When the local prosecutor should be prosecuted instead of prosecuting, it poses a problem for the local establishment. Durham County, North Carolina's District Attorney, Michael Nifong, won the Democrat primary last spring, but he made himself and Durham objects of ridicule across America in order to do it.
Of course, he should be removed from office and punished, but would it be even worse for the local establishment to abandon him? For the local establishment, to protect or not to protect him is the question.
On May 29, 2006, in an article titled "Something's Rotten at Duke" published in National Journal, the perspicacious Stuart Taylor, America's top legal commentator, preliminarily put what was then commonly called the Duke rape case into perspective:
"My rogues' gallery does not (in all probability) include any Duke University lacrosse player. That's because the available evidence leaves me about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie. (Some evidence was in my April 29 column; some is below.)
"The gallery does include more than 90 members of the Duke faculty who have prejudged the case, with some exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties.
"The gallery also includes former Princeton University President William Bowen and civil-rights lawyer Julius Chambers. They went out of their way to slime the lacrosse players in a report on the Duke adminjistration's handling of the rape scandal -- a report that is a parody of race-obsessed political correctness.
"Many members of the national media have published grossly one-sided accounts of the case while stereotyping the lacrosse players as spoiled, brutish louts and glossing over the accuser's huge credibility problems.
"Then there is Mike Nifong, the Durham, NC, district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.
"Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape.
"Am I prejudging the case myself? Yes, in that I have not yet seen all of the evidence. And yes, in that there could be an innocent explanation for the recent arrest of the cabbie by rape-case investigators under a two-and-half-year-old, apparently frivolous shoplifting warrant.
"But when a petty-tyrant prosecutor has perverted and prolonged the legal process without disclosing his supposed evidence, and when academics and journalists have joined in smearing presumptively innocent young men as racist, sexist brutes -- in the face of much contrary evidence -- it's not too early to offer tentative judgments."
The situation has become even worse. The "petty-tyrant prosecutor [who] perverted and prolonged the legal process" in what is now obviously the Duke rape hoax, or Tawana Brawley II, has been exposed as that and worse. The sordid criminal and sad personal and medical histories of the accuser (Crystal Gail Mangum) are known and her credibility is nil. The inconsistencies in her various stories boggle the mind. Each of the Duke Three has passed a polygraph test, raising the question why the accuser was not polygraph tested before indictments were obtained. (William Kennedy Smith's accuser, a white woman from a wealthy family, passed TWO polygraph tests before he was charged.) It is apparent to those who pay attention that Mr. Nifong, fighting for the only legal job he's ever had and about to face the voters for the first time and lose to a female Democrat whose victory would have made him highly undesirable as a Durham criminal defense attorney, put on blinders, set aside standard procedure, believed what he wanted to believe and rushed to indict a couple of white Yankees from wealthy families to ingratiate himself with black Democrat primary voters (the accuser being black; if she was white, there would never have been indictments, because political gain would not have resulted from such indictments ). The probability that each of the Duke Three is innocent (never mind cannot be shown beyond a reasonable doubt to be guilty) approaches absolute certainty and it is Mr. Nifong should be desperately trying to create reasonable doubt in a proceeding against him for egregious prosecutorial abuse.
The judge to whom the case recently was assigned did not encourage public confidence in the fair, impartial and public administration of justice by threatening the lawyers with contempt-of-court charges if he disapproves of their public comments on the case. Initially, Mr. Nifong took the case to the public and rebuffed the defense attorneys' efforts to show him that their clients are innocent. Now that more and more facts demonstrating that innocence are available, Mr. Nifong doesn't want to talk in public about the case. No one should force him to speak in public about the case, of course, but no court order or comment that even may appear to dissuade (or intimidate) the defense from seeking vindication for the Duke Three in the courtroom of public opinion as well as North Carolina courts should have been issued or made.
Yet Superior Court Judge Kenneth C. Titus imposed publicity restraints after citing extensive coverage in the local, state, national and international media.
