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 2^nd-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 4^th 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.