Susan F. Filan, senior legal analyst for MSNBC TV, authored an online editorial in mid-June 2007, titled: "Nifong's punishment is extreme, appropriate." Although opinion pieces have a bit more leeway than news articles, they should at least consist of facts, statements should be substantiated within the text, and there should be a modicum of objectivity. In fact, the entire article is misleading, inaccurate, and flagrantly biased, beginning with her initial premise that disbarment of a lawyer is as rare as a "unicorn sighting." Nothing could be further from the truth. Since its inception in 1933, the North Carolina State Bar has disbarred thousands of attorneys. According to their own web page posted in the past, approximately 350 attorneys were disbarred during a ten year period, an average of nearly three a month. This blatantly false statement is made for the purpose of making former Durham District Attorney Mike Nifong's disbarment reflect more harshly on his actions in the Duke Lacrosse case.
Had Ms. Filan stated that disbarment of prosecutors is as rare as "unicorn sightings," then that would be right on. During its 76 years in existence, the North Carolina State Bar has only disbarred one prosecutor... Mike Nifong. This, despite the fact that North Carolina lags just behind Illinois and Louisiana in the number of death row inmates who have been exonerated. Many of them, such as Alan Gell, were convicted due to prosecutorial misconduct by their prosecutor (in this particular case, David Hoke, who is now serving as assistant director of the North Carolina Administrative Office of the Courts). However the state, the Duke Lacrosse defense attorneys, and the media, including Ms. Filan, purposely keep the fact that Mr. Nifong is the only prosecutor to be disbarred hidden from the public. That is what makes his treatment so selective, also when you adopt our view which is that Mr. Nifong did nothing wrong in pursuing prosecution in the Duke Lacrosse case.
Ms. Filan presumptuously states that Mr. Nifong will not receive his pension and not be able to retire, which is exactly what he is doing. And, he is not starting "from scratch" as Ms. Filan again falsely predicted. The article by Ms. Filan is filled with a lot of baseless speculation (or "bs"), and misleading and false statements. Most outrageous is the accusation that Mr. Nifong used the Duke case to get re-elected. What information does she have to base this upon? The only television ad I recall appearing during the campaign season which used the Duke Lacrosse case for his/her advantage was run by Attorney General Roy Cooper... "The Duke Lacrosse Decision." In prosecuting the Duke Lacrosse case, Mr. Nifong was merely doing his job. By suggest that performing his duties as district attorney while running for re-election is a conflict of interest is absurd. Does she expect Mr. Nifong to remain idle until the election returns are in? F. Lane Williamson of the State Bar also buy into this ridiculous belief, which they both know to be false. These statements are made purely to mold the impressionable minds of the lay public.
Ms. Filan really gets in the gutter when she accuses Mr. Nifong of using his son as a ploy to gain sympathy, leniency, and pity. I seen nothing wrong with a knowledgeable older teenage son wanting to show support for his father by attending his hearing. What I find reprehensible is Ms. Filan's attempt to spin this positive family gesture into something sinister. It is Ms. Filan, not Mr. Nifong, who is guilty of taking advantage of Mr. Nifong's son by needlessly bringing it up in her article in order to get in yet another cheap shot at Mike Nifong. Ms. Filan's actions here are truly shameful, and unbefitting a respectable news outlet.
One of the most ludicrous accusations penned by Ms. Filan is that Mr. Nifong damaged the reputation of Duke University. I would like to know how? She also insinuates that he damaged the reputation of the sport of lacrosse? Again, how?
I don't have a law degree, but I did take a civics class in high school, and I learned about the three different branches of government: executive, legislative, and judicial. An attorney general, who belongs to he executive branch, cannot make a judicial pronouncement. Yet the media and Ms. Filan give Roy Cooper's "innocent" proclamation the validity as that coming from a judge or jury. This is wrong, period! She also claims that Mr. Nifong damaged the lives of three "innocent" young men. How? They never spent one day in jail, they each received $7 million from Duke University in an out-of-court settlement for reasons unbeknownst to me, they are heroically depicted in books, there is an upcoming HBO movie about these wonderful lads, and individually, Collin Finnerty's celebrity moved a judge to expunge an assault charge from his record. Furthermore, they have all continued on with their lives, one graduating, the other two being offered reinstatement at Duke but deciding to enroll in other prestigious institutes of higher learning with lacrosse teams. Also, the families of these boys are currently seeking an additional $10 million from the cash-strapped city of Durham (which has already spent well more than a million dollars to defend). In the annals of North Carolina jurisprudence, there are many far more compelling instances of truly innocent people whose live have been severely damaged, and by and large, they are the disenfranchised, poor, and/or people of color.
