The state bar is broken in the case of prosecutorial misconduct, period, full stop.

What Nifong did was not as bad as mistakenly sending a guy to death row. It wasn’t as bad as mistakenly sending a guy to jail.

This was because the defendants were white and rich.

Prosecutor Becomes Prosecuted
By ADAM LIPTAK

THE misconduct that cost the prosecutor in the Duke lacrosse case his career certainly seemed to call for a severe penalty: he withheld evidence from the defense, misled the court and inflamed the public.

Yet other prosecutors found by the courts to have done similar things have almost never lost their jobs or their licenses to practice law. Even in the aftermath of prosecutorial wrongdoing that helped put innocent men on death row, discipline has been light or nonexistent.

What makes Michael B. Nifong different?

The answer, it appears, is that he got a taste of something like his own medicine, a trial in the court of public opinion.

“The very same facts that made this case attractive to a prosecutor up for election and a huge publicity magnet — race, sex, class, lacrosse stars, a prominent university — also led to his undoing when the case collapsed and his conduct was scrutinized in and beyond North Carolina,” said Stephen M. Gillers, a law professor at New York University and the author of “Regulation of Lawyers: Problems of Law and Ethics.”

“If the same case had involved three poor men, instead of defendants with private counsel and families that supported them financially and publicly,” Mr. Gillers continued, “we would not likely see a disbarment, in North Carolina or anywhere. I’d be surprised if there were even serious discipline.”

There is widespread agreement that sanctions for prosecutorial misconduct are quite unusual, but heated dispute about why.

Prosecutors say they seldom face discipline because conduct like Mr. Nifong’s in this sexual-assault case is exceptional.

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The Chicago Tribune, for instance, analyzed 381 murder cases in which the defendant received a new trial because of prosecutorial misconduct. None of the prosecutors were convicted of a crime or disbarred.

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Indeed, the North Carolina disciplinary commission that disbarred Mr. Nifong faced criticism for its handling of two recent cases involving charges of misconduct in death-penalty cases.

In one, Alan Gell was sentenced to death after prosecutors withheld witness statements from the defense. The witnesses said they had seen the victim alive after Mr. Gell had been jailed on other charges and was physically unable to have committed the murder. Mr. Gell was acquitted at a retrial.

Two prosecutors received a reprimand.

Last year, the commission dismissed charges, largely on statute of limitations grounds, against two prosecutors accused of withholding evidence in the 1996 capital trial of Jonathan Gregory Hoffman. Mr. Hoffman has been granted a retrial.

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