Sunday Roundup

Exposing Mike Nifong’s procedural misconduct hasn’t exactly formed a main theme of work by the Herald-Sun’s John Stevenson. Indeed, Stevenson has emerged as a one-man cheerleader for Nifong’s crusade, publishing bizarre stories on such matters as DNA evidence; a recent rape case appeal; and the accuser’s “limber” activities at the time she was claiming injuries from the alleged attack. On each occasion, Stevenson not only took a transparently pro-Nifong line, but either omitted important details or simply got the whole story wrong.

A glance at Stevenson’s past offers a clue why he might want to avoid reporting on others’ ethical misdeeds. During his tenure as the Herald-Sun’s courthouse correspondent, Stevenson also ran what the Independent delicately termed “a side business publishing a legal newsletter that detailed Durham trials for an audience of local attorneys.” Even he admitted that the “newsletter,” which he eventually sold (thereby making even more money off the scheme) might have “been seen as a conflict of interest.”

At CUNY, our conflict-of-interest policy prohibits professors from “selling” expanded versions of classroom lectures to, say, software vendors, or textbook publishers, or students—or anyone else with whom they could interact in a professional context. (I wouldn’t dream of doing something like that, anyway.) From asking around, it seems that most newspapers have similar, common-sense, conflict of interest policies—looking askance upon a journalist who “sold” to his or her sources a private “newsletter” about the same topics on which he wrote for the paper.

The Herald-Sun apparently had no such policy. What, however, does it say about Stevenson’s ethics that he even launched such a scheme? Reporters are supposed to be objective. But someone who has shown so little regard for professional ethics in his own career isn’t likely to give upholding ethics a major place in his journalism.

A commenter added, “Nifong was among the most religious subscribers to this ‘publication.’” I twice emailed Stevenson to ask him: (1) if Nifong did subscribe to the “newsletter”; and (2) if so, how much money he has received from Nifong over the years.

Stevenson never responded.

It seems to me that, in the interest of full disclosure, Editor Bob Ashley (email) should require Stevenson to publicly reveal the extent of his previous “business” relationship with Nifong.

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At his press conference 10 days ago, I heard Steve Monks say, “I now publicly commit that I will withdraw if it can be established that my withdrawal gives the Cheek campaign the better opportunity of winning.”

The recent Ethical Durham poll clearly shows that Monks’ withdrawal would give “the Cheek campaign the better opportunity of winning.” Is Monks a man of his word?

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The third-quarter campaign finance reports are out, and Nifong has returned to his old fundraising habits. Of the $5,975 in itemized contributions he raised in the third quarter, some 75.3 percent (or $4,500) came from lawyers who do business before the D.A.’s office; another $900 came from a bail bondsman. The district attorney, in short, continues to enjoy little or no grassroots support; those who don’t need to curry his favor have ignored his plea to “consider making a substantial contribution so that I will have the funds necessary to accomplish our goal: to win this election.” [emphasis in original]

Earlier this year, before his fundraising well went dry and he had to revive his candidacy by exploiting the lacrosse case and infusing his campaign fund with nearly $30,000 in personal loans, Nifong’s fundraising displayed a similar pattern. In the first six weeks of 2006, 83.6 percent of his itemized contributions came from lawyers who did business before the D.A.’s office.

In the third quarter, Nifong avoided any more personal loans to his campaign; he repaid part of these loans on June 30, after safely winning the primary, but he’s still owed more than $8,000. No doubt if he triumphs on Tuesday, local lawyers will soon receive a letter “encouraging” them to pony up to rectify the gap.

The other odd item in the finance report: a $600 contribution, dated July 31, to the Durham Committee on the Affairs of Black People, which came before the group endorsed him. Nifong also received a donation from former foe Mark Simeon, the African-American lawyer who came out in the D.A.'s favor on March 28, one day after Nifong’s first public denunciation of the lacrosse team.

The Recall Nifong-Vote Cheek forces, meanwhile, outraised Nifong for the third quarter; as the N&O’s Ben Niolet also noted, more than half of the Cheek campaign’s contributions came from out-of-state residents. That should have come as no surprise: Nifong’s “separate-but-equal” brand of justice has exclusively targeted not full-time Durham residents but instead Duke students.

Niolet asked one Cheek contributor, Duke parent and retired federal prosecutor Ernest Isenstadt, why he had donated money to Cheek. Isenstadt’s response reflected what seems to be the consensus of the national legal community: “I’m deeply concerned about the behavior of Mr. Nifong. It’s just unlike anything I’ve seen in my experience.”

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Cash Michaels’ most recent column claims that Nifong’s (white) critics have engaged in a “last-ditch” effort to “effectively chip away at his broad support in the waning days before the election this Tuesday”; otherwise, he argued, “their hopes of stopping his prosecution, and ultimately getting a new district attorney to drop the case, will be dashed.”