One of the most outrageous statements made by Ms. Filan suggests that Mr. Nifong, in prosecuting the Duke Lacrosse case, damaged the public's confidence in the criminal justice system (of North Carolina). Ms. Filan fails to place blame for the public's sour perception of the criminal justice system where it is due... not on Mike Nifong, but on actions of Prosecutors Hoke, Graves, Honeycutt, Brewer, Parker, Wolfe, Keith, Ford, Black, Hardin, McFadyen and a multitude of others. Hoke and Graves won a conviction by withholding exculpatory evidence which resulted in an innocent man being convicted of capital murder and spending more than nine years in jail. Bill Wolfe charged the teenager James Arthur Johnson who solved the Brittany Willis murder, rape, kidnapping, and armed robbery with those crimes based solely on the word of the killer, who implicated Johnson only after investigators told him that Johnson "snitched" on him. After the killer recanted, Wolfe brought forward two "eyewitnesses," both with connections to the police department. These witnesses disappeared when media scrutiny became a factor. Johnson served 39 months in jail without a trial before charges were finally dropped by a special prosecutor. Michael Parker charged mentally retarded Floyd Brown with murder based on a confession which experts said Brown could not possibly made. Brown was held for fourteen years without a trial for the murder, and charges were reluctantly dismissed. Prosecutor Tom Ford tried to force Gregory Taylor to falsely implicate a black suspect for a murder. Ford threatened Taylor that if he did not cooperate, then he would charge Taylor with the crime (which is what he did). Without cause and no physical evidence linking Gregory Taylor to the crime, Ford won a conviction against him based on solely on the testimony of a jailhouse snitch and a prostitute. Their testimony was given in exchange for a decrease in their jail sentence, a fact which the prosecutor willfully withheld from Taylor's defense attorney. Prosecutors were so incensed with Theodore Jerry Williams for complaining about the District Attorney, that correction guards beat him up while in custody, his face pulverized and arm broken. They then charged Williams with assaulting a guard. When the case was dismissed because the prosecution destroyed material evidence that the defendant had requested, Attorney General Roy Cooper appealed. These are only a few of the cases that shed a disfavorable light on the North Carolina justice system. Not Mr. Nifong's actions in the Duke Lacrosse case.
Mr. Nifong's actions in prosecuting the Duke Lacrosse case were well within the acceptable standards practiced by other prosecutors. He did not withhold evidence, as the defense attorneys had all DNA lab evidence no later than October 27, 2006, at a time when a court date had yet to be set. In addition, the DNA evidence Mr. Nifong is accused of "withholding" was not exculpatory, as the defense attorneys and media would have the public believe. Mr. Nifong did not lie to the court when he stated that "this is the first that I have heard of this situation." He was without a doubt referring to the first he had heard that the defense attorneys had accused him of withholding evidence. Chairman of the Disciplinary Hearing Commission F. Lane Williamson is no mind reader, and a reasonable person would not accept his interpretation of Mr. Nifong's statement over Nifong's own interpretation. The statement itself was not material and should never have been given the attention it was given, however, the State Bar was so desperate to find a reason to disbar Mr. Nifong that they grasped at all straws. Finally, pre-trial statements made by Mr. Nifong were benign, made prior to indictments being handed down, and were intended to encourage witnesses to come forward. The majority of pre-trial statements made to the media were done so by the attorneys of the Duke Lacrosse defendants, yet Ms. Filan wants to accuse Mr. Nifong of going "Hollywood" and trying the case in the press.
If Mr. Nifong was guilty of any wrongdoing in his prosecution of the Duke Lacrosse case you could not tell by reading Ms. Filan's article. Never once did she explain what he did that was deserving of disbarment. She is not alone, because law professors at Duke University School of Law are unable to explain why Mr. Nifong was disbarred. I asked more than two dozen of them, and they were even afraid to discuss what has become a taboo topic. Taboo because the attorneys, and individuals with a knowledge and understanding of the issues surrounding Mr. Nifong's disbarment, know that the actions by the North Carolina State Bar are selective and unjust. Had the Bar's disbarment of Mr. Nifong been justified, attorneys and law school professors would not be hesitant to enter into dialogue about it.
I have no problem with opinion pieces that are accurate and based on facts, however I take umbrage when such statements are based on lies, rumor, unsubstiated pronouncements, and baseless speculation. In her article "Nifong's punishment is extreme, appropriate," MSNBC Senior legal analyst Susan Filan not only does a disservice to her professions in the legal and media arenas, but an even greater disservice to the impressionable media consuming public. The article is a disgrace.
That said, I believe in fair play, and I would like to offer Ms. Filan the opportunity to respond on our blog site (www.justice4nifong.blogspot.com), our website (www.justice4nifong.com), or in any other venue or forum over which the Committee on Justice for Mike Nifong has control. Any response would be published in its entirety without editing or direct rebuttal. Shortly after the posting of this blog, I will send by postal mail an invitation to Ms. Filan asking for a reply not only to issues covered in her article and this blog, but on any other related or unrelated subjects upon which she may wish to expound.