N&O still for Nifong

Steve Ford is The Raleigh News & Observer’s editorial page editor. While readers are told a board makes N&O editorial decisions, Ford is regarded as its “controlling voice.”

Back on March 28 The Raleigh News & Observer editorialized on “the Duke lacrosse case.” (subscription req'd)

The N&O demanded Duke cancel the Men’s lacrosse season. It praised the woman for “an act of courage” in coming forward and reporting the alleged crimes.

And then there was the matter of the DNA testing.

We now know something we didn’t know on March 28: For days following the alleged gang-rape, the accuser hadn’t been able to provide a reliable ID of even one of her alleged attackers.

How was Nifong to get around that problem? He decided to DNA test all white lacrosse players and hope something turned up positive.

But casting such a broad net has traditionally been questioned, if not outright opposed, by rights groups and bar associations. Many courts won’t grant permission for such broad net “fishing.”

To get past those objections, Nifong offered the court and public what sales people call a “sweetener:” the DNA results will “immediately rule out the innocent.”

The N&O, which in the past has strongly objected to broad net DNA testing, decided that in the Duke lacrosse case it would make an exception and support it. The N&O used Nifong’s “sweetener” when explaining to readers why it was supporting broad net DNA testing :

”DNA testing can help build a case, but it also can clear the innocent. That's a greater good justifying a compromise of the whole group's privacy when lacrosse team members had to report to a crime lab for DNA sampling.”

Well, you know how the DNA results came back; and you know Nifong announced they really didn’t “immediately rule out the innocent” after all; and they’d be a trial for sure.

At the point, The N&O’s editorial board said no more about DNA evidence “clear[ing] the innocent.” Instead, The N&O told readers Nifong was the right man to leave in charge of the case and to prosecute it at trail. The N&O’s editorial page continues to support Nifong to this day.

In his column today, editorial page editor Steve Ford tells readers:

Does it amount to some kind of travesty, then, that Nifong is set to continue as D.A.? Not in my book.

That's not to say anybody should be comfortable with Nifong's performance in the case that has drawn scads of unwanted attention to Durham, Duke University and their uneasy co-existence.

But to throw him out of office on the sole basis of that performance would have had the effect of substituting the judgment of voters for the judgment of jurors. That's no way to settle the question of whether a crime occurred and, if so, who was responsible.

We have trials to settle such things, and we insist that matters of guilt or innocence be decided according to very specific rules meant to safeguard the rights of both accusers and defendants. What we don't do in this country is decide the merit of criminal charges at the polls.

Yes, we have trials and, of course, we don’t decide the merits of criminal charges at the polls.

That’s why, Editor Ford, even if Nifong had lost, the trial(s) of David Evans, Collin Finnerty and Reade Seligmann could have gone forward if a successor DA choose to continue the prosecution.

The law also permits a reelected DA Nifong to drop all charges at some point or even to do what Duke Law Professor James Coleman has recommended he do: step aside and allow a special prosecutor to take over the case.

So the Durham DA election wasn’t about, as Ford says, “substituting the judgment of voters for the judgment of jurors.”

It was about Durham’s citizens doing what citizens everywhere else in North Carolina do: vote for the person they think will do the most to give them fairness and justice in the DA’s office.

Ford’s never had any problem with citizens doing that before. Why does he have a problem with Durham’s citizens doing it last Tuesday?

The answer’s obvious: Ford’s still with Nifong.

Ford supports Nifong today with “the last refuge” argument. Most of you know it by heart: “Mike’s been a fantastic public servant for 27 years. Yes, he spoke too much early on and his handling of the case has been a little ‘slipshod.’ But you can’t throw a man out of office on ‘the sole basis of that performance.’”

It’s hard to judge those 27 years. A lot of what Nifong did then was outside the public spotlight. Most of it was plea bargaining, which many attorneys say is a necessary part of our legal system but also one of its least just.

What about the attorneys who’ve “cut deals” with Nifong, hope to do so in the future and tell us: “We’re lucky to have someone like Nifong?” I listen to them with the proverbial “grains of salt” in mind.

Now the “one case” refuge is another matter. The “one case” began eight months ago. There is much Nifong has done during it that we can easily judge. And what Nifong has done during the last eight months tells us a great deal about what sort of person and public official he is.

On March 27, he used the “players aren’t cooperating” falsehood that first appeared in the N&O’s now discredited March 25 “anonymous interview” story to slime the players. He said he wished someone at the party had “the human decency” to call up and say what happened there.

When Nifong said that, he knew a lot of things we didn’t know then.

Nifong knew that on March 16 the three captains who rented the house where the crimes were alleged to have occurred had answered all police questions, voluntarily signed statements, given DNA samples and in many other ways helped police understand what had really happened that night.

Nifong also knew every one of the 46 players ordered to submit to DNA testing could have appealed the order, including the ones who weren’t even in Durham the night of the alleged crimes. But not one of the 46 exercised his right of appeal.

Do you need a bar association ruling or an N&O editorial to tell you what Nifong was doing on March 27? Or to tell you what he was doing later in the week when he ridiculed the players and their parents for hiring attorneys.

Ridiculing people for hiring attorneys when they’re accused of serious crimes is something the late Senator Joe McCarthy used to do.

And then Nifong went on to ask why the players would need attorneys if they were innocent.

During just that one week in the eight month old case, Nifong lied about the suspect’s cooperation, engaged in blatant McCarthyism and, although an officer of the court sworn to uphold justice, wondered why citizens would exercise their right to counsel if they were innocent.

Nifong’s actions that week may not have meant much to Steve Ford and his editorial board. But for many Durham citizens, Nifong’s actions were “enough.” Regardless of the players’ guilt or innocence, Nifong had already displayed enough contempt for his sworn duties to have lost their votes.

What those citizens have since learned about Nifong’s actions further confirmed their belief that he is unfit to hold the DA’s office. And as the months pasted, thousands of others in Durham came to agree with them.

Back on March 28 The N&O’s editorial was doing its best for Nifong. Today, Steve Ford does his best for Nifong.

Will we ever see an N&O editorial or Steve Ford column that does what’s best for justice and Durham?