The bad news is that Durham County, North Carolina District Attorney Michael B. Nifong was elected to the office to which he had been appointed. The good news is that Mr. Nifong did NOT win a majority of the votes cast.
Those outraged by it should not be dismayed. The price of that shameless victory will be paid.
The bad news is that Durham County, North Carolina District Attorney Michael B. Nifong was elected to the office to which he had been appointed.
The good news is that Mr. Nifong did NOT win a majority of the votes cast.
Not even with the Democrat line in overwhelmingly Democrat Durham in a Democrat year and the endorsements of two of the three political action committees.
The tragic news is that but for a spoiler, Mr. Nifong apparently would have lost and his time as district attorney would have ended by December 31, 2006.
According to the figures posted by The News & Observer, Mr. Nifong won 26,116 of the 53,184 votes cast, or 49.10%.
Lewis Cheek, a Durham County Commissioner and Democrat who made the ballot by petition, won 20,815 votes, or 39.25%.
Steve Monks, the Republican Durham County Chairman who conducted a write-in campaign after failing to get enough signatures to be put on the ballot, got 11.64%.
If all those anti-Nifong vote had been united instead of divided, Mr. Nifong definitely would have lost.
In a pre-election poll commissioned by The News & Observer and WRAL-TV, 46% of likely voters backed Nifong. Cheek had 28%, Monks had 2% and 24% were undecided.
The undecideds surely broke overwhelmingly against Nifong and Monks kept Nifong in office by staying in the race.
Mr. Monks made himself part of the problem instead of part of the solution.
Brooklyn College Professor Robert K.C. Johnson: "Monks and advisors Charlotte Woods and Cliff Brandt deserve the strongest possible censure; they can spend the next several months, or at least until the entire case comes crashing down, knowing that their actions helped the county's 'minister of injustice' to slip through."
Professor Johnson's key words: "the entire case comes crashing down."
The best news is that the Duke case WILL come crashing down, sooner or later.
Better sooner than later.
Mr. Nifong made some terrible choices in order to win.
Those choices came with a price that will be paid.
Even before Election Day 2006, Mr. Nifong began paying the price for protecting Assistant District Attorney C. Destine Couch and, more importantly, pleasing his mother, Finesse Couch, president of the Durham County Bar Association.
Last spring, Mr. Nifong opted for the willful blindness strategy in the Duke case and leaped at the chance to pose as the champion of black women, by refusing to consider evidence of innocence, rigging identification and railroading the Duke Three, all white, before a grand jury. (The Duke Three were not indicted for partying while white, which is NOT a crime, but for kidnapping, rape and sexual offense, heinous crimes which none of them committed.)
This fall, Mr. Nifong gave short shrift to then Durham County Assistant District Attorney Ashley Cannon's complaint about Mr. Couch. Ms. Cannon is NOT more credible than Crystal Gail Mangum? Or Mr. Couch and his mother had to be protected and pleased, lest Mr. Nifong lose the general election?
Referring to Mr. Nifong, Duke Law Professor James Coleman wisely warned: "You’ve got a prosecutor playing to race. It’s disgusting. If he’s willing to [make race an issue] to go after what he thinks are three white kids with influence, what will he do going against some poor black kid in a case where people are saying, 'You’ve got to convict somebody?' To me, a prosecutor who’s willing to cut corners in any case is a prosecutor who’s subverting justice."
Subverting justice is a Nifong specialty.
The black cab driver who confirmed Reade Seligmann's alibi was harassed by Mr. Nifong (and acquitted by a Durham jury), without significant protest from Durham's Black community.
Ironically, Ms. Cannon is the person whom Mr. Nifong assigned to prosecute David Evans of the Duke Three for being noisy (and won) and the cab driver (and lost).
Ms. Cannon just left Mr. Nifong's office because she did not appreciate the attention of Mr. Couch and Mr. Nifong was much more concerned with keeping his job than keeping Ms. Cannon (who is now an assistant district attorney in two nearby North Carolina counties.
Just before the election, Ms. Cannon blew a sexual harassment whistle on Mr. Couch and an ignoring sexual harassment whistle on Mr. Nifong.
Professor Johnson (on November 6):
"I spoke last night with Ashley Cannon, a former assistant district attorney in Mike Nifong's office.
"She told me the following:
"On Friday, her last day working for Nifong, Cannon spoke with the Administrative Office of the Courts, and filed an oral complaint alleging sexual harassment by Assistant District Attorney C. Destine Couch and a complaint against District Attorney Nifong for taking no action on the matter.
"Couch received some attention earlier in the case, after people noticed his racy myspace.com website (which was then taken down). According to Cannon, Couch engaged in a pattern of inappropriate behavior that prompted her to file an internal complaint with David Saacks, the chief assistant district attorney. Saacks, she said, then brought the complaint to Nifong.
"I spoke this morning with Saacks. He said that he could confirm that he was 'involved' with the complaint in the office, but otherwise, as a personnel matter, only Nifong could comment on the issue.
"Cannon said that, around four weeks ago, after Nifong showed no signs of acting, she made an appointment to speak to the district attorney. She reported that Nifong told her that they would talk about the matter later; and in the meantime, he would put her on a schedule that didn’t overlap with Couch. When Nifong did neither and she felt that the situation wasn’t going to improve, she decided to leave and file her complaint—against Couch for inappropriate behavior and against Nifong for inaction.
"I asked Cannon why she came forward now; she said that she felt compelled to follow the same advice she gave to women who experienced sexual harassment in their jobs.
