WEBCommentary
10-09-06
Author: Michael J. Gaynor
Bio: Michael J. Gaynor
Foley Scandal Implications for Duke Case
Michael B. Nifong is the Durham County, North Carolina District Attorney. He is
supposed to be a fair and impartial "minister of justice." He has a special duty.
He is not to allow personal and political considerations to determine whether or
not to prosecute. He is absolutely not to refuse to consider evidence of
innocence or to seek an indictment without solid evidence to support conviction
as well as indictment. He is supposed to try a case in court, not in the press. He
is supposed to present evidence, not personal opinion. He is not supposed to
make prejudicial statements that might preclude a fair trial.
Mark Foley is a former Republican Congressman from Florida who was co-chair
of the House Caucus on Missing and Exploited Children. He was supposed to
protect children and mentor House Pages, to whom he owed a special duty. He
was not supposed to treat underage House Pages as sex partners or future sex
partners and send them sexually suggestive, much less utterly vile, email or text
messages.
Out-of-control prosecutors and Congresspersons are atypical, of course. It is
improbable that a prosecutor or a Congressperson would abuse his or her
position. Unfortunately, it really happens and when it does, it has to be dealt
with, not denied or covered up for personal or political purposes.
The implications of the Foley scandal for the Duke case led me to revisit an
outstanding article written last August by Cash Michaels for The Wilmington
Journal (which is part of BlackPressUSA Network)
Sometimes the title of an article is misleading. From the title--"Durham Chief
Backs Duke Probe," a reader might expect the article to be pro-Nifong.
It was not.
In the article Mr. Michaels identified what now appears to be the onlyrational
basis for believing that Mr. Nifong had a case in the Duke case:
"[I]f Nifong was exploiting the Duke alleged rape case for solely political means,
then why would the Durham PD, with the apparent blessing of City Manager
Patrick Baker and Mayor Bill Bell, help him, knowing that ultimately, it would
catch up to them?
A premise of Mr. Michaels' question--"knowing that ultimately, it would catch up
to them"--is not necessarily warranted, of course, as life repeatedly teaches.
Mr. Michaels: "The improbability of that question is what those who still believe
that a crime was committed, and that there’s more evidence than has been
revealed, hold on to."
They should let go.
The Durham Mayor, City Manager and Police Department helping Durham
County District Attorney Michael B. Nifong is not competent evidence against any
of the Duke Three or anyone else. It is to be expected. Each of them presumes
Mr. Nifong is acting in good faith until the facts rebut that presumption. None of
them would (or at least should) tolerate prosecutorial misconduct if they
recognized it, and it should not be presumed that they know of it, just as it should
not have been presumed that any of the Duke Three is guilty.
Ironically, the recent Mark Foley sex scandal helps to answer Mr. Michaels'
important question.
Why would the Speaker of the House of Representatives fail to investigate
thoroughly the possibility that a Congressman was stalking House Pages?
First, the Speaker certainly did not appreciate what a thorough investigation
would have revealed.
Second, the Speaker did not want to investigate a fellow Congressman without
ample justification.
Third, the Speaker has many responsibilities and delegates routinely.
Fourth, Congressman Foley was a supporter of the Speaker and the Speaker
presumably thought well instead of badly of him and was disinclined to suspect
that he had done what America now knows he did.
Fifth, the Speaker surely did NOT know that he would be embarrassed as a
result of failing to do more.
The same explanations seem plausible for the Mayor, the City Manager and the
Police Chief.
But none of then individually, and not even all of them together, mean the
Speaker, the Mayor, the City Manager and the Police Chief did not made huge
mistakes.
In the case of Speaker Dennis Hastert, when he did learn that former
Congressman Foley was not only gay, but a predator, the Speaker told the
former Congressman to resign or face expulsion. (In 1983, when a Democrat
Congressman and a Republican Congressman were discovered to have had
sexual relations with underage Pages, they were censured, not expelled; the
Republican was chastened and then rejected by the voters in his district; and the
Democrat was defiant, embraced by the Democrat caucus and repeatedly reelected in his district until he retired.)
