Thursday, June 29, 2006

Roy Cooper's Silence

The Times’ Nicholas Kristof has compared Mike Nifong’s actions to the Scottsboro Boys trial; on the other coast, Chris Reed of the San Diego Union-Tribune has labeled Nifong “America’s worst district attorney,” a figure who, by “ruining three students' lives to win re-election . . . deserves to be pilloried every day the rest of his life.” Citing Nifong’s myriad procedural irregularities, blogger Johnsville News has ridiculed North Carolina as a “banana republic,” a point made more directly in a recently posted cartoon. A debate raged for several days before Wikipidea deleted an entry for a new verb: “nifonged,” defined as “the intentional railroading or harming of a person or persons for one's own gain.”

Seeing their state reduced to a national “laughing stock,” in the words of prospective Nifong challenger Lewis Cheek, surely must concern North Carolina leaders. Yet to date, political self-interest, if nothing else, has dictated inaction. The accused players are not North Carolina residents; the arts and sciences faculty at their own institution has either remained silent or publicly denounced them; and the Duke administration has, at best, washed its hands of the affair. Powerful political interests within the state, meanwhile, seem to view Nifong as a figure positioned to right past wrongs, even if he has to violate canons of legal ethics to do so.

The checks that should restrain renegade district attorneys, obviously, failed to work in this case. Nifong assumed personal control of the investigation almost from the start, eliminating the usual first check: the police developing facts and concluding their investigation before determining that a crime occurred and passing that information on to the district attorney. (In yet another of this story’s many bizarre aspects, blogging from the scene, John in Carolina observed that Durham’s police chief, Steve Chalmers, “hasn’t been seen in public for months, although we’re told he’s following the Duke lacrosse case just as closely as the rest of us.”) The judge who supervised the case thus far, Nifong’s former boss, rejected pleas from the defense for a speedy trial and consigned countless defense motions to a black hole, refusing even to demand that Nifong respond to them. In Durham, judges are elected, and therefore responsible to the same constituency that renominated Nifong. If he’s done nothing else, Nifong has shown how even a weak candidate can win an election in the city.

Governor Mike Easley, meanwhile, has remained silent, and hasn’t been pressed for comment by the local media. It certainly seems worth asking the governor, who previously served as North Carolina’s attorney general, what criteria he used to appoint Nifong to last year’s district attorney vacancy, and whether he’s learned anything from the experience. Nifong, after all, had spent the previous five years in traffic court, hardly the customary home of talented prosecutors. While endowed with seniority, he sported a quite unusual background: he opted for law school only after a sojourn as a social worker; and, upon graduating from UNC Law School, had to volunteer in the Durham district attorney’s office before being hired to a salaried position (not the normal career path for the best legal minds). Perhaps his performance wasn’t so hard to predict after all. If I were Easley, I’d want to avoid comment on the affair as well.

This leaves the state’s attorney general, Democrat Roy Cooper. Like everyone else, it seems, in a decisionmaking position in this matter, Cooper’s political self-interest dictates allowing the case to lurch forward: he wants to be governor of North Carolina, and, in a closely divided state, needs the African-American vote to capture the 2008 Democratic nomination and then win the general election. To date, Cooper’s office has issued a standard reply: “In North Carolina, district attorneys are independent, constitutional officers elected by the people of their district, and not a part of the attorney general's office. In addition, the attorney general's office does not have supervisory authority over district attorneys.”

This statement is accurate—but not quite complete. The attorney general’s office includes one section, the special prosecutions division, which can handle prosecution of local cases. Cooper’s public information officer told me that the office doesn’t keep track of how many cases the special prosecutions division has handled; she gave a similar reply to a News and Observer reporter two years ago. A Lexis/Nexis search indicates that the division has tried at least a few cases since 2000. Moreover, the protocols for the attorney general acting (which aren’t available on-line) seem to have been written with this case in mind. Indeed, under the protocols, there are at least four grounds for the special prosecutions division to handle the case.

1.) Category I, section g: “When under the rules and regulations of the North Carolina State Bar the District Attorney's office should not participate in a particular prosecution.”

Nifong’s inflammatory public statements and his refusal to meet with defense attorneys to consider exculpatory evidence before seeking indictments almost certainly violated two provisions of North Carolina’s Code of Professional Responsibility—which prohibits prosecutors from making extrajudicial statements that will have a substantial likelihood of materially prejudicing public attitudes toward the accused and prevents prosecutors from avoiding “pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.” (The latter decision also violated common sense: I haven’t seen one commentator posit even a plausible explanation of why Nifong would not want to see what evidence the defense possessed, much less support the district attorney’s choice.)

The spirit of this provision also might apply to Nifong’s decision to ignore the Actual Innocence Commission’s guidelines and confine the photo ID session to suspects. Nifong’s actions certainly contradicted Cooper’s promises to North Carolina voters. When asked in 2004 by the News and Observer, “Do you support the efforts of the N.C. Actual Innocence Commission to prevent and correct wrongful convictions?,” Cooper replied enthusiastically: “I'm a member of the commission and have been to every meeting. We’re working hard to make sure that innocent people are not convicted.”

