Sunday, November 05, 2006

Sunday Roundup

Exposing Mike Nifong’s procedural misconduct hasn’t exactly formed a main theme of work by the Herald-Sun’s John Stevenson. Indeed, Stevenson has emerged as a one-man cheerleader for Nifong’s crusade, publishing bizarre stories on such matters as DNA evidence; a recent rape case appeal; and the accuser’s “limber” activities at the time she was claiming injuries from the alleged attack. On each occasion, Stevenson not only took a transparently pro-Nifong line, but either omitted important details or simply got the whole story wrong.

A glance at Stevenson’s past offers a clue why he might want to avoid reporting on others’ ethical misdeeds. During his tenure as the Herald-Sun’s courthouse correspondent, Stevenson also ran what the Independent delicately termeda side business publishing a legal newsletter that detailed Durham trials for an audience of local attorneys.” Even he admitted that the “newsletter,” which he eventually sold (thereby making even more money off the scheme) might have “been seen as a conflict of interest.”

At CUNY, our conflict-of-interest policy prohibits professors from “selling” expanded versions of classroom lectures to, say, software vendors, or textbook publishers, or students—or anyone else with whom they could interact in a professional context. (I wouldn’t dream of doing something like that, anyway.) From asking around, it seems that most newspapers have similar, common-sense, conflict of interest policies—looking askance upon a journalist who “sold” to his or her sources a private “newsletter” about the same topics on which he wrote for the paper.

The Herald-Sun apparently had no such policy. What, however, does it say about Stevenson’s ethics that he even launched such a scheme? Reporters are supposed to be objective. But someone who has shown so little regard for professional ethics in his own career isn’t likely to give upholding ethics a major place in his journalism.

A commenter added, “Nifong was among the most religious subscribers to this ‘publication.’” I twice emailed Stevenson to ask him: (1) if Nifong did subscribe to the “newsletter”; and (2) if so, how much money he has received from Nifong over the years.

Stevenson never responded.

It seems to me that, in the interest of full disclosure, Editor Bob Ashley (email) should require Stevenson to publicly reveal the extent of his previous “business” relationship with Nifong.

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At his press conference 10 days ago, I heard Steve Monks say, “I now publicly commit that I will withdraw if it can be established that my withdrawal gives the Cheek campaign the better opportunity of winning.”

The recent Ethical Durham poll clearly shows that Monks’ withdrawal would give “the Cheek campaign the better opportunity of winning.” Is Monks a man of his word?

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The third-quarter campaign finance reports are out, and Nifong has returned to his old fundraising habits. Of the $5,975 in itemized contributions he raised in the third quarter, some 75.3 percent (or $4,500) came from lawyers who do business before the D.A.’s office; another $900 came from a bail bondsman. The district attorney, in short, continues to enjoy little or no grassroots support; those who don’t need to curry his favor have ignored his plea to “consider making a substantial contribution so that I will have the funds necessary to accomplish our goal: to win this election.” [emphasis in original]

Earlier this year, before his fundraising well went dry and he had to revive his candidacy by exploiting the lacrosse case and infusing his campaign fund with nearly $30,000 in personal loans, Nifong’s fundraising displayed a similar pattern. In the first six weeks of 2006, 83.6 percent of his itemized contributions came from lawyers who did business before the D.A.’s office.

In the third quarter, Nifong avoided any more personal loans to his campaign; he repaid part of these loans on June 30, after safely winning the primary, but he’s still owed more than $8,000. No doubt if he triumphs on Tuesday, local lawyers will soon receive a letter “encouraging” them to pony up to rectify the gap.

The other odd item in the finance report: a $600 contribution, dated July 31, to the Durham Committee on the Affairs of Black People, which came before the group endorsed him. Nifong also received a donation from former foe Mark Simeon, the African-American lawyer who came out in the D.A.'s favor on March 28, one day after Nifong’s first public denunciation of the lacrosse team.

The Recall Nifong-Vote Cheek forces, meanwhile, outraised Nifong for the third quarter; as the N&O’s Ben Niolet also noted, more than half of the Cheek campaign’s contributions came from out-of-state residents. That should have come as no surprise: Nifong’s “separate-but-equal” brand of justice has exclusively targeted not full-time Durham residents but instead Duke students.

Niolet asked one Cheek contributor, Duke parent and retired federal prosecutor Ernest Isenstadt, why he had donated money to Cheek. Isenstadt’s response reflected what seems to be the consensus of the national legal community: “I’m deeply concerned about the behavior of Mr. Nifong. It’s just unlike anything I’ve seen in my experience.”

