Thursday, March 20, 2014

Comments on the Balko Article

A few thoughts on the Radley Balko exposé that Mike Nifong might well have prosecuted, and convicted—an innocent man, and that he might have violated ethical norms while doing so. The man was named Darryl Howard, and he was convicted of 2nd-degree murder in 1995, in the killing of Doris Washington and her 13-year-old daughter, Nishonda. The Innocence Project has filed papers calling for a review of Howard’s case.

1.) It’s an extraordinary piece of journalism. Read it in its entirety. The piece is both a brilliant exposé and a damning indictment of Durham’s legal culture.

2.) The article gives the lie to Nifong’s oft-repeated claim in the 2006 primary and general election of his fundamentally ethical nature.

3.) Balko provides some interesting—and very important—context about the relationship between DNA evidence and Nifong’s conception of his role as prosecutor. Recall in the lacrosse case, Nifong at first said that the DNA test results would be decisive, but then, when the tests came back negative, he dismissed the importance of DNA in deciding cases the “old-fashioned” way. (He also, of course, sought out Dr. Brian Meehan for additional DNA testing, the results of which he falsely portrayed in court.) The theme here, however: Nifong was a prosecutor who seemed to believe that he didn’t need to adjust his theory of the “crime” to accommodate unimpeachable scientific evidence.

So too in the Howard case. The operating theory of the crime was that the killer raped the Washingtons before killing them. Semen was found on the girl’s body—but after testing that occurred following the arrest, it didn’t match Howard’s. Nifong plowed ahead anyway, continuing the murder case against Howard but simply dropping the theory that a sexual assault was tied to the crime. (Instead, incredibly, he suggested that the 13-year-old girl was sleeping around, and the semen was her boyfriend’s.) As Balko noted, “Such test results might have persuaded a conscientious prosecutor to at least consider the possibility that he had charged the wrong man, especially considering the statement from the informant. At the very least, it would seem to mean they needed to change their theory, and consider the possibility that Howard didn’t kill the women by himself.” Of course, Nifong was not a conscientious prosecutor.

4.) At the heart of Howard’s case is what Balko terms “a credible statement from an informant days after the murder who attributed the crimes to a local gang, not to Darryl Howard,” which Nifong might have withheld from the defense. If Nifong did so, he committed a Brady violation—hardly a surprising move from such an unethical man. But, as Balko notes, Howard’s lawyer hasn’t kept the case file, and can’t say with 100% certainty that Nifong or the police withheld the document.

That doesn’t excuse Nifong, however. Either he committed a Brady violation; or he did turn over the document but never read it, even though it undermined his case. The latter is a possibility—recall during the case he claimed that his regular approach was to pass his entire file onto defense attorneys without bothering to read its contents. So, regarding the Brady document, Nifong was either outright unethical or so lazy as to be unethical.

5.) The Balko article also reveals dubious conduct from the Durham Police Department—in this case from a detective named Darryl Dowdy, who allegedly pressured witnesses to bolster Nifong’s case and ignored obvious leads that a gang, and not Howard, might be responsible for the murders. Should anyone be surprised that a department that kept Mark Gottlieb on the force for two decades had more than its share of ethically challenged law enforcement officers?

5.) Howard’s lawyer was Woody Vann (who had also once represented Crystal Mangum). Yes, the same Woody Vann who frequently appeared on cable news in 2006 defending Nifong’s integrity. The man who told the AP in summer 2007, “Nobody knows anything about the previous 28 years. The cases he's tried and won, and the cases he's tried well and won.” Vann said that even though he represented a client who may very well have been sent to jail for murder as a result of Nifong’s unethical conduct—and who, he told Balko, Vann himself believed was innocent.

6.) As I often said at the time and repeat today, Jim Coleman was one of the heroes of the lacrosse case—he spoke truth to power when few in Durham were willing to do so, and when the easiest thing for him (personally and professionally) would have been to have remained quiet. Some of his comments since the case ended, however, have been a little odd. For instance, he bizarrely compared the Forsyth County DA to Nifong—even though, in the case in question, the prosecutor wasn’t even accused of ethical misconduct, much less the sort of massive misconduct associated with Nifong.

