Herald-Sun writer Neil Offen misleads public

In a December 30, 2009 Herald-Sun article titled “Top 10 Stories of the Decade,” writer Neil Offen writes about the Duke Lacrosse case, which the newspaper staff evidently selected as the top story of the decade. The article is a minefield of misleading and false statements about the case; not unlike typically biased writings which have characterized the media’s approach to the topic. One line which particularly stands out is: “The lacrosse players were declared innocent.” This is the complete statement. I believe that Mr. Offen was referring to the April 11, 2007 “Innocent Promulgation” made by North Carolina Attorney General Roy Cooper. To my knowledge, he is the only one to make such a statement, and as most people who have taken high school Civics 101 know, such a proclamation made by a member of the executive branch of government carries no legal weight. The reasons Mr. Offen did not mention in his article that Mr. Cooper made the declaration of “innocent” are twofold. First and foremost he wanted to mislead the public into assuming that a judicial body had made the innocent declaration, and secondly, he was too embarrassed to actually make such a silly statement.

Another statement which I find objectionable is: “…the public downfall of District Attorney Mike Nifong, toppled by his attempt to prosecute the lacrosse players on charges for which there was no evidence.” The truth of the matter is that there are many instances in which prosecutors pursue charges in which there is no evidence. Many of those cases, like the Duke Lacrosse case, are eyewitness cases. For example, prosecutors brought rape charges against Dwayne Dail based on eyewitness identification of a twelve year old girl alleged victim. There was no evidence linking him to that crime for which he spent nearly two decades in jail. Then, there’s the case of Ronald Cotton, who was convicted by eyewitness identification only, without evidence tying him to the crime. He served a decade in prison for a crime with which he was innocent. The armed robbery case against 14 year old Erick Daniels was also based on eyewitness testimony (the shape of his eyebrows in a middle school yearbook) in a case where there was no evidence linking him to the crime. He was wrongfully incarcerated for seven years. A fourth case, Alan Gell was incarcerated at the time of the commission a murder for which he was prosecuted, and prosecutors withheld this information from his defense attorneys in order to win a death penalty conviction. He was sentenced to death and served half of his time served on death row before he was granted a new trial. There was no evidence linking Mr. Gell to the crime. His conviction was based on the testimony of a teenage girl who made contradictory statements, and was even recorded on a wiretapped conversation saying that she was forced to make statements that benefited the prosecutor’s case. Finally, there’s the case of Gregory Taylor, who was sentenced to life on a murder charge in which there was no evidence tying him to the crime. He was convicted on the testimony of a prostitute and a jailhouse snitch (both of whom received deals in exchange for their testimony – a fact which was not relayed to the defendant’s attorney). The prosecutors of these five aforementioned cases were not hauled before the North Carolina State Bar and subjected to disciplinary hearings. However, Mr. Offen would like the media consumer to believe that all cases prosecuted by the state are backed up by forensic evidence. This is misleading and far from the truth.

The reason that Mr. Nifong was charged by the North Carolina State Bar with ethics violations was to get him off the case. After the Bar filed the charges against him, Mr. Nifong had no alternative than to recuse himself from the Duke Lacrosse case.

Mr. Offen states that Mr. Nifong was found guilty of criminal contempt (a trumped up charge for which he was sentenced to 24 hours in jail). This is only part of the punishment for which Mr. Nifong was subjected because of his decision to proceed with prosecuting the Duke Lacrosse case instead of dropping it initially. Because of his independence from the state in his decision to proceed with prosecution, Mr. Nifong suffered a similar fate as Archbishop of Canterbury Thomas Beckett who defied England’s King Henry II. The fact is that Mr. Nifong did not lie to the court as the State Bar and media would like the public to believe.

In his article, Mr. Offen also states that Mr. Nifong was disbarred for misconduct, but I bet that he, like the average person on the street, cannot explain what that alleged misconduct is. Mr. Nifong certainly did not withhold evidence, as all DNA evidence was submitted to the defense team no later than October 27, 2006. There was plenty of time for the Duke Lacrosse defense team to utilize the information in preparing for a defense as a trial date had not even been set at that time. Furthermore, the alleged DNA evidence that Mr. Nifong withheld was not exculpatory, as the media has suggested often in the past. This is in stark contrast to Prosecutor David Hoke who withheld 17 "exculpatory" eyewitness statements from Alan Gell’s defense attorneys (evidence which immediately led to a “not guilty” verdict in a retrial).

As far as criminal cases, Alan Gell’s case is far more important and compelling than the Duke Lacrosse case when viewed through an objective lens. Whereas Mr. Nifong acted within acceptable standards in prosecuting the Duke Lacrosse case, Mr. Hoke withheld exculpatory evidence from the defense team in winning a death penalty conviction. The Duke Lacrosse defendants served no jail time, and they each received $7 million from Duke University for reasons which are unknown to me. Alan Gell is now serving jail time on vendetta charges that the Johnston County District Attorney cannot even coherently explain. Meanwhile, the Duke Lacrosse boys have all been allowed to proceed with their lives and are benefiting from their celebrity (books have been published presenting them in a favorable light, a movie for HBO is in production, and Collin Finnerty has had an assault charge expunged from his record). And currently they are seeking an additional $10 million each from the cash-strapped city of Durham. Mr. Gell, on the other hand, has reached an out-of-court settlement against the state of North Carolina in which he was awarded four million dollars.

Even the case of James Arthur Johnson is more compelling because his actions in solving the murder case of Wilson teen Brittany Willis resulted in him being charged in the crime. The charge against Johnson was based solely on the testimony of the murderer, who implicated Johnson only after police told him that Johnson had “snitched” on him. Johnson served 39 months in jail without a trial, and charges of murder, rape, kidnapping and armed robbery were dropped the day the trial was to begin (long after the murder recanted testimony upon which charges were based). Again, no evidence linked Johnson to the crimes against Brittany Willis. Eventually, with the threat of additional wrongful incarceration, Johnson agreed to an Alford plea with a special prosecutor desperate for a face-saving resolution. Although James Arthur Johnson solved the crime and earned the $20,000.00 reward offered by the family and friends of Brittany Willis, it was never forthcoming. And the fact that the reward was not presented was never addressed by the media. It is doubtful whether the crime would have been solved had it not been for Mr. Johnson coming forward to the Wilson Police Department.

On its merits, the Duke Lacrosse case should not have been made the top story of the decade, but that is what happens when the media panders to the well-heeled, and becomes a bully pulpit for them. Instead of spreading propaganda to support the interests and agenda of the wealthy, powerful, and privileged, the media should concentrate on providing the media consumer with objective and unbiased reporting. The article by Mr. Offen left a lot to be desired as far as this is concerned.

I gladly offer Mr. Offen the opportunity to answer this blog, by providing him with a blog page in which I will post, in full and without editing or a direct rebuttal, his response.