Nifong's Procedural "Justice"

At the tumultuous April 11 NCCU forum, Mike Nifong was sharply questioned as to why he hadn’t made immediate arrests in the lacrosse case. The D.A. issued one of his patented non-denial denials as to whether an ID already had occurred.

As Durham County’s “minister of justice,” it would have seemed that Nifong had an obligation to bring charges, as soon as possible, against those he believed committed a brutal rape. Instead, for nearly two extra weeks—until the next meeting of the grand jury, on April 18—he left people on the street that he had labeled “hooligans,” figures whose “contempt . . . for the victim, based on her race” added “another layer of reprehensibleness, to a crime that already reprehensible.”

With the benefit of hindsight, it’s easy to see why Nifong didn’t move for an arrest as soon as the accuser gave her statement to the police on April 6 (inexplicably, three weeks after her initial police interview). Under North Carolina procedures, his seeking an arrest warrant entitled the defendants to a probable cause hearing.

Could Nifong have met the admittedly low threshold for probable cause? He couldn't afford to take a risk, since he had a primary to win on May 2. He had little or no physical evidence a crime was even committed, much less that the two people he charged did anything wrong. He sought indictments against Reade Seligmann and Collin Finnerty exclusively on the basis of an April 4 lineup that violated Durham procedures in multiple ways and in which the accuser made myriad unreliable identifications.

Balanced against this “evidence” was Seligmann’s unimpeachable electronic alibi. At a time when Nifong and the police were still describing the crime as lasting 30 minutes (as, of course, the accuser had repeatedly claimed), the DA would have needed to convince the court to find probable cause that Seligmann could have been simultaneously on a video at a Wachovia ATM machine and committing a crime a mile away.

Maybe Nifong could have survived the hearing. And maybe I’m going to be the next Pope.

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Several weeks ago, startling figures emerged that Nifong’s office dismissed 12 of the 25 rape cases of which it disposed in the 2005-2006 fiscal year. The court files for many of these cases raise disturbing patterns relating to Nifong’s denial of a probable cause hearing in the lacrosse case:

• In each and every one of these cases (presumably the office’s weaker ones, as they ended with outright dismissals or plea bargains), Nifong’s office sought an arrest warrant, with the subsequent requirement for a probable cause hearing. The office went to the grand jury only months later, if at all. The lacrosse case thus radically departed from precedent. Among even the shaky rape-case defendants, Finnerty, Seligmann, and (later) Dave Evans seem to have been alone in the Nifong era in being denied the opportunity for a probable cause hearing*—the only built-in check to Nifong’s power in the charging process.

• Nifong’s latter-day positioning of himself as a crusader for social justice is chimerical. His office regularly entered into plea bargains resulting in the dismissal of rape charges and the imposition of often laughably light sentences. “I’m not going to allow,” the D.A. said at one campaign forum, “Durham’s view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham.” Yet he seems to have cared little for the “black girls from Durham” when their alleged rapists didn’t fit a profile that would benefit him politically.

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The cases divide into two groups. The first group consists of four cases that were dismissed outright. In each instance, Nifong’s office sought an arrest and then proceeded to a probable cause hearing, rather than, as in the lacrosse case, bypassing these two steps and going directly to a grand jury indictment.

Moreover, these four dismissals suggest that the lacrosse case wasn’t the first instance when we’ve seen a rush to judgment by the Durham D.A.’s office. Cases were dismissed because of:

• a lack of evidence;
• the accuser marrying her alleged rapist and dropping the charges;
• the D.A. office’s inability to locate the accuser.

Unlike the current case, when Nifong has stated either he or his administrative assistant calls the accuser several times a week, his concern with “victims” apparently doesn’t carry over to politically useless prosecutions.

The files:

1.) State v. Che Usef Fletcher

Charge: second-degree rape

• Arrest warrant: September 15, 2005
• $50,000 bond: September 17, 2005
• Waives probable cause hearing: February 28, 2006

Case dismissed June 29, 2006: “The victim married the defendant.”