One hopes the Mayor, the City Manager and the Police Chief will not be too
embarrassed to admit their mistakes.
Mr. Michaels sent them a clear signal last August.
Perhaps the most significance sentence in the article is this: "Critics have made it
clear that D.A. Nifong was only posturing for the Black vote he needed
desperately to win the May Democratic primary, which he did."
Mr. Michaels is one of the few in the media who has reviewed Mr. Nifong's
discovery. So when he wrote that "[c]ritics have made it clear that D.A. Nifong
was only posturing for the Black vote he needed desperately to win the May
Democratic primary," instead of critics have claimed that, it meant plenty.
Mr. Michaels reported that Chief Steve Chalmers "is standing strong by his
investigators and their work" and Durham Mayor Bill Bell was completely
confident that the police would develop evidence to win convictions.
Chief Chalmers: "Oh certainly.“They’ve had my full support from the start.
They’ve had the full support of the city manager.”
That's newsworthy, of course. And sad.
Mr. Michaels proceeded to detail why the investigators and their work deserve
criticism instead of "full support."
Example:
"An analysis by The Carolinian and Wilmington Journal newspapers show that
what the police were telling the public, either through direct statements or public
documents, at times did not match what they actually knew, or didn’t know,
behind the scenes.
"On March 24, the Durham Herald-Sun reported Durham Police spokesman Cpl.
David Addison as saying investigators had '"really, really strong physical
evidence" from the crime scene (610 N. Buchanan Blvd where the party was held
and the bathroom the alleged victim said the rape and beaten took place in) that
police will be able to compare with DNA results.'
"Forty-six of the 47-member lacrosse team had, under legal counsel and court
order, had submitted to taking photographs and supplying DNA swabbings to
authorities.
"But weeks later, those DNA test results from the state crime lab and a private
lab in Burlington failed to yield the 'strong evidence' connection to the alleged
victim both the police, and D.A. Nifong had promised the public they would."
Jeff Neff's latest article in The News & Observer-- "Experts: Lacrosse IDs likely
tainted"--buttressed Mr. Michaels' case that the police work in the Duke case was
improper in major respects:
"Psychologists Gary Wells and Brian Cutler helped design a procedure in 2003
for witnesses to identify crime suspects. Police departments across North
Carolina embraced the procedure. The Durham Police Department adopted it
almost word- for-word in February.
"The conduct of the Durham police in the Duke lacrosse case, however, is a case
study in violating the new policy, the psychologists said. And as a result, police
have injected doubt into a woman's selection of three lacrosse players whom she
accused of rape.
"Police violated two fundamental rules for running an identification procedure,
said Wells, a professor at Iowa State University, and Cutler, a professor at
UNC-Charlotte.
"First, the psychologists said, police did not have an independent investigator
administer the process. Second, they neglected to include photos of
nonsuspects, known as fillers."
"The procedures used can yield only uncertain or misleading results, Wells said,
and that's bad for everyone.
"If the woman was raped, Wells said, the botched lineups undermine the
prosecution and the search for justice.
"'And if she wasn't sexually assaulted, or was assaulted by someone else, [the
players are] in a position of guilty until proven innocent,' Wells said. 'It really shifts
the burden to the person identified to prove it wasn't them. That is a profoundly
difficult and very unfair situation.'"Mr. Michaels closed his article this way:
"Indeed, if the district attorney has no better than what has been so far shown, a
trial in this case may never be, and the African-American community will want to
know why."
The answer is that there is not enough evidence to warrant a trial. In fact, Mr.
Nifong proceeded to hastily, not too slowly, and improperly, not properly. The
Duke Three never should have been indicted, because they did not kidnap, rape,
or sexually offend anyone, much less their accuser, who is not credible and
whose claim is not supported by evidence.
By 8 PM, October 15 (if not sooner), Durham's Mayor, City Manager and Police
Chief should realize that Mr. Nifong became a rogue prosecutor in the Duke case
and act accordingly.
Michael J. Gaynor