Testifying to his p.r. savvy, it used to be said that the most dangerous place in Washington was between Chuck Schumer and a microphone. In the run-up to the Democratic primary, the most dangerous place in Durham was between Mike Nifong and a microphone. Between the initial reports of the alleged rape and the first indictments, the district attorney gave more than 70 interviews. Since securing his renomination, however, he has refused public comment, citing state ethics guidelines. Nifong has not explained why, after making 70 highly prejudicial statements, he suddenly decided to start adhering to Rule 3.8(f) of the North Carolina Rules of Professional Conduct, which requires prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”
Yet in a devastating story in this week’s Newsweek, co-authored by editor Evan Thomas, Nifong briefly emerged from his bunker—though only by e-mail. "None of the 'facts' I know at this time, indeed, none of the evidence I have seen from any source,” he asserted, “has changed the opinion that I expressed initially.”
This astonishing claim further confirms the wisdom of Duke law professor James Coleman. The former chief counsel to the House Ethics Committee recently demanded that Nifong be removed from the case, since he lacks the “professional detachment and unquestioned integrity” to “determine whether the evidence against the three students warrants further prosecution.” Indeed, Nifong’s comment should fortify the case for sanctions by the North Carolina State Bar: these remarks are those of a man incapable of fulfilling the requirement that “a prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict . . . The prosecutor is not only an advocate, but he or she also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all. In our system of criminal justice, the accused is to be given the benefit of all reasonable doubt . . . Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused.”
The timeline here is critical. “The opinion that [Nifong] expressed initially” came in his pre-primary publicity barrage, which began in late March and ended on April 10. Since he went silent, a plethora of evidence has emerged, but two items unavailable to him when he made his initial comments most clearly show the prosecutor’s bad faith.
On May 2, Reade Seligmann’s attorney made public a bank video showing Seligmann at an ATM machine while the alleged rape was occurring. Nifong had refused to meet with the attorney to consider this evidence before moving ahead with the indictment.
On May 13, the second round of DNA testing confirmed no match to Seligmann’s DNA and a direct match to the DNA of the accuser’s boyfriend. Nifong previously had affirmed to the court that “the DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.”
How could any open-minded prosecutor simply dismiss out of hand these two new pieces of evidence?
Nifong also used his Newsweek e-mail to lash out at his critics. After denouncing "media speculation" (the Seligmann video is posted on a TV station’s website, so I suppose watching it could be considered “media speculation”), he added that this plague of speculation “is even worse on the blogs.”
There are five bloggers who have provided extensive (10 or more posts) critical analysis of Nifong’s actions: John in Carolina; La Shawn Barber; Johnsville News; Jeralyn Merritt; and me. I’m sure all four us will feel appropriately chastised at having our work publicly questioned by someone as ethically pristine as Durham’s current district attorney.
Beyond agreeing about Nifong’s disgraceful behavior, the five blogs have taken different approaches. Johnsville News has offered painstakingly detailed legal analysis of the event; Merritt has concentrated on the case from a criminal defense attorney's perspective. La Shawn Barber has focused on what the case reveals about shortcomings by feminist and civil rights activists. John in Carolina has dissected the highly dubious decisions by editors and columnists at the Triangle’s leading newspaper, the News and Observer—such as reprinting the “wanted” poster so admired by the Duke Group of 88, about which the paper’s news editor now concedes, “We did not have the discussion internally we should have before making that decision”; or running one of the most reprehensible columns on the case, a March 27 effort by Ruth Sheehan. (After initially issuing regular denunciations of the lacrosse players, Ms. Sheehan, in the last 31 days, has joined Nifong in the “cone of silence.”) And my interest in the case, of course, stemmed from what now is the secondary scandal—the rush to judgment among Duke’s faculty and, to a lesser extent, its administration, a theme that Duke president Richard Brodhead seems determined to ignore in his examination of “campus culture.”
It seems inconceivable that any fair-minded person could read the Newsweek article—a piece given added weight by Thomas’ position as co-author—and not conclude that, were the legal system in Durham a fair one, the person most likely to see the inside of a prison by this case’s conclusion is Mike Nifong, for malicious prosecution. Indeed, as John in Carolina suggests, the article could be described as "Newsweek fires torpedoes at sinking Nifong." But after events of the last two months, there’s good reason for a fair-minded person to doubt the fairness of Durham’s legal system. This is, after all, a place with potential jurors who wanted Seligmann prosecuted "whether it happened or not. It would be justice for things that happened in the past"; and where Nifong’s procedurally irregular handling of this case clearly helped him politically.
NOTES: For Cliopatriarchs in the Triangle, I’ll be appearing Wednesday morning, at 8 A.M., on WPTF, to discuss the case with John Locke president John Hood. I had previously criticized Hood’s take on the case; he responded here. In that same piece, I had criticized Vin Cannato for a Wall Street Journal comment he made on the case. Vin recently emailed me, however, to point out that I had misinterpreted him, and that his remark was directed against Nifong’s behavior. My apologies.
[Originally published in Cliopatria.]