Since March 27, Durham D.A. Mike Nifong has effectively hijacked the
Nifong enablers among the political and legal leadership of the African-American community have received less attention. Yet their reaction to events has been startling, in at least three respects. First, the black political leadership has almost unanimously given a pass to Nifong’s transparently race-baiting tactics. Second, the state NAACP has adopted a series of positions on the Duke case that wholly contradict the criminal justice principles with which the organization long has been associated. Finally, the civil rights community—with the important exception of Duke Law professor James Coleman—has missed what could have been a golden opportunity to focus media attention on blatant prosecutorial misconduct and procedural irregularities, problems that disproportionately affect minorities.
The lacrosse affair wasn’t the high point of Jesse Jackson’s public career; early on, the Durham Herald-Sun reported that the two-time presidential candidate promised that the Rainbow/PUSH Coalition would pay the accuser’s college tuition even if it turned out she had lied. And then there’s a peculiar local timeline of events:
- March 27: Nifong gave the first of 50-70 interviews on the case, featuring comments that repeatedly violated Rule 3.6 of the NC state bar’s ethics code.
- March 28: Mark Simeon, a local African-American attorney, longtime foe to Nifong’s patron, former DA Jim Hardin, and counsel to the second dancer, Kim Roberts, publicly endorsed Nifong.
- March 31: Nifong ordered the photo lineup ID that violated
city procedures and statewide norms in almost every way possible. Durham
- March 31:
mayor Bill Bell sent a campaign contribution to Nifong (see p. 5 of this recently released campaign finance report). To my knowledge, Durham never mentioned this contribution in the many interviews he did at the height of media scrutiny of the case. Bell
The reaction of figures like
- In interviews that occurred as late as March 31, Nifong denied knowing the identity of first 911 caller on the evening of the lacrosse party. But actually, in a March 22 statement to police, Kim Roberts said that she made the original call, after a post-departure verbal squabble in which she and a couple of the players traded racially degrading insults. It’s hard to escape the conclusion that Nifong hoped to inflame sentiments in the African-American community by creating the impression that team members had spent 45 minutes or so hurling racial epithets at African-American passers-by, to the extent of frightening one of them into making a 911 call. The blog Liestoppers recently termed Nifong’s handling of the 911 call the case’s “hoax within a hoax.”
- Several weeks ago, Wilmington Journal reporter Cash Michaels revealed that the accuser’s cousin and spokesperson claimed that Duke alumni had offered $2 million for the accuser to drop the case. If true, this action suggested clear-cut criminal conduct. The allegation excited Nifong and the
Durhampolice; a police investigator downloaded a report on the claim, typed “$$$,” and entitled the memo, “THIS IS PRETTY INTRESTING [sic]!!!!” Yet the accuser denied making the claim when police officers got in touch with her on June 30. The public only learned the truth, however, because Michaels (to his credit) continued investigating, received a copy of the police memo from defense sources, and broke the story last week. It’s hard to escape the conclusion that in keeping secret the results of his investigation of the alleged bribe offer, Nifong hoped that those in the African-American community who initially had believed the cousin’s claim would continue, erroneously, to do so. Durham
Twice, then, Nifong has abused his position for purposes strongly suggesting a desire to exploit racial tensions for his own ends. A person who engages in this sort of behavior deserves the condemnation of the African-American community, not its support.
Even more troubling is the response of organizations traditionally considered strong defenders of civil liberties in the criminal justice system—the ACLU and the NAACP. I have thrice emailed both the North Carolina ACLU and the Duke campus ACLU, asking if they have an opinion on Nifong’s procedurally dubious photo ID lineup. Both the state and campus branches refused to comment. This position starkly contrasts with their ACLU counterparts in
The NAACP has gone beyond silence. In three ways, it has taken acts involving the lacrosse case that have contradicted its longstanding core principles on criminal justice matters, risking permanent damage to the organization’s moral standing.
Change of venue. The NAACP Legal Defense Fund’s homepage celebrates its triumph in the case of Wilbert Rideau, whose eventual release from prison came as a result of a trial made possible by an NAACP-supported change of venue. Citing extensive pre-trial publicity in overwhelmingly white Lake Charles, Louisiana, the LDF successfully appealed for a change of venue; eventually, the case was heard by jurors from the racially mixed, university city of Monroe. Theodore Shaw, LDF Director-Counsel and President, remarked that the move was about “fairness,” because “even the guilty are entitled to a trial untainted by racial discrimination and misconduct.”
