Prosecutorial discretion follows Class and Color

In North Carolina, prosecutors are given wide leeway when it comes to how to proceed with a case. Without exception, the defendant’s class and color takes overriding consideration when the prosecutors determine the degree of lengths to take prosecuting. Naturally, the powerful, well-heeled, and privileged defendants will be treated with the most leniency, often with the prosecution not even seeking jail time. The poor, disenfranchised, and people of color, on the other hand, will usually be subjected to the harshest terms available (most always including jail time), and then some. There are numerous examples I could cite, but I will mention but a couple below.

Former North Carolina Governor Mike Easley.
Bill Kenerly, a Rowan County district attorney for twenty years, was appointed to be the special prosecutor in the felony case against Mr. Easley which included charges that he violated campaign disclosure laws and other campaign laws. As The News & Observer pointed out, Easley received may questionable gifts, but prosecutor Kenerly did not charge him with any. The gifts, for which Easley did not face charges, included:
(1) Discount of $137,000 on a waterfront lot in a posh coastal development (after Easley granted environmental permits to the developer of the subdivision);
(2) Waiver of $50,000 in monthly dues at an exclusive golf country club over an eight year period (after the governor got a state official to drop objections to the club siphoning millions of gallons of water from a nearby creek during the 2002 drought);
(3) 88% pay increase to an annual salary of $170,000 in 2008 for Governor Easley’s wife for a job created for her at North Carolina State University;
(4) Free use of an SUV by Governor Easley’s son for six years.

Of the numerous free personal flights worth close to $88,000 which the governor failed to disclose, special prosecutor Kenerly decided to focus on only one October 2006 helicopter flight valued at $1,600. In fact, this was the sole felony charge to which Easley pled guilty in the negotiations Kenerly made with Easley’s attorney Joseph B. Cheshire V. The prosecutor also worked to see that the Alford plea agreement involved no jail time for the former governor, that all other state and federal charges and investigations would be dropped, and that Easley would pay only $153 in court costs and a $1,000 fine… less than the value of the 2006 helicopter flight.

Although, according to Katherine Jean, General Counsel for the North Carolina State Bar, attorneys convicted of a felony are typically disbarred, it appears that the Bar is not rushing forward to do so. The unregulated State Bar has unbridled discretion and as has been its history, it will bend over backwards to protect its prosecutors… except for the one who did not follow the state’s tenet of selective justice based on Class and Color (former Durham District Attorney Mike Nifong).

So, it appears that Mike Easley has gotten off easy… and he did. He won’t even be deprived of his voting rights as he was never physically incarcerated for the felony crime with which he was convicted… yet another loophole for society’s upper echelon who happen to run afoul of the law. There was public outrage at the leniency of Easley’s plea deal which was worked out with prosecutor Kenerly (much of it tamped down by the media). Kenerly was aware that he let Easley off the hook, and he acknowledged it. But he also defended his actions by stating, “I didn’t want to make a Mike Nifong mistake.” In other words, he did not want to prosecute a powerful and privileged defendant against the wishes of the Powers-That-Be. Therefore, he pulled all of his punches with respect to the prosecution of Easley.

As was so accurately pointed out by Mr. Kenerly, Mike Nifong’s professional mistake was to prosecute the Duke Lacrosse defendants according to the principle of “equal justice for all.” In other words, to prosecute them as he would anyone else under the circumstances without regard to their societal class, financial status, or skin color. Bill Kenerly learned his lesson well as the example set by the unmerciful and demonic persecution of Mr. Nifong dissuaded him from prosecuting Mr. Easley in the same manner as defendants from the lower rungs of society’s totem pole. The “Mike Nifong mistake” is an act which requires the courage to do the right thing in the face of unforeseen and potentially devastating consequences. Archbishop of Canterbury Thomas Becket made the Mike Nifong mistake, in going against the wishes of England’s King Henry II, and he paid the ultimate price.

Larry Phillips and John June.
The News & Observer article of January 7, 2011 failed to name the prosecutors who reached a plea agreement with Larry Phillips and John June. Both men were convicted on two counts of obtaining property by false pretense. The men were accused of falsifying sales records and invoices to evade paying taxes on cigarettes and tobacco products that they sold in 2005. Defense attorneys stated that the defendants were acting on bad legal advice and were under the assumption that what they were doing (falsifying records in order to gain unfair windfall profits) was within the bounds of the law. Under the Alford plea agreement the defendants reached with the prosecutors, both men agreed to pay a total of $6.5 million in restitution and fines. In exchange they would avoid prison time and be placed on unsupervised probation for 18 months.

Perspective.
As the two aforementioned cases clearly show, prosecutorial discretion is the big gun in the state’s arsenal of dispensing disparate justice. NC prosecutors approach high echelon criminals with kid gloves seeking an Alford plea and a fine. Rarely is anyone from this criminal class sentenced to jail time. When it comes to the poor, disenfranchised and people of color, NC prosecutors come down hard with an iron fist. For example, the alleged fraud committed by Heather Holley pales in comparison with the large-scale multi-million dollar tax-fraud scheme cooked up by Phillips and June… yet it is Ms. Holley who is jailed on $5 million bail.

Any perceived connection to be on the wrong end of the Duke Lacrosse case will guarantee the harshest of treatment by the prosecutor. Crystal Mangum, the victim in the Duke Lacrosse case, was targeted by police and prosecutors, who with the cooperation of the Durham Fire Department and judges tossed Crystal Mangum in jail on trumped up charges. The February 2010 criminal charges against Mangum resulted when her children, concerned for her safety after an ex-boyfriend initiated a physical confrontation by repeatedly punching her in the face, called 9-1-1. When police recognized the connection Ms. Mangum had to the Duke Lacrosse case, they dismissed their domestic violence investigation involving Mangum’s ex, and set about literally cooking up an arson charge and concocting an attempted first degree murder charge because she allegedly “lunged” in the direction of the man who had just used his fist to bash in her face. Mangum was initially placed under a $1 million bail, and it was the Durham prosecution’s intent to allow her to languish in jail for two or three years before forcing her to accept a plea deal for time served (a tactic effectively used by Bill Wolfe against defendant James Arthur Johnson). This plan was undermined when a bail bondsman, compelled by his conscience to act against this overwhelming injustice, bonded her out when bail was reduced to $100,000.

Bottom line.
Prosecutors will treat the caviar-class criminals lightly, and seek a minimal fine and possibly some restitution in lieu of a jail sentence regardless of the amount of the money stolen or defrauded. When it comes to defendants considered to be disposable by society, prosecutors invariably go to extremes with prosecution seeking the harshest of jail sentences. There is no way on earth that a North Carolina prosecutor will make a “Mike Nifong mistake.” Just ask Bill Kenerly.


Provided below is a link to the latest installment of “The MisAdventures of Super-Duper Cooper”… Part 2 of 17. Be sure to follow the commentary at the end.

LINK: http://justice4nifong.com/direc/sdcDirec/sdcEpv/sdc103.htm