Exposure of typical widespread prosecutorial misconduct was once again made apparent in an article in August 29, 2010’s The News & Observer, titled “‘Bloody’ evidence misused to elicit plea deal in death.” The article by J. Andrew Curliss actually eschewed the paper’s PAPEN (Protect All Prosecutors Except Nifong) Policy by actually mentioning the name of the prosecutor responsible for the prosecutorial misconduct, Durham Prosecutor Freda Black… even though buried deep in the article, it was nonetheless mentioned. Mr. Curliss deserves kudos for this, but it is not surprising (as he has taken on former Governor Mike Easley and other heavyweights with his investigative reporting). The article about the injustice against Derrick Allen, who was recently granted a new trial, only reinforces the contention that North Carolina follows a tenet of “selective justice based on Class and Color.”
In the summer of 1999, Durham prosecutors, led by Freda Black, were pursuing the death penalty against Derrick Allen for allegedly killing and sexually assaulting the two-year old daughter of his girlfriend. When Black received confirmatory lab results stating that what was presumed to be blood stains on the victim’s clothing was in fact not blood, the prosecution changed course and sought a plea deal. In offering the deal, prosecutors lied to defendant Allen, who had always maintained his innocence, telling him that their was blood on the child’s garments. They offered a deal which would remove the death penalty from consideration in exchange for a lengthy prison sentence.
Although he knew of his innocence, Allen agreed to pleading guilty to committing a murder which he knew that he did not commit because of what he believed to be honest and accurate lab results, and because his own defense attorneys expended their efforts in advising him to accept the offered plea deal rather than preparing for his defense against the charges in court. Unfortunately, and all too often, defense attorneys pressure their clients to accept deals even when they know it is not in their clients' best interests. The reasons may be due to shear laziness or in the form of incentives, but let there be no doubt that defense attorneys often purposely work with prosecutors to get their clients to plead guilty… even in a case that is weak and has no credible evidence.
A “Minister of Justice” would not lie about such important evidence in order to wring out a knowingly false admission of guilt. To make it more palatable for the defendant to enter into a plea deal despite insisting upon his innocence, the Alford Plea was introduced. It is the same tool that was successfully used by the prosecutors in the James Arthur Johnson case. Unfortunately, although it facilitates the prosecution’s ability to obtain a plea deal, it has no legal bearing or benefit to the defendant. In other words, the Alford Plea is nothing more than a “legal Jedi Mind-trick”… just another sinister weapon in the prosecutor’s arsenal to gain an unfair advantage over the defendant.
Wake prosecutor Tom Ford tried unsuccessfully to force Gregory Taylor to enter into a plea deal which included fingering another innocent man (an African American) for a murder that neither of them committed. Taylor stood on his principles and refused to implicate a man he knew to be innocent, and therefore he was subjected to the wrath of Ford who convicted him with phony and misleading blood testimony… not unlike that used by Prosecutor Black to sway Derrick Allen to admit guilt. Sadly, Taylor served 17 years of a life sentence before he was cleared by a three judge panel in February 2010. During this hearing, Ford, the original prosecutor in 1992, fought to keep Taylor behind bars for the rest of his life based solely on the testimony of two witnesses who offered statements in exchange for a reduction of their time of incarceration. Tom Ford, and his district attorney, Colon Willoughby, are definitely not “Ministers of Justice.”
In another article by Mr. Curliss, titled “Defense sees evidence 12 years after plea deal,” he explains that the defendant, Derrick Allen and his current attorneys are seeing for the first time important evidence about the murder and sex charges brought against him 12 years ago. Evidence of particular importance that prosecutors held back from the defendant was a statement by the state’s main witness against Allen in which she stated that she and Allen had an intimate relationship that had turned sour and that she considered him her enemy. Since his incarceration more than a decade ago, Mr. Allen has been trying to obtain all evidence prosecutors had in their file, but prosecutors have been reluctant to release it to him.
So with regards to his case 12 years ago, Prosecutor Black withheld from defendant Allen crucial lab evidence regarding alleged “bloody” stains, withheld from Allen crucial information about a witness statement that was favorable to the him, and she lied to the Allen about results of a lab test in order to coerce him into accepting a plea deal instead of a possible death penalty conviction.
Former Durham District Attorney Mike Nifong has never purposely withheld evidence from defendants, including the Duke Lacrosse defense teams (although the media has grossly misled the public into believing that he did just that). Furthermore, he has never lied to the defense to give the impression that he had incriminating evidence for the purpose of forcing a defendant to accept a plea deal. Mr. Nifong has always maintained an open file policy which granted the defense counsel complete access to the prosecution’s evidence… he did this for more than two decades before it was mandated into law. He has prosecuted in good faith to uphold equal justice for all, not unlike principles that guided Wyatt Earp and Eliot Ness. And Mr. Nifong acted independent of pressures brought by his superiors and public sentiment… actions were guided by his overriding desire to see that justice prevailed. In the Duke Lacrosse case, he proceeded with his prosecution of the defendants despite its unpopularity with the Attorney General’s Office, Duke University, the media, and the general public. He prosecuted despite the fact that by doing so it markedly damaged his chances for being elected to the post of Durham district attorney. And, like another courageous man in history, Archbishop of Canterbury Thomas Beckett, Mr. Nifong suffered the consequences.
Yet, it is Mr. Nifong that the state persecutes and the media crucifies. Prosecutors like Freda Black, Tom Ford, Bill Wolfe, and others of their ilk are protected by the Attorney General’s Office and the media, in general. The articles in The News & Observer by Mr. Curliss are an unexpected and pleasant change from the PAPEN Policy. Without doubt, had Joseph Neff authored the story, the identity of the prosecutor responsible for the misdeeds and malfeasance against Derrick Allen would not have been mentioned.
Because of problems with the SBI lab, as exposed during the Greg Taylor hearings and which are really reflections on the prosecutors, Derrick Allen now has an opportunity to get justice. However, even if he is found “not guilty” on re-trial, if the prosecution chooses that route, do not expect for Governor Bev Perdue to issue a pardon. Do not expect to see him compensated for a dozen years wrongfully spent behind bars. The North Carolina justice system does not work that way… it is not fair. In North Carolina, justice tends to benefit those who are well-heeled, privileged, and not people of color.
Likewise, do not expect an upsurge in demands for sanctions or disciplinary actions against Prosecutor Black by the media, the governor, the Attorney General’s Office, or the public. After all, Allen does not come from a family of wealth, power, and privilege, so injustice meted out to him is readily tolerated by the Tar Heel masses. To paraphrase Rae Evans (mother of Duke Lacrosse defendant Dave Evans) and put things in perspective, Prosecutor Freda Black, in pursuing and prosecuting Derrick Allen, picked on a person from the “right” family to indict… namely one that is poor, disenfranchised, and of color. Because Mr. Nifong picked on people to indict who came from the “wrong” families, the avenging agenda of the Carpetbagger Jihad that calls for his total destruction in appropriate in the eyes of many.