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2.) State v. Herbert Jackson

Charge: first-degree rape

First-degree sexual assault

• Arrest warrant: March 10, 2005
• Waives probable cause hearing: May 17, 2005

The case was dismissed on September 20, 2005, when the D.A.’s office said that it could not locate the accuser.

3.) State v. Rigoberto Hernandez

Charge: first-degree rape

• Arrest warrant/probable cause found: May 27, 2005
• $250,000 bond
• Grand jury: August 15, 2005

The case was dismissed on February 10, 2006, when the accuser refused to cooperate with the Nifong’s office.

4.) State v. Hinojosa

Charge: second-degree rape

• Arrest warrant: September 3, 2005
• Bail: September 20, 2005 (reduced from $50,000 to $12,000)
• Waives probable cause hearing: January 24, 2006

The case was dismissed for insufficient evidence on February 10, 2006. The court file contains no explanation of the rationale for the dismissal.

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In further remarks at the April NCCU forum, Nifong stated that he was compelled to seek indictments and carry the case through to a trial. “Anytime,” the D.A. told the audience, “you have a victim who can identify her assailant, then what you have is a case that must go to the jury, which means, in this situation, a jury will get to evaluate the evidence.”

This claim, of course, was wholly untrue. North Carolina’s general statutes impose no such obligation on the D.A., while Section 3.8, comment 2 of the state bar’s ethics code contradicts Nifong’s description of his duties: “The prosecutor represents the sovereign and, therefore, should use restraint in the discretionary exercise of government powers, such as in the selection of cases to prosecute.”

It turns out that Nifong wasn’t even describing how his own office operated. Eight times over the first eight months of 2006 (or once a month), Nifong’s office entered into plea bargains with rape case defendants. Unlike the four instances profiled above, these cases were still pending: the D.A.’s office wasn’t struggling to locate the accuser, or the accuser hadn’t decided to marry the defendant. Nifong, it would seem, still had “a victim who can identify her assailant.” Yet no jury heard these eight cases—none of which, based on the files, appear to have involved a claim of white defendants raping a black accuser.

In this second group, Nifong’s office sought an arrest and then proceeded to a probable cause hearing in all eight occasions, rather than, as in the lacrosse case, going directly to a grand jury indictment. Therefore, all eight of these defendants—unlike Seligmann, Finnerty, and Evans—had an opportunity for a probable cause hearing.

These cases also exhibited two other striking patterns:

• First, Nifong’s office sought bails considerably lower—and in some cases dramatically lower—than the $400,000 the D.A. sought and initially obtained in the lacrosse case. This disparity occurred even though many defendants in these cases had lengthy criminal records.
• Second, despite his insinuations of doing everything he can for the accusers in rape cases, Nifong’s office has a tendency to sign off to light sentences—and in some instances outrageously light sentences—in exchange for the defendants pleading guilty to lesser crimes.

It's worth remembering, meanwhile, that while Nifong was regularly dismissing charges like first- and second-degree rape, he was devoting scarce office resources to re-opening deferred prosecutions against lacrosse players for noise offenses, violations of city codes that failed even to rise to the level of misdemeanor offenses.

The files:

1.) State v. Dwight Ellis Carrington

Charge: first-degree rape

• Arrest warrant: February 23, 2005
• $100,000 bond, reduced to $60,000: February 24, 2005
• The file contains no mention of the date of the probable cause hearing.
• Grand jury: April 18, 2005

February 23, 2006: Pleads guilty to felonious restraint.
Rape charge dismissed.

Despite 17 prior convictions for crimes such as DWI, larceny, possession of stolen goods, and forgery, Carrington was sentenced to 27-33 months, with credit for 12 months served.

Judge Stephens—the same judge who OK’d Nifong’s procedurally fraudulent March 23 NTO order—signed off on the plea deal.

2.) State vs. Tommoris Jones

Charges: second-degree rape, assault and battery, communicating threats

• Arrested: November 13, 2005
• $53,000 bond: Nov. 14, 2005
• Waives probable cause hearing: January 17, 2006
• Grand jury: March 20, 2006

July 5, 2006—pleads guilty to:

• assault by strangulation
• assault on a female
• communicating threats

Rape charge dismissed.

