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.