by Sher Zieve
Something very odd is occurring with the alleged Duke Lacrosse team rape/sexual offense/kidnapping ad nauseam case. I’m not referring to North Carolina Durham County District Attorney Mike Nifong’s lack of any substantive evidence against the three young men he has charged with these heinous deeds. Although the case against the Duke University students was originally begun in March 2006, I’m not even referring to Nifong’s not having the palpable good sense to actually interview the accuser—until December. And then, it was one of the prosecutor’s investigators who interviewed the accuser—exotic dancer Crystal Gail Mangum; not Nifong. What I am referring to is how this prosecutor has used his office and this case to secure and keep his job.
The office of Durham County’s district attorney is an elected one. In November, Nifong was running for election to his first full term as Durham’s D.A. Nifong also represents a large and influential African-American community. Crystal Gail Mangum is black and the accused Duke Lacrosse team players are white. Even after it was revealed that Nifong no longer had a chance of proving the rape case against the young men, due to the accuser’s statement that she "could no longer testify with certainty that it [rape] occurred" and Nifong’s conscious withholding of exculpatory DNA evidence, Nifong’s African-American constituents have urged the district attorney to proceed with a trial. Despite the lack of any DNA evidence linking the Duke Lacrosse team players to any crime, let alone rape or sexual offense, President of North Carolina’s NAACP Rev. William J. Barber II insists that Nifong try the case in court. Barber commented: "Don’t let it be decided by hearsay. Don’t let it be decided by community speculation. Take it to the courts!" So—ever concerned about his increasingly tenuous position within the community—Nifong is now pursuing a case of ‘sexual offense and kidnapping’ against the Duke students. By the way, DNA evidence is not considered to be "hearsay".
Apparently, Nifong believes that no crime need be committed in order to prosecute a case. That is, if his personal and rather nebulous political career is placed in jeopardy by not pursuing said litigation. And it also appears that the advancement of Nifong’s political aspirations is more important to him than the lives he seems bent upon destroying.
Recently, however, something else has entered into the mix; something rare—if not unprecedented. What has now occurred is not only extraordinary but, seldom—if ever—occurs within American jurisprudence. Citing the violations of four rules of professional legal conduct, on 28 December the North Carolina Bar Association filed a formal ethics complaint against Nifong for his treatment of the Duke case. The NC Bar advised that Nifong had prejudiced the Duke case against the defendants with his comments that the students were "a bunch of hooligans" and "I am convinced there was a rape, yes, sir!" Following this action, another exceptional event took place. On 29 December, even more of Nifong’s colleagues expressed their patent disapproval of Nifong’s handling of the case. This time it is other North Carolina district attorneys. On Friday, the North Carolina State Conference of District Attorneys called for Nifong to remove himself from the Duke case. A statement issued by the organization included: "It is in the best interest of justice and the effective administration of criminal justice that Mr. Nifong immediately withdraw and recuse himself from the prosecution of these cases and request the cases be assigned to another prosecutorial authority." The legal community strongly chastising one of its own is astonishing. It virtually never occurs. In order for it to happen, the offenses must be grave. In regards to the as yet unnamed offense of Nifong having deliberately withheld DNA results that would have been favorable to the accused students, prosecutorial misconduct comes to mind. Even graver is the fact that Nifong advised the President and Director of DNA Security (the company that tested the Duke students’ DNA samples) Brian Meehan NOT to divulge the information. Meehan has already admitted to it. At the very best, Nifong’s behavior was conspiratorial. At its worst, it shows "malice aforethought". Both or either of these would constitute criminal behavior.
The most chilling element of this case seems to boil down to what politicians (even those within the legal community) will do to further their own ends. Anyone and everyone appear to be subject to their whims. What the Duke case demonstrates is "if it promotes the politico—even if it involves criminal behavior within the legal community—anything and everything is fair". Today, we are seeing similar behavior from many of our elected officials. But, when it involves prosecutors who can literally hold our lives in their hands, it reaches critical mass. Even though Ms. Mangum can’t figure out whether she was raped or not, Nifong is still going to prosecute the defendants for alleged sexual offenses committed. I have a question for Nifong: If the DNA results prove that your defendants (AKA "scapegoats") had no contact with your alleged victim, how could there have been any sexual or other offense committed against her? No DNA from the defendants appeared anywhere on Mangum’s body. Perhaps this is simply another "redefinition" of crime. If the supposed victim thinks it might have happened—or more appropriately believes he or she can get away with making unsubstantiated charges to a politically inspired district attorney—then indictments, no matter how specious, will be filed.
What has happened to American justice? Apparently, it is now firmly in the hands of callous and ambitious politicians.
Sher Zieve is a staff writer for the New Media Alliance, Inc. The New Media Alliance is a non-profit (501c3) national coalition of writers, journalists and grass-roots media outlets.