Thursday, April 22, 2010

Doing the right thing when a prosecutor errs

Wayne County District Attorney Branny Vickory in his earlier days as a North Carolina prosecutor helped to wrongly convict Dwayne Dail of the 1987 rape of a twelve year old girl. Mr. Dail spent nearly 19 years in prison before DNA evidence performed on a night-gown proved that he could not possibly have been the rapist. The case that Prosecutor Vickory brought against Dail more than two decades ago lacked “credible evidence” (something for which former Durham District Attorney Mike Nifong has been soundly criticized for in his handling of the Duke Lacrosse case). Despite Dail’s steadfast insistence of his innocence, he was convicted largely on the testimony of the twelve year old victim. The full extent of the evidence in the Duke Lacrosse case will never be known because it was dismissed by Attorney General Roy Cooper on April 11, 2007… however, like the rape case in 1989, it included testimony by the sexual assault victim. Prosecutor Branny Vickory, though green as an attorney back then, seems to have prosecuted the case in good faith and within the standards accepted by which prosecutors are held.

Mr. Vickory prosecuted the wrong person for the 1987 rape. Did he make some mistakes? I am sure that he would be the first to admit to it, just like Mr. Nifong admitted to making mistakes during the prosecution of the Duke Lacrosse case (although the jury will be out permanently regarding innocence or guilt of the three indicted by the grand jury). Although the injustice of an innocent man (Dail) spending nearly two decades of his young productive life unjustly confined is unfathomable, the prosecutor, Vickory, should not be pilloried. Mike Nifong,who prosecuted the Duke Lacrosse case in good faith and within acceptable standards, likewise should not be held to public scorn just because he prosecuted defendants from families of wealth, power, and privilege. Unfortunately, the gauntlet was thrown down and the Carpetbagger Jihad initiated when the mother of Duke Lacrosse defendant Dave Evans, Rae Evans gave her interview on “60 Minutes.” She stated that Mr. Nifong would “pay every day for the rest of his life,” because, as she so insightfully put it, he “picked on the wrong families to indict.” It is important to also keep in mind that the Duke Lacrosse defendants, as opposed to Mr. Dail, never spent one day in jail, that they received seven million dollars each from Duke University, and that they are currently suing the city of Durham seeking an additional ten mil each.

Although I am not well versed about the Dwayne Dail case and the prosecution’s actions, I am inclined to give the prosecutor the benefit of the doubt, if, as was reported in The News & Observer, Vickory rushed to free Dail once the 2007 DNA tests excluded him as the assailant of the 12 year old victim. No one person, or no one prosecutor is perfect… everyone makes mistakes. To his credit, Branny Vickory admitted his mistake and made an effort to correct it. This is what a good prosecutor does. And as simple as the principle of correcting a mistake seems, it is one that is not undertaken as often as one would think among state prosecutors. In the Alan Gell case (prosecuted by David Hoke), for example, as soon as definitive exculpatory evidence became available proving that Gell could not have committed the murder for which he received the death sentence, the Attorney General’s Office proceeded to re-try Gell, nonetheless.

More recently, another situation where prosecutorial mistakes led to a wrongful 17 year imprisonment of an innocent man is illustrated by the Greg Taylor case. When the Innocence Inquiry Commission unanimously referred Greg Taylor’s murder conviction to a three judge panel for review, the initial 1991 prosecutor Tom Ford, with assistance from Wake County District Attorney Colon Willoughby, fought tooth and nail to have the innocent man, Greg Taylor, remain incarcerated for the rest of his life. The judicial review of the case brought to light the fact that the State lab withheld information favorable to the defendant, and that Prosecutor Ford misrepresented the lab results in order to win a conviction against the innocent man. Like prosecutors Vickory and Hoke, Ford had no credible evidence to charge or prosecute Greg Taylor in 1993.

