Price's "Puzzling" Position

David Price would seem to be a figure almost uniquely qualified to assume a leadership role in restoring the rule of law to Durham.

First, as the city’s congressman for all but two of the last 20 years, he has compiled an impressive record on issues relating to civil rights and civil liberties for all Americans, refusing to tolerate a system in which people are treated differently because of their race, class, or gender.

Second, as an accomplished political scientist (I’ve used his scholarship in my own research), he has a keen understanding of how the American judicial system should—and should not—work.

Third, as a professor of political science and public policy (on leave) at Duke, he presumably has some personal interest in ensuring that Duke students are evaluated by the same procedures as all other citizens of Durham.

Yet for months as Mike Nifong’s abuses piled up, Price remained silent—until December 13. Then, his North Carolina colleague, Walter Jones, demanded that the Justice Department investigate Nifong. Price disagreed, releasing the following statement:

My opinion is it’s an ongoing legal process and it’s highly premature and inappropriate for me to make comments on it or to try to intervene in it.

Since Price issued his statement on December 13, however, numerous developments in the case have occurred:

• A December 15 court session featured testimony that Nifong and the director of a private DNA lab, Dr. Brian Meehan, entered into an agreement to intentionally withhold exculpatory evidence.

• UNC law professor Joseph Kennedy published an op-ed explaining how Nifong had a conflict of interest in prosecuting the case.

• More than nine months after the alleged incident (but a mere six days after revelation of the DNA conspiracy), a representative of Nifong’s office interviewed the accuser, who, in a new version of events, no longer could remember whether she was raped. Rather than dismiss all charges, Nifong dismissed the rape charge but kept in place allegations of sexual assault and kidnapping.

• The state bar filed ethics charges against Nifong, stating that he had engaged in “dishonesty, fraud, deceit or misrepresentation.”

• In an unprecedented action, the North Carolina Conference of District Attorneys issued a public letter demanding that Nifong recuse himself from the case, stating that such an action was necessary “in light of all the developments of the Duke Lacrosse case, including the [ethics] filing on December 28, 2006.” [emphases added]

• Editorials demanding either Nifong’s resignation as district attorney or his recusal from the case appeared in (among other publications) the Charlotte Observer, Greensboro News-Record, N&O, Wilmington Star, Washington Post, Washington Times, L.A. Times, Newark Star-Ledger, San Diego Union-Tribune, New York Daily News,and Rocky Mountain News.

• Evidence came to light that Nifong has used different procedures (witness ID is not enough to go to trial) and standards of evidence (DNA evidence is exculpatory) when prosecuting rape cases in which the suspects were non-white, non-Duke students.

• Nifong misled reporters about his ordering the media and the public to be barred from his swearing-in ceremony. He then gave a bizarre press conference in which he asserted that his remarks on the case (which the bar has characterized as based on “dishonesty, fraud, deceit or misrepresentation”) played a salutary role in exposing “divisions” within Durham, necessitating his presence in office as part of the “healing process.”
  

I asked Price press secretary Paul Cox whether, in light of all these developments, the congressman had reconsidered his position on the merits of a federal inquiry into Nifong’s conduct.

The answer: No. “The congressman’s statement stands.”

I also asked Cox what level of prosecutorial misconduct would be necessary for Congressman Price to support a Justice Department inquiry into Nifong’s behavior. Cox didn’t say.

It’s hard to imagine what more Price would need than what has emerged in the last three weeks. After all, the record is now clear that Nifong has:

• entered into an agreement with a lab director to intentionally withhold exculpatory evidence, all while he repeatedly denied to the court that he had failed to turn over all exculpatory evidence;

• ordered police to violate their own procedures to create a “no-wrong-answers” lineup;

• violated the bar’s rules against prejudicial public comments, while making public statements about the case that the bar considered based on “dishonesty, fraud, deceit or misrepresentation.”

It would seem, therefore, as if Congressman Price’s position is as follows: in an “ongoing legal process” in his district, the Justice Department has no role in investigating prosecutorial misconduct.

Price’s position, at first blush, might seem inconsistent for a congressman whose campaign website boasts of his commitment to improving ethics and who eloquently addressed the House last session championing civil rights for all.

And no doubt a figure of Price’s high ethical standards would never base his position on a need to pander to the votes of African-Americans in his district, or fringe voters like the Group of 88.

So what does motivate Price? Perhaps he can claim that he has adopted a position consistent with the teachings of longtime North Carolina senator Sam Ervin. Best-known nationally because of his folksy, effective performance chairing the Senate Watergate Committee, Ervin also was a strict constructionist on the issue of civil rights. Throughout the 1950s, he passionately opposed civil rights legislation, and especially pushed a “jury trial amendment”—the idea that all civil rights cases should be decided by Southern juries, rather than through contempt proceedings before a federal judge.

Ervin deemed it a “tragic error to attempt the protection of civil rights for any one group through a process which denies a liberty equally precious—that of trial by jury.” In short, suggested the senator, race-based Southern prosecutors and race-based Southern juries should be able to do what they wanted in their “ongoing legal processes,” free from the meddling intervention of a federal government interested in ensuring fair treatment for all.

Ervin is a towering figure in the North Carolina Democracy, and I can see where Price would find political and ideological comfort in adopting a position on the lacrosse case that traces its ideological roots to a belief of Ervin’s—even if most people now consider Ervin’s approach to civil rights matters wholly wrong.

Or, perhaps, Price hasn’t gone through such ideological contortions, and instead he has simply decided that he will place his political self-interest above his obligation to protect civil rights for all.

Modified, 12.30am