Why the Duke Hoax Continues Part III: Courts of the State — and the State of Justice

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The attempt to recall Duke non-rape prosecutor Michael Nifong has passed unsuccessfully, and while more people voted against him than for him, he had enough votes to win office, which clears the way for him to continue his unholy march to destroy the lives of three young men on false charges. As I have previously pointed out, he has plenty of enablers, both from the leftist faculty members at Duke and "leaders" of the black community in Durham.

(Nifong’s survival act leads me to believe that he actually is an alien species of cockroach, given his ability to survive even as he breaks the law and destroys lives, all untouched by the "justice" system of North Carolina. I have no idea what cockroach DNA looks like under a microscope, but I would be willing to say there is a likely match with the DNA of the cunning but half-witted prosecutor.)

Almost all of the criticism directed toward Nifong and this prosecution has been aimed either at the prosecutor, police, or those enablers in the community. That is not surprising, as we have witnessed some outrageous conduct, even by the very low standards that are seen in the pursuit of "law" these days. But while we concentrate upon the picture of Nifong and Durham and the Duke faculty, there is a much larger issue that dwarfs everything else, and that is the government court system itself.

If one definition of insanity is performing the same activity over time and somehow expecting different results, then the institution of government courts truly marks the height of insanity. We come to the courts expecting — no, demanding — just outcomes and then wonder why the results almost always are bitterly disappointing. There is a reason for this phenomenon, and it isn’t Michael Nifong, the Durham leadership, or the Duke faculty.

The reason is much more basic than the influx of dishonest people; in fact, the system itself encourages dishonesty. It should be ironic (and quite telling) that the government’s system of justice, which claims to be an entity formed on behalf of finding truth, is greased by outright lies and cannot function without dishonesty.

As I examine the institution that comprises government courts, I do so from the viewpoint of an economist, which is someone who understands that incentives matter. Government entities almost always operate in the arena of perverse incentives, so we hardly should be shocked when government courts work in ways that are contrary to what the supposed goals of courts are to be.

"Capture Theory" of the Courts

Economists explain that "Capture Theory" is based upon the fact that regulated firms over time often "capture" the agencies that regulate them, with the agencies generally acting as creators and enablers of monopolies. (This is opposed to the standard theory that regulatory agencies are supposed to regulate businesses in the "spirit of the public interest," whatever that means. Enthusiastic supporters of regulation come back to this well time and again, always finding it to be dry, but nonetheless believing that the next day it will be filled with sweet water.)

What is missing from standard "Capture Theory," however, is the point that government entities also are "captured" by government employees. Those familiar with the economic writings of Murray N. Rothbard are not surprised by this, for it was Rothbard who pointed out that over time, the "economic profits" of a monopoly are "captured" by the monopoly’s employees. While governments do not make profits, they nonetheless are monopolies, and rapacious monopolies at that.

Indeed, one can see the various "civil service" protections as well as the rapid unionization of the government sector as a variation of "Capture Theory." Furthermore, one would not expect the official government "justice" system to be immune from such actions. The presence of the kind of protection that government service offers many employees also is going to lead to certain sets of incentives that often result in outcomes that promote the very opposite ends from what the people claim to be reaching.

For example, I have written a large number of articles and papers (often with Candice E. Jackson) dealing with horrific abuses in the federal criminal "justice" system. One reason that these abuse prosecutions occur is because federal prosecutors basically are immune from any wrongdoing, lying, obstruction of justice, or other crimes that they might commit during the process of pursuing what they call a "crime." (If anyone doubts the massive wrongdoing on behalf of federal investigators and prosecutors, Bill Moushey’s series run almost a decade ago is very enlightening. And things only have become worse.)

As one who has looked closely at the federal criminal "justice" system, one thing that strikes me is that the quality of the investigations often is poor, and many of the federal prosecutors themselves are mediocre lawyers who would have a very difficult time making as good a living in the private sector as they do as government employees. Unfortunately, they are mediocre lawyers (but often cunning personalities, a fatal combination) who have a tremendous arsenal of legal weapons at their disposal.

Federal law gives prosecutors a huge advantage in federal court, which is one reason why the vast majority of federal criminal indictments end in guilty pleas. However, the pleas often do not mirror the first sets of charges — or the rhetoric by prosecutors. (We especially have seen this in the government’s "war on terror," which in reality is a war on nearly everyone who does not work for the DOJ.)

Thus, federal courts are a natural playground for bullies and wannabe lawyers who would be poor-to-mediocre trial attorneys but because they come armed with the most lethal weapons, are conviction juggernauts in the courtroom. Not surprisingly, this situation has leaked down to the state courtrooms, and clearly is a front-and-center issue in the Duke case.

