Topic category: Other/General
Duke Case Involved Societal Prosecutorial Abuse
George Washington University Law School Professor Jonathan Turley, in a Washington Post article entitled "Lots of Prosecutors Go Too Far. Most Get Away With It," described the decline and fall of suspended Durham County District Attorney Michael B. Nifong at his ethics trial this way: "It was an extraordinary scene when Michael B. Nifong, the district attorney in Durham, N.C. took the stand to defend his law license after his failed crusade to convict innocent Duke University lacrosse players of gang rape. He had no more success with his own defense. After being disbarred for 'dishonesty, fraud, deceit and misrepresentation,' he was suspended from his job last week and now faces a possible lawsuit in civil court."
Mr. Nifong also faces possible criminal contempt and should face other criminal charges, but fair enough.
Professor Turley: "What's most remarkable about the whole scene, though, is how rare it is. Nifong's misconduct was hardly unusual: Some of the most high-profile cases in history have involved strikingly similar acts of prosecutorial abuse. But instead of being punished, the worst violators are often lionized for their aggressive styles -- maybe even rewarded with a cable television show."
Professor Turley had in mind Nancy Grace (a diehard Nifong supporter until continued support would have suggested she be incarcerated for her own protection).
"Consider the career of Nancy Grace. Before becoming a CNN and Court TV anchor, she was a notorious prosecutor in Alabama. In a blistering 2005 federal appeals opinion, Judge William H. Pryor Jr., a conservative former Alabama attorney general, found that Grace had 'played fast and loose' with core ethical rules in a 1990 triple-murder case. Like Nifong, Grace was accused of not disclosing critical evidence (the existence of other suspects) as well as knowingly permitting a detective to testify falsely under oath. The Georgia Supreme Court also reprimanded her for withholding evidence and for making improper statements in a 1997 arson and murder case. The court overturned the conviction in that case and found that Grace's behavior 'demonstrated her disregard of the notions of due process and fairness and was inexcusable.' She faced similar claims in other cases."
Professor Turley appears on television as an expert legal analyst, but he's not a feisty blonde with his own show and he's plainly upset with how anchors like Ms. Grace are chosen:
"You might have expected Grace to suffer the same fate as Nifong. Instead, she has her own show on CNN, and the network celebrates her as 'one of television's most respected legal analysts.' On TV, she displays the same style she had in the courtroom. (In the Duke case, her presumed-guilty approach was evident early on, when she declared: 'I'm so glad they didn't miss a lacrosse game over a little thing like gang rape.')
"The Grace effect is not lost on aspiring young prosecutors who struggle to outdo one another as camera-ready, take-no-prisoners avengers of justice. Grace's controversial career also shows how prosecutors can routinely push the envelope without fear of any professional consequences. Often this does not mean violating an ethics rule, but using legally valid charges toward unjust ends."
Professor Turley's objections are well founded, to be sure, but what was "most extraordinary about the scene" was that Mr. Nifong was held to account for misconduct that constituted egretgious societal abuse as well as attempted railroading of three innocent young men. Mr. Nifong calculated, correctly, that the only way to win a three-way Democrat primary to keep his job against a white woman outpolling him big time and a black man who could be expected to garner a significant share of the black vote was to do what he did and he proceeded to do it.
Mr. Nifong did not just exploit the power with which he had been entrusted at the expense of the members of the 2005-2006 Duke University Men's Lacrosse Team, both indicted and unindicted (but threatened with possible prosecution for imaginary aiding and abetting and telling the truth instead of lying for the prosecution), and their families.
Mr. Nifong manipulated gullible black Democrat voters and showed in Durham, North Carolina well-to-do to wealthy white folks could be persecuted as well as relatively poor blkack folks (like honest cab driver Moaz Elmostafa).
The North Carolina NAACP disgraced itself, even demanding a gag order (received from an accommodating Judge Kenneth Titus.
North Carolina Central State University Law Professor Irving Joyner, who wrote the book on North Carolina criminal procedure, showed that he was no James Coleman, the Duke Law Professor who wrote the identification guidelines, demands due process regardless of color and soon agreed with the bold Reade Seligmann defense lawyer, the late Kirk Osborn, that Mr. Nifong should not be prosecuting the Duke case. [Note: both professors happen to be black.
]Professor Turley: "Nifong is a classic example of the corrosive effect of high-profile cases on a prosecutor's judgment and sense of decency. Even before the players were indicted, the district attorney had played to the passions surrounding a black stripper's allegations that she had been raped by affluent white college boys. Nifong called the Duke players 'a bunch of hooligans'' and promised that he would not allow 'Durham in the mind of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham.'"
True. But Professor Turley omitted a bigger point: Nifong is a classic example of the liberal white (Democrat) politician willing to do virtually anything to win black support by playing the race card when it cab be the key to victory and it took more than nine months to force him to give up the case (AFTER he used it to win the Democrat primary and the general election in Democrat-dominated Durham County). During that time Democrat Governor Michael Easley kept it secret that Mr. Nifong had promised him not to run for election and then broken that promise, and Democrat Attorney General Roy Cooper did nothing until others forced Mr. Nifong to ask to be replaced.
Professor Turley: "But [Mr. Nifong] had a problem. The accuser kept changing her story, and there was no evidence of a gang rape. In addition to his prejudicial comments, Nifong was accused of withholding test results showing that DNA found on the woman's body and underwear came from at least four unknown males -- but none of the 46 lacrosse team members."
First, there was no evidence of ANY rape, or any rape.
Second, Mr. Nifong was not merely accused of withholding. He actually withheld and strongly opposed defense efforts to obtain the underlying documentation.
Professor Turley: "Nifong isn't the first prosecutor who, in his words, 'got carried away' in the glare of television lights. In 1921, the silent-film star Roscoe 'Fatty' Arbuckle was tried for the alleged rape and murder of a 30-year-old showgirl named Virginia Rappe during a party in a hotel suite...."
NO! Mr. Nifong was not "carried away" by "the glare of television lights." He was "carried away" by personal ambition and a desire to maximize his pension. The media gave him a platform from which to manipulate gullible voters. The television lights did not corrupt a good man.
Like the defendants in the Duke case, the defendant in the Arbuckle case was innocent, but at least the reprehensible prosecutor in the Arbuckle case did not exploit racial tensions and encourage and engender racial hatred.
Professor Turley: "Nifong's disbarment may deter some prosecutorial abuse, but until less visible cases are subjected to more scrutiny, it may prove to be an isolated event -- driven by the same publicity that led to the abuse in the first place. If the case hadn't been so high-profile, it's doubtful that Nifong would have been charged, let alone disbarred, for his misconduct. The Duke case should teach us that a truly fair criminal justice system must strive to protect the rights of the accused as vigorously as it does those of the accuser."
Exactly. The proof that Mr. Nifong had covered up exculpatory evidence, combined with the intense interest in the case, meant Mr. Nifong had to be disbarred and removed from office.
Also, the Duke case should teach us that racism begets racism, black racism is as pernmicious and debilitating as white racism, the Democrat black bloc vote was too tempting to Mr. Nifong, racial pandering worked for Mr. Nifong and justice in the Duke case was long delayed because Mr. Nifong was not the only one playing racial politics or the only one railroading innocent people.
Michael J. Gaynor
Biography - Michael J. Gaynor
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.
Gaynor's email address is email@example.com.