In the Duke case, Professor Irving Joyner, designated by the state NAACP to monitor Nifong’s handling of affairs, told Sports Illustrated in early June that the district attorney “still has a viable shot at victory before a jury in Durham.” I e-mailed Joyner to ask why he specified a “
So, on the one hand, the LDF has celebrated the concept of change of venue when necessary for “fairness.” But in the Duke case, the local NAACP monitor took a blanket position against the concept of change of venues?
Gag order. The NAACP has a long tradition of defending freedom of speech, dating back to such civil rights era cases as NAACP v. Alabama and New York Times v. Sullivan. And during the
The organization’s record in the Duke case could not have differed more from these principles. In late May, Al McSurely, chair of the NAACP’s Legal Redress Committee, publicly stated the NAACP favored a gag order, which he euphemistically termed a “quiet zone/let’s let justice work” motion. His justification, according to the Durham Herald-Sun, was that “media coverage of the alleged rape may deprive the alleged victim of her legal rights to a fair trial.” [emphasis added] McSurely e-mailed me to say that, in fact, a "quiet zone" request was filed, under the auspices of the Durham Conference on Moral Challenges, a group organized by the
NAACP, but consisting of over 150 Durham Community leaders, did make such a request.
Leaving aside the question of why the NAACP didn’t demand a “quiet zone” when Nifong dominated the airwaves, the Constitution does not confer upon an accuser “legal rights to a fair trial”: the accuser has the power of the state on his or her side. Nor can an accuser’s legal rights somehow trump the very real constitutional protections possessed by defendants. The Durham Conference's argument thus went beyond what even the most extreme victims’ rights advocates have endorsed, much less the more moderate victims’ rights proposal featured in the Feinstein/Kyl amendment--which the NAACP so fiercely (and appropriately) opposed.
So, on the one hand, the NAACP has long defended free speech and courageously highlighted how the “victims’ rights” movement can threaten due process. But in the Duke case, the local NAACP has asserted that the “legal rights to a fair trail” of the “alleged victim” can trump the rights of the accused, and also justify preventing the accused from exercising their First Amendment rights to freedom of speech?
Due Process and Suggestive Lineups. Working alongside the Innocence Project, the NAACP has been at the forefront of demanding greater procedural protections in eyewitness identifications. In late July, LDF Director-Counsel and President Shaw wrote, “We at the Legal Defense Fund have become increasingly concerned about recent criminal cases where the conviction was based on unreliable evidence.” He pointed to the case of Ruben Cantu, who, Shaw lamented, “was convicted solely on the basis of a questionable eyewitness identification given under pressure from police.” The LDF similarly fought against the use of procedurally irregular “unreliable eyewitness ID” in the case of Carlos DeLuna, who was convicted despite “(1) the absence of evidence linking him to the crime scene (despite a fierce struggle between the victim and assailant, there was no blood on DeLuna, his clothes or the money in his pocket; his fingerprints were not on the 8-inch buck knife the assailant left at the scene and didn’t match the few prints that were lifted at the scene), and (2) discrepancies in the eyewitnesses’ statements.” (Does that sound like any case in
In the Duke case, the NAACP has been, to put it mildly, blasé about this issue—despite the fact that the Nifong lineup violated Durham procedures in at least four ways and reflected principles totally at odds with those of police departments and prosecutors elsewhere in North Carolina. Professor Joyner, the organization’s designated monitor for the case, recently commented, “Based on case law from the U.S. Supreme Court and our
decisions before the Court."
So, on the one hand, the NAACP has long fought against procedurally suspect eyewitness IDs, lest they produce a “conviction . . . based on unreliable evidence.” But in the Duke case, the local NAACP has contended that despite Nifong having violated virtually every element of the
Imagine the alternative: the NAACP aggressively using the media profile on the Duke case to highlight its traditional principles of procedural fairness, emphasis on due process rights of the accused, and concerns about prosecutorial misconduct. It could have pointed out that the actions of rogue prosecutors like Nifong, although targeting white lacrosse players in this case, disproportionately affect minorities.