2.) Category I: “Although there is not always an actual conflict of interest in these cases, it is sometimes better from a 'public perception' standpoint to eliminate an appearance of conflict or some suggestion that the matter will not be handled properly. Having a separate prosecutorial agency assume responsibility for these types of cases is in the best interest of the proper administration of justice in assuring the public that the case will be handled properly and in the public's best interest.”

The appearance of a conflict of interest regarding Nifong’s electoral prospects has been well-documented: there seems to be no motive other than political for his decision to seek pre-primary indictments before the second round of DNA testing was in, given that he had earlier affirmed to the court that DNA evidence would identify the guilty parties. (The results of the second round of testing, which ultimately contained no match to the two players Nifong had earlier indicted, were not due until after the primary.)

There’s also a lesser-covered apparent conflict of interest: In the primary campaign, Nifong won the backing of an influential African-American attorney, Mark Simeon, who represents the second dancer, Kim Roberts a/k/a Pittman. Roberts a/k/a Pittman first made news in the case with an email to a New York publicity agent asking for help in how to “spin” affairs to her financial advantage, and Simeon has expressed interest in representing both Roberts a/k/a Pittman and the accuser in a civil suit. Quite beyond the fact that Nifong’s pursuit of criminal charges seems to assist Simeon’s intended civil action, an appearance of a conflict of interest certainly exists: Roberts a/k/a Pittman told a dramatically different version of events, one favorable to Nifong’s preferred tale, shortly after the district attorney secured for her a favorable bond settlement on an unrelated arrest—and Simeon endorsed Nifong’s renomination.

3.) Category I, section (e): “When the District Attorney or a member of his staff will be called as a witness to testify regarding contested facts touching upon the merits of a case.”

An important article by the N&O’s Joseph Neff reveals five public statements by Nifong unsupported by the available documents in the case. Richard Myers, a former federal prosecutor and UNC law professor, told Neff that defense lawyers can call the prosecutor as a witness when the prosecutor’s public statements contradict the facts of the case. To date, no documents have been made public upon which Nifong could have based the statements profiled in Neff’s article; defense attorneys have denied that any such documents exist.

4.) Category IV: “A request for assistance may be granted, if the attorney general personally approves, by reason that the unique circumstances of the case justify participation by this Section to insure proper administration of justice.”

If ever a case had “unique circumstances,” it is this one: in effect, the North Carolina justice system has been placed on trial. There is, moreover, one specific unique aspect of the case: the possibility that the city of Durham might be held legally liable even before the case goes to trial.

Civil liberties lawyer Alex Charns, the attorney for an unindicted lacrosse player, has filed a series of Public Records Act requests from the Durham Police Department relating to production, over the department’s letterhead, of a “crimestoppers” poster. (This document was the genesis for the “wanted” poster that prompted the public “thank you” from the Group of 88 faculty.) Created at the very initial stages of the investigation, the poster stated that “the Duke Lacrosse Team was hosting a party” at which “the victim was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community. Durham Police needs your assistance in solving this case.”

Charns, not unreasonably, wondered “what happened to investigating a crime before a blanket accusation of guilt is made. Wasn’t it ‘Alice in Wonderland’ in which the verdict came before the trial, and the accuser acted as judge and jury?” Durham authorities have stonewalled him on producing material related to the decision behind the poster’s wording—which was quietly changed to remove claims of a crime definitely having occurred, though only after posters with the initial language had appeared around the area. It’s not clear how aggressively Charns will pursue his case: the fact that Durham officials haven’t been forthcoming with the documents he’s requested doesn’t speak well for the city’s position.

If all of these reasons exist for Cooper stepping in, why hasn’t he done so? Under the statute creating the special prosecutions division, the local district attorney must request state intervention. So North Carolina has established a system in which an ethically challenged prosecutor like Nifong effectively can police himself.

But there's nothing in the statute that prevents the attorney general from publicly urging Nifong to request state intervention. Or Cooper could be milder, and let it be known that he would approve a request to allow the special prosecutions division to take over the case. To sweeten the pot for the district attorney, Cooper could couple his remarks with a public suggestion that, in the interests of closure, the state bar should not pursue ethics complaints against Nifong once the case leaves Durham’s jurisdiction.

A cottage industry has developed around determining Nifong’s motives. The most recent entry came from Reason’s Jeff Taylor, who judged the district attorney “unhinged from reality.” The other point of view has been offered in a variety of public appearances by Newsweek’s Susannah Meadows, who has suggested that Nifong backed himself into a corner, prevented by his inappropriate initial statements and initial rush to judgment from dropping the case. If Meadows’ analysis is correct, then Nifong might be willing to take an out, even if, as is almost certain to occur, transferring the case to the attorney general’s office would form a preliminary step to dropping the charges. Of course, if Taylor’s speculation is right, then we’re back to relying on an elected judge in Durham ignoring political expediency to uphold the law by suppressing the procedurally tainted photo IDs.

“The system only works,” Reason’s Taylor correctly noted, if a prosecutor “puts the truth ahead of a conviction and works diligently to dig out that truth. In the case of Nifong, he is not even in the ballpark of a conviction and the objective truth of the matter does not seem to enter his calculation.” Nifong's actions corrupted this case almost from the start. The focus now should be to find a way, preferably within established procedures, to restore a sense of integrity to the process. Allowing this case to move forward as it has will only further tarnish North Carolina's national image.

[Originally published in Cliopatria.]

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