On Judge Smith

There were some obvious turning-point events in the lacrosse case:

• May 1, with the publication of Reade Seligmann’s alibi, which showed that Mike Nifong had obtained an indictment against at least one demonstrably innocent person;

• May 15, with Dave Evans’ speech on the courthouse steps, which shattered the Selena Roberts/Group of 88 caricature of the lacrosse team as thugs;

• June 14, with the publication of Jim Coleman’s letter to the N&O, demanding that Mike Nifong step aside from the case;

• Dec. 15, with the revelation of the Nifong/Meehan intentional agreement to file an incomplete report.

A less well-known turning point, however, came when Mike Nifong included Osmond Smith on his list of four possible permanent judges for the case. (Nifong’s other three selections were blatantly pro-prosecution; the idea of Smith had been floated to him by Bill Cotter, the one member of the defense team who retained something of a relationship with the ex-DA throughout the case.) Smith was also on the list supplied by defense lawyers, who considered him a fair judge. Nifong consulted his chief ADA, David Saacks, who had tried a case before Smith, and Saacks assured his boss that Smith was fair. But, of course, the last thing Mike Nifong needed was a fair judge in this case.

The initial two judges assigned to the case did everything they could to prop up the embattled DA. Judge Ron Stephens—who handled the case from the March 23 non-testimonial order through June 30—was last seen providing character testimony for the convicted Mike Nifong at the ex-DA’s criminal contempt trial. Stephens absurdly signed on to the NTO even though police didn’t have anything resembling probable cause against all 46 lacrosse players. He was openly contemptuous of Reade Seligmann’s first attorney, Kirk Osborn, in court—sending the message that he believed the accused players were guilty. One defense attorney, in fact, wondered if Stephens and Nifong had conversations about the case outside the courtroom.

Stephens’ successor, Kenneth Titus, made perfectly clear that—as a judge who had to stand for reelection in Durham—he was terrified of the NAACP. Since the civil rights organization tilted toward Nifong, Titus did as well, most notably by imposing a de facto gag order that the NAACP had championed once facts started emerging that undermined Nifong’s case.

Smith, on the other hand, made clear from the start that his interest was in justice, not in using his authority to favor one side or the other. Unlike Stephens, he kept television cameras out of the courtroom for pretrial hearings. And in his initial hearing on the case, he abandoned Stephens’ passive “hear-no-evil”/”see-no-evil” approach and personally pressed Nifong on the extent of his conversations with Brian Meehan.

Smith: So his report [Meehan’s May 12 report] encompasses it all?

Nifong: His report encompasses ever -- because we didn’t -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that’s just, that would be counterproductive. It did not happen here.

Smith: So you represent there are no other statements from Dr. Meehan?

Nifong: No other statements. No other statements made to me.

Bannon: Just so I’m clear, Mr. Nifong is representing that the facts of the case weren’t discussed in those meetings.

Nifong: That is correct. The facts of the case, other than the fact that we were seeking a, the male fraction DNA.

We now know that Nifong was lying when he made these statements.

Smith also—clearly contrary to the hopes of both Meehan and Nifong—ordered the state to turn over the underlying DNA data, a move that set in motion the dissolution of the case.

At the December 15 hearing, meanwhile, Smith made two critical decisions—neither immediately apparent—that showed his interest was in ensuring all the relevant facts came out. First, in a pre-session conference in chambers, he turned over to the defense (under seal) virtually Crystal Mangum’s entire psychological file, which totaled around 1000 pages. This information would have been critical to eviscerating Mangum had the hearing to suppress the photo ID lineup ever occurred. It’s very hard to believe that Judge Stephens—focused, it seemed, on bolstering Nifong’s case at all costs—ever would have turned over this material, despite its obvious relevance.

Second, Smith gave first Brad Bannon and then Jim Cooney plenty of time to examine Dr. Meehan in open court. It’s not hard to imagine how Judge Stephens would have handled this matter: after Meehan (falsely) responded “no” to Bannon’s first question (did the tests reveal unreported male DNA?), the judge doubtless would have shut the interrogation down.

The defense attorneys understood the significance of Smith’s role. Here’s Joe Cheshire, from Until Proven Innocent: Smith is a “great judge” who “plays it right, straight down the middle. When he got him we knew we were on a level playing field. We knew we no longer needed to worry about the possibility of home cooking” by the judge.

After the December 15 hearing, Smith could have inserted himself in such a way to frustrate the ultimate cause of justice. For instance, he could have demanded that Nifong and defense attorneys appear for an immediate hearing on possible sanctions—a move that could have led to the dismissal of the case on procedural grounds, but also would have eliminated the possibility of the AG’s declaration of actual innocence. Or he could have demanded action before the State Bar completed its actions, thereby diminishing the effect of its disbarment of Nifong. Or, once the case was dismissed and Nifong was disbarred, he could have done nothing, arguing that the matters raised by the Dec. 15 hearing were moot.

Instead, Smith bided his time and, when appropriate, scheduled the criminal contempt hearing. He presided over it with his typical fairness. He gave Nifong attorney Jim Glover all the time Glover needed for the attorney’s “bore-the-court” strategy—but he also consistently overruled Glover’s substantial objections. Smith’s carefully tailored finding of facts gave Nifong no grounds for appeal. And his decision to sentence the ex-DA to one day in jail rather than the maximum also ensured that no higher court would overturn his sentence.

Smith has come under some criticism for that decision, which strikes me as unfair:

• First, as Duke Law professor Tom Metzloff pointed out, the sentence—with any jail time—was “unprecedented . . . This just doesn't happen. This was a very important moment because it showed that the court system really cared about what happened in this case.”
• Second, criminal contempt is, by its very nature, a crime where deterrence and symbolism are more significant than the length of the sentence itself—one reason why the maximum sentence is a paltry 30 days.
• Finally, Smith’s decision not to impose a maximum sentence robbed Nifong and his enablers of the argument (which they had floated before the trial) that the judge had a closed mind and had behaved improperly by not recusing himself from the case.

Smith made one ruling with which I disagreed. Friday afternoon, assistant special prosecutor Boyd Sturgis asked Nifong why he referred to Crystal Mangum as the “victim.” Glover immediately objected; Smith sustained. Smith’s ruling was probably correct as a matter of law—but given Nifong’s repeated use of the term, and the ex-DA’s implications that a crime might have occurred, I wish the judge had allowed Nifong to answer the question.

In general, however, it’s hard to believe that this case would have ended as it did—correctly, and as a vindication for justice—without Osmond Smith as the judge. And his decision to sentence Nifong to jail—an “unprecedented” act, as Metzloff pointed out—shows that, until the end, Smith was most interested in upholding the integrity of the legal system.