Nationally, this viewpoint has been offered by Talk Left, the website of criminal defense attorney Jeralyn Merritt and a forum cited by Harvard professor Charles Ogletree’s Criminal Justice Institute. Within
In June, Duke Professor of Law James Coleman, former (Democratic) chief counsel to the House Ethics Committee, told the N&O that “up to now, virtually everything that Nifong has done has undermined public confidence in the case.” Coleman, a former member of
To the recipient of the 1987 NAACP Legal Defense and Education Fund Pro Bono Award for contribution to enforcement of civil rights laws, this procedural record could lead to one, and only one, set of conclusions. For the case: “Whatever the truth is, Nifong can no longer personally restore public confidence in the prosecution of this case. Someone with professional detachment and unquestioned integrity must review the case and determine whether the evidence against the three students warrants further prosecution. That would serve the best interest of the alleged victim, the three defendants and public.” For the district attorney’s character: “You’ve got a prosecutor playing to race. It’s disgusting. If he’s willing to [make race an issue] to go after what he thinks are three white kids with influence, what will he do going against some poor black kid in a case where people are saying, ‘You’ve got to convict somebody?’ To me, a prosecutor who’s willing to cut corners in any case is a prosecutor who’s subverting justice.”
Coleman’s remarks on the case reflect the NAACP’s longstanding position that procedure should be colorblind. As matters currently stand, this valued legacy is another victim of Mike Nifong’s misconduct.
Great post KC!
Professor Coleman has been the only Duke professor that has had the courage to stand up for what is right. Professor Coleman recognizes very well that the abuses of a rogue prosecutor like Nifong, a man who has no respect for following proper investigative procedures, will be visited disproportionately on the poor and on minorities. The recent actions of Nifong in pursuing highly questionable charges against the Cabbie in the lax case show a prosecutor that has lost touch with reality and is consumed with his unfettered power over people's lives. The treatment of the Cabbie will not be the last instance of Nifong abusing racial minorities to advance his own personal agenda.
I would like to see you write a post on witness intimidation and the DPD's silence on the identity of the Bald Man who was the alleged ringleader and initial perpetrator of the Cook Stomp'in by DPD at Blinco's in Raleigh. What is DPD covering up? Why will the local media not touch this story?
With respect to witness intimidation, what can possibly explain the disparate treatment given Kim Roberts/Pittman versus the Cabbie?
Have you seen the recent N&O article (Neff) which details the investigation that the DA's office did into the background of the Cabbie; yet no investigation was done into the escort agencies involved in the case, or the important question of who stole Precious's money. Does this level of investigation into the Cabbie's background, and his prosecution on a charge that appears completely bogus not raise serious issues of prosecutorial misconduct.
Martin Luther King said :
Injustice anywhere is a threat to justice everywhere.
In the end, we will remember not the words of our enemies, but the silence of our friends.
A right delayed is a right denied.
He who passively accepts evil is as much involved in it as he who helps to perpetrate it. He who accepts evil without protesting against it is really cooperating with it.
The hottest place in Hell is reserved for those who remain neutral in times of great moral conflict.
The moral arc of the universe bends at the elbow of justice.
The time is always right to do what is right.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character
It may be true that the law cannot make a man love me, but it can stop him from lynching me, and I think that's pretty important.
I guess the NAACP forgot, in its eagerness to embrace unity with the NOI and the NBBP, just what it was supposed to be about. . .
Let's see : The Finnertys contributed to many charities whose focus primarily was to help African-Americans. They built a hospital in Africa. Reade Seligman's father was raised by a black family. His putative grandparents are therefore black.
Yet when it comes to defending their civil rights, the NAACP finds its time is better spent sharing unity meetings with the New Black Panther Party ("all whites should be exterminated").
If the NAACP is going to be deterred or restrained from defending their civil rights, merely because they think it inappropriate for them to be seen defending innocent whites, then this will merely confirm all the worst suspicions of the white community, and lead to a regression, not progress, in relations between the races.
The Nifong-Simeon-Bell axis is old-style Richard Daley racism.
Buy off a few black politicians with favors, then demand tribute in return for their complicity
BTW, Simeon is on record proclaiming that the Lacrosse case was his oppportunity to get the political influence and graft that had eluded him in his failed attempts to get elected.
At least, he's upfront about it.
KC, this was an excellent post and I sent it to Harvey Silverglate, the wonderful defense attorney from Boston. Harvey is an old-line ACLU attorney who is principled to the core. No doubt, he hates seeing the ACLU and NAACP sell out their principles.
There is no excuse for Joyner. He is being purely opportunistic, as are others in the political and court system in NC. Keep up the good work.
An outstanding post.
