As we noted yesterday, the State Bar's historic move to file charges against a rogue prosecutor while a case remained pending is counter to its own policy to defer to the court's concurrent jurisdiction in such matters. Arguing that a once-ever instance of emergency intervention - intervention that comes essentially outside the norm or established system - is proof that the system works defies reason. Further, crediting the State Bar for acting on the conspiracy to withhold evidence by filing additional charges (an act which came after the District Attorney had recused himself) while downplaying the extraordinary efforts to uncover the conspiracy also stands on shaky legs. It's difficult to understand giving the Bar sole props for its applause worthy intervention without also recognizing the heroic efforts that inspired the intervention in the first pace.
The main heroes of this case weren't the defense attorneys or Attorney General Roy Cooper, who declared the three young men innocent. The State Bar really set the stage for exoneration.
The Bar's executive director, L. Thomas Lunsford II, told me that even though the initial complaint against Nifong was filed in response to a grievance filed by a private citizen, the Bar had already begun to monitor Nifong's actions as early as March 30 of last year. The organization, he added, probably would have filed a complaint on its own had the citizen not stepped forward.
The case the Bar has amassed against Nifong is so compelling, losing his job and law license could be the least of his troubles. He could end up fighting for his freedom.
If the State Bar's attorneys can successfully prove that Nifong knowingly withheld exculpatory DNA evidence from the defense and then lied about it to the court, that record might be hard for law enforcement officials to ignore. Sure, it's speculation, but I wonder whether Nifong could be the only one from the Duke lacrosse case to end up with a conviction.
Despite the effective actions by the State Bar, Attorney General Cooper felt compelled to look into the cameras and propose a new law to give the state Supreme Court authority to remove a district attorney from a case.
Bizarrely, Martinez also cites the 7A-66 filed by Beth Brewer, and shelved in defiance of the statute by Judge Orlando Hudson, as additional evidence that the system works.
"A Superior Court judge already has the authority to remove a rogue D.A. from the job, which obviously would take him or her off every case, not just the one in question by the Supreme Court.Taking his own argument full circle and incredibly belying the title of his opinion piece, Martinez concludes by arguing that part of the system, in fact, did not work.
"That's because under North Carolina law, any citizen can petition to remove a district attorney for cause. One already has.
"Durham political activist Beth Brewer has filed this type of complaint against Nifong. Thus, even if Nifong keeps his law license after his State Bar ethics hearing in June, he would have to answer Brewer's complaint at a court hearing to keep his job."
Sadly, Martinez employs the same argument attempted by Defendant Nifong's attorney Dudley Witt, who suggested that the efforts of Brad Bannon to discover the exonerating evidence hidden in a massive data dump were no more than an ordinary function of the adversarial system that all defendants, regardless of means, should be subjected to. This notion that legal protection afforded to the accused rather than legal protections afforded by the accused led to exoneration is as dangerous in print when arguing for maintaining the status quo as it is in a bar hearing when arguing that all prosecutors should be allowed to proceed as Nifong did.
If Cooper wants to improve the state's justice system, he should address the weakness in the grand jury system pointed out by Dave Evans following the dismissal of charges. When he inquired about the grand jury record that led to his indictment, Evans discovered that a written record doesn't exist.
Every lawyer I've spoken to in the past week, including Garry Frank, president of the N.C. Conference of District Attorneys, says it's time to modernize the grand jury system to include on-the-record proceedings. That's not unprecedented. When an investigative grand jury is empaneled, although a rare occasion according to Frank, the examination of witnesses is under oath.
Former federal prosecutor (and former Raleigh City Council member) Kieran Shanahan told me that every grand jury should have investigative powers and not be limited to evidence presented by the district attorney and police. He thinks the state should pattern its grand juries after the federal system.
Although the lacrosse case has been tragic, its one silver lining should not be overlooked. Today, Seligmann, Finnerty and Evans are free -- proof positive that legal protections afforded to the accused work.
Now let's concentrate on fixing the grand jury system that wrongly indicted them in the first place.
Without taking issue with the suggestions that the State Bar's efforts were heroic and that the NC grand jury system needs to move out of the Stone Age, it remains impossible to accept that a system which allowed innocent people to be subjected to the unchecked willful wrath of a rogue prosecutor for so long and at such expense, personal and financial, worked. The suggestion alone does little more than add insult to injury while doing nothing to ensure that the same menace is not faced by other innocents.