Answers to some of your Duke lacrosse questions

Having had a good look at “justice in Durham, ” astonished Americans are asking: Why is that DA still on the case? And how did he ever get to be a DA in the first place?

Can NC Attorney General, Roy Cooper, do anything?

Can the police be sued?

Noted historian KC Johnson has just responded to those and other questions in a lucid, carefully-researched post, “Roy Cooper’s Silence.”

Here’s some of what Johnson says about what Cooper can and can’t do:

The attorney general’s office includes one section, the special prosecutions division, which can handle prosecution of local cases. […]

[The] protocols for the attorney general acting (which aren’t available on-line) seem to have been written with this case in mind. Indeed, under the protocols, there are at least four grounds for the special prosecutions division to handle the case.

Johnson goes on to explain the grounds under which he believes Cooper can act. Excerpt:

3.) Category I, section (e): “When the District Attorney or a member of his staff will be called as a witness to testify regarding contested facts touching upon the merits of a case.”

An important article by the N&O’s Joseph Neff reveals five public statements by Nifong unsupported by the available documents in the case. Richard Myers, a former federal prosecutor and UNC law professor, told Neff that defense lawyers can call the prosecutor as a witness when the prosecutor’s public statements contradict the facts of the case. To date, no documents have been made public upon which Nifong could have based the statements profiled in Neff’s article; defense attorneys have denied that any such documents exist. (bold mine)

With that and more, a reasonable person might think Cooper will appoint a special prosecutor any day now. But there’s a stumbling block: Nifong himself.

Johnson explains:

If all of these reasons exist for Cooper stepping in, why hasn’t he done so? Under the statute creating the special prosecutions division, the local district attorney must request state intervention. So North Carolina has established a system in which an ethically challenged prosecutor like Nifong effectively can police himself.

But there's nothing in the statute that prevents the attorney general from publicly urging Nifong to request state intervention. Or Cooper could be milder, and let it be known that he would approve a request to allow the special prosecutions division to take over the case.

And some North Carolina news organization could ask the attorney general what he thinks about all of this. Just a thought.

Regarding the Durham Police Department Johnson notes:

Civil liberties lawyer Alex Charns, the attorney for an unindicted lacrosse player, has filed a series of Public Records Act requests from the Durham Police Department relating to production, over the department’s letterhead, of a “crimestoppers” poster. (This document was the genesis for the “wanted” poster that prompted the public “thank you” from the Group of 88 faculty.)

Created at the very initial stages of the investigation, the poster stated that “the Duke Lacrosse Team was hosting a party” at which “the victim was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community. Durham Police needs your assistance in solving this case.”

Charns, not unreasonably, wondered “what happened to investigating a crime before a blanket accusation of guilt is made. Wasn’t it ‘Alice in Wonderland’ in which the verdict came before the trial, and the accuser acted as judge and jury?”

Durham authorities have stonewalled him on producing material related to the decision behind the poster’s wording—which was quietly changed to remove claims of a crime definitely having occurred, though only after posters with the initial language had appeared around the area.

It’s not clear how aggressively Charns will pursue his case: the fact that Durham officials haven’t been forthcoming with the documents he’s requested doesn’t speak well for the city’s position.

We can all only wonder what Durham Police Chief Steve Chalmers and other public officials think about what Charns is doing and Johnson is saying.

Full disclosure: Johnson links to JinC in the post but don’t let that stop you from reading “Roy Cooper’s Silence.”

To learn more about Johnson, go here.

Message to KC Johnson: Well done.