The Special Prosecutor Route

Two days out from Roy Cooper’s announcement that the AG’s special prosecutions division would assume control of the case, it’s worth offering some tentative conclusions.

1.) Having Nifong off the case is an unqualifiedly positive development, since in recent weeks the “minister of justice” had displayed increasingly erratic behavior.

Nifong offered shifting explanations for why he and Dr. Brian Meehan didn’t turn over exculpatory DNA evidence (from a public statement that he didn’t know about it; to a claim that he wanted to protect the privacy of players he had labeled “hooligans”; to an assertion he overlooked the material in his excessive workload). He forbade the media or the public from attending his swearing in.

Most ominously, the production of Linwood Wilson’s December 21 “notes” raised the question—as Jim Coleman pointed out—of whether the district attorney had veered into the realm of criminal conduct. Given this record, it’s hard to imagine what Nifong would have done next had he remained on the case.

2.) At this stage, only two options remained: Nifong dismissing the charges himself; or Nifong turning the matter over to a special prosecutor. Of the two, the special prosecutor option was clearly the better one.

The recent statements of Nifong’s critic-turned-attorney, David Freedman, provided a good sense of the false-bravado rhetoric that would have framed any Nifong-orchestrated dismissal. “He feels very disappointed that he can’t go on for her,” Freedman told the New York Times. “Mike at this point, as a result of the bar complaint, doesn’t want to be a distraction to the case or take away from the prosecution of the case, which the witness still feels very strongly about.”

By contrast, a special prosecutor will undertake a full review of the case—conducting, as Coleman noted, the “kind of thorough investigation Nifong should have done to determine whether there is any basis to go forward.”

Such an inquiry should give the lie once and for all to the “something-must-have-happened” mantra. Moreover, it will undercut those like Group of 88 members still intent on glorifying the accuser, who was recently described by the Group's Cathy Davidson as a “single mother who takes off her clothes for hire partly to pay for tuition at a distinguished historically black college.”

3.) A special prosecutor provides the best chance for an immediate investigation of “whether there was manipulation of evidence and statements,” as defense attorney Joseph Cheshire hoped.

In his press conference, Cooper made clear that Nifong’s recusal will end the involvement anyone associated with the district attorney’s botched investigation. This means no Linwood Wilson, no Victoria Peterson, no Sgt. Gottlieb, no Tracey Cline, no Inv. Clayton, no Police Chief Chalmers. (Well, I suppose we never had Police Chief Chalmers.)

Odds would seem high that Wilson and Gottlieb, at the very least, have already hired attorneys.

4.) Every reason exists to believe that the special prosecutor appointed by Cooper, Jim Coman, will be fair.

The defense attorneys have been perfectly candid in giving their opinions throughout the case, and they were consistent in their praise of Cooper’s taking over the case in general and the appointment of Coman in particular.

Joe Cheshire: “We’re very heartened by it. He should have done it weeks or months ago. For the first time, someone who is honest and objective and doesn’t have an agenda will look at this case. We feel confident that when they do, these young men will be exonerated and this case will be dismissed.”

Brad Bannon: “From day one we’ve wanted a prosecutor who would follow the evidence and then make his decision, instead of letting his decision direct the evidence. We are absolutely confident in the ability of the Special Prosecution Office to review the evidence objectively and competently.”

Jim Cooney: “I’m looking forward to working with an objective and competent prosecutor. We will cooperate completely and fully, so we can end this prosecution.”

Both Cheshire and Cooney went up against Coman in the latter stages of the Gell prosecution; if they had any concerns that Coman would treat this case fairly, surely they would have expressed them publicly.

5.) In the end, this case is a straightforward one.

Nifong’s recent machinations have simplified Coman’s job. Because Nifong dismissed the rape charges but retained those dealing with sexual assault and kidnapping, the theory of the crime now revolves around the accuser’s December 21 statement.

But that statement is demonstrably untrue. It contradicts not only the other witnesses’ testimony and all of the accuser’s previous tales, but also the case’s unimpeachable electronic evidence (cell phone records, photos, etc.).

Moreover, as 60 Minutes hinted at last night, it appears that the accuser’s medical records are far more severe than what previously had been revealed, calling into serious doubt her reliability as any type of witness.

To put such a witness on the stand would constitute suborning perjury. Every reason exists to believe Nifong would have done so. No reason exists to believe than Coman will.