How "Separate-but-Equal" Justice Works

Two crimes—one real, one alleged—exemplify how the “separate-but-equal” justice system established by Mike Nifong works.

The real crime: the killing of Harvey Wiggins, who was shot to death in a car parked at Streets at Southpoint mall on November 30, 2004. Both sides in the case agreed that Wiggins had attempted to purchase marijuana from Barry Evans. Evans claimed that Wiggins pulled a gun, and he responded by firing in self-defense; the police claimed that Evans, who was sitting in the backseat of the car, shot Wiggins in the head, in cold blood, and then conspired with the driver of the car, Julius Gray, to make the shooting appear like self-defense.

A worker at the mall, Gary Baker, reported the crime. “I was scared,” he recalled. “I didn't know what was going on. It's supposed to be a model mall. It's really shocking for something like that to happen.”

The disposition of the case: Under apparent community pressure to give the defendants light sentences, Nifong’s office dismissed murder charges. Evans pled guilty to involuntary manslaughter and was sentenced to time served (76 days). Gray, a student at North Carolina Central, had his charges reduced to conspiracy to sell marijuana, and received probation. He had been a good student and had no disciplinary problems before the crime. A Lexis/Nexis search revealed no indication that either the NCCU chancellor nor any NCCU faculty members (much less 88 of them) publicly denounced Gray’s character or actions.

A representative of the “minister of justice” conceded that the law was not the primary consideration on whether to go to trial. Assistant District Attorney Mitchell Garrell stated that he told the victim’s mother she could decide whether Gray was placed on trial for murder or allowed to plea bargain to probation. When she chose the latter, he went along. Neither the N&O nor the Herald-Sun interviewed the victim’s mother to determine whether she received any community pressure to agree to the plea bargain deal.

The reaction to the disposition: The Herald-Sun devoted an editorial to the settlement, cautioning readers against a rush to judgment and asking them to look kindly upon the defendants, especially Gray. The editorial accepted as credible the version of events offered by Gray’s attorney (ironically, one of the few heroes of the lacrosse case, attorney Bill Thomas). To use a word common in sneering H-S editorials, Gray was uncritically described as an angel—“he was an NCCU student with a once-bright future whose life has been shattered by the incident”—while the character of the victim was wholly ignored.

Imagine if, rather than being an African-American student at NCCU, Gray had possessed the same personal character—but had been a white, Northeastern student from Duke. As a great Liestoppers post pointed out, we needn’t wonder how Ashley’s H-S would have responded: a lecture would have been forthcoming, as in the lacrosse case, about believing the words of defense attorneys:

We’ve tried to consistently remind that all the facts aren’t out, and that the defense attorneys are releasing just what fragments of the total evidence they choose to make public.

From Duke, no doubt President Brodhead would have condemned Gray with a comment such as, “If he didn’t do it, whatever he did is bad enough.” The Group of 88 could have swung into action denouncing Hall as exemplifying the dangers of white privilege seeking to exploit poor minorities.

How would the “minister of justice” have handled the matter? No doubt not with a plea bargain but with public demands for absolute justice, perhaps affirming, “I’m not going to allow Durham’s view in the minds of the world to be a white drug dealer from Duke killing a black boy from Durham.”

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The alleged crime: the incident at the lacrosse team’s party. Nifong’s office again bowed to community pressure in how to handle the case: in this instance, the combination of the frenzied NCCU forum and Nifong’s own desperate need for black votes in the primary led him to ensure that someone—anyone—would be indicted.

In the NCCU student’s case, police and the D.A.’s office appear to have followed proper procedures. Standard procedures in the Duke students’ case, however, did not serve Nifong’s interests. Rule 3.8(f) would have prohibited him from his pre-primary publicity barrage. General Order 4077 would have prevented him from conducting a last-ditch lineup confined to suspects. Facing these and other procedural obstacles, the “minister of justice” simply built a case against the Duke students using a “separate-but-equal” set of procedures.

The background: Nifong, as we have subsequently learned, was merely reflecting a more general “separate-but-equal” system. The Durham Police have an official policy of meting out disproportionate punishment Duke students, as a class, for alcohol- and noise-related offenses. This policy extends only to Duke students—not to NCCU students, not to Durham high school students, not to permanent Durham residents. An e-mail to DPD spokesperson Kammie Michaels asking why the policy extends to students at Duke but not to those at NCCU received no response.

