Disbarment for that?

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Disbarment for that?

In today’s issue of The News & Observer, the Editorial page, under Our Views, had an opinion piece entitled, “Two weeks for that?” It was an opinion piece in which I was in total agreement. A judge imposed a two week jail sentence on Mary Rider because of her refusal to pay court costs for a civil disobedience act opposing an execution. She refused to pay because, in her words, “I cannot in good conscience give my money to a system that doesn’t provide justice.” I applaud Editorial Page Editor Steven Ford on the article which concluded that the punishment she received from the judge was harsh and excessive.

There is another case in which the punishment was unbelievably harsh and excessive, but which the Editorial Page Editor refuses to write about. That is the disbarment of former Durham District Attorney Mike Nifong. The North Carolina State Bar, which has boasted of disbarring 373 attorneys during a ten year period, has disbarred only one prosecutor… Mr. Mike Nifong. Other prosecutors have conducted themselves more egregiously, and their defendants have suffered greater injustice. Yet they have not been disciplined.

On May 13, 2008, I wrote to Mr. Ford and requested that the newspaper write an editorial representing its position regarding the fairness and appropriateness of the discipline meted out to Mr. Nifong, especially with regards to lack of action taken against other prosecutors. Mr. Ford ignored my inquiry. A copy of the May 13, 2008 letter to Mr. Ford is presented below.

Steven Ford
Editorial Page Editor,
“The News & Observer”
215 South McDowell Street
Raleigh, NC 27601

Mr. Ford:

I am a loyal and long time subscriber of “The News & Observer.” In my opinion, your publication has served me and its readers well with its news coverage and its strong and reasoned editorial statements. My intention in writing to you now is to ask that you once again live up to the spirit set forth by former editor and publisher of “The News & Observer,” Josephus Daniels. That is why I request use of your editorial page to “be the ‘tocsin’ and devote itself to the policies of equality and justice to the underprivileged” by publishing an editorial in “Our Views” dealing with the sad and failed status of the justice system in the state of North Carolina.

It is my belief that the North Carolina system of justice is founded on the tenet of “selective justice based on Class and Color” instead of the principle of “equal justice for all.” This is best exemplified by the State’s (the Attorney General’s Office and the NC State Bar) disparate treatment of former Durham District Attorney Mike Nifong in comparison with other prosecutors in the state. I submit that Mr. Nifong’s action of withholding non-exculpatory, irrelevant, and extraneous lab results from Duke Lacrosse defense attorneys is far less egregious than acts by other North Carolina prosecutors who have withheld exculpatory evidence, fabricated evidence, coerced false statements from witnesses, fabricated false eyewitnesses, fabricated false confessions, and prosecuted without probable cause or physical evidence. Furthermore I contend that Mr. Nifong’s Duke Lacrosse defendants suffered less injustice (no jail time was served by any of them, they each received $1.5 to $1.7 million from Duke University, they were publicly proclaimed “innocent” by NC Attorney General Roy Cooper, and they are presently in the process of suing the cash-strapped city of Durham for ten million dollars [$10,000,000.00] each) than defendants of other prosecutors. Innocent defendants of other state prosecutors remain incarcerated (Alan Gell, Lee Wayne Hunt, and Erick Daniels, to mention a few), have spent many years of their lives wrongfully incarcerated, have been denied the proclamation of “innocence” which would enable them to receive from the state a measly $20,000.00/year compensation for wrongful incarceration, and are forced to struggle to find work and shelter as “ex-cons.” Yet, Mike Nifong is the only prosecutor who is punished by the state, while the State goes out of its way to protect the other prosecutors.

