Fred Cantor | A case worth revisiting

What's the difference between Mike Nifong and Lynne Abraham? One is a disgraced former prosecutor involved in the Duke Lacrosse case who was disbarred and sent to jail after an independent investigation.

The other is a prosecutor whose actions must be probed by an independent investigation to determine if she, too, should be subject to significant sanctions.

Abraham's statements in last month's piece in The Philadelphia Inquirer on March 14, only reinforce the absolute need for such an investigation in connection with her handling of the plea deal in the case of Tracy McIntosh, the former Penn professor who was charged with sexual assault.

Abraham, the head of the Philadelphia district attorney's office, once again engaged in suspect conduct when she wrote: "He knew that he would be sentenced for his crimes, and that is why he is in prison right now."

McIntosh is in prison because Abraham not only consistently refused to look into allegations that a plea deal guaranteeing no jail time was made by one of her staff, former ADA Gina Smith; she also adamantly opposed efforts by McIntosh's attorneys to have a hearing into these allegations.

As noted in the Pennsylvania Rules of Professional Conduct, "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."

Yet, in the spring of 2005, Abraham refused to meet with McIntosh's attorneys when they apprised her deputy of a plea deal that was allegedly made in the presence of Judge Rayford Means.

Since there was an allegation of serious misconduct - an ADA lying about a plea deal - why didn't Abraham seek a thorough and independent investigation at that time?

At the very least, why didn't Abraham request a meeting with Judge Means and have all of the lawyers present, in order to hear Judge Means' understanding of the plea negotiations? Here was an impartial witness who could unequivocally state what transpired.

Instead, Abraham put her head in the sand, remained steadfast in appealing the sentence, and continued to allow her office to lash out at Judge Means for his "inordinately lenient" sentence, when such unjustified attacks on the integrity of the judge also called into question potential violations of the Rules of Professional Conduct.

Abraham continued to demonstrate seemingly reckless disregard for her obligations as a prosecutor in September 2007, when McIntosh's attorneys filed a formal motion concerning the plea deal, and Judge Means issued a statement in recusing himself from the matter. Means stated not once, not twice, but three times that he knew what both sides "bargained for."

His final remarks in this regard, according to the hearing transcript, were about as powerful a statement as a judge could make under the circumstances: "I know in my heart of hearts what the parties bargained for. And when I go to my grave, I will know that I know what took place in the case of Commonwealth versus McIntosh."

What part of Judge Means' statement did Abraham fail to grasp? One would expect Abraham, as a minister of justice, to have called off her office's scorched-earth approach to trying to put McIntosh in jail and, instead, do the ethical thing: honor the deal.

To the contrary, her office continued to somehow insist that there was absolutely no plea deal. And when the case was transferred to another judge (Dembe), the DA's office opposed an evidentiary hearing into the plea deal.

To add insult to injury, when Judge Dembe refused to hear any evidence about the plea deal and then gave McIntosh the choice of withdrawing his plea or be resentenced, the DA's office opposed McIntosh being allowed to withdraw his no-contest plea (which the judge ultimately ruled in the DA's favor on).

So, even though the DA's office had seen an affidavit from McIntosh's former attorneys that he had only entered a no-contest plea because he had been told that there was a guarantee of no incarceration, it rejected McIntosh's attempt to go to trial, and insisted that he be put in jail for a minimum of 5 years.

Is Lynne Abraham a "rogue" prosecutor? Only an independent investigation into why she engaged in an apparent cover-up of the plea deal can answer that question.

Fred Cantor is a government attorney in New York City, and a childhood friend of Tracy McIntosh. He can be reached at canfre@yahoo.com.

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