Prosecutors, once they realize that they have made a mistake, should admit it and move to correct it… like Vickory and Mike Nifong. When the Duke Lacrosse accuser could not identify to Prosecutor Nifong’s satisfaction that she had been rape, Mr. Nifong immediately moved to drop the rape charges. However, when exculpatory evidence was uncovered pointing to Gell’s innocence, the Attorney General’s Office chose to fight to try and convince the public that it had not made a mistake by convicting an innocent man to death… but the jury, when presented with the exculpatory evidence and given the opportunity to deliberate, quickly reached the obvious verdict, that Gell was innocent. Prosecutor Tom Ford, likewise tried to convince the world that Greg Taylor was guilty before a panel 17 years after the initial trial. Ford was more interested in trying to prove that he had not made a mistake in convicting the wrong man, rather than any consideration that he might be keeping an innocent man behind bars for the rest of his life… he didn’t care.

All prosecutors, at some time or another in their careers, make mistakes… but it is the relatively few good ones, like Branny Vickory and Mike Nifong, who admit to them and then set about to correct them.

16 comments:

VickoryisNifongshero said...

You got it right, Sid -- Nifong rushed to drop the charges against the 3 Lacrosse players once the DNA evidence excluded them...Oh, wait....

BTW, what exactly has Nifong done to correct his mistakes?

Anonymous said...

(although the jury will be out permanently regarding innocence or guilt of the three indicted by the grand jury)

Just we will never know whether James Arthur Johnson was innocent or guilty of the robbery, rape and murder of Brittany Willis?

Steven said...

Dear VickoryisNifonshero:

First, what is up with that name? Anyway - the DNA evidence DID NOT exclude the lacrosse players. Here's what did happen: The DNA evidence that was found was partial and incomplete. The markers that were found showed that these guys MIGHT have been present and MIGHT have been the donors of the DNA. The evidence showed that the donors of the DNA were white males: All these guys are white males. The evidence did not say that the white males who donated the dna that was found were these three lacrosse players. Far from exonerating them this evidence INCLUDED them in an admittedly large pool of possible suspects. That partial DNA identification combined with other evidence could have made a convincing case to jury but it never went to trial.

It is fine to believe these guys are innocent but to convice others you really should get your facts straight.

Steven Matherly

StevenisSidsHero said...

J4N Committee Member Steven Matherly -- Fail.

One person WAS positively identified with the DNA evidence -- CGM's "boyfriend" at the time.

The only DNA evidence that had "some characteristics" of "one or two" LAX players was a plastic fingernail. This DNA evidence DID NOT match either Colin Finnerty or Reade Seligmann.

Of course, all of this information is readily available via a google search. Get your facts straight

Anonymous said...

Steven -- Even Mike Nifong is on record as stating "I agree with state Attorney General there is no credible evidence that [the players] ... committed any of the crimes of which they were indicted,"

Anonymous said...

Vickory DID NOT prosecute the case in '87. He was an assistant DA who was NOT assigned to the case. When the evidence surfaced in '07 he was the DA and set what had to be a record in ID the evidence having it tested and having Dail released in a matter of days from the moment he learned of the evidence. Don't put Nifong in the same league with Vickory.

Nifong Supporter said...

To Anonymous:

Anonymous said...
"Don't put Nifong in the same league with Vickory."


Vickory should be proud to be considered in the same league as Mike Nifong. I believe both prosecutors acted conscientiously, within acceptable standards and in good faith.

Anonymous said...
"Just we will never know whether James Arthur Johnson was innocent or guilty of the robbery, rape and murder of Brittany Willis?"


Analogies don't match. James Arthur Johnson was innocent of the crimes against Brittany Willis. The Wilson police obtained the false statement implicating Johnson by telling the true perpetrator that his "friend snitched on him." Kenneth Meeks, the killer was angered and implicated Johnson. This was the only evidence that Wilson police used to build a case against Johnson, and held him for 39 months without a trial. When Meeks recanted, the Wilson police tried to come up with new eyewitnesses (both connected to the Wilson Police Department). NAACP and Rev. Barber brought media attention to the case, and knowing the false eyewitnesses would not stand up under scrutiny, the so-called eyewitnesses silently disappeared into the woodwork. Wilson Prosecutor Bill Wolfe had an opportunity to present his case in court, but he had no case, and so a special prosecutor was appointed who dropped the charges.