Within the past six months, three North Carolina inmates who had been on death row have been exonerated and released. All told, North Carolina has released eight inmates sentenced to death, ranking it third behind only the states of Illinois and Louisiana in that category. Convictions won in these cases, and numerous others wherein convictions were eventually overturned or dropped, were due to blatant prosecutorial misconduct and failure of the prosecutors to act as ministers of justice. The Attorney General takes no action against these district attorneys and assistant district attorneys, and the State Bar goes out of its way to protect them (on a rare occasion it issues a mild reprimand). The reason the Attorney General’s Office and the NC State Bar do not severely discipline Michael Parker, Thomas Keith, Bill Wolfe, David Hoke, Freda Black, Susan Doyle, Debra Graves, Randy Lyons, Scott Brewer, and Ken Honeycutt is because their injured defendants were disenfranchised, of color, and/or financially challenged. This is obvious not only to me, but to the public and legal professionals, as well. A letter written to your paper’s Sunday Forum, of April 13, 2008, by Durham resident Larry Bumgardner stated, “Nifong lost his law license and resigned in disgrace while other prosecutors in this state doing similar things skate free.” NCCU law professor Irving Joyner, in writing about the cases against James Johnson, Darryl Hunt, Ronnie Cotton, Terrance Garner, Dwayne Dail, Alan Gell, and Floyd Brown, stated the following, “The common denominators in these cases were prosecutorial misconduct, race and poverty.” In other words, North Carolina’s justice system is founded on the tenet of “selective justice based on Class and Color.”

In prosecuting the Duke Lacrosse Case, Durham District Attorney Mike Nifong conducted himself based on the principle of “equal justice for all.” Again, the aforementioned layperson, Mr. Bumgardner wrote, “Mike Nifong’s big error was treating the Duke lacrosse case defendants the same way he and other prosecutors treat defendants who have much less money to fight.” The mother of Duke Lacrosse defendant David Evans, in an interview with “60 Minutes” said, “Mr. Nifong, you’ve picked on the wrong families…” And, in accordance with North Carolina’s tenet of selective justice based on Class and Color, by prosecuting defendants from families of wealth, status, and privilege (as he would prosecute other disadvantaged defendants), Mr. Nifong incurred the wrath of the State which set about to destroy him.

Although the enclosed document entitled, “The Case for Reinstating Michael B. Nifong as Durham District Attorney,” presents a credible, convincing, and compelling case for reinstating Mr. Nifong as Durham district attorney, I have reason to believe that that is an impossible outcome. It is understandable why Mr. Nifong would refuse to accept a position which would require that he work under an attorney general who stabbed him in the back, sacrificed him to the wolves, and did everything possible to trash the good reputation that he had built up during 27 years of service to North Carolina as a prosecutor. However, I do not believe that it is unreasonable for Mr. Nifong’s law license to be reinstated, as it was unjustly taken from him by a State Bar that wanted to send a clear message to other state prosecutors about the importance of Class and Color in the state’s justice system.

The state’s problems with selective justice based on Class and Color are not limited to state prosecutors, but begin at the top of state government and infect all sectors of the judicial and court systems. For example:
· Governor Mike Easley rejected the “equal justice for all” ruling of the Honorable Judge Melissa Owens Lassiter, who wisely ruled that a state trooper should not lose his job for inappropriate activities when other troopers who engage in similar inappropriate activities are allow to continue with their employment;
· Attorney General Cooper and his office’s selective actions in the Duke Lacrosse case versus other cases is an obvious example. Your paper’s “Our Views” editorial of August 19, 2007, entitled “Held without trial” asked Attorney General Cooper to investigate why police and prosecutors held Floyd Brown without a trial for fourteen years. According to a “Charlotte Observer” article, the NC Justice Department stated in August of 2007 that it was “reviewing” the Brown case, but that it “declined to give updates.” That can be interpreted to mean that the Attorney General’s office is doing nothing regarding the Floyd Brown case.
· The North Carolina Supreme Court, by refusing to grant Lee Wayne Hunt a new trial (despite the issues that you raised in your editorial of February 10, 2008, entitled “Years in prison – but is he a killer?”), reinforces the perception of the State’s justice system as being severely flawed in its selectivity based on Class and Color.