Michael Nifong: The Poster Child of Government "Capture Theory"

Nifong’s history as a lawyer does not reflect a particularly stellar career. He was unable to find paying work out of law school, so he took a volunteer position with the prosecutor’s office. Later, he worked his way up the prosecutorial food chain all the way to doing traffic cases. Writes the Raleigh News & Observer:

Nifong, a native of Wilmington and the son of a federal Treasury agent, graduated from UNC-Chapel Hill law school in 1978. He interviewed for prosecutor’s jobs in Raleigh, Durham and Greensboro but couldn’t get a job. Eager for experience, he told Durham’s then-district attorney, Dan Edwards, that he would work for free.

Edwards agreed, and two weeks later he placed Nifong on the payroll. Within two years, Nifong was trying cases in Superior Court, where felonies are resolved.

He liked the courtroom. “When you got in there, it was about winning,” he said in a 2005 interview with a News & Observer reporter just before he was sworn in as district attorney.

The last quote is chilling: "…it was all about winning." Indeed, as countless jurists have written, the powers of the prosecutor — or the "minister of justice" — are not "all about winning." They are about doing what is right, and presenting the evidence to a jury, and gathering that evidence both ethically and legally. The ethical duties of a prosecutor — which are listed in all bar association codes — specifically state that prosecutors are to pursue the truth, not pull out all stops to "win," for "winning," especially when wrongful convictions are involved, are about the unjust destruction of human lives. Thus, Nifong’s own words tell us the kind of person he is — and it is only natural that destructive people like him gravitate toward the prosecutor’s office.

(Let me make it abundantly clear that I am not saying all prosecutors are lying bullies. Indeed, I know people in prosecutorial offices who are straight and honest, but even they will acknowledge the pressures that people on the outside place upon them, especially when we see the politics of something like rape driving something. Many people simply have neither the fortitude nor the personal integrity to say no to groups pressing for malicious prosecutions.)

In traffic court, Nifong again proved himself to be the bully:

On busy days, lawyers would wait outside Nifong’s closed door to negotiate speeding tickets or revoked licenses. At times, those gatherings had the feel of schoolchildren waiting outside the principal’s office. Behind the door, Nifong always had the power.

“Working with Mike, you never knew from one day or the other who you’d be dealing with,” said Glenn Gray, a lawyer who handled a high volume of traffic cases. “He would curse you, scream at you, call you names over nothing.”

In the Duke case, he has openly laughed at the defendants at court hearings, and did nothing to discourage the shouting of death threats at Reade Seligmann from the New Black Panthers, even going so far as to meet with one of the group’s representatives. One cannot imagine a defense attorney getting away with such courtroom behavior, but this is par for the course with Nifong.

This is where "Capture Theory" comes in. For the most part judges are former prosecutors who never really leave the "prosecution team." Most judges run on some form of "hanging judge" platform; I cannot recall a state judicial campaign in which the judge said that he was running in order to stand up for the rights of defendants, and for good reason: the public long ago decided that they preferred courts that more closely mirror the Stalinist courts of the U.S.S.R. than anything that we inherited from William Blackstone’s "Rights of Englishmen."

To put it another way, state employees watch out for one another. Over time, the system of "justice" is not about "justice." It is about those who are employed in the official state system of "justice." A sorry example involves former North Carolina prosecutors named David Hoke and Debra Graves, who withheld exculpatory evidence in a murder case in order to win a conviction and send an innocent man to death row, Alan Gell.

Ultimately, Gell would be exonerated after serving many years in prison — including time waiting to be put to death, but what about the prosecutors who knew they were falsely accusing someone, but, like Nifong, believed that prosecuting cases is "all about winning"? Both received very mild reprimands from the state bar association. Graves today is a federal public defender, while Hoke is the number two administrator in the North Carolina court system and clerks for the chief justice of the North Carolina Supreme Court.

In other words, this foray into outright criminality cost these people nothing. Newspaper columnist Keith Hoggard says eloquently what needs to be said:

Sending an innocent man to death row by withholding evidence is not just lamentable, it is unconscionable. It is criminal. Yet, nothing is being done to seek justice. The people of North Carolina have spent thousands of dollars to convict a man the prosecutors knew could not be found guilty if all the evidence were presented. The people of North Carolina spent hundreds of thousands of dollars holding a man in a death row jail cell for four years who should not have been there.

And then the people of North Carolina spent several more thousand dollars to try a man for a murder no sane jury would convict him of given the evidence.

This is a far more important issue than the harm done to Alan Gell. It is even far more critical than finding the person or persons who murdered Allen Ray Jenkins.

What has been done here strikes at the very heart of our judicial system. When prosecutors utilize the power of the state to seek a conviction rather than to seek justice, we are all put at risk. We rely on our law enforcement and judicial officials to put aside what they believe so that justice can prevail. When the system breaks down — as all systems sometimes do — it must be fixed.