In the Balko article, Coleman says, “I had hoped that the people of influence who were attracted to this case — the players and their families, the conservative groups, the commentators who were drawn to the injustice — I had hoped they would have used it as an opportunity to subject the criminal justice system to a searing review. It’s as if they believe the only bias in the system is against wealthy white college students.” That’s largely true when describing the (almost exclusively out-of-state) conservative journalists who defended the lacrosse players. But did Coleman expect otherwise? The time to have engaged the conservatives who were active on the case (again, not a terribly large number) was during the case itself. Events in Durham provided a perfect opportunity for a cross-ideological alliance in favor of due process. But at the time, the state NAACP, the Group of 88, or groups like Durham’s People’s Alliance weren’t interested—they were too busy either outright defending Nifong or ignoring his abuses. What’s the excuse for the continued silence of such groups? These figures supposedly favor due process. Or were they so compromised by their de facto alliance with Nifong that they’ve chosen to just move on?

But Coleman also accused the “players and their families” of declining “an opportunity to subject the criminal justice system to a searing review. It’s as if they believe the only bias in the system is against wealthy white college students.” This is an outrageous statement. The one group that clearly has been concerned with these issues were the falsely accused players, their families, and their attorneys. They pushed for reform in Durham (even as the Whichard Committee was quickly shut down), and reform has been a central element of their lawsuit against the city before the 4th Circuit provided a procedural cover to Durham. They’ve been active with the Innocence Project. Reade Seligman—who has said he went to law school in large part because his own experience convinced him of the need to be able to help others who are falsely accused—and Jim Cooney have frequently spoken about the case.

I understand that Coleman’s statements in the lacrosse case caused him some professional discomfort with allies, and perhaps in attacking the falsely accused players’ character he’s now trying to rehabilitate himself with them. Nonetheless, I would hope that Coleman would issue an apology to the players and the families.

7.) It’s worth reiterating: even after Nifong’s abuses, the voters of Durham County elected the ethically challenged Tracey Cline as their chief prosecutor. And the frontrunner in this year’s DA primary is a Cline protégé.

8.) Finally, to repeat: the Balko article is amazing. Please read it.


Jim In San Diego said...


Every protection has failed:

-The District Attorneys of Durham are bred in a culture of unethical behavior.

-The Fourth Circuit pretends to find no legal remedy, for fear that prosecutors and their employers might actually be held civilly accountable for their behavior.

-Those who pretend to be advocates for blacks were not interested in advocating justice within the legal system once it was clear Crystal was not a victim of white violence.

-Jim Coleman,the only hero in the early days of the hysteria, then went to sleep for six years. (The question, "where was the law school?" has never been answered. At all).

-The US Attorney Generals office declined to intervene.

-North Carolina's elected politicians, other than Roy Cooper, refused to become involved.

It is chilling to recall that the committee of the North Carolina Bar passed their resolution to seek to disbar Nifong by only ONE vote.

What now? Every decent citizen of Durham and North Carolina should be lying awake at night contemplating the number of innocent citizens convicted of serious crimes over a period of decades,and what can be done about it now.

As Barry Scheck so properly observes, those wrongly convicted should not have to depend upon people like him for justice.

Jim In San Diego

Anonymous said...

It's hell living here because of 'them' since 'them' is basically everyone affected by duke that cannot reach beyond their negative influence even while everyone is watching duke destroy them and their community, state, and country.

lot's of fun

Anonymous said...

Is Balko a Communist?

Anonymous said...

Is Radley Balko a Communist. No. He is a libertarian. There is quite a difference between the two.

But he are just being witty and clever?

Anonymous said...

Is English your second language?

Anonymous said...

Is Ken Edwards a Communist?

Anonymous said...

Is Sidney Harr a Communist?

Anonymous said...

Joan Foster is trolling KC over at liestoppers.

kcjohnson9 said...

To the 11.44:

The last DIW-related fulminations of Ms. Foster that I came across occurred a while back, when she bizarrely suggested that a disgraced beauty queen suffered a comparable fate to Duke students who experienced grade retaliation from the Group of 88. In this case, perhaps she can pass along the last story that Hannity (or another of the handful of largely out-of-state conservative journalists who did some work on the case) did on the Innocence Project, or on a poor African-American in North Carolina who was victimized by prosecutorial misconduct.

I took a look at Ms. Foster's comments and didn't see her reference to any such item. But perhaps I overlooked it?