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Cash Michaels’ most recent column claims that Nifong’s (white) critics have engaged in a “last-ditch” effort to “effectively chip away at his broad support in the waning days before the election this Tuesday”; otherwise, he argued, “their hopes of stopping his prosecution, and ultimately getting a new district attorney to drop the case, will be dashed.”

It’s my sense that even if Nifong wins, the case will be dismissed because of his massive procedural violations, although I can also see where some might consider it preferable, from a public relations standpoint, that the citizens of Durham County take a stand for normal procedures and oust their “minister of justice.”

Michaels says that white critics have accused Nifong of “pandering” to the black vote, though this word has been most associated with critiques by two African-Americans, Duke law professor James Coleman and sportswriter Jason Whitlock. Michaels further notes that I have “blasted the NC NAACP for not siding with the Duke Three.”

The comment touches upon one of the most frustrating aspects of this case: a widespread unwillingness to distinguish between procedure and outcome. I’ve never criticized the North Carolina NAACP for not “siding” with the three students targeted by Nifong; given political realities, I never would have expected the organization to do so. (Some, on the other hand, might have wondered why the organization didn’t help Moezeldin Elmostafa, an African immigrant who Nifong appears to have targeted for selective prosecution.)

My critique of the state NAACP has focused on its abandonment of traditional positions on procedural issues—such as its opposing procedurally improper lineups; supporting changes of venues in racially charged cases; defending free speech; and avoiding an extreme victims’ rights position. The organization, of course, has the right to take any position it wants. But if, when African-Americans are defendants, the state NAACP criticizes improper procedures upon which it then remains silent or even supports when whites are defendants, the group certainly opens itself up for condemnation.

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[Update, 9.11am] I have previously praised the efforts of Duke Students for an Ethical Durham, the group that borrowed a tactic from the civil rights movement (encouraging voter registration to oust local officials who refuse to uphold the law. My regard for the group continued to grow after reading the following in today’s N&O:

Soon after he arrived, Nifong approached three members of Duke Students for an Ethical Durham, a group that has worked against Nifong. The prosecutor told the students that since they were working against him, they might as well meet. Nifong held out his hand. No one shook it. After an awkward moment, Nifong shook hands with the head of another anti-Nifong group, then went to work the line of voters.

Nifong has set up a “separate-but-equal” system of justice for Duke students, and then has the nerve to try to to use them as a photo-op?

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Jason Trumpbour, a Maryland attorney and spokesperson for Friends of Duke University, has a must-read column in the Chronicle from earlier this week. Responding to what he termed a “seriously misguided” plea by James Zou that Duke undergraduates respect “due political and judicial process” by not voting in Durham, Trumpbour urged Duke students to vote, “in order to protect their own rights and to make Durham a more just and ethical place for everyone.”

Trumpbour’s article effectively dissected the Nifong criticism of Cheek as a “dummy” candidate whose election would merely give the governor the right to select Durham’s next D.A. (until an election in 2008). “Keep in mind,” Trumpbour asserted,

that Nifong is more of a “dummy candidate” than Cheek. The Grievance Committee of the North Carolina Bar has indicated that it will not pursue the numerous grievances filed against Nifong until after the lacrosse case has been concluded. When they do, however, Nifong will be distracted and unable to effectively perform his duties and will spend up to a year defending himself against the bar inquiry. Because it is almost certain that Nifong will be suspended or disbarred, he will not be able to continue in office. And as the governor may be choosing the next district attorney in Durham County, the best option is to start looking to the future now and save the community the disruption and pathetic spectacle of Nifong’s protracted death throws.

Trumpbour is, of course, absolutely correct: one way or the other, Governor Easley will select Durham’s next DA. It could be in a few weeks, if Cheek prevails. Or it could be in 12-18 months, after the inevitable state bar sanctions occur against Nifong.

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Last week’s Chronicle also featured what I consider the finest column written on this case by any student. Trinity junior Kristin Butler bluntly, and accurately, concluded that Nifong “sullied” his professional career through a pattern of “highly unethical and unprofessional conduct” that “is as serious as it is systematic.”