"The N&O reached Ken Williams, human resources officer with AOC, who 'said he had not heard about the complaint but would not have been the one to take it. He said if human resources receives a complaint, the office typically will investigate and make suggestions or recommendations to a district attorney, but that his office has no authority over elected officials or their employees.'"
Professor Johnson disclosed the political considerations in play: "Couch’s mother, Finesse Couch, is a major player in the Durham Committee for the Affairs of Black People. The PAC recently endorsed Nifong, even though African-American groups traditionally look poorly upon reckless prosecutors. Finesse Couch has also donated $1000 to Nifong’s re-election campaign. Her most recent contribution, $250, came on October 10, or after Cannon had complained about C. Destine Couch’s behavior."
On July 22, in "Does Destine play a part in the Duke rape hoax?," I wrote about Mr. Couch, as follows:
"Perhaps Mr. Nifong would do better to closely investigate the people he hired as prosecutors.
"Example: C. Destine Counch.
"Heraclitus said: 'Character is Destiny.'
"I say: 'Destine is a character.'
"Nietzsche, in Human, All Too Human, wrote: 'Our destiny exercises its influence over us even when, as yet, we have not learned its nature: it is our future that lays down the law of our today.'
"I wonder whether Mr. Nifong's Destine has exercised influence and bears blame for the way the law has been misused to abuse the Duke Three and win a Democrat primary for Mr. Nifong.
"In December of 2005 (long before the unfortunate lacrosse party), Durham attorney C. Destine Couch was sworn in as a Durham County District Court prosecutor.
"On the website for Mr. Couch's private law firm, he is described as a 'SECOND GENERATION ATTORNEY WITH UNIQUE PERSPECTIVE ON LAW AND RESPECT FOR OTHERS...' and 'a newly licensed attorney who joined the firm in August 2003 [whose] personal interests include mentoring youth, studying nutrition, and natural (steroid free) bodybuilding."
"Mr. Couch's education information is as follows: North Carolina Central School of Law, J.D. Durham, NC, May 2003. North Carolina State University, B.S. Political Science, Raleigh, NC, May 2000. Hillside High School, Salutatorian, Durham, NC, June 1996.
"What is noteworthy is that Mr. Couch graduated from Hillside High School in 1996. That is noteworthy because the accuser did too.
"Did Mr. Couch have a relationship with the accuser and, if so, has it affected the decisions to seek indictments and continue to prosecute?
"Mr. Couch is no longer on myspace.com, but he was into July of 2006 and the public part of his posting makes one wonder why he was hired to be a prosecutor. Fortunately, information from his myspace.com posting has been saved and is accessible at this web address.
"WARNING: CHILDREN SHOULD NOT USE THIS LINK.
"This message appears when access to Mr. Couch's pictures is sought: This user has either canceled their membership, or their account has been deleted.
"However, Mr. Couch's motto is 'Come get some!' and 'Sweets,' one of his 1837 friends, left him as message on July 3, 2006: 'I love your body.' (with hearts). Then there is LatinPeanutButta, who left this message the same day: 'There are times in life when I take a look and realize how blessed I am to have people like you in my life....CD...you know I love your azz!! Thank you for being there for me papi...*besos*.'
"Mr. Couch's Blurbs;
"'About me: I am a 6'2 professional male living in the Triangle Area of NC (Raleigh, Durham, Chapel Hill) who enjoys bodybuilding, reading, watching movies at home, WWE, listening to all types of music, anime, and dancing occassionally. I sometimes travel, but admit I'm more of a homebody.
"'Who I'd like to meet: Gwen Stefani... and other beautiful well-rounded females who can appreciate my eclectic tastes for chat, friendship, and possibly more. IM me on yahoo ONLY if you are hot and/or local: cappadonna21xxx '"
"After reading the accessible parts of Mr. Couch's posting, the need to cleanse the Durham District Attorney's Office is even more obvious to me and the willingness to believe the Duke Three capable of the horrific crimes of which they stand accused a bit more comprehensible."
Ms. Cannon may have been the best lawyer in the office, but Mr. Couch's mother's support was critical to Mr. Nifong's reelection.
North Carolina journalist and television commentator Cash Michaels focused on what was NOT in the Durham Committee on the Affairs of Black People's Nifong endorsement:
"Their supporters allege that DA Nifong, who is also white, is pandering to the African-American community to win again by promising to bring the three white suspects he says 'raped a Black girl from Durham' to justice. Those supporters also warn that if elected, Nifong will falsely prosecute Black defendants too.
"However, that hasn’t stopped the Durham Committee on the Affairs of Black People, the county’s most prominent Black political organization, from endorsing DA Nifong, though it never specifically said why."
Why indeed!
Professor Johnson highlighted these "ironies of [Ms.] Cannon’s experience... :
• In the last seven months, Nifong has positioned himself as a great defender of women’s rights; yet he appears to have had a blasé attitude toward following up on a sexual harassment complaint in his own office.
• Would Nifong have handled Cannon’s complaint differently if Couch’s mother had not been a significant figure for his re-election effort?
• Nifong felt comfortable moving forward in the lacrosse case without ever speaking with the accuser about her version of events; and yet here, with a member of his own office filing a complaint and talking personally to him, he appears to have done little or nothing about it?"
Predictably, Messrs. Couch and Nifong did not respond to Professor Johnson's request for comment.
What is also predictable is that Mr. Nifong will not suppress the truth forever.
The turnover at the Durham County District Attorney since Mr. Nifong was appointed district attorney has been great.
Mr. Nifong can replace experienced people with his own neophytes (like Mr. Couch), but he can't change history.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.
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