As so often occurred in the Jim Crow South, a “separate-but-equal” law enforcement system all but invited abuse. In the case of Duke students, the principal abuser was Sgt. Mark Gottlieb, who in a 10-month period before the lacrosse case arrested nearly 10 times as many Duke students as the other three District 2 supervisors combined. Several Duke students raised credible allegations of improper behavior by the sergeant.

When asked to defend this disproportionate arrest record, Gottlieb’s supervisor, Capt. Ed Sarvis, replied that the sergeant “was doing his job, and doing what I asked him to do.” The implication? The sergeants who didn’t handcuff and arrest Duke students (and only Duke students) for minor alcohol-related offenses weren’t doing their job, according to Durham’s official policy.

City Manager Patrick Baker initially denied to the N&O that a policy of meting out disproportionate punishment to Duke students existed. But he subsequently backtracked and said that Police Chief Steven Chalmers—who had deferred to Baker in commenting about issues related to Duke and the police—had, for reasons he declined to reveal, neglected to tell him about the policy.

Duke’s role: According to a September 12 H-S article, “Duke spokesman John Burness said the university had been aware” of what was described as “the Durham Police Department’s zero-tolerance policy.” The policy, of course, was not “zero-tolerance,” but “zero-tolerance” for Duke students.

In all fairness to Duke, alcohol policy is a no-win question for any primarily residential university. In terms of common sense, the best policy is to encourage students who drink to do so moderately, and on campus. Unfortunately, common sense conflicts with the law on this issue: legally, universities can be held liable for harmful consequences from excessive on-campus drinking. Ironically, the key figure in boosting the drinking age from 18 to 21 was North Carolina’s senior senator, Elizabeth Dole, during her stint as Ronald Reagan’s transportation secretary.

Seeking clarification, I e-mailed Burness, who was gracious enough to respond:

This is [an issue] where the situation has been pretty straightforward and as I wrote a person who recently inquired about it, for a number of reasons, I believe it has been misrepresented. In recent years, at the beginning of the school year, the Durham police have made it clear, historically with Duke’s support, that they will have a zero tolerance policy re enforcement of the law in the Trinity Park area. The idea is that if they could set behavioral expectations in the community in the first few weeks of the year, there would be a tendency for students to behave better for the rest of the year. The Durham police always have the right (and some would argue, a legal obligation) to enforce the law to the letter of the law; in their view, a zero tolerance policy is a statement that they will do so rather than look the other way over minor offenses, which they sometimes have done and for which they have received complaints from Trinity Park residents over the years. The police traditionally have sent letters over the summer to the homes of our students who live off-campus – sometimes, I believe, with separate letters to their parents – alerting them that they will have a zero tolerance policy in the first few weeks of school. This is, and has been, a relatively routine practice in Durham at the beginning of each school year.

Police departments, obviously, have every right to implement “zero-tolerance” policies. They don’t, however, have the right to apply “zero-tolerance” policies selectively—based on race, class, gender, or identity, including status at one university but not another. Nor do they have the right to abuse such policies, as Gottlieb did in this instance. (Gottlieb’s statistically disproportionate arrest record does not appear to have been confined to the start of the school year.) And with North Carolina’s new, inherently subjective, alcohol-related laws, the abuse only promises to get worse.

Duke’s acquiescence in—and even support of—its students’ second-class citizenship in the alcohol cases provides some context for the University’s refusal to protest Nifong’s decision to extend the “separate-but-equal” procedures to police investigations involving Duke students. The “minister of justice” could easily have responded that his handling of the lacrosse case only built upon precedents that Duke’s administration had endorsed—perhaps without realizing the full extent of their effects.

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NCCU students who participate in a killing get off with probation, when the “community” demanded implementing “justice” in this fashion. Duke students whose biggest error was attending a party where they drank beer remain on trial for crimes that could result in a 30-year sentence—after an investigation that used different procedures than those afforded to NCCU students—because the “community” demanded “justice” for alleged past wrongs.

Durham’s “separate-but-equal” legal system remains in full force.