Mike Nifong and the North Carolina 5


Apparently, there’s a line in North Carolina that even prosecutors are forbidden to cross–and Mike Nifong found it.

Mike Nifong was the district attorney in Durham, N.C., who was subjected to public hearings, disbarred, forced to resign and may now face criminal charges for his role in the Duke lacrosse rape case.

Nifong’s public repudiation had nothing to do with concern for due process, the rights of the accused or constitutional liberties–which are routinely flouted by a whole slew of characters in North Carolina (and everywhere else in the U.S.), from street cops to corportate lobbyists to good-old boy politicians.

Nifong crossed the line when he used prosecutorial practices routinely used against ordinary working people to target the powerful and privileged. More damning still, Nifong’s efforts (whatever his intentions) exposed the rot at the heart of the elite (and ostensibly liberal) Duke University.

Nifong is no hero. It’s clear that he botched the investigation into charges by an African American woman that she was raped by Duke lacrosse players at a team "party" in March 2006. Nifong failed to get toxicology reports, conduct a recorded interview with the victim, or even build a decent account of events of the night of the alleged rape.

But these failings haven’t stopped North Carolina prosecutors in the past–and the state bar’s decision to strip Nifong of his ability to practice law reeks of hypocrisy.

* * *

THERE ARE five obvious reasons why the North Carolina State Bar’s decision to disbar Nifong stinks. They are Samuel Poole, Christopher Spicer, Timothy Hennis, Alfred Rivera and Alan Gell.

All five men were sentenced to die in North Carolina’s execution chamber. All five had their convictions overturned because of flimsy evidence, unreliable witnesses and the outright illegal actions of prosecutors. All five were released–but only after living through a combined 14 years of hell as they waited to die.

But to my knowledge, no prosecutor ever faced disbarment or criminal charges as a result of their misconduct in these cases. In the case of Alan Gell, the North Carolina State Bar conducted a two-day hearing that resulted in a tepid letter of reprimand. At the time, Dudley Humphrey, then-president of the NC Bar, said Gell was not a victim in the case, "The system was the victim."

During Poole’s death penalty trial, prosecutors failed to provide any substantial evidence of his involvement in the crime. Spicer’s case was based on snitch testimony that involved a secret deal prosecutors never disclosed to the defense (when he was finally retried, the jury took 15 minutes to acquit him).

When the North Carolina Supreme Court overturned Hennis’ conviction, it called the evidence against him "extremely tentative." Rivera was released because jurors were prevented from hearing evidence of his frame-up. In Gell’s case, prosecutors illegally withheld evidence that would have cleared Gell, including an audio tape of one of the state’s main witnesses saying she made up her story about the murder.

The North Carolina State Bar barely recognized these five travesties of justice. In fact, the state’s legal establishment has been nearly completely silent on issues related to the death penalty–including evidence of racist sentencing patterns, prosecutorial misconduct and inadequate defense for the poor. It has opted out of efforts to halt the state’s death penalty, instead choosing to support meek reform measures.

By contrast, Nifong did possess significant evidence to pursue the rape case. There was a traumatized victim, the testimony of an examining nurse who said a rape had taken place, physical evidence of assault and disgusting e-mails that circulated among the Duke students–like one that read, "I’ve decided to have some strippers over and all are welcome. I plan on killing the bitches as the [sic] walk in and proceed to cut their skin off while cumming in my duke spandex."

As the mainstream media accounts increasingly sided with the student "victims" accused of rape, these undisputed facts were forgotten.

Nevertheless, the lack of a toxicology report made it impossible to prove whether the victim was drugged at the "party" (which, besides the obvious trauma, would explain her contradictory and confused statements), and the lack of DNA evidence may simply have indicated the assailants used condoms.

There was no "exculpatory" evidence proving the innocence of the suspects. Instead, the case dissolved mostly because there was no "smoking gun."

This is how the justice system is supposed to work. If prosecutors fail to build a decent case, then suspects should walk.

There may be some who believe that there is a silver lining to the dark cloud of sexism and racism being played out in the Tar Heel state–that at least a prosecutor was publicly made to account for overstepping the boundaries.

It was, after all, quite a thing to watch law enforcement officials from across the state testifying in solemn tones about the sacred duties of prosecutors to defend justice, and not simply seek convictions.

But I wouldn’t hold my breath. When North Carolina Attorney General Roy Cooper recently suggested legislation that would allow the state Supreme Court to remove prosecutors from cases where it saw injustices (the same court charged with administering the state’s capital punishment system), that was too much for House Speaker Joe Hackney, who quickly voiced opposition to such measures.

Georgetown Law Professor David Cole observed in his book, No Equal Justice, that there is a zero-sum game involving the legal rights of defendants in the U.S. The impressive array of formal rights guaranteed to defendants under the Constitution appears to be prefaced by the assumption that those rights are only afforded to the well-heeled and well-connected.

Death row prisoners like Alan Gell have no reason to think they will ever be provided the same standard of justice as the three Duke lacrosse players.

The campaign against Nifong, the elevation of the Duke defendants as hapless victims and the vilification of the alleged rape victim have nothing to do with justice. The state bar hearings will reassure the unbridled arrogance of the wealthy and self-absorbed frat scene in the area.

As an antiwar activist going to school near Duke during the first Gulf War, I recall that it seemed like there was a connection between the Chapel Hill frat boys who pelted peace activists with ice-cold water balloons during winter vigils and the murder of the owner and manager of the left-wing Chapel Hill bookstore, Internationalist Books (found shot, nothing stolen, no suspect arrested). The frat boys’ "fun" experience attacking activists may have been the casual expression of a deeper culture of violence.

The truth of what happened the night of the Duke lacrosse team’s "fun" could remain buried forever, but as Mike Nifong recently said, "I still believe something happened in that bathroom that night."

Nifong’s attackers have cloaked themselves in the rights of defendants and principles of justice–but it’s clear that when it comes to who they want these principles to apply to, they mean "just us."

MIKE STARK is a national board member of the Campaign to End the Death Penalty and a regular contributor to the New Abolitionist, the newsletter of the Campaign to End the Death Penalty, and to the Socialist Worker. He can be reached at mikestark2003@yahoo.com.


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