RE: The Erick Daniels Case

I appreciate the dialogue about the Erick Daniels case, and I apologize for not keeping the blog updated. Currently I am working hard to get a website up and running for the Committee on Justice for Mike Nifong. The web address is: www.geocities.com/justice4nifong. There are still a few bugs in it, but I'm hopeful that they can be worked out soon... no later than after the first week in October. Keep checking, as it will feature many articles and a comic strip titled "The MisAdventures of Super Duper Cooper."

First, I would like to re-assert that it is not the purpose of the Committee to go after attorneys, be they prosecutors or defense attorneys. We strenuously object to the selective prosecution and persecution of Mr. Mike Nifong, when other prosecutors are passed over and protected by the State Bar and state officials for misconduct that is far more grievous than anything Mr. Nifong is alleged to have done.

I agree with the blogger who stated that prosecutors should not be disciplined because they make a mistake and prosecute the wrong individual(s). True, we are all human. However, Prosecutor Freda Black pursued the prosecution of a teenager without any physical evidence and in spite of the fact that he did not match the description given by the victim. Also, because the defense attorney did not object, Ms. Black was able to introduce evidence that was considered to be inadmissible in winning her verdict. She was definitely not acting as a minister of justice in this instance.

I also am in agreement with the blogger who stated that the defense attorney did not present an adequate defense for his client. But, just as the State Bar has no will to discipline prosecutors, it lacks the will to go after incompetent defense attorneys (because they make it easier to win convictions). I do not believe that Erick Daniels's attorney acted with malice, and he even admitted to not doing an acceptable job in representing Erick Daniels.

Now, I did file a complaint with the North Carolina State Bar against Defense Attorney Johnny Gaskins, who represented James Arthur Johnson. Besides being ineffective as a defense attorney, and allowing his client to be confined to jail for 39 months, Mr. Gaskins made prejudicial statements against his client (on a television news program) about an accessory after the fact charge which is still being investigated. AmericaIsWatching.org recommended in its website that readers file the complaint if they were outraged by Mr. Gaskins's statements. I was, so I did.

I think that we can all agree, despite our difference of opinion on this case, that Erick Daniels should at the least be proclaimed "innocent" by Governor Easley, and awarded the paltry sum of $20,000.00 per year for each year of wrongful incarceration.

Congrats “Indy Weekly” … but where was the “N & O”?

After more than seven years in jail, another African American man was released after being convicted for a crime which he did not commit and a conviction obtained by dubious prosecutorial conduct. Erick Daniels was convicted of armed robbery and sentenced to ten to 14 years, although no forensics evidence connected him to the crime, he did not fit the initial description given by the eyewitness victim, and another incarcerated man (who did fit the description) was offering to confess to the crime. And despite being a juvenile at the time (14 years old), the prosecutor (with the court’s acquiescence) tried him as an adult. Contributing to young Daniels’s misfortune was a defense attorney who allowed the prosecutor to introduce inadmissible evidence, and who allowed the prosecutor to take pock shots at his defendant by placing his immature defendant on the stand (an extraordinarily flagrant tactic in such a weak circumstantial case).

Late in 2004, Durham Attorney Carlos Mahoney took over Daniels’s case, and although losing on one appeal, he persisted in his attempts to have the courts take another look. In its May 23, 2007, edition, the “Independent Weekly” had an in-depth investigative cover story titled “Stolen Youth: How a 15 year-old was railroaded by Durham justice”. This article was the impetus for me to plead his case (while arguing for justice for former Durham District Attorney Mike Nifong) before the governor, the attorney general, the executive director of the State Bar, and others.

Nearly a year and a half after the “Independent Weekly” article, on Friday, September 19, 2008, following a day and a half of hearings, Judge Orlando Hudson threw the case out, ordered the release of Mr. Daniels (now 22 years old), and did not pursue the option of ordering a new trial, stating [that he] “had no confidence in the jury’s verdict that this defendant committed the crime. I think he did not.”

