News & Observer staff writer Joseph Neff’s December 22, 2009 front page article titled “Agency raps DA’s office” is a prime example of the double standards used by the North Carolina State Bar and by the media. Mr. Neff is quite accurate when he describes the State Bar’s disciplinary actions against the prosecutors of Alan Gell as being “tepid.” Actually, tepid is an understatement. Gell’s prosecutors actually withheld evidence that resulted in a death penalty conviction of an innocent man who was wrongfully incarcerated for nine years due to prosecutorial misconduct. Mr. Neff goes on to describe the State Bar’s disciplinary action against former Durham District Attorney Mike Nifong as “vigorous,” again, an understatement. The reason for the discrepancy in the degree with which the State Bar goes after its prosecutors, I believe, has to do in large measure to the autonomy of the attorney. Mike Nifong, in pursuing the principle of “equal justice for all,” went against the attorney general, and the Duke University fixer when he would not drop charges in the Duke Lacrosse case. That made Mr. Nifong a target, not unlike Archbishop of Canterbury Thomas Beckett who defied England’s King Henry II. Like Beckett, Mr. Nifong was made to pay a steep price for not kowtowing to the wishes of the powers that be.
What is troubling is that the North Carolina State Bar, as stated by Mr. Neff, would selectively discipline some prosecutors tepidly, while vigorously disciplining others. It is the inconsistency and selective nature of the Bar’s actions that brings its fairness into question. There is no question that Mr. Nifong was given the end-stage disciplinary punishment for trumped up, merit-less accusations of trivial minutiae, and that the prosecutors of Alan Gell were given the mildest sanction possible (a reprimand) for falsely putting a man on death row, and having him spend nearly a decade wrongly in prison. It is not surprising that the prosecutors of Gell, unlike Mr. Nifong, went along with the state’s playbook of “selective justice based on Class and Color.”
Now the double standard use by the media is the blatant act of withholding the identity of the prosecutors of Alan Gell from the public. Those prosecutors, David Hoke and Debra Graves, did not have their names mentioned anywhere in the article. That is because of the conscientious effort by the newspaper to shield them from bad press. This is a tact that is commonly used by the media, especially the News & Observer and Mr. Neff. In many articles on issues of social injustice wherein prosecutors have not acted as “ministers of justice,” the media will refer to their “bad deeds” but not publish their names. It is the absolute contrary when it comes to Mr. Nifong. As in this article, Mr. Nifong’s name is mentioned twice whereas the names of Hoke and Graves are never mentioned, period.
The media further goes out of its way to minimize the egregious actions of prosecutor David Hoke by writing that he “failed to hand over favorable evidence to Alan Gell…”
“Failed to hand over” sounds much more innocuous and more accidental that “withholding” (term used in the article to describe Mr. Nifong’s alleged misconduct). Furthermore, the Meister of Spin describes evidence that Mr. Hoke withheld from the defense as being “favorable.” This is, itself, a joke, because the evidence was prima-facie example of “exculpatory evidence.” Hoke withheld evidence that proved beyond doubt that Mr. Gell could not have committed the murder for which he was eventually convicted. At re-trial when the exculpatory evidence was introduced in the proceedings, the jury, when handed the case, immediately found defendant Gell not guilty.
Mr. Neff states that the Bar prosecuted Mr. Nifong for withholding evidence. The media, in general, has consistently disseminated and perpetuated this lie. Mr. Nifong did not withhold evidence. Like Gregory C. Butler, the Johnston County prosecutor in the Tiffany Bassett case, Mr. Nifong turned over all evidence to the defend attorneys, and he did so well before a trial date was even set. The defense team had plenty of time to work with all the DNA evidence in preparing a defense for their clients. Defendants in the Duke Lacrosse case were not prejudiced in the least by DNA evidence being presented to them in October 2006, instead of May 2006.
The fact is that Mr. Nifong has always utilized an open file discovery policy as a practicing prosecutor, doing so 25 years prior to it being mandated into law. On May 17, 2006, the Duke Lacrosse attorneys asked the courts for a discovery motion. On May 18, 2006, the following day, Mr. Nifong’s office had provided each of the three defense attorney teams with 1,267 pages of documents, a cassette, and a CD. The gathering of these items was not supervised by Mr. Nifong, and was undertaken by staff members who had no inkling of the relevance or value of the items that they were copying in compliance with the discovery motion. In essence, Mr. Nifong would provide the defense with all evidence at his disposal as soon as he became aware of it (not unlike prosecutor Butler).
Mr. Neff also wrongly claims that the Mr. Nifong withheld evidence that the Duke Lacrosse defendants were falsely charged with rape. Although the rape charge was later dismissed by Mr. Nifong, there was no evidence in the possession of the prosecutor or defense that was exculpatory in ruling out the possibility of a sexual assault.
To his credit, Mr. Neff does include the following paragraph: “This failure to produce evidence happens in virtually all complicated cases, said Jim Woodall, district attorney for Orange and Chatham counties, and president of the N.C. Conference of District Attorneys.” However, it begs the question that if it happens all the time in complicated cases, then why is it that Mr. Nifong is the only prosecutor to be disbarred? The answer has to do with the nature of the “selective and unjust system of justice based on Class and Color.”
The article by Joseph Neff has many problems as referenced to above, but despite the spin, the newspaper does deserve kudos for bringing this matter to the attention of the people. Like all media covering legal issues and referring to the Duke Lacrosse case, it needs to be more objective in its reporting (such as being consistent in mentioning/or not mentioning the names of all prosecutors), not biased in gratuitously singling out Mr. Nifong in a negative way, and reporting more accurately and honestly (cease and desist from referring to the Duke Lacrosse defendants as “innocent” and/or “falsely accused”).
The media needs to stop misleading people who believe everything it publishes and airs, and stop insulting the intelligence of those of us who know better.