The case, of course, has polarized the community and created widespread local controversy. But, as Butler reminded readers, “It was Mike Nifong’s mouth—at least as much as Durham’s racial or socioeconomic tensions—that blew this case out of proportion”; the district attorney’s “arrogant, self-serving commentary” served no one’s interests but his own. Butler notes that

Nifong did, indeed, have a responsibility to carefully and dispassionately investigate the alleged rape when it was reported. In that regard, he has done more than just fail; he has used this investigation as a bully pulpit to inflame racial and socioeconomic tensions in our community.
In the end, Butler argues, “Nifong has no one to blame but his own antagonism for his electoral woes. And woes they are—especially on the Duke campus.” Playing off one of Nifong’s more demagogic comments, she concludes, “Whether or not it was true that ‘there’s been a feeling in the past that Duke students are treated differently by the court system,’ Nifong has made sure that we are today.”

If Duke students read only one item on the case before going to the polls on Tuesday, I hope that they read Butler’s elegantly written and argued column.

31 comments:

Gregory said...

STEVE MONKS: Be a man of your word. Do the following:

(1)Hold a press conference Monday;
(2)Announce your withdrawal;
(3)Throw your support to Cheek; and
(4)Get a few digs in on Nifong.

The future of Durham County depends upon your courage to act responsibly right now.

VOTE CHEEK! All of your wildest dreams will come true.

Great job again, K.C.! I especially enjoyed the investigative reporting you did about that Stevenson sock puppet. He is so "amateurish" it is almost, but not quite, funny.

Anonymous said...

The only time anyone is aware Cash has written something is when it gets a mention on your blog. He cloaks his writing in the mantle of serious journalism but offers little substance to his readers. For example he cannot tell us exactly who over the summer was supposedly attempting to buy off the AV's silence, and he keeps describing the lax party as "wild", while every other first hand account described the party as lame.

It's quite shocking the editorial pages of the MSM aren't filled with condemnations of Nifong's crusade to continue the hoax trial to appease community sentiment despite the overwhelming lack of evidence. But on the other hand, maybe not.

Anonymous said...

We see Mark Simeon helping out Nifong again with a donation...

The Dude said...

KC
As always, great post. I feel like I know these people on both sides. I am not from NC and have no idea who they really are and/or what they stabd for. NC has to step in after the election, regardless of the outcome. Your points on the misconduct are all 100% valid. This is 2006. Nifong thinks he can pull a Clinton and nobody will be the wiser. Problem with that is, he isn't a Clinton, he isn't as smart as either of the Clinton clan and he has no power of any type. If he wins the election, he still loses. Your posting from NY is creating an atmosphere where a hick like Nifong can not survive. The bloggers on your site and Liestoppers, etc... all have valid points in both directions. Nifong's problem is "Now the outside of Durham is aware of the circumstances and something has to be done".

People from all points of view have posted here. You have parents, students, teachers, citizens, professional advocates from outside, concerned citizens, etc... I for one want to see Justice done. It usually takes some time but these Lax players lives are ruined forever by the Nifong runaway train to Nowhere. They WILL be filing Federal civil rights Complaints and will win easily. They will get tons of money and the citizens of Durham need to wake up and smell the coffee. It is there fault because they have not reigned in Nifong.

I have been dedicating a portion of my once a week class to this case. It is clearly a "how not to" environment. If yourself or anyone posting has sites to the filings in this case i would be much appreciativeof same. Thanks for the information. THE Dude

The Dude said...

Sorry for the ommission. i am looking for the filings and back ground on the DNA warrants and the search warrants for the Lax players and the house in question. Any help???

KC Johnson said...

to dude:

yes, please email me (kcjohnson9@gmail.com)

Anonymous said...

KC,
It is interesting that Jason says the NC Bar will not act until the case is over, I've heard otherwise. I wonder if what I've heard is going to be an announcement of an investigation? Still, I've gotten the impression that the Bar was going to act in 30 days. I know the Nifungu has already been discussed at a Counselor's meeting. Will see.

Anonymous said...

Nifungus says that his candidacy should not be just about the LAX case. How long would it take the African Amer. comminity to trun against him if he dropped the charges? The answer lies in Cash's latest article.
The logest paragraph (by far) in Cash Michael's newest article lists all the evidence that exhonerates the players. It's quite a list and doesn't cover everything. Depite all that he says MOST African Americans in Durham still want a trial. Doesn't he get it?
This is the pandering to which Prof. Coleman referred. In other words, even if there is evidence that the rape did not occurr if the AA community wants a trial they will vote for the guy who will give them a trial. How fast would the AA community drop Nifungus if he dropped the charges? About as long as it took the accuser to go back to "work."

Anonymous said...

