And Justice for All - eventually

I continue to be sensitive to topics concerning the law and the role of lawyers and courts in our lives. There is no more important position in the legal system than the chief public prosecutor in a jurisdiction. For purposes of accountability, this position in the local area is typically an elected post in our system of justice. The District Attorney, as he is called in North Carolina, has unfettered discretion in his charging decisions and his policies and actions can have a dramatic impact on the communities they serve and on individuals who come into contact with the Criminal Justice System.

As we all have heard by now, in March of 2006, a paid exotic dancer/stripper who was engaged to appear at a college frat house party alleged that she had been sexually assaulted and forcibly raped by several college aged males attending the party. The victim happened to be black while the alleged assailants happened to be white. The alleged perpetrators were students of Duke University and members of the school’s lacrosse athletic team.

To their credit, the authorities took the allegations seriously and proceeded on the assumption that a crime had been committed and that the complaining witness was, in fact, the victim. That is last time I will use the word credit and local authorities in the same sentence for the duration of this article. The ensuing investigation apparently lost sight of inconsistent and conflicting statements made by the alleged victim, substantial conflicting statements made by other attendees at the party, total lack of collaberating evidence and the existence of alibi and exculpatory evidence favoring the eventual accused. Photo lineups were biased and improper and DNA evidence was totally in conflict with the claims of the complaining witness.

District Attorney Mike Nifong obtained indictments from a grand jury and the lives of three Duke students were publicly and permanently shredded by the criminal justice system. The grand jury process is not particularly useful. While intended to act as a check on the power of the prosecutor, in reality there is no limitation imposed. The prosecutor presents his case with no adversary representation in the room. There is no defense attorney or presentation of any opposing theory of the case. The old line is that a New York DA could get a grand jury to indict a ham sandwich. It later appears in the Duke lacrosse team case that the prosecutor acted more as a politician than an officer of the Court and was later accused of pandering to Black voters just before an election. Nifong has made inappropriate and inflammatory public comments about the case, refused to even consider evidence or contrary theories of the case for further investigation and had even concealed exculpatory scientific evidence from the public and the defense lawyers in violation of discovery rules and all concepts of fundamental fairness.

Private colleges and universities in this country tend to be elitist organizations – and Duke is one of the most elite. The defendants were children of priviledge – but that is not a crime in most jurisdictions. But the climate on that university campus became the real crime in this story. The Duke administrators condemned the students and the lacrosse team, cancelling games and publicly throwing these students under the proverbial bus. 88 Duke faculty members (I hesitate to use the term teachers or professors) took out a public newspaper ad condeming the actions of the accused students and praising the protestors and hate mongers who had swarmed over the campus for taking action without waiting for the slow wheels of justice to produce a verdict – in effect an endorsement and a call for vigilante actions. Very disturbing response from the faculty of a major university. (I do note that 88 persons is a small percentage of more than 4,000 faculty at Duke)

Defense attorneys who made efforts to communicate to DA Nifong the results of their investigations in an effort to get him to take an objective look at the case and perhaps request additional investigation of facts presented describe an adult elected official sitting in a professional meeting with his fingers inserted into his ears repeating “I can’t hear you”. This would be viewed as unacceptable childlike conduct in the third grade – in the office of the Public Prosecutor it is ludicrous and outrageous.

When the stench became unbearable from the prosecutors office the State Attorney General finally stepped in, investigated and in an unprecedented public news conference in April of this year not only dropped all charges against the students but publicly declared them to be innocent – a remarkable statement. When a jury acquits an accused person, they are found to be not guilty – meaning not proven guilty. The system does not normally determine that someone was innocent. So the Attorney General’s statement is exceptional. Finally, this week, the North Carolina State Bar Association formally found DA Nifong guilty of a series of ethical violations and disbarred him from the practice of law.

The attached article will fill in some of the details. And the saga continues in that Nifong will likely face further proceedings in civil and possibly criminal courts. There will be civil suits against Nifong and the State that he represented as an officer of the Court. I hope civil actions may be brought against Duke University. But where is the punishment for the 88 faculty members or the assistant District Attorneys who worked on the case and were accomplices to Nifong’s actions or the law enforcement agencies who compounded a shoddy investigation with an apparent refusal to go back and do it over as new evidence was developed by the defense team or isolated members of the press.

