Nifong Tarnishes the NAACP

Since March 27, Durham D.A. Mike Nifong has effectively hijacked the North Carolina judicial system, creating the image nationally of a rogue state whose leaders tolerate massive prosecutorial misconduct. It’s worth remembering, however, that Nifong has had enablers—starting with, of course, his self-appointed Duke cheerleaders, the Group of 88, who sold out their own students to advance their personal, curricular, and ideological aims. With a few exceptions, the North Carolina media hasn’t distinguished itself—most have seemed content to follow the lead of the Herald-Sun’s Bob Ashley or the N&O’s Dennis Rogers, whose recent column explained why he, as a journalist, shouldn’t be expected to know anything about the case or to undertake any independent inquiry into matters. Know nothing, have no desire to learn, and then get paid for writing about your lack of knowledge: sounds like a pretty good job to have!

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 Durham city procedures and statewide norms in almost every way possible.
• March 31: Durham mayor Bill Bell sent a campaign contribution to Nifong (see p. 5 of this recently released campaign finance report). To my knowledge, Bell never mentioned this contribution in the many interviews he did at the height of media scrutiny of the case.

Bell and Simeon, of course, could have innocent explanations for their decisions to back Nifong. (I e-mailed Bell to ask about the issue; he didn’t reply.) But only the willfully naïve wouldn’t wonder about the timing of both decisions.

The reaction of figures like Bell and Simeon is all the harder to comprehend as evidence has emerged that Nifong deliberately inflamed racial tensions, in an apparent effort to increase support from the African-American community. Two examples particularly stand out:

• 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 Durham police; a Durham 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.

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.

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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 Maryland, whose website cites “eyewitness ID reform” as one of the organization’s 2005-2006 legislative priorities, since “mistaken eyewitness identifications are the overwhelming reason for wrongful convictions.”

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 “Durham” jury as giving Nifong a chance of victory; he replied, candidly, “A Durham jury may see things differently than would an Orange or Wake County jury because the Durham jury will probably have more African-Americans on it than would be involved in most other counties in North Carolina.” Joyner added, “This case originated in Durham and should be tried here.” Carried to its logical conclusion, Joyner’s statement would imply that cases always need to be tried where they “originated”—since surely if any case needs a change of venue, it’s this one. Quite beyond Nifong’s myriad public statements, the case itself was the central issue in not only the spring primary but the fall election for district attorney.

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 Clinton years, the organization took a high-profile stance against the politically popular but civil liberties-unfriendly Feinstein/Kyl “victims’ rights” constitutional amendment. In an April 2000 letter sent to the Senate majority and minority leaders, the NAACP leadership noted, “People of color have also historically been wrongly accused in this nation of crimes varying from the very minor to the most heinous. It is for this reason that the NAACP has also been a strong and steadfast supporter of the Constitution, the Bill of Rights, and the concept of due process in the American judicial system. It is our deeply held belief in the need to protect the innocent and allow every American the right to a fair trial that leads us to oppose . . . the proposed constitutional amendment to protect the rights of victims of crimes,” since “we have grave concerns that the negative effects this amendment would have on the rights of the accused seeking a fair and impartial trial would outweigh the benefits it bestows upon victims.” [The letter was reproduced in page S2985 of the 2000 Congressional Record.]

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 Durham lately?) Nor is this concern a new one: the LDF represented the defendant in the 1974 North Carolina v. Henderson, where the use of a procedurally flawed suggestive ID was a key element in the appeal.

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 North Carolina appellate courts, it is very easy for an identification procedure to pass constitutional muster and the written procedure which was adopted at some point by the Durham Police Department is not constitutionally required. Whether a jury will accept its validity is another question, but that has nothing to do with constitutional infirmities.” He specifically declined to condemn Nifong’s lineup. McSurely did the same, saying he didn't want to add to the public commentary on the case, and, in any case, "Mr. Nifong is an experienced prosecutor, and he can defend his
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 Durham procedures and contradicted all relevant statewide trends, the jury should decide such procedural questions?

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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 North Carolina, however, only one prominent figure in the African-American community has embraced this course.

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 North Carolina’s Actual Innocence Commission, singled out Nifong’s photo ID procedures for particular condemnation. After reviewing the photo ID transcript, Coleman noted, “The officer was telling the witness that all are suspects, and say[ing], in effect, ‘Pick three.’ It’s so wrong; it had to be done for a reason other than identification.” He had no doubt “that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice. The prosecutor would not care if the pre-trial identification was subsequently thrown out by the court. The accuser would identify them at trial by pointing to the three defendants seated in front of her as the three men who assaulted her. The prosecutor would argue that she had an independent basis (independent of the identifications thrown out) for doing so.”

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.