The scene in a Durham County courtroom Friday was unusual, to say the least. There was the former Durham County District Attorney Michael Nifong (from here known as DAMN) in the dock, being found guilty of criminal contempt and told to spend a day in jail. There were judges who regularly sentence people to long prison sentences begging the judge to be lenient to the man who, according to the prosecuting attorney in the case, had taken "a jackhammer" to the roots of justice.
Sitting in the audience, an assistant prosecutor wept as her former boss was given the "sentence" of spending a day in the county jail, while others went on about the need for "justice." Yet, one cannot understand what really happened unless one widens the screen and looks at the larger picture. While some see this as an "historic" moment, I think that the proper perspective here is that it is a "Rothbardian" moment, and something that Murray Rothbard, had he been living today, would have intimately understood.
Before explaining my point, however, I believe we need to place this in a larger perspective. While judges and prosecutors begged for mercy to be given to DAMN, an event in a Goldsboro, North Carolina, courtroom earlier that week enlightened us to the real state of "justice" in this country, as a man was freed from prison after having served nearly 20 years for a crime he never committed.
North Carolina prosecutors offered Dwayne Allen Dail a choice almost 20 years ago: plead guilty and get a few months of probation, or go to trial for raping a 12-year-old girl and face life if he were convicted. Dail apparently believed in the system of justice more than did the prosecutors, as he was willing to go to trial because he knew he was innocent of the charges. Even prosecutors admitted that the facts of the case troubled them, but nonetheless there had been a rape and the victim said Dail did it. A jury believed her, and off he went to prison for what was to be the rest of his life.
Lucky for Dail, police and prosecutors had not destroyed all of the material of the case (generally, that is police and prosecutorial policy, which is a great way to cover up wrong doing — and do it legally). A DNA test ultimately turned up someone else, and Dail was freed. While he was in prison, this is what he faced:
In prison, Dail said, he suffered the abuse often unleashed on sex offenders. Inmates blackened his eyes, smashed his nose and knocked his teeth through his lip. He spent most days furious at the hand he’d been dealt.
Such were the things that happened to Robert and Betsy Kelly and Dawn Wilson, who also were wrongly convicted in the infamous Little Rascals case. North Carolina prosecutors have proven themselves adept at pursuing the wrong people and convincing juries that lies are the truth. I have no doubt that had DAMN been able to take his faux rape case to a jury in Durham, there would have been a conviction, and David Evans, Collin Finnerty, and Reade Seligmann would have been dead meat in prison, the target of black gangs seeking revenge against the men who "raped a sister."
So, while the innocent are pursued to prison in the North Carolina system, those who engage in these acts were anxious to defend a man who clearly was hellbent on making a mockery of justice. Special Prosecutor Charles Davis told Judge W. Osmond Smith III, who held the hearing, that he "lay awake at night" wondering what might have happened had Nifong been able to convince a jury to convict, and given what has transpired in North Carolina on a seemingly systematic basis, his fears were justified.
So, where does Rothbard fit into this affair? It was Rothbard who expanded the "capture theory" of government to include government employees or those who work for the state. In standard "capture theory," government regulators become "captured" by the private monopolies that they are supposed to regulate. For example, the original purpose of the Interstate Commerce Commission was to regulate railroad rates, and it was soon after its 1887 creation that the commission itself became dominated by people with railroad connections.
Rothbard went a step further, however. Monopolies themselves (and Rothbard held — accurately so, I believe — that all private monopolies exist because of government privileges) become "captured" by their employees. To take point to its next level, we see that government courts have a monopoly on "dispensing justice" (if we can call it that), so if Rothbard is correct, one would expect to see the employees of the justice system itself capturing not only the apparatus of "justice," but also protecting each other when someone is engaged in wrongdoing.
As a close observer of the Duke case for well longer than a year, it became obvious that Nifong was permitted to set the terms for everything associated with it. Although he insisted that every word of Crystal Mangum’s claims were true (despite her many accounts being mutually exclusive), as soon as the DNA evidence — which Nifong himself claimed would identify the "guilty" and "clear the innocent" — came back empty, then he simply changed the terms of the argument and, in his own contempt hearing, still insisted there was a rape, but it was a "non-ejaculatory event."
(That still did not explain why there was no DNA transfer, but Nifong had decided that his own interpretation of the science of DNA was such that he could make it whatever suited the pursuit of his case. Apparently, the court system of North Carolina was perfectly happy to see a prosecutor attempt to impose Harry Potter rules of science and treat such viewpoints as legitimate.)