This was an abuse of power - and where were the checks and balances that are supposed to protect the citizens from their government. These students were from wealthy families with resources to pay for a strong legal defense team and to eventually penetrate the public conscience concerning the atrocity that was being perpetrated in the name of the State of North Carolina. But what happens to the disadvantaged citizens who come in contact with the system and are victimized by incompetence, if not intentional bad faith. What happens to the citizen who can’t afford to fight back. And what will you do if you or a member of your family are unjustly the victim of justice. It doesn’t happen here as often as it happens in other countries with different systems of government – but it happens here and can happen to all of us if we allow it to happen to any one of us.

My source: http://www.townhall.com/columnists/LaShawnBarber/2007/06/18/nifong%e2%80%99s_swan_song Nifong’s Swan Song By La Shawn Barber Monday, June 18, 2007

Last year, an obscure prosecutor from North Carolina made a decision that would turn him into a national pariah and end his 28-year legal career. Black stripper Crystal Gail Mangum claimed that in the early morning hours of March 14, 2006, she was raped by white Duke University lacrosse players at a house party. She told conflicting accounts of the gang rape. In April 2006, Durham County District Attorney Mike Nifong presented evidence to a grand jury, seeking and obtaining indictments for first degree forcible rape, sexual offense, and kidnapping against lacrosse players Reade Seligmann and Collin Finnerty. Several days before the indictments, defense attorneys revealed there was no DNA match between Mangum and the 46 players tested. A month later, lacrosse team captain David Evans was indicted on the same charges. On December 22, Nifong dropped the first degree forcible rape charges after Mangum said she couldn’t remember whether she’d been raped. In January 2007, North Carolina Attorney General Roy Cooper took over the case. Citing lack of evidence and inconsistent witness statements, he dropped all charges against Seligmann, Finnerty, and Evans on April 11, declaring the men “innocent and Nifong a “rogue” prosecutor. Last Friday, a disgraced, disgraceful, and under-repentant Nifong sat before his North Carolina State Bar colleagues and the men he virtually held hostage for a year, tearfully offering a tepid, lawyer-like apology for his transgressions: “To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused.” He announced his resignation as district attorney: “My community has suffered enough… It has become apparent, during the course of this week, in some ways that it might not have been before, that my presence as the district attorney in Durham is not furthering the cause of justice.” Neither his apology nor his intent to resign were enough to overcome his egregious ethics violations. On Saturday, June 16, Nifong’s colleagues found him guilty of lying to a judge, withholding evidence from the defense, and making inflammatory statements to the media about the case. And they disbarred him. The decision is almost anti-climactic for those who saw through Nifong from the start. I got wind of the case a couple of weeks after Mangum accused the men. My initial impression turned out to be accurate – a stripper with a criminal record, a history of mental problems, and fantasies of gang rape told a Tawana Brawley-style whopper to save her own skin. But most of the blame falls squarely on Nifong’s head. Appointed to the position in 2005, Nifong ran for district attorney in 2006. He plowed ahead with a stunningly weak case, fanning the flames of race and class tension in the heavily black city. Overwhelmed and perhaps flattered by the media attention, he was unable or unwilling to objectively assess his case, his main witness, or his future as a lawyer. Nifong used the case to campaign for office, exuding an aura of class envy, smarminess, and vindictiveness in the process. During his testimony before the disciplinary panel, Nifong contradicted himself many times and conceded violating the Rules of Professional Conduct. Incredibly, he admitted that he hadn’t read police reports. More incredibly still, Nifong maintains that “something” happened that night between the stripper and the players, that he “tried to do the right thing,” and that he never withheld anything from the defense or misrepresented evidence. Knowing his disbarment was imminent, Nifong should have reserved some level of dignity by skipping the Bill Clinton-like obfuscations and accepting full responsibility for his actions. But to the very end, he remained self-absorbed.