Nifong Backers: "We're Afraid of Smith"

After 16 months in which Durham “justice” was widely ridiculed for following legal procedures that the rest of the country wouldn’t recognize, defenders of the Durham status quo are at it again. In Sunday’s Herald-Sun, former Nifong acolyte John Stevenson carried water for the disgraced ex-DA one last time, penning an article in which various Nifong defenders floated ways to change procedure so the disbarred Nifong could avoid jail time.

A judge’s power in contempt procedures—which can be civil or criminal, depending on the type of conduct and the severity of the offense—is almost absolute. That might be a bad thing. Perhaps due process would best be served for the trial judge to step aside and allow another judge to decide the matter. This approach, of course, would create its own problems: in contempt cases, judges would become prosecutors, or perhaps witnesses.

In the end, the system presumes a minimum amount of good faith, counting on judges to use the contempt power only to uphold the integrity of the system rather than to settle personal scores.

Nifong defenders, however, have suddenly discovered that they don’t like how North Carolina courts handle contempt cases. Instead, they want radical new procedures. Rather than petitioning the legislature for new laws, however, they’ve decided that Judge Osmond Smith should implement these sweeping changes unilaterally, and use the Nifong contempt hearing as the first (and only?) case in which they would apply.

Durham defense attorney John Fitzpatrick demanded that Smith recuse himself from the hearing: “Any time a judge is a potential witness, he may be asked to recuse himself . . . To be fair and impartial, you should have no interest in the outcome of the case . . . It can give the appearance of impropriety. I’ve always known Judge Smith to be very fair and am sure he will be now, but public perceptions are still very important.”

Under that rationale, of course, every judge in every contempt proceeding in the country would be required to recuse himself.

Given Fitzpatrick’s concern with “public perceptions,” I wonder why he didn’t insist that Stevenson identify him as a 2006 Nifong campaign donor—and, indeed, someone who made a second donation to the ex-DA on October 1, 2006, well after much of Nifong’s misconduct was public knowledge. Instead, the article positions Fitzpatrick as a dispassionate observer, upholding due process on behalf of the Durham defense bar.

Durham defense attorney Fred Battaglia likewise wants Smith off the case: “The accused has an absolute right to face and cross-examine the accuser. In this case, the court [judge] is the accuser. Sure, the lacrosse case was unusual. But that doesn’t mean you usurp constitutional law . . . I think another judge should be brought in. That would allow Judge Smith to be put on the witness stand under oath. Then Mr. Nifong could question him. To me, that is black-letter constitutional law.”

Under that rationale, of course, “black-letter constitutional law” would require every judge in every contempt proceeding in the country to recuse himself. Yet neither the U.S. Supreme Court nor, to my knowledge, any state Supreme Court, has accepted Battaglia’s definition of “black-letter constitutional law” as applied to contempt proceedings.

I wonder, moreover, what questions Battaglia would envision Nifong’s attorneys asking Smith:

• “Judge Smith, were you present in the courtroom on September 12, 2006?”
• “Judge Smith, were you awake when Mike Nifong spoke?”
• “Judge Smith, did you verify that the person who purported to be DA Nifong on that date was, in fact, Mike Nifong?”
• “Judge Smith, did Linwood Wilson ever approach you and ask you to change your testimony?”
• “Judge Smith, do you challenge the underlying assumptions of Nifong’s handling of the lacrosse case—namely, that laws of space, time, and motion do not apply in Durham?”

As with his treatment of Fitzpatrick, Stevenson neglected to reveal important information about Battaglia, who the article identifies merely as a “veteran lawyer.” Herald-Sun readers didn’t learn that Battaglia, like Fitzpatrick, was a Nifong campaign donor.

If they can’t get Smith off the case through recusal, Nifong enablers want to find a way to prevent the judge from making a decision. For Pat Evans, the contempt issue provided an opportunity to retry the lacrosse case. Evans commented, “Why don’t you err on the side of caution and give the man a jury trial? A jury trial would do so much to heal Durham(!).The people of Durham should decide which way this thing should go. Put twelve people in the box and let them decide.”

Much as Editor Bob Ashley did throughout the lacrosse case, Evans appears to be under the impression that the criminal justice system in this country exists to heal tensions in communities beset by racial strife.

Stevenson’s article noted that Evans had unsuccessfully run for Durham DA in the 1990s. But, as with his discussions of Fitzpatrick and Battaglia, the H-S reporter left out a rather significant item: Evans had publicly endorsed Nifong—an endorsement celebrated on the Nifong campaign website—for the general election. That endorsement, moreover, came in the fall, well after most of the ex-DA’s misconduct was known.

While Stevenson didn’t bother to obtain quotes from attorneys skeptical of the Battaglia/Fitzpatrick policy change—which was, in the Wonderland that is Durham, “black-letter constitutional law”—Evans’ suggestion was so bizarre that even the H-S reporter felt compelled to offer the other side. Attorney Mark Edwards noted that Evans’ proposal “is just not the procedure”; that “it’s not how it’s done or how it should be done under the law.”

Perhaps Evans should address her concerns to the state legislature, and explain to them why North Carolina should have jury trials for contempt cases, so that proceedings involving lawyers who allegedly lied to the court can be used to “heal” the community.

In the end, Stevenson—as usual—buried the lede. Rather than “Nifong charge may be a first,” the paper should have headlined his article, “Nifong Cronies Desperate to Remove Smith from Case, Invent New Procedures.”

Indeed, it was nothing short of extraordinary to see a defendant’s backers launch a public campaign to oust the judge in the defendant’s case. Neither Stevenson nor Bob Ashley appear to have seen anything wrong with such conduct.