In the end, it was painfully obvious that Nifong had lied to Judge Smith at that fateful September 22, 2006, hearing and Judge Smith subsequently found him guilty. Yet, how did those who were employed with Nifong in the system react when it was determined that he had "taken a jackhammer" to truth and justice? K.C. Johnson explains:
In this case, of course, this behavior manifested itself as part of an effort to send three demonstrably innocent people to jail for 30 years — for a crime that never occurred. The Durham prosecutorial establishment, however, appeared not to care.
Judge Ron Stephens has a reputation as a tough-on-criminals judge. It appears, however, that he holds his friends to a different standard. This sitting judge — the same man who signed the fraudulent NTO that launched this case into the media stratosphere — appeared as a character witness for the convicted Nifong. He suggested that professional jealousy explained the dislike for Nifong: lots of defense lawyers, Stephens asserted, didn’t want to go up against Nifong because he would win close cases. Nifong, he added, was the "appropriate choice" to be DA as of spring 2005.
Stephens also hailed Nifong as a mentor to the next generation of Durham ADA’s. Perhaps he had in mind Judge Marcia Morey, who testified on Nifong’s behalf and then returned to the courtroom to offer solace to Nifong’s family as the verdict was rendered. In her willingness to defend Nifong, Morey disgraced her own office. Neff and Blythe summarized:
An unusual moment came before Nifong’s testimony, when a judge testified that she expected lawyers to be more honest during trial than during pretrial hearings.
A prosecutor asked the judge, Marcia Morey, whether a lawyer would be following his duty to be candid if he assured a judge that a report was complete when the lawyer knew it to be incomplete.
It depended on whether the case had reached trial, Morey said.
“I do think it makes a difference,” Morey said. “Are you are at a trial stage, are you at a pretrial conference.”
Sitting alongside Morey was current ADA Jan Paul. Paul vigorously nodded as Nifong attorney Jim Glover insisted in his closing argument that not only did Nifong not lie, but he couldn’t really see any errors his client had made. Paul then visibly wept as the guilty verdict was rendered. Remember, this is someone whose job it is to uphold justice for the people.
The appearances of Paul, Morey, and Stephens brought to mind the equally troubling testimony of Innocence Commission executive director Kendra Montgomery-Blinn, another former Durham ADA and someone who saw no problem with Mike Nifong’s conduct.
How confident could any defendant be appearing before Judge Stephens? Or Judge Morey? Or going up against ADA Paul? The trio’s endorsement of Nifong suggested a conception of justice so warped as to defy description.
One can call it corruption or cronyism, or whatever one wishes, but Rothbard’s "capture theory" seems to provide the best explanation. For all of the talk of justice, the purpose of such a system after a while seems to become little more than a mechanism for keeping people employed with nice paychecks. After all, as I have explained in previous articles, Nifong originally decided to seek the elected position of district attorney (he originally had been appointed by the governor after promising that he would not seek to be elected) in order to receive a raise and to be able to earn a pension of $15,000 a year more than what would be the case if he were not elected.
But even "capture theory" does not explain fully why Nifong sought to pursue a case in which he had no evidence. The other factor was that he was able to tap into the politics of race and radical, left-wing feminism, and Durham is a hotbed of both. When people do not care about truth and have only a politicized view of the world, we should not be surprised when massive injustices arise. Throwing Nifong into prison for a thousand years would not change the fact that leftist political radicalism and injustice against individuals go hand-in-hand. (What else should we expect from collectivism?)
When Judge Smith announced Nifong would spend a day in jail, the reaction was understandably varied. Those people who had followed the case and had been outraged at what Nifong did were outraged that the sentence seemed to be lenient. Others, including attorneys who had represented Reade Seligmann, Collin Finnerty, and David Evans, thought it was just, in large part because they have seen prosecutorial and judicial misconduct unpunished for years and held it to be extraordinary that Nifong had faced any punishment at all.
Yet, as one attorney pointed out, Nifong has lost everything, his job, his license, much of his money, his reputation, and about everything else he held to be important. He has not gone unpunished, and sometimes we forget that prison is not the only form of punishment that one receives.
Furthermore, I would not be surprised if criminal charges are filed against Nifong and others who took part in this legal scam. Lawsuits surely are going to follow, and many people who were swaggering a year ago soon will see the law work against them. While Nifong might seem to have escaped justice, I contend that Rae Evans, the mother of former defendant David, was correct when she told Leslie Stahl of "60 Minutes," "Mr. Nifong, you will pay every day for the rest of your life." For now, the life of DAMN no longer is worth a damn.
September 3, 2007
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. He also is a consultant with American Economic Services.