice system righted itself, somehow, so that at the end of the day there was indeed a declaration of innocence of these three young men,” Williamson said. “But it was done with backup systems in a way that was never designed to work as the justice system should work.”

In a 2003 report, Harmful Error, by Steve Weinberg, Neil Gordon, and Brooke Williams, the Center for Public Integrity found that, across the country, the criminal-justice system is ill-prepared to deal with prosecutors who, like Nifong was found to have done, charge suspects without any physical evidence, make prejudicial statements about the accused, withhold exculpatory evidence, or refuse to consider evidence that contradicts their conclusions.

Since 1970, the Center’s report found, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions, or reducing sentences in more than 2,000 cases. Over the same period, just 44 prosecutors faced disciplinary hearings. Only two were disbarred. A prosecutor who forged a confession in a rape case received public censure, as did another who suborned perjury.

The Center found 28 cases in which courts ruled that prosecutorial misconduct contributed to the imprisonment of innocent individuals, and another 26 cases in which innocent, imprisoned individuals alleged misconduct (courts, in freeing them, did not rule on the issue).

In his closing remarks on the Nifong case, Williamson noted that “the person who is the most powerful in the criminal-justice system is not the judge, and except at the end of the process it’s not the jury, it’s the prosecutor who makes the charging decision to start with.” In most jurisdictions, at least 95 percent of the cases that pour in from the police never reach a jury. When prosecutors cut deals with defense attorneys, the only trial the defendant receives takes place in the prosecutor’s office. In plea bargains, prosecutors can also withhold exculpatory evidence or information about mitigating circumstances that might lessen charges, keeping misconduct away from public view.

We expect each of the nation’s 30,000 or so local trial prosecutors to strike a balance between their understandable desire to win convictions with their duty to impartially and fairly administer justice. Some prosecutors have made winning their only goal. In the course of cataloging prosecutorial misconduct cases from all 50 states, the Center’s researchers encountered prosecutors who repeatedly broke the rules without being punished. These district attorneys and assistant district attorneys give recidivism — a word they apply to those they work to put behind bars — a disturbing new meaning.

Harmful Error remains the most thorough, authoritative examination of prosecutorial misconduct ever produced — and a timely reminder that the “fiasco” in Durham, as Williamson termed the case, may not be all that unusual.