PROFESSOR JOHN BANZHAF emails (okay, it’s a mass-email aimed at the media) that Durham D.A. Mike Nifong may have legal problems:

As the rape case against three Duke lacrosse players continues to unravel, and instances of apparent prosecutorial misconduct multiply, it appears increasingly likely that the accused students will be able to recover civil damages against the county and perhaps also the district attorney, says the public interest law professor who has successful orchestrated legal actions against several major governmental figures, including former Vice President Spiro T. Agnew.

“Although prosecutors generally enjoy absolute immunity from civil liability for violating the constitutional rights of defendants, there are instances — and this may well be one of them — where that immunity doesn’t apply,” says Law Professor John Banzhaf. Moreover, Durham County, NC, does not have absolute immunity, and so the county could be held liable for millions of dollars in civil damages even if District Attorney Michael Nifong is protected from law suits, notes Banzhaf.

I think it’s a bit early to start talking about that, but with the stuff that’s coming out you can bet that some people in Durham County are starting to think about it. As a more general matter, I also think that the notion of absolute immunity for prosecutors — a whole-cloth creation of judicial “activism” that one seldom hears about from critics of activist judges — should also be rethought.