Hats off to DSED for their quick thinking and savy on Saturday. These young men and women deserve our admiration and praise for conducting themselves with dignity and conviction.

Anonymous said...

KC are you one of the 30,000 runners competing in the 26.2 mile course through New York City’s five boroughs?

RM PAM

Anonymous said...

How seriously can anyone take Cash Michaels' writing when one of his sources is Cousin Jakki, the he/she/it spokesthing for the accuser. In addition, the local chapter of the NAACP are not producing any facts, only talking points.

Anonymous said...

I think it is very telling that the accuser and her family have chosen a Hoakster (cousin Jakki) to speak for the Hoax!

Anonymous said...

Doesn't the attorney general of North Carolina have some responsibility in this hoax case? He has the authority to act and hasn't done so. Can the attorney general of North Carolina be impeached?

Anonymous said...

OK, assume Nifong loses (and Cheek wins), what happens? When would Nifong be replaced by the governor?

Anonymous said...

Excellent post KC. Also thanks for telling us about Kristin Butler's piece in the Chronicle. I had missed it.

Anonymous said...

I am curious, also, as to the procedures for appointing a new DA if Nifong loses. Presumably, it would be when Nifong's new term would have begun? Is that January 2008? Does the governor have longer to appoint?

Also, Nifong's loss does not mean he is out of the DA's office, right? Isn't he still an employee? I think many assume he will be fired, but I think that assumption is wrong unless and until the bar rules against him in some action.

KC, do you have answers? Thanks.

Twaddlefree

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

I meant January 2007 in previous post...duh...I'm already looking forward to the year Nifong could be voted out again if he wins on Tuesday.

Twaddlefree

Anonymous said...

Well, it's time for my Sunday afternoon nap. I am both clicking and seeing double.

Twaddlefree

KC Johnson said...

replacement procedures if Nifong loses:

--the governor would appoint a replacement by January 2, when Nifong's term ends

--a special election would be held in Nov. 2008, for a 2-year term.

--Nifong, I believe, would be out of a job. In New York, if the DA is beaten, he or she doesn't bounce back into another spot in the office. That might not be the case in NC, but it's hard to believe a newly appointed DA would keep Nifong on.

It's worth remembering, though, that Nifong has led in every poll, and remains the favorite even if Cheek is closing the gap.

Anonymous said...

Please, please tell me that the people of Durham aren't that stupid and they are not going to vote Mr. Nifong back into office. It really is hard to even imagine the scenario.

Anonymous said...

The people in the District of Columbia voted Marion Barry back into the mayor's office even after he had served time in prison after being busted for drugs!

Anonymous said...

Thanks, KC. A local stated recently that Nifong would still be employed even if he loses the election. I'm not as confident that he would be fired if that is the case. At least not until there is some formal action taken by the bar. Nifong and Easley were buds and worked together. Political favors have weight.

Twaddlefree

Anonymous said...

An interesting remark by Nifong which was quoted on one of the blogs a couple of months ago in which Nifong stated that if he lost the election, "you will have to put up with me until the end of December". That comment would indicate that a new DA would take over the first of January and that Nifong is essentially unemployed unless, of course, some of his corrupt cronies in Raleigh create a job for him.

Anonymous said...

To 8:55:

I can't imagine what Nifong would do if he lost. He's too afraid to practice law without the steady check from the state. Those of us who have done it know how tough it can be for lawyers working in a small practice.

That's probably how this whole thing got started. Nifong was too afraid of practicing law for a living without living on the state's nickel. So, this little dream of a case cropped up which he could exploit with the black community.

So, take a stand for justice. Close law schools today so that even sorry lawyers like Nifong can make a living some other way than by working for the state.

Anonymous said...

Nifong and Easley are both UNC grads. Easley is a law school grad of UNC-Central and his wife is a current or former professor there. Easley will make sure, should Cheek (hopefully) win out, that Nifong's goes out on disability retirement to secure his few years of required service left to insure his full benefits. Nifong has nothing to lose at all.

Anonymous said...

Professor Johnson,

I do not believe that you have unfairly characterized Cash Michaels's article. After reading it, I can find nothing that corresponds to "Nifong’s (white) critics..." or "Michaels says that white critics..."

Anonymous said...

Everyone owes K.C. a debt of gratitude.

THANK YOU! THANK YOU!

Anonymous said...

Close law schools today so that even sorry lawyers like Nifong can make a living some other way than by working for the state.


Hmm, possible career change, Nifong to join the faculty at Duke and teach ethics?

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