Despite previous convictions for contributing to delinquency of juvenile and misdemeanor larceny, Jones was sentenced to 12-14 months, suspended sentence, and 36 months supervised probation.

3.) State vs. James Bowman

Charges: attempted second-degree rape, breaking and entering, violation of domestic violence protective order

• Arrested: June 9, 2005
• Probable cause hearing: August 31, 2005
• Grand jury: May 1, 2006

August 7, 2006—pleads guilty to:

• breaking and entering
• violation of domestic violence protective order
• sexual battery

Rape charge dismissed

Despite previous convictions for assault on a female and communicating threats, Bowman was sentenced to 13-15 months, suspended sentence, and 36 months supervised probation.

4.) State vs. Michael Brooks, Jr.

Charge: second-degree rape

• Arrest warrant: December 14, 2005
• Probable cause: December 21, 2005
• Grand jury: July 17, 2006

August 30, 2006: pleads guilty to assault inflicting serious bodily injury.
Rape charge dismissed.

The court file lacks information on Brooks’ sentence.

5.) State vs. Daniel Cates

Charge: first-degree rape

• Arrest warrant: August 11, 2005
• $200,000 bond: August 15, 2005
• The file contains no notation on date of probable cause hearing.
• Grand jury: October 3, 2005

Dismissed March 16, 2006, on grounds that defendant was serving a 25-year sentence for a different offense.

6.) State vs. James Daniel Shaw

Charge: first-degree rape

• Arrest warrant: April 6, 2005
• $50,000 bail, April 7, 2005
• The file contains no indication of when probable cause hearing occurred.
• Grand jury: May 16, 2005

March 20, 2006: Pleads guilty to two counts of felonious restraint.
Rape charge dismissed.

Shaw was sentenced to 16-20 months in prison, fined $3283, and received 36 months probation.

7.) State vs. Shamir Louis Rone

Charge: first-degree rape of a child

• Arrest warrant: August 29, 2005
• Probable cause hearing: September 20, 2005
• Grand jury: February 6, 2006

July 5, 2006: Pleads guilty to:

• 2 counts crime against nature
• contributing to delinquency of minor

Rape charge dismissed.

Rone was sentenced to 13-17 months, all suspended, and supervised probation for 36 months.

8.) State vs. Paul Ross

Charges: second-degree rape; second-degree sexual offense

• Arrest warrant: May 24, 2005
• Probable cause: May 31, 2005
• $30,000 bond
• July 5, 2005: grand jury

February 23, 2006: Pleads guilty to crime against nature.
Rape charge dismissed.

Ross was sentenced to 6-8 months, with a suspended sentence for 24 months, supervised probation for 24 months, and a $552 fine.

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Each of these cases, of course, had its own dynamics. And looking through court files alone doesn’t provide a complete picture—for instance, of the insufficient evidence in the Hinojosa case; or how Nifong’s office could have recommended such a lenient deal for someone like Dwight Carrington, with 17 prior convictions; or whether a connection existed between the bizarre dismissal of the Cates case (on grounds he was serving a sentence for another crime?) and the emergence of the lacrosse case on the same day.

For the lacrosse case, however, this material reveals one critical item:

• In all 12 of these cases, which didn’t even have strong enough evidence to get a rape charge to trial, Nifong’s office followed the routine procedure of seeking an arrest warrant and a probable cause hearing.
• In the lacrosse case, though his “investigation” was complete on April 6, Nifong employed a different procedure, waiting waited 12 days to go to a grand jury.

Rule 3.8, comment 1 of the state bar’s ethics code states, “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor's duty is to seek justice, not merely to convict. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice.”

Manipulating procedures to deny Seligmann, Finnerty, and Evans the opportunity for a probable cause hearing would seem rather inconsistent with both the spirit and the letter of this rule.

Hat tip: Bethany.

*--changed from original, which incorrectly read "right," not "opportunity."