I hope there'll be some in the ACLU and NAACP who'll read the post and recall what they are supposed to be about.
John in Carolina
Please tell us you've forwarded this phenomenal analysis to the DOJ and editors of "real" newspapers nationwide. The smoke is so thick in the crony-filled back rooms of Durham that federal involvement appears, unfortunately, to be the only appropriate means of de-fumigation. Time to clear it out.
Yet again in awe of your cogent doggedness, I am,
Most respectfully yours,
The Committee to Recall Nifong - Vote Cheek has put up a link to this article on their website. It's getting noticed!
Thank you for sharing this with us. As always, your eloquent insight and meticulous research is both enlightening and motivating.
Your Friends at LieStoppers
(Folks, this is a must read. Do what you can to make certain as many as possible find their way here.)
As the president of the ACLU@DUKE I'd like to respond to your posting.
I'm disappointed to hear that you feel we didn't respond adequately. We however feel that we acted both responsibly and adequately. It has been made clear to us by the North Carolina ACLU that they prefer me not to write or speak "publicly" on controversial issues in my capacity with the ACLU. This came up with a past article i wrote. Upon reflection, I have to regard this policy as reasonable. Student Chapters, especially undergraduate chapters, are not qualified to speak for the ACLU. They have neither the legal expertise nor the PR prowess to avoid potentially misrepresenting the ACLU. Additionally, in this specific situation, even if I were qualified to speak to the outside media, and had been cleared to do so by the ACLU, I would not have. Our primary responsiblity as a student organization lies in defending and educating students. Accordingly, we did not want to provide the media with anything that might further the exploitation of the issue.
WITH THAT SAID---THIS IS WHAT WE DID DO
In my capacity as a columnist for the chronicle I spoke with the editor on doing more stories profiling Nifong's unjust behavior.
Additionally, the ACLU@DUKE penned a letter to the Duke community describing in detail Nifong's misbehavior and reminding the university community of the perils of presuming guilt. This letter, however, was not put in the newspaper--instead a letter by a student that brought up the exact same issues was published. As the ACLU@DUKE is not driven by publicity, we did not push the issue--but instead celebrated that the issue had been clearly stated within the university community. We were somewhat comforted by the fact, and still are today, that are large proportion of the conversation regarding the lacrosse case on Duke's campus revolves around Nifong's inappropriate behavior.
I personally met with Stephen MIller, who somehow became the de facto spokesman for the Duke student body (on shows like the Oreilly factor, Nancy Grace, etc.), and discussed in depth with him the perspecitve of the ACLU--a perspective that he 1. personally shared, 2. propogated to the outside media.
Also, in University sponsored conversations on the issue I represented the ACLU myself. Also, i continue to do so as i have been appointed the Campus Culture Initiative.
My point is that though we weren't media darlings--though we didn't take advantage of the circumstances to jump in front of the camera--doesn't mean we weren't fulfilling our mandate at the university level.
thank you for your time,
ps--Though i'm sure you'll assume i'm a liar--I was never personally contacted by Mr. KC, nor has anyone in the ACLU@DUKE ever told me that they were contacted.
BUT you should feel free to contact me, email@example.com
Dear Mr. Bowes:
Thank you for posting a comment on KC's blog. I do not quite understand your response. You say "Our primary responsiblity as a student organization lies in defending and educating students." Yet you offer only excuses to explain why you appear to have been silent in the lacrosse investigation thus far.
To be fair, I was prepared to accept a comment that KC's post was a little unfair considering most of the outrage in the lacrosse case has been revealed after students were in the midst of final exams or on summer break. So perhaps his post should have been more of a challenge to the campus ACLU chapter rather than a criticism of past inaction. Yet, I find your response disturbing in its defeatism.
I cannot think of a greater opportunity ever to be presented than the lacrosse investigation to advance the goals you claim to be those of your organization. It is a great disappointment to me and others who care about the Bill of Rights that the ACLU has been completely absent in this investigation. Surely the ACLU has a position on the imposition of a gag order to prevent criminal defendants from supporting their innocence through counsel and witnesses after an unethical media barrage by a prosecutor. Surely the ACLU has a view about the Innocence Commission guidelines for photo lineups. And surely the ACLU has a view on whether warrants should contain information that is factually accurate.
