Today, Carolina Journal’s Donna Martinez discusses possible changes to N.C. criminal justice procedure in the wake of the Duke lacrosse case with Kieran Shanahan, a former Federal prosecutor, former Raleigh City Councilman and currently a practicing attorney in Raleigh. The interview aired on Carolina Journal Radio. (Go to http://carolinajournal.com/cjradio/ to find a station near you or to learn about the weekly CJ Radio podcast.)
Martinez: Tell us about this case for a moment, the Duke lacrosse case. Now, [Durham District Attorney] Mike Nifong of course is facing serious ethics charges before the North Carolina Bar. Give us a sense — is he a rogue prosecutor in your opinion?
Shanahan: Well, it certainly was a rogue prosecution. I think that we will concede that much. The facts now have borne out that these three young men probably should not have been charged in the first instance. Mr. Nifong’s troubles are going to continue for some time. It is clear that he made not one mistake, but a series of mistakes. The motivations for all of that are probably yet to unfold. I think we will learn more as his Bar disciplinary proceedings go on. It is an unusual, but I think an isolated case for North Carolina.
Martinez: I think that is the thing that many people are worried about. Is it isolated, or are there are other prosecutors who maybe are not approaching cases in a fair way, looking for truth? Because it just seems like the information coming out about this particular prosecution in the Duke case — that truth was there but perhaps not listened to.
Shanahan: No question. I think that is a legitimate concern. There is an incredible amount of authority vested in our district attorneys. They have the ability to indict somebody. Even though it is formally presented to a grand jury, the charging decision is the prosecutor’s. So that is an immense power that they have and, therefore, needs to be closely checked and closely scrutinized. Unquestionably, in this case, it appears to be someone who was a line assistant who becomes a political appointment when the governor appointed him to the position.
Martinez: You are talking about Mike Nifong?
Shanahan: Mike Nifong — facing his first election ever. There seems to be maybe an obvious connection that he has got to run for office for the first time, and maybe he started grabbing headlines. He got out ahead of the evidence in a way that is just totally unacceptable for any prosecutor and any prosecution. It reflected terribly on him and it reflected terribly on the system. But, the question I think that you are posing today is, should we change our system because of one rogue prosecution or one rogue prosecutor.
Martinez: Exactly.
Shanahan: While I think that there are a number of things that we can do with our grand jury system, I certainly would not completely scrap what we are doing based on one isolated incident, one rogue prosecution, and one rogue prosecutor.
Martinez: I thought it was very interesting that following the dismissal of charges, one of the three Duke Lacrosse players, David Evans, commented to the media that he wanted to be able to go back and find out exactly what was said about him that resulted in his indictment. He said that he is not able to do that. Is that correct?
Shanahan: He is absolutely right. We have a very unusual, and I think problematic arrangement, whereby our grand jury proceedings are not being recorded and prosecutors sometimes say things — sometimes they are not even in the room when indictments are being returned — and I think that is a real problem. That would be a great fundamental change that we can make in our proceedings — that not only should the testimony of witnesses be recorded, but everything that the prosecutor says should be recorded so that we can determine whether or not, when indictments are returned, they are returned based on probable cause as required by law and our U. S. Constitution.
Martinez: Now you said that sometimes the prosecutors are not actually in the room. Who then presents the case?
Shanahan: Well, sometimes nobody presents the case. They just send in the paperwork and the foreman of the grand jury reads it. Sometimes agents are called upon to give testimony, but as a practical matter people say that you can indict a dog, you can indict a…
Martinez: Or a ham sandwich as we have heard.
Shanahan: It is an unusual circumstance and a lot of lawyers — if you were never a prosecutor and never had much exposure to it — it is kind of an unknown quantity. The federal law is much more developed in the area of grand jury practice, much more regulated and, of course, you have investigative grand juries in the federal system. We only have very limited use for them here. I think that they should be expanded and we should put some systems in place so that it really is a meaningful, constitutional requirement where we say nobody will be charged with a felony except upon presentment to a grand jury.
Martinez: You have been a federal prosecutor. Explain to us the difference between the grand jury system at the federal level and what North Carolina does.
Shanahan: Well, in the federal system here in North Carolina there are three districts. Each district runs their own grand jury pool, and it comes from a large territory. In North Carolina every county, every judicial district, has its own. They act in anonymity. It is no more than 23 and no less than 16 who meet. Twelve of them have to vote to return indictment. Everything that goes on is recorded. It is done in secret, but it is recorded.
Martinez: And that is what North Carolina does not do?
Shanahan: Correct. North Carolina does attempt to have secrecy, and one of the reasons they say that they do not want to have recordation is some argument about secrecy. I do not think that makes sense. I think in today’s environment, especially because of the gravity of the type of charges — the complexity might be a better word — the complexity of the types of charges that are being considered today seem to be highly elevated. It is one thing to say that there was a breaking and entering at night. It is another thing to say that you committed a financial crime because you have somehow taken advantage of people in a commercial context. It is a criminal matter. So I think given the complexity of the type of crimes that are being brought, it just makes sense that we would come into the 21st century and bring our grand jury practice more in line with the national norm.
Martinez: When Attorney General Roy Cooper announced the dismissal of charges, he also made a suggestion, or a recommendation, that the Supreme Court of North Carolina perhaps should be given more power to deal with the prosecutor or a case that appears to be off track in a serious way. Give us your sense of what he was proposing and what you think about it.
Shanahan: Well, I will try to answer the second one first. I have to say that the Attorney General and his office did an excellent job of handling this matter. I think that they were professional in what they did, and I thought his statements and the way he approached it, for the most part, were right on point. Now you have to remember he is an elected official running for re-election, and the one thing that I would not have done that he did, was to make this proposal that we change the law. That, to me, had a political tone and so he is a political official, and so I guess you can give him that. As a prosecutor and someone who cares about the law and who has dedicated my life to the legal profession, what he did and how he handled the case generally, up to that point, was terrific and I think it reflected favorably on North Carolina and on his office. As to this idea of having one group of elected officials on our Supreme Court remove another elected official, I think that has huge constitutional problems. The D.A. is elected by the people, and I do not think that you should have any other branch of government have the authority to remove him. I think that was going over the top. I would not say it was grandstanding, but maybe a way of trying to be forward-looking. I think it was not appropriate.
