Nifonging the Standards of Justice, Part II

by William L. Anderson
by William L. Anderson

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Imagine the following scenario: Duke University’s women’s basketball team is in the NCAA finals against the University of Connecticut. Duke is leading by two points when someone from UConn hits a three-point shot, seemingly at the buzzer, to win the game.

However, there is a dispute, and when the replay is put on the screen, it is clear that the UConn player took the shot after the buzzer, and had stepped out of bounds even before she launched the supposed winning shot. Unfortunately for Duke, even though it is obvious that the shot should not count, the officials don’t seem to care. While the UConn coach openly smirks at the Duke bench, rolls his eye, and makes wisecracks, the officials look the other way.

In fact, when the Duke coaching staff starts to complain, the officials tell them to shut up, but refuse to apply the same standards to the UConn bench. After spending a few minutes watching the video reply with half-seriousness (while joking with UConn coaches and fans), the officials then award the win to UConn. In announcing their decision, the officials say that they decided to change the rules, as they believed that the Duke players had enjoyed more life-long privileges than the UConn players, and that being the case, they decided that the "old rules" were not applicable in this situation.

Were something like this to happen, one can bet that the Durham Herald-Sun and the Raleigh News & Observer, not to mention every other mainstream news outlet, would react swiftly, condemning the officials and demanding that the verdict be reversed. The president of Duke University almost surely would react in anger, calling the entire decision a farce.

(Lest anyone think I am exaggerating, David Boren, the former Democratic U.S. Senator from Oklahoma and now president of the University of Oklahoma, demanded that OU’s recent loss to Oregon be stricken from the record books after it became clear that replay officials had blown a number of calls in the final minutes that resulted in the Oregon "victory." Furthermore, Boren also demanded that the officials be permanently banned from ever officiating again. Sportswriters across the country have been equally vociferous in their condemnation of the officials’ actions.)

My example of the Duke-UConn game is fiction; what recently transpired in a Durham courtroom is not:

DURHAM - District Attorney Mike Nifong will wait until the Duke University lacrosse rape case goes to trial before telling the defense exactly what the state thinks happened on the night in March that an escort service dancer accused three players of rape.

In a lengthy court hearing Friday, defense lawyers lost their effort to force Nifong to spell out in detail what investigators and the accuser say took place.

This would be equivalent to the officials in a basketball game raising the goals from 10 feet to 12 feet if a Duke player were faced with having to hit two foul shots in order for her team to win. Reasonable people would not put up with such nonsense, but, then, the "justice" (sic) system in North Carolina is not populated with reasonable – or, at least, decent – people.

North Carolina law requires that the prosecution lay out his evidence – all of his or her evidence – to the defense before the trial begins. Judge W. Osmond Smith III (the third judge to take this sorry case) has declared that the rules do not apply to D.A. Michael Nifong. Furthermore, the judge has permitted an altering of the rules in another breathtakingly cynical move: Nifong has changed his story without securing new "evidence."

When Nifong secured indictments against Reade Seligmann, Colin Finnerty, and David Evans last spring, he told the Durham County Grand Jury (as well as the press in more than 70 interviews) that the so-called rape went on for about 30 minutes. However, as the article states, Nifong suddenly has changed the events:

In addition to a new stack of written evidence, Nifong gave the lawyers some new details about the case. He said in court that the woman says she was assaulted vaginally and orally and that someone assaulted her rectum with either objects or body parts. The woman told police that the attack took 30 minutes, but Nifong said it may not have lasted that long.

"If I had to speculate, I'd say this whole event took five minutes, maybe 10 minutes at the outside," Nifong said. "I would ask the court to take judicial notice that when something happens to you that is really awful, it seems to take longer than it actually takes."

This takes a while to digest, but keep in mind that Nifong does not have any new "evidence" that said "crime" actually lasted for less time than he originally said, but simply is engaging in speculation (his own words). However, in a court of law, the prosecution is not permitted to speculate on something and call it evidence. North Carolina laws, nor do the laws of any other state permit this kind of nonsense. Yet, here we see the judge swallowing all of this nonsense whole. In other words, Nifong clearly has broken the law and the judge is an accessory.

Furthermore, we read another Nifong falsehood: "DA Nifong stated that he gave only 15–20 media interviews regarding the Hoax, contradicting his previous estimation that he gave 50–70 interviews, consuming 40 hours of time."

In other words, in a court of law, Nifong, who is sworn as an officer of the court to tell the truth at all times, said what clearly was not true. Once again, the judge let it pass.