During the more than seven years that Erick Daniels was wrongfully incarcerated, I am unaware of an editorial or opinion piece by the “News & Observer” editorial staff questioning justice in the case. Even following the “Independent Weekly’s” explosive May 2007 cover story article, the “N & O” editorial staff remained silent. Why? I believe that it is because they, along with the majority of their readership, share an apathy or ambivalence when it comes to issues of selective justice that accrue to the detriment of the poor, disenfranchised, and people of color. The moral outrage at this grave injustice, which in my opinion far outweighs that to the Duke lacrosse defendants, is not even palpable. I do not expect that Attorney General Roy Cooper will proclaim Erick Daniels to be “innocent” of the crime, nor do I have faith that Governor Mike Easley will take steps necessary to see that Erick Daniels receives the paltry sum of $20,000.00 per year for each year of wrongful incarceration (that he deserves).

Very few people know the name of the prosecutor who sent Erick Daniels to jail, and her name was buried deep in the “News & Observer” article “Defendant walks free after 7 years in prison,” of September 20, 2008. No one is clamoring for her, Freda Black, to be ousted from her job or to be disbarred by the State Bar. The state of North Carolina is willing to condone her actions because the victim of the injustice is not from a family of wealth, status, and privilege. Mike Nifong’s defendants were, and that is why he was prosecuted, persecuted, and used to set an example for other prosecutors.

It is about time that the editorial staff of the “News & Observer” takes a courageous stand and makes a comment about the gross injustice represented by the fact that Mike Nifong (who gave the state 27 years of exemplary service as a prosecutor) is the only prosecutor to be disbarred (or severely disciplined) by the North Carolina State Bar since its inception. If all prosecutors were held to the standards used to disbar Mr. Nifong, then Freda Black, Michael Parker, David Hoke, Debra Graves, Ken Honeycutt, Scott Brewer, Bill Wolfe (who the State is currently protecting against a complaint for his misconduct in the case against James Arthur Johnson), and probably 99% of all prosecutors in the state would be disbarred.

Even Hardened Nifong Critics Support the Premise of Selective Justice in North Carolina

Unbekannte, an ardent critic of former Durham District Attorney Mike Nifong, made the following blog comment: "Yes it is atrocious that Nifong is the ONLY prosecutor who has been disbarred. Many more prosecutors in NC should have been disbarred for concealing Brady material from defendants."

Thank you for supporting the premise that other prosecutors, who should have been disciplined, were not and that Mr. Nifong was selectively chosen to be given the harshest discipline possible, though his alleged misdeeds were not as egregious as others, and his defendants (the three Duke LAXers) suffered far less injustice (including no time incarcerated) than innocent defendants of other prosecutors (many who spent years on death row).

The problem with invoking the principle of "equal justice for all" is that if other prosecutors are held to the unreasonably high standards used to disbar Mr. Nifong, then the entire staff of North Carolina prosecutors would be depleted. Therefore, I favor the more practical approach of attaining equity by reinstating the license to practice law for Mr. Nifong. Furthermore, the North Carolina State Bar has vividly demonstrated that it has no will to discipline prosecutors (who follow the tenet of "selective justice based on Class and Color"). That's what it is doing now in the James Arthur Johnson case by having private sector prosecutor David McFadyen conduct a bogus investigation into the "accessory after the fact" charge against Mr. Johnson. The prosecutor's actions in that case, Assistant Wilson District Attorney Bill Wolfe, were far more grievous than anything Mr. Nifong is alleged to have committed. Unfortunately, the state officials do not realize that many North Carolinians are apathetic, and not ignorant. Like, Unbekannte, they realize that Mr. Nifong was selectively and unjustly treated.

The Committee on Justice for Mike Nifong will be establishing a website shortly (the address will be posted in this blog with a link), and it will include both volumes of the Nifong Manifesto, the comic strip "the MisAdventures of Super-
Duper Cooper" and other documents and information supporting our position which is as follows: The State of North Carolina selectively and unjustly disbarred former Durham District Attorney Mike Nifong, and it should be held accountable and take responsibility for this gross mistake by reinstating Mr. Nifong's license to practice law in the state unencumbered. If "equal justice for all" is to be a reality for all North Carolinians, it must begin with Mr. Nifong.

A Revelation of Insignificance

In the September 9, 2008 issue of The News & Observer, staff writer Anne Blythe, in an article titled "Detective may have lost videotape of witness," somehow managed to invoke the name of Mike Nifong. She wrote, "Defense lawyers representing the players charged in the Duke lacrosse team cast negative light on Durham and former District Attorney Mike Nifong for withholding DNA evidence that could have helped the defense." The operative words in the preceding sentence are "could have." I have been trying for some time now to get a logical explanation as to how the presence of multiple unidentified male DNA on the accuser's rape kit exam could have been exculpatory or of assistance to the defense. Even defense lawyers have not offered an explanation as to the finding's potential significance.