It’s my sense that even if Nifong wins, the case will be dismissed because of his massive procedural violations, although I can also see where some might consider it preferable, from a public relations standpoint, that the citizens of Durham County take a stand for normal procedures and oust their “minister of justice.”

Michaels says that white critics have accused Nifong of “pandering” to the black vote, though this word has been most associated with critiques by two African-Americans, Duke law professor James Coleman and sportswriter Jason Whitlock. Michaels further notes that I have “blasted the NC NAACP for not siding with the Duke Three.”

The comment touches upon one of the most frustrating aspects of this case: a widespread unwillingness to distinguish between procedure and outcome. I’ve never criticized the North Carolina NAACP for not “siding” with the three students targeted by Nifong; given political realities, I never would have expected the organization to do so. (Some, on the other hand, might have wondered why the organization didn’t help Moezeldin Elmostafa, an African immigrant who Nifong appears to have targeted for selective prosecution.)

My critique of the state NAACP has focused on its abandonment of traditional positions on procedural issues—such as its opposing procedurally improper lineups; supporting changes of venues in racially charged cases; defending free speech; and avoiding an extreme victims’ rights position. The organization, of course, has the right to take any position it wants. But if, when African-Americans are defendants, the state NAACP criticizes improper procedures upon which it then remains silent or even supports when whites are defendants, the group certainly opens itself up for condemnation.

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[Update, 9.11am] I have previously praised the efforts of Duke Students for an Ethical Durham, the group that borrowed a tactic from the civil rights movement (encouraging voter registration to oust local officials who refuse to uphold the law. My regard for the group continued to grow after reading the following in today’s N&O:

Soon after he arrived, Nifong approached three members of Duke Students for an Ethical Durham, a group that has worked against Nifong. The prosecutor told the students that since they were working against him, they might as well meet. Nifong held out his hand. No one shook it. After an awkward moment, Nifong shook hands with the head of another anti-Nifong group, then went to work the line of voters.

Nifong has set up a “separate-but-equal” system of justice for Duke students, and then has the nerve to try to to use them as a photo-op?

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Jason Trumpbour, a Maryland attorney and spokesperson for Friends of Duke University, has a must-read column in the Chronicle from earlier this week. Responding to what he termed a “seriously misguided” plea by James Zou that Duke undergraduates respect “due political and judicial process” by not voting in Durham, Trumpbour urged Duke students to vote, “in order to protect their own rights and to make Durham a more just and ethical place for everyone.”

Trumpbour’s article effectively dissected the Nifong criticism of Cheek as a “dummy” candidate whose election would merely give the governor the right to select Durham’s next D.A. (until an election in 2008). “Keep in mind,” Trumpbour asserted,

that Nifong is more of a “dummy candidate” than Cheek. The Grievance Committee of the North Carolina Bar has indicated that it will not pursue the numerous grievances filed against Nifong until after the lacrosse case has been concluded. When they do, however, Nifong will be distracted and unable to effectively perform his duties and will spend up to a year defending himself against the bar inquiry. Because it is almost certain that Nifong will be suspended or disbarred, he will not be able to continue in office. And as the governor may be choosing the next district attorney in Durham County, the best option is to start looking to the future now and save the community the disruption and pathetic spectacle of Nifong’s protracted death throws.

Trumpbour is, of course, absolutely correct: one way or the other, Governor Easley will select Durham’s next DA. It could be in a few weeks, if Cheek prevails. Or it could be in 12-18 months, after the inevitable state bar sanctions occur against Nifong.

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Last week’s Chronicle also featured what I consider the finest column written on this case by any student. Trinity junior Kristin Butler bluntly, and accurately, concluded that Nifong “sullied” his professional career through a pattern of “highly unethical and unprofessional conduct” that “is as serious as it is systematic.”

The case, of course, has polarized the community and created widespread local controversy. But, as Butler reminded readers, “It was Mike Nifong’s mouth—at least as much as Durham’s racial or socioeconomic tensions—that blew this case out of proportion”; the district attorney’s “arrogant, self-serving commentary” served no one’s interests but his own. Butler notes that

Nifong did, indeed, have a responsibility to carefully and dispassionately investigate the alleged rape when it was reported. In that regard, he has done more than just fail; he has used this investigation as a bully pulpit to inflame racial and socioeconomic tensions in our community.

In the end, Butler argues, “Nifong has no one to blame but his own antagonism for his electoral woes. And woes they are—especially on the Duke campus.” Playing off one of Nifong’s more demagogic comments, she concludes, “Whether or not it was true that ‘there’s been a feeling in the past that Duke students are treated differently by the court system,’ Nifong has made sure that we are today.”

If Duke students read only one item on the case before going to the polls on Tuesday, I hope that they read Butler’s elegantly written and argued column.