CNN legal observer Kendall Coffey gets it all wrong on Mike Nifong

In a January 1, 2008 CNN.com posted commentary titled: “The Best and Worst of a year of celebrity justice,” former U.S. Attorney Kendall Coffey got it all wrong with his blurb about former Durham District Attorney Mike Nifong. The Miami, Florida commentator’s statements were as far off base as those made by MSNBC legal analyst Susan F. Filan, who claimed that Mr. Nifong damaged the sport of lacrosse and damaged the reputation of Duke University when he prosecuted the Duke Lacrosse case.

Although the column did not go into depth about Mike Nifong’s role in the Duke Lacrosse case, he begins with a zinger by labeling the prosecution as being one about a “bogus sexual assault.” The media has gone out of its way to portray the alleged sexual assault as being “bogus” despite the fact that the accuser/victim has always maintained that it did occur. The media has never used the term bogus to describe the prosecutions of Alan Gell (for a murder which he could not have possibly committed), James Arthur Johnson (who solved a heinous murder), and Erick Daniels (a 14 year old prosecuted for an armed robbery based on the shape of his eyebrows from a photo in a school yearbook). The bogus tag is used to discredit the prosecution against the three Duke University students who come from families of wealth, status, and privilege, and the media, in general, has definitely assumed a biased position in favor of the student defendants.

Mr. Coffey then makes a statement that is both true and false. He accurately states that the main excuse used by the North Carolina State Bar to disbar Mr. Nifong is because of his “failure to promptly disclose DNA (results)…” Unlike the majority of media types and Nifong detractors, he did not follow the universally accepted mantra that Mr. Nifong withheld DNA evidence. To his credit, Mr. Coffey stated that the excuse used was that Mr. Nifong did not turn DNA evidence over to the prosecution quick enough. Never mind, that when all DNA evidence was received by the defense team on October 27, 2006, a trial date had not even been set. The Duke Lacrosse defense had adequate time to mount a defense utilizing those DNA results. Compare this with Prosecutor Jim Hardin who withheld from defendant novelist Mike Peterson’s defense team the knowledge of the existence and testing performed on a possible murder weapon. Such lack of disclosure by the prosecution caused irreparable damage in building the best possible defense on Mr. Peterson’s behalf.

Secondly, Mr. Coffey refers to the delayed DNA evidence provided by Mr. Nifong to the Duke Lacrosse defense team as being “testing that exonerated the defendants.” Nothing could be further from the truth. Lack of DNA test results from the accuser’s rape kit exam being linked to any of the Duke lacrosse players was not exculpatory… its absence did not rule out the possibility that a sexual assault occurred. This is unlike the exculpatory evidence withheld by Prosecutor David Hoke from Alan Gell’s defense attorney. In that case, seventeen independent eyewitnesses gave statements that they saw the murder victim alive during a period when his suspect, Mr. Gell, was incarcerated on an unrelated charge, and could not possibly have committed the crime. Although these exculpatory statements were available well before trial, their existence was never disclosed by Prosecutor Hoke, and it never came to light until nine years after the defendant was convicted and served time in prison, half on death row.

Next, Mr. Coffey writes that Mr. Nifong was convicted and served a day in jail for failing to deal honestly with the court. If you’re looking for a bogus charge, the contempt charge against Mr. Nifong is about as fitting as one can find. Mr. Nifong’s explanation about a statement (which had no bearing on the case) was ignored by the judge, who sided with the defense team’s interpretation of the innocuous statement made by Mr. Nifong in court… “This is the first that I’ve heard of this situation..” It is apparent that the situation he is referring to is the complaint of withholding evidence lodged against him by the defense. Instead, the defense claimed that Mr. Nifong was referring to the first that he heard of certain DNA test results. Such a claim doesn’t make sense, and for him to serve jail time because of it is a travesty of justice.

Again, going with the media, Mr. Coffey refers to the Duke Lacrosse defendants as being “falsely accused.” I presume this is based on Attorney General Roy Cooper’s proclamation that the three Duke Lacrosse defendants were “innocent.” Such a pronouncement coming from a prosecutor, much less an attorney general, is unheard of. Attorney General Cooper definitely overstepped his boundaries, yet the media, including Attorney Kendall Coffey, gives credence to Cooper’s judgment instead of questioning its appropriateness and validity.

Mr. Coffey ponders “whether Nifong’s high-profile disaster is sufficient to give other prosecutors a chill.” It will if they, like Mike Nifong, believe in following the principle of “equal justice for all,” instead of the current North Carolina tenet of “selective justice based on Class and Color”… the latter which was reinforced by the persecution of Mike Nifong. To put things in perspective, the ethics complaint was filed by the North Carolina State Bar to create a conflict of interest for the purpose of forcing Mike Nifong off the case. Mr. Nifong was too independent, and would not let the charges against the Duke students to be swept under the rug, as was standard protocol prior to his appointment as Durham district attorney. As a result, he, like the independently minded Archbishop of Canterbury Thomas Beckett who defied England’s King Henry II, suffered the consequences at the hands of the state and the media. Likewise, he was used to set an example for other prosecutors. Lessons learned for North Carolina prosecutors to maintain their law license in good standing would be as follows: follow the state’s tenet of “selective justice based on Class and Color;” don’t defy protocol or positions of the state; and don’t go against the North Carolina State Bar, the unregulated agency that is capable of arbitrary, selective, and unjust disbarment.

In prosecuting the Duke Lacrosse case, Mr. Nifong was honorably performing his duties as district attorney. The assertion that his actions in doing so were politically motivated is nothing but baseless speculation. To make this reckless promulgation is to suggest that while running for re-election, Mr. Nifong or any incumbent candidate for district attorney should suspend all professional activity on grounds that his/her acts could be construed as pandering to the public for votes.

Finally, CNN’s special observer Kendall Coffey concludes that Mike Nifong makes a good poster-boy for prosecutors who pursue baseless charges. Obviously, I strongly disagree, and instead would offer the following nominees: Prosecutor David Hoke (who withheld from defense attorneys exculpatory evidence which clearly exonerated the defendant, Alan Gell); Prosecutor Bill Wolfe (who, without probable cause, charged James Arthur Johnson with murder, rape, kidnapping, and armed robbery even though Johnson heroically supplied information to police which solved the crimes); and Prosecutor Freda Black (who without probable cause convicted a 14 year old boy on armed robbery charges based on the shape of his eyebrows from a school yearbook, despite the fact he did not fit the victim’s description and another inmate who was later jailed and fit the description confessed to the crime).

By using wording such as “falsely accused,” “bogus sexual assault prosecution,” “testing that exonerated the defendants,” and “politically motivated, baseless charges,” Kendall Coffey does a superb job in subtly molding the minds of the public in generating sympathy for the three Duke Lacrosse defendants, and overt hostility against their prosecutor, Mike Nifong. For those who are not knowledgeable about the case, who are not fair-minded, who accept what the media spews out as truthful without question, and who are not objective when it comes to the Duke Lacrosse case, the Jedi-mind trick is working… and it is very effective.