As I’ve noted previously, sometimes the Herald-Sun’s zealous promotion of Mike Nifong backfires. In September, in an attempt to defend Sgt. Mark Gottlieb from statistics showing that he arrested 10 times as many Duke students as the other three District 2 supervisors combined, the Herald-Sun suggested that Gottlieb was merely following official DPD policy of disproportionately meting out punishment to Duke students as a class. This revelation for the first time suggested an official policy justifying Gottlieb’s statistically disproportionate actions, and invited the possibility of Justice Department intervention.
The latest episode of the Herald-Sun unintentionally aiding the defense came on November 9, when editor Bob Ashley commissioned an article headlined, “Lawyers: Nifong Right Pick for D.A.” The article opened with a bold claim that “several lawyers linked to the Duke lacrosse rape case . . . offered conciliatory remarks about Mike Nifong the day after he bested two challengers,” and then contained this stunning statement from Kerry Sutton: “I believe the right person won. While I disagree with Mike’s handling of the lacrosse case, he had a right to take the stance he did, and he is doing his job.”
Then, reporter John Stevenson (of course) couldn’t restrain himself in putting even more pro-Nifong spin on the story, and added that Sutton “has done some work for lacrosse rape defendant David Evans.”
By leaving the impression that Sutton might be speaking for Evans’ defense team, Stevenson opened up the possibility for a response from the people who are really representing Evans, who otherwise might have been restrained from speaking out by the judge’s gag order.
In today’s Herald-Sun, Joseph Cheshire took advantage of the excess pro-Nifong zeal shown by Stevenson and Ashley. After affirming that “Sutton does not represent Evans, nor is she authorized to speak for him or on his behalf,” Cheshire said bluntly what everyone else has said quietly about Sutton’s motives for her comments: “I understand the need for lawyers whose livelihood and clients’ fates are often governed by the whim of the elected district attorney to remain as close as possible to that DA no matter what he does.”
But it must be noted that Nifong’s only “right” and “job” as a prosecutor in this or any other case is to satisfy his oath to see that justice is done. He has no right to take over the role of lead investigator from the police and then refuse to view exculpatory evidence, or to order an illegal and improper photo lineup procedure, or to make factually baseless public statements that pander to race, gender and class during an election cycle.
Justice is not done in any criminal prosecution when a DA who assumes the role of chief factual investigator and does not bother to talk with the chief prosecuting witness about her allegations to assess her credibility, and instead lets forth a stream of pure speculation about the “facts” of the case to conform to the evolving investigation: speculation that, in fact, contradicts materials in his own case file and sworn statements made by his own investigators and assistants in the investigation. Those actions are hardly a prosecutor’s “right” or “job” as defined by his oath.
We all should be grateful to Stevenson and Ashley, however, that their ineffectual pro-Nifong bias gave Cheshire a chance to lay out the case for proper behavior by a prosecutor.