The question is why Nifong suddenly has changed his story, and it has to do with Seligmann’s alibi. It is well-known and documented that Seligmann had left the party and has eyewitness testimony and electronic and photographic evidence that he was not Buchanan Street house at the time when Nifong originally claimed the "rape" had occurred.

Given that problem, Nifong conveniently has changed the possible time when this event could have occurred. Thus, if the "rape" went on only for five minutes instead of 30, then Nifong can throw Seligmann back into the mix and use speculation to undermine his strong alibi.

Of course, Nifong swears he is not trying to prosecute an innocent person. He told the court during the recent hearing:

"If he [Seligmann] can't provide for every minute in his alibi, it means the alibi is not airtight," Nifong said. "But if I had to speculate, I would say this whole event probably took about five minutes, 10 minutes at the outside. If [Seligmann] wasn't there, he doesn't have to worry about it."

The last statement is breathtaking: If the man was not there, "he doesn’t have to worry about it." In other words, Nifong is telling the court that in the State of North Carolina, people are not wrongfully convicted. Yet, the very law that requires the prosecution to turn over evidence to the defense exists because of the wrongful conviction of Alan Gell. As I have written elsewhere, North Carolina has a rich history of prosecutorial abuse and wrongful convictions.

Let us see where things stand thus far. First, the prosecutor, when faced with strong exculpatory evidence, suddenly changes his story and claims "new evidence" that he does not show, despite the fact that the law requires he do so. Second, the prosecution is formulating some novel theories about what might have happened – in clear violation of the law, since prosecutors are supposed to prosecute with the facts, not novel theories – and the judge has told the defense that they will not be permitted to see these theories presented until the trial. As I predicted, Nifong has neatly discarded Seligmann’s alibi by getting the court to change the rules of evidence.

One wishes this were all that could be reported about Nifong’s misconduct, but there is even more. One news report declares: "When defense lawyers spoke, Nifong occasionally sighed, rolled his eyes, laughed quietly or rubbed his temples." In the first hearing last spring, when one of Seligmann’s attorneys asked the judge to reduce the young man’s bond from $400,000 to $100,000, Nifong laughed and smirked out loud, but yet received no admonishment from the judge for this unprofessional display of behavior – behavior that the courts long ago have said is inappropriate for the courtroom. Likewise, we see that Judge Smith failed to rein in Nifong’s openly smart-aleck actions.

(I can only imagine what would have occurred had one of the defendants or their attorneys engaged in the same juvenile behavior. But Nifong receives a free pass from his fellow government employees.)

Besides his openly unprofessional behavior, his outright flouting of the law and court procedures, Nifong now is refusing to turn over other DNA samples to the defense. The reason, one speculates, is that the defense is likely to find that the accuser will have other DNA on her body that the prosecution has not publicly acknowledged.

One remembers that at the beginning of this case, Nifong told the press that when the original DNA tests were returned from the state laboratories, it would provide evidence of which Duke Lacrosse players supposedly raped the accuser. When those tests came back negative for every white player on the team, he then sought out the services of a private lab. Those results also were negative, but they did indicate that the accuser had been having sex with other people prior to the party. These results, along with the revelation that the accuser had used a vibrating sex toy for other "clients" the afternoon of the party, have proven to be embarrassing for the prosecution.

However, once it became clear that no DNA from any player had been found anywhere on the accuser’s body, Nifong changed the standards of prosecution and declared that he didn’t need DNA to gain a conviction. However, the defense is speculating that the results from the private lab might very well lead to some other disclosures about the alleged victim’s behavior that day which could further damage the prosecution’s case. Thus, Nifong wants to shove all of that evidence down the Orwellian memory hole.

Nifong is not satisfied with wanting to destroy DNA evidence. He and the Durham police also saw to it that a number of police tapes of calls and conversations tied to the case last spring were destroyed, or at least he and the police claim that the tapes were destroyed. Apparently, Judge Smith had no problem with such actions, either, and let it pass.

When it comes to college sports, the press and everyone tied with the teams and their respective colleges and universities want "justice." When the replays demonstrate that the officials have failed in their duties, people demand that they be punished and that the situation be made right.

However, when three college students are falsely accused of what used to be a capital crime in North Carolina, the press and university officials suddenly are silent, or they side with a prosecutor who breaks the law, lies, and carries himself in a manner that in a world with some decency would have him barred forever from a courtroom.

Yes, I am sorry that the officials got it wrong in the Oregon-Oklahoma game. However, I am much sorrier that the "officials" are getting it wrong in a criminal case involving real lives and real families. However, no one who can set things right in North Carolina seems to care, and that tells us everything we need to know about "justice" in this country today.

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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