While I can appreciate Hoggard’s passion for justice — and it is real — I must also say that the Gell conviction was not about "bad apples." It was — and is — about the institutional nature of a government court system. The incentives are there to convict, not to find the truth. The incentives exist to help exact revenge, not serve an abstract notion of justice.

Susceptibility to Hoaxes and Lies

The Duke hoax hardly is the first time the North Carolina "justice" system has been taken in by a set of bogus charges — and transparently bogus charges, at that. More than a decade ago, the State of North Carolina spent millions of dollars prosecuting and wrongfully convicting a number of people in Edenton for alleged child molestation, the "Little Rascals" case.

As journalists and other investigators pointed out, the charges were manufactured, part of a wave of witch-hunt child molestation prosecutions that began in the early 1980s and ended with the massive hoax perpetrated in Wenatchee, Washington, in the late 1990s. During this wave of false trials, dozens of people were wrongfully convicted (although most were overturned on appeal, but not before lives were ruined and people spend many years in prisons).

It did not take much intelligence or savvy to understand at the beginning that the charges were illogical. Yet, as demonstrated in the Little Rascals case, government employees were at the heart of the hysteria. For example, while state social workers were coaxing fantastic stories from young children about babies being microwaved and children being thrown to sharks, private counselors who interviewed children who attended Little Rascals found no evidence of any kind of abuse.

Thus, the Little Rascals hoax was fabricated by government social workers, government police officers, government prosecutors, and government judges. In a word, it was government. (Like in the Salem witch hysteria of the late 1600s, when the children accused Edenton’s chief of police of being one of the abusers, suddenly the government apparatus said that the children were "confused." In Salem, once the girls started to point to the prominent people of the town, the prosecutions were ended.)

Yes, the convictions ultimately were overturned by the North Carolina Supreme Court, but only after people served time in prison (and faced "justice" from other prisoners for being convicted "child molesters"). In other words, the system stepped in and put an end to the freak show only after the state’s actors had been on stage, done their act, ruined countless lives, cost the taxpayers (and private individuals) millions of dollars, destroyed marriages and families, devastated reputations, and generally caused massive havoc — all for a hoax. Of course, none of the perpetrators of the fraud, from the social workers to the prosecutors faced even the slightest inconvenience from the state authorities.

Like the Duke hoax, there was no legal reason for this. However, the political benefits for the participants were enormous. Furthermore, none of the people who benefited had to pay a dime out of their own pockets. Their salaries, meals, hotel bills, travel expenses, speakers’ fees (for uncovering "massive child abuse") and the like came courtesy of taxpayers who were being taken for a ride by dishonest people. Even though they eventually "lost" their verdicts through the appeals process, they received massive amounts of positive publicity through the original trials and convictions. They benefited mightily from the lie, and the truth — when it ultimately came out — cost them nothing.

Multiply this across the country and you get a sense of why government justice systems are subject to hoaxes. There are no personal costs to pursuing false charges, and because the courts and legislatures have given immunity to prosecutors, they pay no price for lying, cheating, covering the truth, and destroying trust.

To a person with even a modest sense of justice, a man like David Hoke should not be drawing a six-figure, taxpayer-funded salary and influencing the course of justice in North Carolina. He should be in a prison cell, along with many other prosecutors who have chosen to violate the law because they are immune from the consequences.

Thus, while there exist anti-Nifong websites, Nifong knows that no one in the system even will slap his wrist. He is immune, and the state wants it that way. Promotion of the hoax not only got him elected, thus saving him from having to earn a living by representing real clients, as opposed to the government, which sets all the rules of the game, but it also permits him to openly remind all of us that he is untouchable.

Robert Higgs recently wrote that the driving force of government is fear. Indeed, hoaxes of the judicial system always exist to exploit fear — as well as greed and revenge. We have seen all of these at work in the hoaxes I have presented, but we need to understand that there always exists some segment of the populace that is going to succumb to the fear "flavor of the month." Likewise, there always is part of the population whose members believe themselves to be mistreated and look to use the state as an entity through which to mistreat others in the spirit of revenge and anger.

Conclusion

In this three-part series, I have looked at the different parties that have been driving this sorry case from its inception. Yet, this hoax would have gone nowhere had it not been for the ready-made apparatus of the state "justice" system — which really is little more than a mechanism for conviction, incarceration, and execution.

Until we understand that government courts and their vast network of workers both are perpetrators and beneficiaries of hoaxes, we will continue to see people cast into the maw of death and dishonor, all so that some state employees will have the privilege of receiving power, praise, and, of course, a paycheck. Since we are not going to be rid of this monster, we can do the next best thing, and that is not to trust it, nor give it any praise that it does not deserve, anyway.

November 11, 2006

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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