If charges are dropped, UNC officials will not be required to testify in a criminal trial about what they knew of the department’s activities.
Chapel Hill-based attorney Kellie Mannette said it would be uncommon for charges to be dropped solely based on Nyang’oro’s cooperation.
“It’s never just one thing,” she said. “A prosecutor's decision on how to proceed is going to combine a lot of different factors, from amount of evidence to amount of cooperation, as well as information about the defendant that may be compelling as to why he did this.”
Mannette said a defendant’s prior criminal record and history of good works could also play a role.
Eric Muller, a professor of criminal law at UNC School of Law, said the circumstances of the case raise significant questions.
“What's unusual in this case is that the prosecutor is considering dropping charges because the defendant is cooperating with somebody else's investigation, not the prosecutor's,” he said.
“It's very common to reduce charges or drop charges in exchange for a defendant’s agreement to cooperate with the prosecutor, but what seems to be happening here is the defendant is cooperating with a private investigator hired by the University who is not a prosecutor and does not have the power to initiate legal charges.”
Muller also questioned Nyang’oro’s willingness to publicly discuss details of the case — details that could incriminate him.
“As a former prosecutor myself, I can't understand why a defense lawyer would allow his client to speak about the events in the case, while the defendant is facing criminal charges, without having some kind of written promise of immunity from prosecution,” he said.
“If I were the defense lawyer in this case, I would be very nervous about my client going off and talking to the University's investigators without an offer of immunity.”
Bill Thomas, Nyang’oro’s attorney, could not be reached after multiple calls for comment.
Former Wake County District Attorney Colon Willoughby, Jr. said there may be a public benefit to acquiring information via a defendant’s cooperation.
“The amount and quality of the information is probably superior to the information you get when you have to compel people to come forward and testify in a criminal trial," said Willoughby, who now works at McGuireWoods in Raleigh. "You have to pull the information out of them, and that’s much more difficult."
“The decision that the prosecutor is making may not be related to the strength of the case — he might be compelled by what he feels is a greater public interest get the information and put it before the public.”
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