Over the last seven months,
Facts had no relevance; everyone knew the accused were innocent. These cases aided the careers of the prosecutors, who, like Nifong, blatantly violated procedures just to get to court. In the process, “community” members could express their hostility to civil rights by misusing the criminal justice system for political purposes.
In a chilling interview with the AP, Nifong explained why he considered it acceptable in 2006 to use the criminal justice system for political purposes. “You can make the case go away pretty easily,” he taunted, “you can do it with the stroke of a pen.” But such an action, said
Of course, Nifong himself, in a search for the African-American votes he needed to secure the Democratic nomination against a despised foe, deliberately intensified those divisions. Ignoring the state bar’s ethics requirement to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,” Nifong compared the case to a cross-burning and claimed, in his first set of public comments on the case, “The contempt that was shown for the victim, based on her race was totally abhorrent. It adds another layer of reprehensibleness, to a crime that already reprehensible.”
Speaking of “reprehensibleness,” in interviews that occurred as late as March 31, Nifong denied knowing the identity of first 911 caller on the evening of the lacrosse party. But in a March 22 statement to police, Kim Roberts said that she made the original call, after a post-departure verbal squabble in which she and a couple of the players traded racially degrading insults. It’s hard to escape the conclusion that Nifong hoped to inflame sentiments in the black community by creating the impression that team members had spent 45 minutes or so hurling racial epithets at African-American passers-by, to the extent of frightening one of them into making a 911 call.
But leave aside what the blog Liestoppers termed the case’s “hoax within a hoax,” Nifong’s stoking the “underlying divisions” he now promises to ameliorate. Leave aside, also, what appears to be Nifong’s real motive in lurching forward with the case—his knowledge that a dismissal would prove his critics’ argument that he employed massive procedural violations to construct a case out of whole cloth, thereby inviting the state bar’s ethics committee to revoke his license when it adjudicates the ethics complaints against him.
Consider, instead, the ramifications of the DA’s statement that the case is “the first step to addressing those [underlying] divisions”—to such an extent that “the future of
A trial is designed to determine whether or not the three people charged committed a crime. It’s not designed to address Durham’s “underlying divisions”—a task, based on what we’ve seen in this case, that the city’s political leadership has utterly failed to perform in the last generation.
Finally, the statement previews the covert appeal to jury nullification that Nifong will employ in any trial. This is a case in which the prosecutor not only has no facts, but where the defense can prove first, that no crime occurred; and second, the three players charged are, for different reasons, demonstrably innocent. (Seligmann because of his electronic alibi evidence; Evans because he can prove he didn’t, as the accuser claimed, have a mustache; Finnerty because he was chosen through the same corrupted photo ID lineup as the other two.)
Facing such a situation, Nifong has no choice but to fall back upon the tactic that has worked well for him to date—appealing to prejudice based on class and race. The investigation, he suggested at NCCU, proved his refusal “to allow
Surely, it would seem, such an argument either would be disallowed by the judge or fail to sway a jury. But who ever could have predicted that Nifong would have gotten away with justifying first the investigation and then the need for a trial on grounds of resolving the abuses of the past?
Nifong’s interview contained three other disturbing, if less breathtaking, statements.
1.) Trying to blunt the avalanche of criticism that greeted his revelation of never having spoken to the accuser about the facts of the case, he reasoned,
Why do I have to be the one that’s interviewed somebody? The police, other people can deal with interviews and they can report to me what they do and I can direct them from that. It’s not necessary for me to ask you about a specific event from your life for me to get a sense of whether or not you’re a reliable individual.
In an interview with ABC News, Linda Fairstein, who headed the Manhattan District Attorney's Sex Crimes Unit for more than two decades, described Nifong’s strategy as “just against the progress that’s been made in this very specialized field,” an approach that “belies anything a prosecutor would do before making charges.”
Even more to the point, in a breach of standard protocol, Nifong assigned himself to supervising the police investigation eight days into the case, with officers ordered “to continue with our investigation, but to go through Mr. Nifong for any directions as to how to conduct matters in this case.”
Perhaps Nifong enablers such as Herald-Sun editor Bob Ashley could locate one other rape case filed in the last year where Heraldthe de facto lead investigator had failed to speak with the accuser about events of the alleged attack.
In short, in his AP interview, Nifong not only defended the highly peculiar—a prosecutor failing to hear from an accuser who told myriad, mutually contradictory, stories her own version of events. He defended the indefensible—the person supervising the police investigation not hearing from the accuser under such circumstances.
2.) Nifong continued to boast of his closed-mindedness: “I think,” he told the AP, “that really nothing about my view of the case and my view of how the case ultimately needs to be handled has been affected by any of the things that have occurred.”
Add the video of the accuser pole-dancing in a limber fashion as her defenders were banging pots and Kim Roberts’ revelations to ABC to the myriad of post-March 27 facts outlined yesterday. Then ask yourself how anyone with even a remote conception of fairness could utter the sort of statement Nifong made to the AP.
3.) After having ridden the case to a win in the primary, Nifong now dismisses its political significance. “I think the people who are trying to make this about the lacrosse case,” he mused, “are saying, ‘Well, the lacrosse case gives us a picture of how this office is going to handle all such cases in the future.’ To which the first response is: What are the chances we're going to have another case that's anything like this?”
I’m unaware of any critic of Nifong who has said, “The lacrosse case gives us a picture of how this office is going to handle all such [emphasis added] cases in the future.” Many, on the other hand, have pointed out that Nifong’s actions in this case predicts the unethical way in which his office will consider all cases in the future. As Duke Law’s James Coleman explained to 60 Minutes, “You know, what are you to conclude about a prosecutor who says to you, ‘I’ll do whatever it takes to get this set of defendants?’ What does it say about what he’s willing to do to get poor black defendants?”
Based on what we saw from Nifong’s AP appeal to symbolic justice, it seems he’s willing to do just about anything.
[Update, 8.13am: Lacrosse player Devon Sherwood spoke out this morning about the stereotyping of his teammates, and revealed the horrific treatment he's received over the last seven months. It's clear that, black or white, lacrosse players have been targets of the Durham establishment.
And Liestoppers also examines Nifong's chilling statement to the AP: “Echoing the sentiments of the potbangers who attached their agendas to the Hoax, Mr. Nifong reveals his own.” Liestoppers continues:
If DA Nifong’s words are to be believed, he clearly misunderstands what his responsibilities within the criminal justice system are. If his words are sincere, he clearly has put three young men in jeopardy of decades in jail while soiling their good names, damaging their lives and causing their families to endure outrageous expense, not in the interests of criminal justice but rather in the interests of serving his own personal agenda of addressing “underlying issues.” In doing so, he has made these three young men pedestals upon which to step while giving himself the opportunity to paint himself as a man seeking to “address underlying issues.”As misguided, unjust, and unjustified as this abuse of office would appear to be, it is difficult to imagine the Mr. Nifong truly feels his responsibility as a District Attorney is to “address underlying issues” at the expense of three innocent men. It appears far more likely that reading through his message results in finding yet another indication that Mr. Nifong’s intention is to continue to advantage himself of this opportunity, not in the interests of the “balance of Durham,” but rather for the balance of the election campaign.