Interpreting the Results

A few days ago, in a sensational column, Kristin Butler asked the unanswerable question about yesterday’s contest:

So will Durham County voters consider [Nifong’s] misconduct at the polls?

According to a Raleigh News & Observer poll, the answer is no . . . Now for once, I’m speechless: What could 46 percent of Durham’s likely voters [or, as it turned out, 49 percent of those who cast ballots] possibly be thinking?

Events of the last seven months have exposed an ugly side to Durham, a city that once boasted of itself as a center of progressive thought in the New South. We’ve all witnessed, with horror, Chan Hall’s infamous comment (the NCCU student told Newsweek that he wanted to see Duke students prosecuted “whether it happened or not. It would be justice for things that happened in the past”); or Nifong’s celebrating the installation of Victoria Peterson, heretofore best-known for hate-filled homophobic rhetoric, as co-chair of his citizens’ committee.

Last night’s results confirmed the existence of a larger constituency for the politics of revenge and prosecutorial misconduct than anyone could have thought possible seven months ago. But Nifong offered more than simple, Chan Hall-style revenge: with some well-timed assistance from others, his actions and rhetoric helped recreate in Durham a mirror image of the Deep South legal system of the late 1950s.

By any rational interpretation, African-Americans awarding a bloc vote to Nifong made no sense: because blacks are disproportionately represented in the criminal justice system, procedures (such as the Actual Innocence Commission recommendations on photo IDs) protect African-Americans disproportionately. So, to the extent that Nifong’s crusade to override procedures succeeds, the net result will disproportionately harm African-Americans.

Yet voters in a racially charged environment often do not cast ballots based on rational calculations. Poor white voters in late 1950s Alabama or Mississippi were not well-served by electing as governor demagogues like George Wallace or Ross Barnett—but they did so anyway, responding to the politicians’ race-baiting appeals.

Nifong isn’t particularly skilled as a race-baiting demagogue, and his shelf life is likely to be very short-lived. But he isn’t interested in long-term success; he said upon announcing his candidacy that he would only serve one term—or until his pension reached maximum.

Like demagogues such as Wallace or Barnett, Nifong had some help:

• The local paper, in this case, the Herald-Sun: editor Bob Ashley, as he oversaw the hilariously one-sided articles of John Stevenson and played up the Monks spoiler effort, turned in a performance suggesting that he would have been right at home in Scottsboro during the 1930s.
• The local fire-breathing radicals—in the early 1960s the local white supremacists, in this case the Group of 88: the Group’s statement and heated rhetoric suggested a rush to judgment that deemed irrelevant the “facts” of whether the “perfect offenders” were guilty or innocent.
• The activist group demanding race-based justice—in the early 1960s organizations such as the White Citizens’ Council, in this case the NAACP: over the past seven months, the civil rights organization has turned its back on the legacy of Charles Huston and Thurgood Marshall on issues ranging from free speech to change of venue to “victim’s rights” to procedurally proper lineups.

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Nifong’s victory was Pyrrhic. Responding poorly to the pressure of a campaign, Durham County’s minister of justice uttered four statements that demonstrated an appalling lack of judicial temperament:

• If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself is an indication that a case needs to be tried.

• You can make the case go away pretty easily . . . But that does nothing to address the underlying divisions that have been revealed. My personal feeling is the first step to addressing those divisions is addressing this case. That is not the kind of thing that you can really assign to somebody else and say, “You go do this for me. The future of Durham’s in the balance and I don’t really want to get my hands dirty.” [emphasis added]

• They have endeavored to make this election something it is not: a referendum on a single case that that [sic] view as a threat to their sense of entitlement and that they do not trust a jury of Durham citizens to decide.

• There was one guy who came by with a lacrosse T-shirt. I didn’t talk to him. I might have prejudged him.

With the minister of justice suggesting that Durham’s future could be destroyed by a not-guilty verdict, it seems extraordinarily unlikely that Judge Smith could reject any defense request for a change of venue. And I doubt that Nifong’s demagoguery will play as well anywhere else in the state as it did in Durham.

Nifong’s statements also raise the question of what more the State Bar or the federal government could possibly need before they intervene. At least now, if they do so, they can know that they are acting on behalf of the majority of Durham County voters who did not cast ballots for the minister of justice.

Moreover, as Jason Trumpbour pointed out last Sunday, Governor Mike Easley or his successor almost certainly will be appointing Durham’s next district attorney, regardless of last night’s outcome. “It is,” according to Trumpbour, “almost certain that Nifong will be suspended or disbarred” after a post-case inquiry by the state bar’s ethics committee. He then would be removed from office.

The question, posed by David Maquera, an attorney at the firm of Raymond&Prokop: “What does a prosecutor profit when he gains the world but loses his soul in exchange?” Only Nifong can provide an answer, as he looks in the mirror every morning.