The article goes on, "That revelation led to the demise of Nifong's law career. He was stripped of his law license and ousted from office." The "revelation" was truly one of insignificance, and when placed in proper context, it makes the actions taken by the state of North Carolina against Mr. Nifong all the more abhorrent. Take for example the following three cases in which prosecutors withheld evidence from defense attorneys in order to win death penalty convictions against innocent men:

1. Prosecutors Ken Honeycutt and Scott Brewer withheld from the defense team of Jonathan Gregory Hoffman knowledge that it had made deals with the two main witnesses (one received immunity on other criminal charges, and the other received reward money as a condition for testifying). Hoffman served more than seven years on death row.
2. Prosecutors David Hoke and Debra Graves withheld the following evidence from Alan Gell's defense team: (a) that they had made a deal with two key witnesses to receive reduced sentences in exchange for their testimony, and (b) nine witness statements from individuals who saw the murder victim alive during the period when Mr. Gell was incarcerated on an unrelated charge and could not have possibly have committed the murder for which he was charged. Likewise, Mr. Gell was sentenced to death and served ten years in prison for a crime prosecutors knew that he could not possibly have committed.
3. Prosecutor Randy Lyons withheld information from the defense attorneys of Charles Wayne Munsey in winning a death penalty conviction. A memo by Assistant Attorney General Dale Talbert notified Prosecutor Lyons that records, from the prison where a "jailhouse snitch" alleged that Munsey confessed to him that he committed a murder for which he was charged, showed that the snitch was not incarcerated there, and could not have been in contact with Mr. Munsey to hear a confession. Talbert suggested that Lyons lie to the court and state that lack of such record did not preclude the snitch from being incarcerated at the prison. Mr. Lyons heeded Mr. Talbert's advice, and, in addition, did not even mention the information in the memo, which had exculpatory value. Munsey spent the remainder of his life in prison, where he died from lung cancer.

In the face of the monumental adverse revelations against them, of the aforementioned prosecutors, none was disbarred, fired, or severely disciplined. Scott Brewer went on to become a judge, and David Hoke was promoted to Assistant Director of the North Carolina Administrative Office of the Courts.

The atrocious fact is that Mike Nifong is the only prosecutor to be disbarred by the NC State Bar since its inception.. and for such a relatively insignificant revelation. And, that is apparently okay with The News & Observer, as it continues, with other media outlets, to spread the propaganda that Mike Nifong is the worst prosecutor in North Carolina history. Meanwhile, it gives the truly horrendous prosecutors a pass.

Commitment with an identity

It seems as though some people want to attribute others as being responsible for authoring this blog. I believe that it is hard for a person to sincerely be an advocate for a position if he/she is unwilling to reveal their identity. Blogger "Unbekannte" wishes to remain anonymous, so I have no desire to know his/her identity. But people who really believe in fighting for a cause and are committed to it, usually have the courage to identify themselves. (By no way, however, do I mean to insinuate that those who contribute to blogs using an alias lack courage.)

As I have consistently stated, my focus is solely on the injustice of the State of North Carolina to Mike Nifong. I have no animus, nor ill will towards the Duke LAXers, and I do not know how Unbekannte reached his conclusion.

I believe that Mr. Nifong is an honorable, decent person, and if I were to be prosecuted, hypothetically, I would want Mr. Nifong to be the prosecutor. I would want him to be the prosecutor because he followed the principle of "equal justice for all," rather than the tenet of "selective justice based on Class and Color." For example, I would not want to be prosecuted by Anson County District Attorney Michael Parker, who held Floyd Brown on a murder charge for fourteen years without a trial. Mr. Brown, who is an African American and does not come from a family of wealth, status, and privilege, was charged based on an obviously fraudulent confession that was manufactured by the prosecution. Nor would I want to be prosecuted by David McFadyen, a prosecutor from the private sector who is taking his time and trying to find a way to prosecute James Arthur Johnson for "accessory after the fact" charges (because he removed fingerprints from a car). This is all done for the purpose of protecting Wilson Assistant District Attorney Bill Wolfe from a prosecutorial misconduct complaint with the State Bar filed by the NAACP. I could give many other examples of prosecutors who I would not want to prosecute me, but Mr. Nifong is not one of them.

