Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery

Mike Nifong, the prosecutor in the Duke lacrosse rape case, was disbarred by the North Carolina State Bar in June 2007 principally for withholding exculpatory DNA evidence and for making false statements about his conduct. This article relates the central details of his actions and the process that led to disbarment. Its key overall insight is that full open-file discovery was the figurative workhorse and hero in the Nifong disbarment saga. That saga was itself strongly affected by two earlier death penalty cases where prosecutors also failed to provide exculpatory information to the defense. The constitutional doctrine in Brady v. Maryland that requires the disclosure of exculpatory evidence and the related ethics rule produced no evidence in the Duke lacrosse case or the other two prosecutions. Indeed, these cases show that it is exceedingly difficult for a prosecutor committed to his or her case and/or who sincerely believes in the guilt of the accused to recognize the exculpatory nature of evidence and disclose it. The reversal of nine North Carolina capital cases in the last decade, since open-file discovery was mandated for capital post-conviction litigation, demonstrates the ineffectiveness of solely relying on voluntary Brady disclosures, even when the consequence of an unjust conviction would be execution