Judge Titus said that (1) comments about potential evidence have been made by District Attorney Mike Nifong, the defendants, their lawyers and others; (2) future disclosures could make it difficult to find jurors "free from partiality, bias and prejudice"; and (3) if more disclosures occur, the lawyers responsible might be subject to contempt-of-court proceedings.
To their eternal credit, some defense lawyers said they didn't consider themselves gagged. and Judge Titus did not presume to restrain media comments permitted by the North Carolina State Bar's Revised Rules of Professional Conduct, which allow attorneys to disseminate information contained in public records and to rebut potentially damaging statements by prosecutors or others.
Local defense lawyer Joe Cheshire (who represents David Evans) opined that Judge Titus "just wants to remind us that we should only make statements in response to statements the prosecutor has made." Local lawyer Wade Smith (who was hired to defend Collin Finnerty) defended the judge: "It was the appropriate thing for the judge to say. We're not offended in the least. He was just reminding us to be very careful about what we say. We've been doing that. We'll continue to do that."
There is more that can and should be said (carefully, of course), and Mr. Nifong opened the door wide to refutation of his charges, including showing how outrageously he proceeded, and no judge should try to protect Mr. Nifong from the truth, the whole truth and nothing but the truth.
On July 19, 2006, The Friends of Duke University--a group of "alumni, parents and friends of Duke who are deeply concerned about the University’s response to the lacrosse controversy....want to ensure fair and equitable treatment for both the University and the lacrosse team in every public forum and feel that the University itself has not done enough to pursue it"--released an open letter to The Duke Chronicle.
The letter described the group's recent activities and urged the Duke University Administration to be more proactive: "For the past few weeks, we have been speaking out on our own by challenging the numerous falsehoods encountered in the media and elsewhere and by disseminating accurate information about Duke and the lacrosse case. Our website: http://friendsofdukeuniversity.blogspot.com has been a hub of such activity. Although we have been happy to take a leadership role in speaking out on behalf of Duke, we have done so with the recognition that our efforts have largely gone toward filling a vacuum left by Duke’s own leadership. We believe Duke University needs to stand up for itself and for its students."
The group is not an apologist for either bad behavior or selective punishment: " We are in no way apologists for the acknowledged inappropriate conduct of the lacrosse team. We want reform and we believe that everyone in the Duke community, including the team members themselves, do at this point as well. However, any reform has to recognize that many of the same problems identified with the team exist within the larger Duke community and are not confined to any one group. Precisely how Duke chooses to confront the problems brought to light by the lacrosse controversy will say more about the University’s values than its mere decision to condemn certain behavior."
The group also particularized some of Mr. Nifong's professional sins: " We believe that people outside of campus should not be the only ones speaking out about the gross injustice and corrupted process to which Co[l]lin Finnerty, Reade Seligmann and David Evans have been subject. Duke leaders should squarely condemn the unethical, unprofessional and immoral abuse of legal process by District Attorney Mike Nifong and others associated with him. Specifically, this conduct includes: (i) prejudicial and false extrajudicial comments; (ii) denial of due process through a suggestive lineup procedure; (iii) improper contact with persons represented by counsel; and (iv) refusal to examine exculpatory evidence."
The group acknowledged that Duke is not in charge of the criminal justice system, but held it responsible for its own acts and omissions: "Duke itself must do everything it can to ensure that its students are protected from unfair and unjust treatment during their time at the University. We understand that Duke does not and should not have any direct influence on matters pending before the criminal justice system. We understand if Duke is not able to express an opinion about the ultimate outcome of these matters either. However, Duke does have the power of moral suasion at its disposal and must use it."
So far Duke has severely prejudiced Messrs. Finnerty and Seligmann by presuming them guilty instead of innocent and suspending them. It should admit that mistake immediately. And the powers that be in Durham (including Judge Titus) should not be presuming (or pretending) that the Duke Three are guilty and the Durham District Attorney is a fair, objective and disinterested public servant who has behaved properly and professionally and deserves to be protected at all from the Duke Three publicly refuting the charges against them, either directly or through their representatives, and challenging their prosecution as based on a shameful self-interest instead of a noble principle.