In the Duke Lacrosse case, Mike Nifong was forced off the case by the North Carolina State Bar which filed an ethics charge against him. Mr. Nifong, unlike Wolfe, was forced to turn the case over to a special prosecutor... and unfortunately, the events which followed were foreordained once the Attorney General's Office took over. Mr. Nifong was never able to present his case!

Anonymous said...

You mean that case that had "no credible evidence that [the accused] committed any of the crimes of which they were indicted"? What would Nifong present in such a case?

Anonymous said...

Dr. Harr wrote: James Arthur Johnson was innocent of the crimes against Brittany Willis.

What court heard the case and declared him innocent? Please provide a link.

You have also stated that only a court can declare innocence.

guiowen said...

Steven,
Are you serious? Do you actually know nothing about the way that DNA evidence is used?

guiowen said...

To all:
We have a true racist in our midst. Steven actually thinks that white DNA and black DNA are qualitatively different!

DavidDukeisStevenshero said...

Steven -- I suggest you read the article posted here:
http://knol.google.com/k/can-dna-tell-what-race-you-are#

Then get your facts straight.

Nifong Supporter said...

To Anonymous:

Anonymous said...
"Dr. Harr wrote: James Arthur Johnson was innocent of the crimes against Brittany Willis.

What court heard the case and declared him innocent? Please provide a link.

You have also stated that only a court can declare innocence."


Nice point, however, I am not basing the innocence of James Arthur Johnson solely on the fact that charges against him were dropped by Special Prosecutor Belinda Foster. I am basing it on the facts of the case.

Most important is that the charges of murder, rape, kidnapping, and armed robbery made against Johnson were solely based on implicating statements by the admitted killer Kenneth Meeks. Later, Meeks recanted that Johnson had any involvement in the commission of the crimes against Brittany Willis. In addition there was no physical or forensic evidence linking Johnson to the crime. Therefore, he is innocent, but the media would be at fault if it were to write that he was "exonerated" because technically, he wasn't. Common sense-wise, Johnson is "innocent" but the same cannot be said for the Duke Lacrosse case because there is no clear determination that the boys were, in fact, innocent.

Another important point to know is that even though Special Prosecutor Belinda Foster dismissed charges of murder, rape, kidnapping, and armed robbery, which is appropriate, she is not able to proclaim Johnson "innocent." She is not a judge.

In the Duke Lacrosse case, the attorney general inappropriately and unwisely stated that the Duke Lacrosse defendants were innocent, instead of just stating that the charges against the boys would be dropped. What is tragic is that the media embraced Roy Cooper's statement as carrying legal weight (which it didn't), and began referring to the Duke Lacrosse defendants as "innocent", "not guilty", cleared", "falsely accused", and/or "exonerated."

Nifong Supporter said...

To Anonymous:

Anonymous said...
"Dr. Harr wrote: James Arthur Johnson was innocent of the crimes against Brittany Willis.

What court heard the case and declared him innocent? Please provide a link.

You have also stated that only a court can declare innocence."


Nice point, however, I am not basing the innocence of James Arthur Johnson solely on the fact that charges against him were dropped by Special Prosecutor Belinda Foster. I am basing it on the facts of the case.

Most important is that the charges of murder, rape, kidnapping, and armed robbery made against Johnson were solely based on implicating statements by the admitted killer Kenneth Meeks. Later, Meeks recanted that Johnson had any involvement in the commission of the crimes against Brittany Willis. In addition there was no physical or forensic evidence linking Johnson to the crime. Therefore, he is innocent, but the media would be at fault if it were to write that he was "exonerated" because technically, he wasn't. Common sense-wise, Johnson is "innocent" but the same cannot be said for the Duke Lacrosse case because there is no clear determination that the boys were, in fact, innocent.

