In Durham County, an epic legal battle is being fought in the now infamous Duke lacrosse rape case, and it’s not the one you’ve been reading about. This fight spans hundreds of pages of legal documents, but has gotten little media attention.
It’s over basic information about what happened the night of the alleged rape, evidence a 2004 open-file discovery law says the defense has a right to and should have received months ago.
At the moment, Durham prosecutor Mike Nifong is making an utter mockery of that law, and a game of legal “chicken” is quietly unfolding in which those in the know hold their breath, waiting to see if someone, anyone, will — or can — rein him in.
To understand the implications here, you’ve got to rewind to 2004. Half a dozen cases had come to light in which innocent men were sentenced to die or had served years in prison for crimes they didn’t commit because prosecutors withheld evidence that would have cleared them. The state’s justice system was in crisis. Every death penalty conviction was under scrutiny. Legislators created an innocence commission and some demanded a moratorium on executions.
So when the governor signed a law in 2004 that said prosecutors had to turn over their entire files, including all records of police and prosecutor’s interviews with the victim or other witnesses in the case, politicians and the editorial pages sang Kumbayah, and hailed it as a major breakthrough for protecting the innocent.
Then, on April 17, the first two Duke lacrosse players were indicted for raping a stripper after a rancorous party. By Oct. 11, the defense team had sent its umpteenth letter to Nifong, again demanding what they have fought for repeatedly in court but still don’t have — records of any of the interviews Nifong has had with the accuser.
When did she tell him she was raped? Did she give him a timeline? Who raped her? No one knows, but Nifong has claimed publicly that he interviewed her and believes her story. He’s also denied to the court that he has ever interviewed her. Meanwhile, the list of police investigators’ notes — Nifong is serving as the head of the investigation — that remain “missing” could fill an entire Citizen Servatius column.
Here’s just one of the latest blatant examples. In a Sept. 20 motion, Nifong wrote that the victim “told the undersigned District Attorney that she had never at any time knowingly and voluntarily taken Ecstasy.” Clearly, Nifong and perhaps others have talked to this woman, and the defense has a right to the content of those interviews. Either that or Nifong lied in the Sept. 20 motion. Neither scenario is confidence inspiring, yet there are dozens of these glaring time/space paradoxes involving the alternate universes Nifong apparently inhabits.
If a witness under oath pulled the kind of stunts Nifong has, they’d be facing perjury charges. Yet Nifong has repeatedly gotten away with telling the court in writing that he has turned over all the evidence he has — before turning over more evidence he has clearly been holding back for months after a judge orders him to.
It’s a pattern that alarms Brooklyn College constitutional history professor K.C. Johnson, who has scoured reams of legal documents in the case, particularly given that some of the evidence Nifong has belatedly produced casts doubt on the defendants’ guilt.
“This is the first high-profile case since the open discovery law passed in North Carolina,” Johnson says. “This stuff should have been turned over in late April. If Nifong gets away with this, other North Carolina DAs will do the same thing.”
In most states across the nation, laws exist that allow the governor or other elected officials to pull a district attorney off a case for breaking the law. But North Carolina doesn’t have those laws. And, so far, none of the judges who have handled the case have seen fit to reign in Nifong, something Johnson says would take a great deal of backbone since it would bring instant, wall-to-wall, national media attention.
“I think people probably are watching this,” Raleigh defense attorney Ann Groninger says of the state’s legal community. “There is a wide discrepancy in how much the law is enforced in different counties and by different judges.”
Meanwhile, the members of the “innocence posse” who cheered on the open file discovery law and demanded justice when the state bar merely slapped the wrists of prosecutors who knowingly sent innocent men to jail seem to have fallen off their horses.
“If this were New York, Nifong would have been removed months ago by the governor — not because he believed the defendants are innocent, but because it is clear that Nifong is breaking a lot of rules,” says Johnson. “This case should change North Carolina law.”
And it could prove something else. If a six-member legal team with wealthy clients and unlimited resources hasn’t yet managed to drag all the basic facts of this case out of a district attorney after months of trying, the average defendant in this state is thoroughly and completely screwed.
And the defendant with a public defender who has 150 other cases? He might as well plead guilty, bend over, and kiss his rear end goodbye.
Got a story idea? E-mail Tara at tara.servatius@creativeloafing.com.
This article appears in Nov 1-7, 2006.
Does he have opposition in his district? Can the voters take him out?
Nifong is leading in the polls, against a Democrat whose name is on the ballot as an independent (but has now said he wouldn’t take the office if elected), and a Republican write-in candidate. Nifong has over 90% of the AA vote making it almost impossible for him to lose. A few weeks before the primary, he was behind in the polls to Freda Black. This case made him a hero to the AA community and he will win off the backs of three innocent young men. He is a disgusting, evil man that knows he will get a conviction or hung jury in Durham because of the hate the AA community has for Duke students.
Back to the article. Thank you for the informative, yet depressing piece. It just boggles the mind that this case ever had indictments. It has been beyond frustrating watching this man abuse the judicial system and use these young men to further his own career.
The rest of the nation sits just dumbfounded that North Carolina abuses people in this manner.
So much for open discovery. I agree this case should be a wake up call to North Carolina. If these highly paid defense attorneys can’t drag the discovery out of this DA, the ordinary citizen doesn’t stand a pray. What is amazing is the no one will step in. With the improvement in communication, particularly the internet, it is not like in times past where perhaps the nation/world didn’t know the details of a case. Everyone knows this a malicious prosecution, yet no one stops it. I simply can’t imagine being one of the parents of these young men. My prayers are with them facing the joke of what passes for “justice” in North Carolina. The only hope if for the Feds or FBI to intervene in this farce. I will never view the judicial system or the media the same.
Please, let’s end this Hoax!
Vote Cheek!
Mr. Nifong is a f’ing joke. He has made a joke of the city and state he lives in. He has made a joke of the justice system. Someone needs to take him out back and slap the sh*t out of him.
Where are the powers-to be in Durham who ensure that justice is served? Every single person over Nifong who could do something to challenge the “practices” he has undetaken should be held responsible as well.
This is a complete disgrace to the judicial system and the Constitution.
Nifong framed this case from the beginning as rich white yankee males versus a poor black durham mother. If the races were reversed it is doubtful the defendants would have a “dream team” legal defense assembled to expose Nifong’s prosecutorial misconduct. Before we jump all over the Durham voters for reelecting this perverter of justice we need look no further than the reelection of Jim Black amidst a ream of indictments issued to his cohorts.
As I understand the legal system, there is ample grounds for the judge over the case to dismiss the charges with prejudice, ending this farce at once.
There’s nothing to stop it except the spinelessness of the judge.