Thursday, July 27, 2006

Campaign websites, obviously, seek to offer a positive spin, usually by highlighting candidates’ strengths and downplaying or ignoring their weaknesses. Take the sites of two of the most ethically challenged figures from this House election cycle, Ohio Republican Bob Ney and West Virginia Democrat Alan Mollohan. Ney’s site touts his using his “positions of influence” to tend to local concerns. Similarly, Alan Mollohan’s website boasts, “His senior position on the Appropriations Committee allows Congressman Mollohan to fund hundreds of millions of dollars in economic development projects throughout north central West Virginia.” Neither site frames the candidates as champions of an ethical Congress: most voters might not follow the day-to-day affairs of politics closely, but they’re not stupid.

The campaign website of Durham District Attorney Mike Nifong eschews the Ney/Mollohan approach in favor of an Orwellian strategy. The unusually chatty site contains, among other items, a “conversation with Mike,” a statement of the DA’s legal philosophy, and a personal letter to Durham voters. Unintentionally revealing in some areas, outright inaccurate in at least one, the site is most notable for its tendency—which would be comical were Nifong’s misconduct not so grave—to position the district attorney as a bastion of integrity, determined to go above and beyond what state procedural regulations require of him.

In a “conversation with Mike,” the district attorney opines, “The shortsighted prosecutor concerns himself only with victory in the courtroom and is willing to take whatever advantage he can, no matter the consequence.” I wonder how Nifong would reconcile this statement with his decision to order the Durham Police Department to violate not only its own procedures but all statewide norms, and confine the accuser’s photo ID session to lacrosse players. This decision would seem the action of a “shortsighted prosecutor” concerned “only with victory in the courtroom” and “willing to take whatever advantage he can, no matter the consequence.” In this case, the consequences included the indictment of a demonstrably innocent person, Reade Seligmann.

“It is the prosecutor,” continues this conversation, “who actually bears the ultimate responsibility for seeing that the defendant has a fair trial.” Surely one aspect of that responsibility would be adhering to state ethics guidelines, such as Rule 3.8, which holds, “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.” I wonder how Nifong would explain, then, his refusal to meet with Seligmann’s attorneys, who wanted to present him with evidence that included cellphone records, affidavits from a cab driver and another lacrosse player, and, most damningly, an ATM video showing even if a crime occurred, there was no way Seligmann could have committed it.

In his “conversation,” Nifong committed himself to “treating defendants with dignity,” since “a prosecutor should never be a bully, never take unfair advantage of his authority, never demean a person based on his situation. To deny dignity is to deny justice.” I wonder how Nifong would square these admirable sentiments with his publicly labeling the team “hooligans”; or his claim that they believed their “daddies could buy them expensive lawyers and that they knew the right people”; or his questioning the players’ “manhood”. Such comments seem more appropriate for a junior high school playground than coming from an officer of the court, perhaps one reason why the North Carolina Bar ethics code prohibits prosecutors from making them.

“I have never understood,” the DA continues, “why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant. After all, if the information in question is damaging to the State's case, then the defendant is clearly entitled to have it; if it is not damaging to the State's case, why should it matter if he gets it?” These are certainly good questions. I wonder, then, why Nifong initially declined to investigate the accuser’s cellphone records (which, among other things, revealed a call from to another escort service that occurred during the time of the alleged crime), and why he took so long to have the lead investigator of the case, Sgt. Mark Gottlieb, produce his report.

In the “Meet Mike” section, the district attorney confides, “One of the benefits of my long tenure in this office is that I am known and respected by the key figures in both the other components of the judicial system--law enforcement officers, attorneys and judges--and the community at large--people such as business and civic leaders and elected officials.” I wonder whether his decision to smirk and then openly laugh when Seligmann’s lawyer discussed his client’s airtight alibi is the sort of behavior common to prosecutors who are “known and respected” on both sides of the aisle. Or how Nifong’s profanity-laced public tirade at Kerry Sutton, an attorney for one of the unaccused players, improved his standing? Or how he gained respect with his extraordinary statement, in open court that “some of these attorneys [for unaccused players] were almost disappointed that their clients didn’t get indicted so they could be part of this spectacle here in Durham”?

“Doing the right thing,” says the district attorney, “is not only the best practice in principle, but it is usually also the most economical process in the long run.” Indeed it is, making Nifong’s decision to ignore basic procedures all the more peculiar. At the very least, his actions suggest that any conviction almost certainly would be overturned on appeal—costing the city time and money, hardly an “economical process.” At the very worst, Nifong’s actions have exposed Durham to massive civil liability in a post-trial lawsuit from the lacrosse players’ families. The early signs of one possible line of assault have appeared in the work of defense attorney Alex Charns.