I do not question your paper’s commitment to being a force for equal justice for all. This is evidenced by the following:
· Naming Christine Mumma, director of the N.C. Center on Actual Innocence, as the 2007 Tar Heel of the Year;
· The “Our Views” editorial of December 2, 2007, entitled “Gell’s fate,” in which you question the intensely vindictive pursuit by the law enforcement and the courts to selectively sentence a man to five years on a convoluted, cockamamie charge after he had already served ten years wrongly incarcerated (half of it on death row);
· The “Our Views” editorial of November 21, 2007, entitled “Bullet holes” in which you denounce the injustice meted out to Lee Wayne Hunt, and express your view that “justice requires not only a showing of guilt beyond reasonable doubt, but arriving at that determination through a fair process.”
· The “Our Views” editorial of February 4, 2008 entitled “Complaint dismissed”, in which you applaud the State Board for dropping the frivolous and outrageous complaint against Appellant Defense Attorney Staples Hughes; and
· The “Our Views” editorial of April 4, 2008 entitled “The wrong man” in which you point out that many district attorneys put winning ahead of acting as ministers of justice, and that the justice system is “imperfect.”

The “Our Views” editorial of December 22, 2007 which was aptly entitled “A case that wasn’t there” (a title which I have adopted and use liberally when discussing the James Arthur Johnson case) deserves kudos, but was not quite as forceful as it could have been. Being entitled to say, “I told you so,” is little consolation for someone who wrongly spent 39 months behind bars (more than half of the time under the threat of a death penalty). He deserves, at least, the $20,000.00 reward which he earned by providing the police with information leading directly to the arrest of the perpetrator of the crime, a proclamation of his innocence (like the Duke Lacrosse defendants received), and compensation from the state for his time unjustly incarcerated. Actually, I have been waiting for your editorial staff to write “A case that wasn’t there – Part II,” as I am sure that you realize the trumped up Class C felony “accessory after the fact” charge against James Johnson is totally bogus, without merit, and a waste of taxpayer money. (As you are aware, Forsyth Assistant District Attorney Belinda Foster was forced by her boss Thomas Keith [of the infamous Darryl Hunt case] to drop the initial charges of murder, rape, kidnapping and armed robbery and level the “accessory” charge against Johnson. It was all pre-arranged in a conspiracy that included Wilson District Attorney Howard S. Boney, Jr., the Attorney General’s Office, and Forsyth District Attorney Thomas J. Keith. I am not the only one who shares this view. Civil Rights Attorney Al McSurely believes it, as well.)

Many may consider the disbarment of Mr. Nifong to be old news, but I would strongly disagree. His disbarment symbolizes everything that is wrong today with the state’s system of selective justice based on Class and Color. Before North Carolina can move towards a future justice system based on the principle of “equal justice for all,” it is imperative that the wrongs against Mr. Nifong be corrected (reinstatement of his license to practice law).

If your paper should decide to write an editorial in the “Our Views” section about the North Carolina justice system and its tenet of “selective justice based on Class and Color,” it is my hope that the article will include the following salient points:
· Mr. Nifong’s actions in the Duke Lacrosse case were far less egregious that those of other North Carolina prosecutors in other cases;
· Mr. Nifong’s defendants in the Duke Lacrosse case suffered far less than defendants of other North Carolina prosecutors (many defendants wrongly incarcerated for many years, some on death row);
· Mr. Nifong was selectively and excessively prosecuted by the North Carolina Attorney General’s Office, and the North Carolina State Bar;
· The North Carolina justice system is founded on the tenet of “selective justice based on Class and Color” rather than “equal justice for all” (a principle championed by Mike Nifong) and
· (most importantly) Mr. Nifong’s license to practice law needs to be reinstated before the state can move towards a justice system based on “equal justice for all.”

When you have completed reading the enclosed document, and have an opportunity to discuss it with other colleagues, could you contact me by e-mail and let me know how you intend to proceed regarding my request.

Thank you for your consideration in this matter.


May 13, 2008


I encourage readers of this blog, who are interested in equal justice for all, to contact The News & Observer Editorial Page Editor (Steven Ford) and request that the newspaper publish its views on the fairness of the disbarment of Mr. Nifong.
Mr. Ford’s e-mail address is: sford@newsobserver.com