Civil Liberties

The Government Fix

Just how bad has Mike Nifong screwed up?


Somewhere between the Nancy Grace send-up on Saturday Night Live and Susan Estrich's plea for outside intervention in the case, it became clear that Durham district attorney Mike Nifong has made fans of limited government confront an ugly truth. Despite the sensible urge not to federalize every issue, sometimes only another layer of government can fix bad government.

The Duke lacrosse rape case hurtled past mere prosecutorial incompetence or vanity and toward darker, perhaps sinister, motives last week with testimony from the head of the private DNA lab Nifong hired to test the rape kit samples taken from the accuser. Brian Meehan revealed that not only had his lab found DNA samples from five unknown men, none of whom were Duke lacrosse players, Meehan had also agreed with Nifong not to put that info in the DNA Security's final report. Were it not for the fact that the three defendants have counsel capable of pouring over thousands of pages of technical documents, this vital, exculpatory evidence would have gone unnoticed.

Nifong briefly tried to explain the omission, but there really cannot be any. As Estrich noted, "withholding exculpatory evidence moves the impropriety to a whole new level. This is not simply best practices, but basic constitutional criminal law."

This new DNA evidence bombshell underscored for a national audience the question rattling around the state's legal circles since spring, "Well, who is going to stop him?"

It has long been clear that Nifong's procedures were extraordinary for a rape case in the state. Anyone familiar with criminal cases in North Carolina knows that it is typical for rape kits to languish untested for months as the state lab is backed up, yet Nifong personally made sure the state lab got to this kit almost immediately and then took the extraordinary step of going to an outside private lab for more rigorous testing. Now it is clear that those results were carefully cooked to avoid providing ammunition to the defense. Now Susan Estrich gets to wonder, "What will it take for Mike Nifong to be replaced on this case?"

There is the problem. Nifong is a duly elected officer of court and as such, beyond the reach of state's weak executive branch. The judicial branch merely nodded toward the explosive nature of case, staying far away form the merits—or lack thereof. The state Supreme Court did order up a judge from outside of Durham to hear the case. But it is unclear that Judge Osmond Smith III from tiny Semora is exactly equipped to brave the harsh media storm that will ensue were Smith to dismiss the case.

And the General Assembly is much more consumed by who will be the next speaker of the state House than by events in Durham. In fact, the parents of the defendants have more juice in political circles in Washington, DC than they do in Raleigh. The state's political culture just is not wired to care very much about what happens in a Durham courtroom to a lacrosse playing kid from Bethesda. Much like the Bulgarian health care workers convicted of spreading AIDS in Libya—not from around here and should've known better to get involved in that crazy place.

Duke University itself, then. Perhaps a concerted effort by the university administration and faculty could bring enough heat on Nifong to get him to reconsider a very flawed course of action. No go. Duke has been thoroughly pro-Nifong, with the conspicuous exception of Duke Law professor James Coleman and the heroic attempts by some university supporters to nudge the institution away from the cliff.

This was demonstrated yet again this week when the Friends of Duke University called on the Duke administration to take stand in the face of "Mr. Nifong's continued assault on the civil liberties of Duke students." Instead the call was met with proof that President Richard Brodhead is unfamiliar with how the criminal justice system is supposed to work in America.

Brodhead continues to promote the tortured notion that the accuser deserves to air her claims in a court of law. Or as the News & Observer of Raleigh reported:

"Under American law, the legal system is the place to establish the facts and bring a case to a just resolution," Brodhead said. "For that reason, it is of the essence that everyone involved in the legal system act fairly in pursuing the truth and protecting the rights of the individuals involved. As I told Ed Bradley during a '60 Minutes' interview last summer, given the concerns that have been raised, when it goes before a judge and jury the DA's case will be on trial just as much as our students will be. In the meanwhile, as I have said before, our students must be presumed innocent until proven otherwise."

Thanks for nothing, Dick.

How about the State Bar, could it not move to discipline, and perhaps remove, Nifong? In theory, yes. Several complaints have been filed, but the wheels of such professional cartels move slowly even in the most egregious situations. Moreover, there is speculation that the Bar is loathe to get involved absent some sort of cover provided by the African-American lawyers. One would think that would not be a problem as rogue prosecutors withholding evidence would pose a much more immediate problem to the African-American community than to white college kids. Alas, there is none.

That leaves the efforts of quirky Rep. Walter Jones (R-N.C.) to get the feds involved. Jones, who does not even represent Durham, has asked the Justice Department to start its own investigation into Nifong's handling of the case. Jones, you'll recall, was among the very first Republicans to question the wisdom of the war in Iraq, so he is not at the top of the Bush administration Christmas card list.

Yet Justice has not flatly turned Jones down, and is instead making noises like it is taking the request seriously. However, with two federal grand juries already investigating political corruption in the state, there might be practical limits to how much more federal manpower can be brought down on North Carolina, America's very own banana republic. Top officials at Justice would have to push this matter.

Attorney General Alberto Gonzales then, incredibly, becomes the key to protecting basic civil liberties in what should be a routine criminal prosecution by local officials. And truth does not get much uglier than that.

Jeff A. Taylor writes from Charlotte, NC.