Just One Case?

Of the many arguments that have transformed Durham into Wonderland, few have been more peculiar than that offered by local attorney Kerry Sutton. Proclaiming her joy that Mike Nifong prevailed with a plurality of the vote, she remarked, “If I ever mess up a case myself, I hope people won’t judge my entire career based on that case alone.”

Sutton’s words could be dismissed as the rationalizations of a sycophant; as Joseph Cheshire pointed out, “Lawyers whose livelihood and clients’ fates are often governed by the whim of the elected district attorney [need] to remain as close as possible to that DA no matter what he does.”

Yet, as John in Carolina recently noted, “just one case” has, of late, emerged as the last refuge for Nifong enablers. For instance, Steve Ford, explaining why the N&O failed to call for Nifong’s ouster even as its reporters exposed example after example of his unethical conduct, concluded, “To throw him out of office on the sole basis of that performance would have had the effect of substituting the judgment of voters for the judgment of jurors.”

A few weeks before, the N&O quoted a Nifong voter remarking, “Just over that one case, I can’t go against him.” Nifong backer Lee Castle, like Sutton a local attorney, offered the following pre-election endorsement: “Sure the DA needs to understand the law and trial work so he can supervise those working under him, but the ADAs carry the load . . . Nifong may have made mistakes concerning the lacrosse case, but he has done his job as an administrator by gathering around him people who do good work.” In early August, Nifong’s soon-to-be citizens’ committee chair, Kim Brummell, told the Herald-Sun that “Nifong should not be judged on one case.” And, of course, this approach has formed a consistent theme of Bob Ashley and the Herald-Sun for months.

The origins of the “just-one-case” mantra appear to lie with the “minister of justice” himself, who presented it when he unveiled the “New Nifong” at a July 28 press conference. Attempting to present himself as humble, in contrast to the arrogant, bullying image he had projected in April and May, he told the assembled media that he had made a few mistakes on the case. Nifong then added, “I’m here today to tell you the district attorney’s office is not about one case. It’s just not.”

The “just-one-case” argument is so absurd as almost to require no rebuttal. In effect, Ashley, Ford, Castle, Sutton, et. al. are saying that Nifong might well have engaged in massive prosecutorial misconduct in the lacrosse case, but for one reason for another (That the targets are out-of-state defendants? That the defense lawyers are unusually competent? That a sizable portion of the community demanded symbolic justice?), the “minister of justice” should receive a pass for his conduct.

As Duke Law professor James Coleman told 60 Minutes, this rationalization defies all logic. “You know, what are you to conclude about a prosecutor who says to you, ‘I’ll do whatever it takes to get this set of defendants?’ What does it say about what he’s willing to do to get poor black defendants?” It is outlandish to assume that a district attorney who engages in massive ethical violations in one case will not do so in others.

Imagine, moreover, extending the “just-one-case” excuse to other political figures. Backers of William Jefferson could concede that yes, perhaps the New Orleans congressman did act improperly when he took a $100,000 bribe and put the proceeds into his freezer, but, after all, this decision was just one in a long public career, and shouldn’t be singled out for punishment. Or partisans of Bob Ney could have posited that yes, perhaps the former Ohio congressman did sell his influence to lobbyist Jack Abramoff, but, after all, this move was just one unethical act in a dozen-year career of House service, and it would be unfair to judge him on that single instance alone.

There’s no record of either the Herald-Sun or Steve Ford’s N&O editorial page speaking out on behalf of Ney or Abramoff; and, indeed, Sunday’s Herald-Sun ran a lead editorial calling upon Jim Black, the ethically challenged speaker of the North Carolina House, to step down. Perhaps the two editorial boards believe that a different, and lower, standard of government ethics should apply in Durham than in the rest of the state and country.

The “just-one-case” rationalization, finally, is ahistorical. In his pre-primary publicity barrage, the “minister of justice” himself aggressively asserted that the lacrosse affair was more than “just one case.”

• On March 27, explaining why he would prosecute the case himself, Nifong asserted, “I’m making a statement to the Durham community and, as a citizen of Durham, I am making a statement for the Durham community,” since “it is a case that talks about what this community stands for.”
• The next day, he told a local TV station that the case would receive the full attention of his office. He then informed the AP, according to the wire-service story, that “he plans to prosecute the case himself to send a message to the community that authorities are taking the offense seriously.”
• And, at his “New Nifong” press conference in July, the “minister of justice” asserted, “The first message I intended to portray [with his pre-primary publicity barrage] was that the community was in good hands with respect to this case, and they did not need to worry about it.”

The lacrosse case is the only one that Nifong has handled personally since becoming district attorney. Should his ethics be evaluated on the basis of cases that others have tried? (Nifong has announced he will personally try a high-profile murder case that hasn’t yet made its way to any hearings, apparently as part of his philosophy of assigning to himself cases “that the national media has shown real interest in.”)

Now that the case has served his political purposes, however, Nifong wants to shift the goalposts. What once “a case that talks about what this community stands for,” he suggests, now should be viewed as simply one among the thousands of cases his office deals with annually.

Nifong enablers, it seems, are determined not to hold the “minister of justice” to the ethical standards of either the state bar or traditional politicians. Is it so unreasonable, however, to expect them to judge Nifong according to the standards that he himself once articulated?