Disgrace and Redemption

Over the last two days, Mike Nifong disgraced not only himself but the Durham attorneys who, supposedly, represent the “people.”

Nifong’s disgrace was obvious.

Four times on the stand he referred to Crystal Mangum as the “victim.” He made it clear that—unequivocal apologies notwithstanding—he still believes her story/stories, despite overwhelming evidence to the contrary.

How, his attorney asked, could he explain the lack of DNA evidence from the SBI? “It was evident to me that this had been a non-ejaculatory event.” There would have been DNA, he suggested later, “had there been ejaculation and had there not been something to prevent the ejaculate from getting on Ms. Mangum.” His implication? An attack actually occurred, with condoms or objects? (I guess he didn’t believe Mangum on these points.)

With benefit of hindsight, would he concede that Dr. Meehan’s finding of DNA from multiple unidentified males on Mangum’s rape kit be considered exculpatory? Astonishingly, Nifong continued to say no—and repeated his denial over and over again during cross-examination.

The same person who absurdly rationalized a case where the “victim” described at least one and (depending on the version) multiple ejaculations as “a non-ejaculatory event” dismissed the rape kit DNA. The N&O’s Joe Neff and Anne Blythe tartly summarized:

Nifong also offered a unique theory about whose DNA it could have been.

"It could have come from anybody," Nifong said. "She had a son, a very young son."

Beyond a person unethical to the core, the proceedings revealed a former prosecutor who was almost unbelievably lazy. He justified his open-file discovery policy on the grounds that it was more efficient in obtaining guilty pleas, and spared him the trouble of reading reports. Indeed, based on the insinuations in his testimony, he regularly brought indictments without reading the basic documents or reports upon which those indictments were based. And when did he read the documents? Perhaps never, if the defendant entered a plea. Otherwise, on the eve of trial.

How convenient, then: under the theory of justice Nifong outlined yesterday, a prosecutor could lie to the court at will. Since prosecutors don’t have to read any of the documents in their files, they can simply guess on what those documents contain. Since they don’t know what is in the documents, they can’t knowingly lie. As he told the court yesterday, he considers his 9-22 statement that he and Dr. Meehan never discussed the facts of the case beyond what was contained in Meehan’s report to be “basically true.” Why? Because “I’m not even sure that I even thought of the unidentified DNA as a ‘fact of this case.’”

In this case, of course, this behavior manifested itself as part of an effort to send three demonstrably innocent people to jail for 30 years—for a crime that never occurred. The Durham prosecutorial establishment, however, appeared not to care.

Judge Ron Stephens has a reputation as a tough-on-criminals judge. It appears, however, that he holds his friends to a different standard. This sitting judge—the same man who signed the fraudulent NTO that launched this case into the media stratosphere—appeared as a character witness for the convicted Nifong. He suggested that professional jealousy explained the dislike for Nifong: lots of defense lawyers, Stephens asserted, didn’t want to go up against Nifong because he would win close cases. Nifong, he added, was the “appropriate choice” to be DA as of spring 2005.

Stephens also hailed Nifong as a mentor to the next generation of Durham ADA’s. Perhaps he had in mind Judge Marcia Morey, who testified on Nifong’s behalf and then returned to the courtroom to offer solace to Nifong’s family as the verdict was rendered. In her willingness to defend Nifong, Morey disgraced her own office. Neff and Blythe summarized:

An unusual moment came before Nifong's testimony, when a judge testified that she expected lawyers to be more honest during trial than during pretrial hearings.

A prosecutor asked the judge, Marcia Morey, whether a lawyer would be following his duty to be candid if he assured a judge that a report was complete when the lawyer knew it to be incomplete.

It depended on whether the case had reached trial, Morey said.

"I do think it makes a difference," Morey said. "Are you are at a trial stage, are you at a pretrial conference."

Sitting alongside Morey was current ADA Jan Paul. Paul vigorously nodded as Nifong attorney Jim Glover insisted in his closing argument that not only did Nifong not lie, but he couldn’t really see any errors his client had made. Paul then visibly wept as the guilty verdict was rendered. Remember, this is someone whose job it is to uphold justice for the people.

The appearances of Paul, Morey, and Stephens brought to mind the equally troubling testimony of Innocence Commission executive director Kendra Montgomery-Blinn, another former Durham ADA and someone who saw no problem with Mike Nifong’s conduct.

How confident could any defendant be appearing before Judge Stephens? Or Judge Morey? Or going up against ADA Paul? The trio’s endorsement of Nifong suggested a conception of justice so warped as to defy description.

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In this atmosphere of disgrace not merely for Nifong but for the contingent of the Durham legal establishment that’s supposed to represent the people, two attorneys from outside Durham redeemed the national image of North Carolina justice. Special prosecutor Charles Davis admitted that he didn’t really want to take this case, but considered it his duty, as an officer of the court, to do so.

He delivered elegant, dignified, and powerful closing arguments in both the trial and the sentencing phases of the proceedings.

As Stephens, Paul, and Morey defended a figure who wanted to use the power of his office to abuse the law and send innocent people to jail, Davis understood that Nifong needed to be punished: “When you start saying things to the court that aren’t true, you are taking a jackhammer and trying to tear at the very foundation, the rock on which our court system is built.” If you can’t rely on officers of court, he continued, and DA’s and ADA’s aren’t honest and truthful, then “our court system is gone.”

Davis is from Wake County. Another figure from outside Durham—Judge W. Osmond Smith—reminded the state and the country that while Mike Nifong may represent Durham’s current and former prosecutors, his legal enablers extend no further. Smith presided over the affair with a quiet dignity, and ended the trial with an emotional tribute to the sanctity of the law.

It is a lesson that too few Durham prosecutors, current and former, appear to have learned.