For a final reference, this blog is the official blog site of the Committee on Justice for Mike Nifong, and I am its Lay advocate and author of this blog. Sidney B. Harr.

Response to unbekannte

In response to your blog response of September 9, 2008, the author of this blog site is Sidney B. Harr, and not Mike Nifong or Cy Gurney. I am the Lay Advocate for the Committee on Justice for Mike Nifong, and a staunch supporter of Mr. Nifong (although the "News & Observer" columnist Barry Saunders, in his July 22, 2008 column called me a "rabid Nifong supporter"). I firmly believe that Mr. Nifong was unjustly disbarred by the State Bar, and that it should take responsibility for its actions by doing the right thing (legally and morally) and reinstating his license to practice law in the state of North Carolina.

It takes a small amount of courage to stand up for a cause which is extremely unpopular, and to identify yourself, instead of hiding behind an alias. It takes very little courage to think for oneself and not just automatically buy into what the media is peddling. That said, by no means do I insuate that you lack courage because you conceal your identity when you make statements on the blog or because you choose the safe confinds of popular opinion. I appreciate your participation to this blog, and hearing points of view that differ with mine.

Several statements that you made were patently false. First, Mr. Nifong did not arbitrarily indict three men. They were identified by the alleged victim/accuser with 80-100% certainty. Now although the identification system may not have been perfect in the Duke Lacrosse case, the ID system used by Durham Prosecutor Freda Black was no more perfect when Erick Daniels was picked out of a middle school yearbook by the victim of an armed robbery. Erick Daniels, did not even fit the description of the perpetrator of the crime, yet he was convicted as a 16 year old, and has spent more than four years incarcerated. Do you believe that the three Duke LAXers, who spent no time in jail, have suffered greater injustice than Erick Daniels, whose case is under review by the courts, thanks in large measure to investigative articles that appeared in the "Independent Weekly." The point I am making is that the State and the State Bar of North Carolina will not go after Prosecutor Black because the injustice is against a defendant who is poor, of color, and disenfranchised. It selectively chose to persecute and prosecute Mr. Nifong because his defendants were from families of wealth, status, and privilege.

At least there is one thing we can agree on, and that is that there is a failure by the State Bar to prosecute prosecutors who commit acts of prosecutorial misconduct. If the State Bar held all of the prosecutors in the state to the same standards used to disbar Mr. Nifong, then the number of the state prosecutors would be depleted. Rather than disbarring 99% of all state prosecutors, it seems to me that a more practical course would be to re-instate the only prosecutor to be disbarred by the North Carolina State Bar since its inception.

Justice4Jack and Mr. Nifong

Ms. Fleming, I am not familiar with your brother's case, but it seems as though there is some uncertainty as to the exact nature of the reason for his passing. Although I do not know the circumstances surrounding his untimely and unfortunate passing, I am certain of two things: 1) you dearly loved him, and 2) you are in a great deal of pain because of your loss. I am concerned about you and your well being, and suggest that you consider joining a victim's support group, or maybe even starting up one of your own. That would be a good, positive way to channel your grief, I believe.

Regardless, your brother's tragedy and the injustice to former D. A. Mike Nifong are in no way related, except for their connection to the city of Durham. Unfortunately, by its very nature, Mr. Nifong, as a state prosecutor in our system of justice, is saddled with the responsibility of trying to deprive individuals of their freedom. That is the responsibility of all prosecutors. However, they are supposed to act as "ministers of justice" and place justice before winning. This is what Mr. Nifong did in the Duke Lacrosse Case. A victim alleged that she was assaulted, and she identified three individuals with a high degree of certainty (80-100%). Maybe some prosecutors would have taken the class and color of the victim and suspects into consideration before deciding whether or not to act, but Mr. Nifong, to his credit, did not.