As I noted in the post, Coleman's comments about the falsely accused players and their families are outrageous. As I also noted in the post, the onus to have engaged these out-of-state conservative commentators was on the local figures (NAACP, Group of 88, People's Alliances) ostensibly committed to due process. But, of course, they weren't much interested in due process when push came to shove.

Jim In San Diego said...

To all those liberals who discredit a point of view because it is held by a conservative; and, to all those conservatives who discredit a point of view because it is held by a liberal:

Justice should be blind to politics. It is not. That is perhaps the most unsettling conclusion of this entire fiasco.

Jim in San Diego

Anonymous said...

Fantastic reporting. Thanks for pointing it out, KC.

Please be sure to pick up a copy of Gary Haugen's "The Locust Effect." It's the well documented story of the failure of justice systems around the world, particularly among the impoverished in developing countries. The common threads of what make a justice system fail/work as a system of oppression and injustice are eye popping. Developing countries have little excuse for the horrors their justice systems impose on others. Durham has considerably less.

Unless, of course, it is the lead in the water.


Chris Halkides said...


You wrote, "That’s largely true when describing the (almost exclusively out-of-state) conservative journalists who defended the lacrosse players." Do you think that this is because they were conservative or because they were journalists? Do you have any examples in mind?

kcjohnson9 said...

To Chris:

My sense is it's a little of both. I'm not a regular Hannity watcher, for example, but I can't imagine he regularly covered the Durham crime beat before spring 2006, so it's hard to imagine why he'd continue to do so after spring 2007. National journalists--and most of the conservative journalists who showed interest in the case were out of state--cover issues of national import. Crime in Durham isn't.

Coleman, surely, knows this--which makes his criticism all the more disingenuous.

Anonymous said...

I believe you have two paragraphs 5.

Chris Halkides said...

Regrettably, DA's sometimes make bizarre claims, particularly when trying to hold onto a conviction. Offhand, the Juan Rivera case is the only one comes to mind (to explain the DNA results, the prosecutor claimed that an 11-year old girl was sexually active with an unknown boyfriend), but there are other cases. And prosecutors sometimes make deals with jailhouse snitches, and has recently come to light with respect to Todd Willingham. Durham may be worse than the national average with respect to its justice system, but it is not unique. Chicago Tribune reporter Eric Zorn concluded, "
That failure disgraced them all. Yet to this day I've yet to hear even one of them admit it. I don't expect ever to hear such an admission from Lake County [Illinois] officials, either. The pattern is clear even though, apparently, the lesson isn't."

Chris Halkides said...

There are two typos in my previous comment: In sentence 2 "the only one that comes to mind" and in sentence 3 "as has recently come to light." I am sorry for any confusion.

Chris Halkides said...

One example of a conservative journalist that comes to mind is Ann Coulter, although pundit may be more accurate. In 2011 she wrote, "From Tawana Brawley, Mumia and the Central Park rapists, to the Duke lacrosse players and Karl Rove, liberals are always on the wrong side of a criminal case." She clearly has the Central Park Five case all wrong; it is obvious from the DNA results, among other things, that they had nothing to do with that heinous crime. But most of her column is devoted to misstating the case against Amanda Knox and Raffaele Sollecito in the murder of Meredith Kercher. The Duke lacrosse case has apparently taught her nothing. For example, one cannot trust that what a prosecutor says about his or her case has anything but the most tenuous relationship to reality. And it is surprisingly easy to make a mountain out of a molehill in order to impugn someone's character.

Conservatives are just as capable of coming to understand the flaws of the criminal justice system as liberals are, as Jim and Nancy Petro's book "False Justice" demonstrates. Yet conservative journalists and pundits are a little slow getting to the party. Perhaps someone has one or two counterexamples.

John Thacker said...

Chris Halkides:

And then, when conservative groups *do* come to understand a flaw of the criminal justice system, far too many liberal groups end up questioning the reform bills simply because conservative groups support them. The recent Threatened Use of Force Act bill reduces mandatory minimums (for actions where actually killing someone in self-defense would have a self-defense case, warning shots and threats carried stiff mandatory minimums) and was supported by Families Against Mandatory Minimums, the Public Defenders Association, and the Florida Association of Criminal Defense Lawyers. But of course since the NRA was on board with all those other civil liberties groups, the bill was couched in negative terms by too many liberal pundits who couldn't see past that.