“For my entire career,” comments Nifong, “I have been known to be a person of the utmost integrity, and I pledge to you that I will continue to live up to that reputation.” I wonder how a person of the “utmost integrity,” desperately needing African-American votes to repel a serious primary challenge from a foe he despised (Freda Black), could have entered into an apparent conflict of interest regarding Mark Simeon, a prominent African-American attorney who ran against Nifong’s boss in 2002 only to turn around and endorse Nifong in 2006. He did so shortly after Nifong waived the bail requirements in an unrelated case for one of his clients, Kim Roberts a/k/a/ Pittman, the second dancer. Roberts a/k/a Pittman shortly thereafter changed her story from the version she reported to police to present a tale far more favorable to Nifong’s reality. Simeon has also expressed a desire to bring a civil suit on behalf of Roberts a/k/a Pittman and the accuser.

The website occasionally lapses into unintentionally revealing comments. For instance, in the conversations section, Nifong notes, “Some people believe that the job of the District Attorney is simply to run the District Attorney's Office. But I believe that the District Attorney's responsibility extends well beyond the limits of that office.” Perhaps this expansive view of his duties explains why Nifong decided to serve as de facto police commissioner in the lacrosse case, as Durham’s nominal police commissioner, Steve Chalmers, retreated into the cone of silence, from which he wasn’t heard for months at a time.

Campaign websites normally feature outsiders (friends, political associates, newspapers) saying positive things about the candidate. dispenses with the middleman. “I have,” Nifong confides, “earned the reputation among my colleagues in the court system as a prosecutor of the highest level of professional skill.” (This is a man, it’s worth remembering, who had spent the previous several years in traffic court before being appointed DA.) This egoism frequently has appeared in the lacrosse case, perhaps most notably when Nifong asserted, “If I were one of those [defense] attorneys, I wouldn't really want to try a case against me either.”

The only campaign website I’ve ever seen that provides no interactive way to reach the candidate, features neither an email address for the campaign nor a campaign phone number. It’s as if the candidate wants to ensure he cannot receive outside information, especially from those who might challenge his preconceived notions—just as Nifong refused to listen to Dave Evans’ attorney, who offered to provide evidence that Evans, contrary to the accuser’s assertion, never had a mustache.

Finally, in his open letter to Durham constituents, the district attorney was candid about his intentions: “I must win on November 7.” (emphasis in original). Nifong certainly has shown a willingness to violate any ethical or procedural guideline that might obstruct the victory he considers so essential.

The letter to voters contains one out-and-out false item. Nifong asserts, “Under my leadership, the District Attorney’s office is an institution of unquestioned integrity.”

It’s worth evaluating that statement in light of some of the comments made about Nifong by prominent members of the media:

  • Writing in National Journal, Stuart Taylor termed Nifong a “petty-tyrant” prosecutor who should “be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape.”
  • San Diego Union editorialist Chris Reed wrote that Nifong was “despicable . . . a disgrace” who “deserves to be pilloried every day the rest of his life.”
  • In the New York Times, Nicholas Kristof compared Nifong to the unethical prosecutors who oversaw the Scottsboro Boys trial.
  • Fox News commentator Kimberly Guilfoyle, previously a defender of Nifong, recently labeled his actions “unconscionable.”

Even Duke professor Alex Rosenberg hopped onto the anti-integrity bandwagon, asserting that each and every member of the Group of 88 believed that Nifong was exploiting the lacrosse case for political purposes. Of course, that belief didn’t prevent Rosenberg and 87 colleagues from publicly denouncing not the DA but the lacrosse players. After all, as Wahneema Lubiano gleefully noted, these heterosexual white male athletes were the “perfect offenders,” while Nifong was working, albeit unethically, to uphold the race/class/gender trinity so treasured by many of Duke’s faculty.

It might be that Taylor, Reed, Kristof, and Guilfoyle are simply wrong. But surely it can’t be said that the integrity of the Nifong’s office has been “unquestioned.” makes one undeniably accurate claim. “The two absolutely essential traits for a prosecutor to possess,” reasons the DA, “are integrity and good judgment. People of integrity can always develop good judgment through experience, but people who lack integrity can never develop either.” Mike Nifong is a perfect demonstration of how those apparently lacking in integrity are incapable of exercising good judgment.

Hat tips: JinC; Nancy Kidder.

[Originally published in Cliopatria.]

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