In most sexual assault cases (I believe, as I'm no expert), suspects are identified by the victim, and it is the basis for charges being leveled and the case prosecuted. Take the Dwayne Dail case for example. A twelve year old victim identified him as her assailant. Mr. Dail was not connected to the crime forensically, but on testimony of the young victim alone was convicted. He served eighteen years wrongfully incarcerated before DNA evidence proved him innocent, and the real perpetrator of the crime was identified and apprehended. Now, the prosecutors who put Mr. Dail behind bars are not publicly reviled. They were not brought before the State Bar. They were not disbarred. They were not fired from their jobs. They were not sentenced to serve time in jail. The attorney general did not ask the U.S. Department of Justice to investigate them for depriving Mr. Dail of his civil rights. Mr. Dail did not file a civil lawsuit against the prosecutors. The names of the prosecutors are even unknown to almost all North Carolinians (I do not even know the names of his prosecutors).

Plain and simply, Mr. Nifong has been unjustly prosecuted and persecuted by the state of North Carolina solely because he brought charges against Duke Lacrosse defendants who came from families of wealth, status, and privilege.

There are problems with the criminal and justice systems. But your anger, Ms. Fleming, against those associated with your brother's death, is misplaced when you direct it toward Mr. Nifong. He is the true victim in the Duke Lacrosse Case.

Response to Justice4Jack

A RESPONSE TO JUSTICE4JACK

Blogger Justice4Jack, with her statement "Nifong is but ONE of the MANY unscrupulous knaves," made the point that I have been trying to make." Her statement supports my premise that Mr. Nifong was selectively treated by the state. And he was selectively punished because the defendants he prosecuted in the Duke Lacrosse case came from families of wealth, status, and privilege. The many prosecutors who trample on the rights and deny justice for defendants who are disenfranchised, of color, and/or poor, are not held accountable for their actions and are not disciplined.

Mr. Nifong is the ONLY prosecutor to be disbarred by North Carolina State Bar since its inception, and he was selectively disciplined because he followed the principle of "equal justice for all" instead of the state’s tenet of "selective justice based on Class and Color." Other unscrupulous knave prosecutors who have acted more egregiously than Mr. Nifong, and whose actions have resulted in their defendants suffering greater injustice than Mr. Nifong’s (including incarceration), have been given a pass by the State Bar and the attorney general. If the State Bar was to objectively hold all of the state prosecutors to the same standards as those used to disbar Mr. Nifong (because of his actions in the Duke Lacrosse case), then the number of state prosecutors would be completely depleted.

I commiserate with you regarding the loss of your brother and the inability of the authorities to apprehend his murderer. I would like to encourage you to join me and the "Committee on Justice for Mike Nifong" in fighting for justice, equal justice for all. As opposed to fighting crime, a justice fighter focuses attention on the actions of the state and courts to assure that equal justice for all is meted out. The state of North Carolina has failed many of its innocent citizens (such as James Arthur Johnson, Alan Gell, Lee Wayne Hunt, Dwayne Dail, Darryl Hunt, Erick Daniels, Floyd Brown, to name a few), including former Durham District Attorney Mike Nifong.

One way in which you can proactively work for justice and to help fight crime would be to encourage the state of North Carolina to take responsibility for its deleterious actions against James Arthur Johnson. In 2004, Mr. Johnson, an African American teenager, went against the "no snitch" rule of the streets, and gave Wilson police information that led to the arrest and conviction of the killer/rapist/robber of Wilson teenager Brittany Willis. Although I believe that he was not motivated to come forward to the police in order to receive the twenty thousand dollar ($20,000.00) reward offered by the family and friends of Brittany Willis, he did earn it. Because of mishandling of the case by Wilson prosecutor Bill Wolfe (in which Mr. Wolfe falsely vilified and charged Johnson as the perpetrator of the case), the family and friends of Brittany Willis have reneged on paying the reward (despite the fact that those charges were dropped). I believe that the friends and family of Brittany Willis offered the reward in good faith, but due to misconduct by prosecutors, they decided otherwise.
I believe that an offer of reward money for information about a crime is important to the armament in fighting crime. The state should step up and take responsibility for paying the reward money to Mr. Johnson in the Willis case. If reward offers are to be taken credibly, Mr. Johnson should receive the reward for his service to the police and community. Join us in writing to Attorney General Cooper and other state officials to see that Mr. Johnson is rewarded. Mr. Johnson, a private citizen, came forward and offered information to solve a murder. I hope that in the future someone comes forward with information that will provide a lead to solve the murder of your brother and give you the closure you deserve.