I also note for other readers' benefit that in your capacity as columnist for the Chronicle, you wrote a column on April 3rd that began by stating, "Let me begin by apologizing to Durham residents for the transgressions of my fellow students. To be clear, my apology is not for the alleged crimes of the Duke lacrosse team-I can apologize only for what I know to be fact." Your column also stated, "If the allegations turn out to be false, the push for genuine dialogue will lose any and all sense of urgency. For this reason, I'm almost as troubled by the potential repercussions of the players being found not guilty as I am by the possibility of being forced to accept my classmates as rapists. Both situations victimize our community."
In addition, on April 17th, the day two of your classmates were indicted by Mr. Nifong, you wrote the following about campus reaction:
"I am sincerely troubled by the number of students using the DNA evidence-the increased likelihood that a rape did not occur-to vindicate themselves, to vindicate Duke and to completely and tragically obscure the real issues here."
In addition, your April 17th column described your fellow classmates as follows: "it seems to me that we're countering charges of elitism, racism and apathy with blatant snobbery, racially insensitive excuses and wide-spread unresponsiveness."
Obviously I wasn't on campus during this time (though I was when I attended Duke some years ago), so I can't comment on whether your charges are true. However, I am struck by your focus on other issues rather than the rights of the lacrosse players that were being so blatantly violated. When individual rights of fellow students are being trampled by a local prosecutor, the president of the campus chapter of the ACLU should not be writing that exculpatory evidence "tragically obscure the real issues here." It suggests to me that your progressive communitarian philosophy is a little at odds with the ACLU's civil libertarian purposes. Many people, including a large group of Duke's faculty, tried to turn the lacrosse case into a political cause. This effort came at the expense of the lacrosse players and was advanced with stunning disregard for both individual rights and the truth. Stopping this type of effort is exactly why the ACLU exists. That the ACLU would let issues of race, class, and gender cause it to lose sight of its purpose is tragic.
Please consider reevaluating the posture of your organization when you return to campus in a few weeks. You have a great opportunity to defend and educate students.
Wow, "Duke Alum"!!! You embody someone the intelligence and knowledge that Duke University should truly be proud of. Thank you.
cdb24-- Please use your platform wisely. This will be a momentous case in the history of our judicial system. Duke Alum was helpful to show your "history" in this case. If you believe in the ACLU, please represent their ideals. Thank you.
To respond to Duke Alum,
As you were not on campus, please try to understand that the conversation on Duke's campus was very different from the one created by the national media.
From very early on, due to the efforts of the ACLU, Stephen Miller and other campus leaders, a vast majority of the student body understood that Nifong had acted inappropriately and that the rights of Duke students were being refused.
You need only cruise through the editorial page of the chronicle to see this sentiment.
Please note that at Duke I have two leadership capacities--ACLU@DUKE, president, and the Duke/Durham Community Liaison. (I was appointed to this position immediately after the lacrosse incident largely because of the respect i had gained among community members (Durham employees working at Duke, mostly) for my work with the ACLU and a few progressive organizations)
In those two columns--ESPECIALLY the last one__i was writing in my capacity as the community liaison. I decided to write on those issues because I sincerely believed that the editorial in the two weeks previous to my column had clearly elaborated on how Nifong had acted inappropriately and 2.it was becoming clear that the conversation was becoming more and more hostile toward the people of Durham (not Nifong--but the actual people)
I am proud of the columns and would urge anyone to read the entire columns (Duke Alumn posted them in his reponse--or you can go to dukechronicle.com and search the archives for Daniel Bowes)
Additionally, please read a column that was printed the week before mine and that i was directly responding to---
it will show you how hostile Duke had become toward Durham.
I would also like to point out that I have already spoke with KC Johnson on this issue. The ACLU@DUKE will certainly be responding to the lacrosse incident again this semester.
I will be meeting with the executive board as soon as classes reconvene.
In fact, I invite now---and will do so in a personal email--KC to come speak at Duke on these issues at his convenience.
please email me, firstname.lastname@example.org
The NAACP is already tarnished and this is coming from a former AAG and NAACP legal redress chair.
Watch the parallels between prosecutorial misconduct that the NAACP allows in the Duke case and in my case, where I got indicted for writing a Demand Letter on behalf of a young man who faced 3 drawn police guns and a visual body cavity search for "loitering" which he beat pro se.
What I did was totally supported by well-established case law of NAACP v. Button, 371 U.S. 415 (1963) but the NAACP turned-tail and sided with the Prosecutor rather than ruffle feathers!
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