The N&O's Curiously Mixed Message

Over the past six months, the N&O has exposed, among other items, the following about Mike Nifong’s professional and personal conduct:

• That after Nifong ordered the police to perform a photo lineup that violated Durham procedures in multiple ways, “every choice contained flaws or contradictions . . . The woman recognized 15 players at one viewing but didn’t recognize them at another. She picked out only one player with certainty at both the March and April viewings. He, however, was in Raleigh, not at the lacrosse party. She wrongly identified the player who made a rude comment about a broomstick.” (Neff, October 8)

• That the former security manager at the accuser’s strip club revealed that, shortly after the alleged attack, “She basically said, ‘I’m going to get paid by the white boys.’” (Neff, Niolet, and Blythe, November 4)

• That “a woman identified as the accuser in the Duke lacrosse rape case performed an athletic pole dance at a Hillsborough strip club at the same time that the accuser was visiting hospitals complaining of intense pain from being assaulted.” (Neff and Niolet, October 28)

• That “although Nifong has never heard the woman tell her story, he believes her.” (Niolet, October 1)

• That a traffic court lawyer who dealt with Nifong recalled, “Working with Mike, you never knew from one day or the other who you’d be dealing with. He would curse you, scream at you, call you names over nothing.” (Niolet, October 1)

• That “to get warrants, police made statements that weren’t supported by information in their files. The district attorney commented publicly about the strength of the medical evidence before he had seen it. He promised DNA evidence that has not materialized. He suggested that police conduct lineups in a way that conflicted with department policy.” (Neff, August 6)

• That Nifong emailed other members of the Animal Control Board threatening to resign from the panel because he was “truly dismayed at the number of my fellow board members who signed the Lewis Cheek [petition].” (Ferrerri, August 1)

• That after the defense forced Nifong to examine the accuser’s cellphone records, “in the middle of a Duke lacrosse party where a dancer said she was gang-raped for 30 minutes, a call was placed from her cell phone to a Durham escort service.” (Neff, July 12)

• That “hours after a March 13 Duke University lacrosse team party, the woman who said players raped her that night told police changing stories,” according to a police document produced after Nifong’s chief investigator publicly denied that the accuser had ever changed her story. (Neff and Niolet, June 24)

• That “in the early days of the Duke lacrosse rape case, Durham District Attorney Mike Nifong’s public statements appear to have contradicted certain facts in his own files.” (Neff, June 15)

• That Duke Law professor James Coleman, after urging appointment of a special prosecutor to handle the case, said, “I don’t think [Nifong is] showing detached judgment. I personally have no confidence in him.” (Blythe and Neff, June 13)

Based largely on the insights gleaned from this and other N&O reporting, earlier this year, three North Carolina newspapers—the Charlotte Observer, the Winston-Salem Journal, and the Rocky Mount Telegram—demanded the appointment of a special prosecutor for the case.

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Is it “some kind of travesty” that the figure who compiled this record will continue as his county’s “minister of justice,” where he can oversee even more prosecutions? “Not in my book,” says Steve Ford, N&O editorial page editor.

Does Ford even read his own newspaper? He does, obviously, although his column suggests his skepticism of its reporting. If a trial occurs, Ford writes, the accuser would “have to explain embarrassing evidence such as the video that supposedly shows her performing an exotic dance at a strip club during the same time frame, just days after the alleged attack, when she was telling doctors and nurses she was in severe pain.” [emphasis added]

Does Ford disbelieve the Neff/Niolet story of October 28? Was the video described in that article actually of the accuser’s twin sister? The product of an altered time stamp? Part of a grand defense conspiracy? Ford doesn’t say.

In fact, Ford strongly implies that the defeat of the man exposed in the N&O stories quoted above would have constituted a “travesty of justice.”

“To throw [Nifong] out of office on the sole basis of that performance” exposed in several months of first-rate reporting by his own paper, Ford writes, would “have had the effect of substituting the judgment of voters for the judgment of jurors.”

Actually, as Ford is well aware, it would have done no such thing. Such an outcome would have led Governor Easley to appoint a new district attorney, while allowing Nifong to move into private practice, where his peculiar interpretation of legal ethics no longer would threaten Durham County’s citizens.

Perhaps the new D.A. would have discovered what anyone reading the N&O over the past six months might also have realized—that the case was constructed upon a tissue of procedural violations. Or perhaps the new D.A. would have encountered evidence that actually substantiated the accuser’s claims. A first step in that process might have been speaking with the accuser about the events of the night in question, something that Nifong—as the N&O first revealed—has, astonishingly, refused to do, despite his unusual dual status as prosecutor and person in charge of the investigation after March 24.

Ford then provides a civics lesson—in which he appears to channel the Herald-Sun’s Bob Ashley. “We insist that matters of guilt or innocence be decided according to very specific rules meant to safeguard the rights of both accusers and defendants. What we don't do in this country is decide the merit of criminal charges at the polls,” since “the mix of politics and criminal justice can be volatile, verging on toxic.”

But what should voters do when their region’s major newspaper repeatedly publishes articles showing that their district attorney just as repeatedly violated the “very specific rules meant to safeguard the rights of both accusers and defendants”? Or when the actions of the district attorney himself promote the “volatile, verging on toxic,” mix “of politics and criminal justice”?

Apparently, voters should do nothing beyond indicating “a preference for letting nature take its course.” Perhaps Durham County should simply have canceled its district attorney election.

What should happen now? Option One: Ford says that Nifong’s duty is “to seek justice, which means treating defendants fairly as well. As we’ve said on this page before, if at any time he loses confidence that he can prove guilt beyond a reasonable doubt, he should let the charges drop.” Nifong must have chortled as he read that admonition.

Option Two: The case should go “to trial,” where “at least jurors will make the decisions on the basis of all the available evidence and on the strength of testimony under oath.” Ford’s message to other prosecutors in the Triangle appears to be the following:

If you’re in a tough primary or general election and a politically enticing case comes along, exploit it for all it’s worth. Even if you violate every procedural guideline in the book, and even if your misconduct is then exposed in our own paper, the N&O’s editorial page nonetheless will describe your motives as possibly “noble,” and will demand that the case go to trial despite your misconduct.

And what should Nifong’s fate be? According to Ford, perhaps he “should have some explaining to do” to the State Bar when the case ends.

A question for Ford: the last time the N&O exposed massive prosecutorial misconduct came in the Alan Gell case. Should how the state bar ultimately treated the Gell prosecutors have deterred Nifong from engaging in misconduct?

A hint: The answer to this question has two letters—the same two as the abbreviation of the paper whose editorial board Ford oversees.