Another important point to know is that even though Special Prosecutor Belinda Foster dismissed charges of murder, rape, kidnapping, and armed robbery, which is appropriate, she is not able to proclaim Johnson "innocent." She is not a judge.

In the Duke Lacrosse case, the attorney general inappropriately and unwisely stated that the Duke Lacrosse defendants were innocent, instead of just stating that the charges against the boys would be dropped. What is tragic is that the media embraced Roy Cooper's statement as carrying legal weight (which it didn't), and began referring to the Duke Lacrosse defendants as "innocent", "not guilty", cleared", "falsely accused", and/or "exonerated."

Anonymous said...

Dr. Harr wrote: “Nice point, however, I am not basing the innocence of James Arthur Johnson solely on the fact that charges against him were dropped by Special Prosecutor Belinda Foster. I am basing it on the facts of the case.”

I take it then that you have had an opportunity to study the entire case file—every page, photograph and tape. My understanding is that the file was not made public due to privacy, confidentiality and other considerations. It appears that the special prosecutor “sealed” the file. It would be interesting to understand how you were provided access.

Unless you had the opportunity to study the entire file, you would be the first to admit that you would not have sufficient information to conclude that there was no evidence to implicate Mr. Johnson. You would not know all of the evidence that is in the file, but only what has been discussed publicly. You have made this point repeatedly in the Duke case—you cannot make a conclusion about innocence based solely on media reports and statements by the prosecutor and defense attorneys. You have to see the evidence yourself—or hear it in court.

Similarly, unless you had been able personally to interview Mr. Meeks, you would not be able to determine whether his original accusation or his recantation was accurate. (After all, it is possible that when he realized that he couldn’t escape punishment, Mr. Meeks decided to take the blame for both of them.) Otherwise, you would have to rely on the prosecutor’s judgment in making that determination, and we know that you don’t believe a prosecutor has that authority.

Dr. Harr wrote: “In addition there was no physical or forensic evidence linking Johnson to the crime.”

I am surprised that you even mention this fact. You repeatedly have explained why the lack of physical and forensic evidence is inconclusive.

Dr. Harr wrote: “Another important point to know is that even though Special Prosecutor Belinda Foster dismissed charges of murder, rape, kidnapping, and armed robbery, which is appropriate, she is not able to proclaim Johnson "innocent." She is not a judge.”

That is really too bad. A statement of innocence by the special prosecutor and an expression of thanks for his coming forward to help solve the crime may have brought more closure to this case. Mr. Johnson may have been owed an apology for his incarceration and the hostile media coverage he endured. Perhaps a strong statement of innocence may have convinced Ms. Willis’ family that the sole murderer of their daughter had been brought to justice instead of continuing to believe that one of her killers had escaped punishment.

Dr. Harr wrote: “there is no clear determination that the boys were, in fact, innocent.”

You draw an interesting conclusion. I would have thought that a determination that “there was no credible evidence to support the allegation that the crimes occurred… and the additional affirmative proof that these crimes did not occur” is a “clear determination” of innocence. I do not understand any other conclusion if “these crimes did not occur.”

As you know, Mr. Nifong has agreed that there was “no credible evidence” that the defendants committed any crimes against Ms. Mangum.

Anonymous said...

Siddhartha Gautama (the Buddha) -- is a Lord of divine enlightenment. However.... bond guidelines are not set divinely or capriciously by judges. Strict criteria written in the law sets the amounts that can be given. Ms. Mangum does appear to have been a "flight-risk." Due to the prominence of Ms. Mangum, being spirited-away by supporters was a real factor to be considered by her judge. If Crystal had a name like "Siddhartha" she may have been released on her "own recognizance." So, don't blame the judges or the law. You simply show your lack of "divine enlightenment" of how the system really works for everyone.