Duke Case: "Community Justice" Is Trumping Individual Justice
Perhaps Durham County, North Carolina District Attorney Michael B. Nifong's electoral success with the overwhelming majority of Durham County's black votes is in large part the result of the perception of him as a champion of "community justice."
But, Mr. Nifong's duty under North Carolina is to be a fair and impartial minister of justice in each case. He's not entitled to try to railroad anyone to win votes or to please potential supporters or actual supporters. He is duty-bound not to pursue a case frivoulously, or recklessly, or unconstitutionally, no matter how many voters want him to do so.
In its May 1, 2006 issue Newsweek reported the commendably candid, but otherwise contemptible, attitude of North Carolina Central State student Colin Hall: Duke students should be prosecuted "whether it [the alleged kidnapping and gang rape] happened or not," as "justice for things that happened in the past."
Mr. Hall, 22, who is black, apparently believed that some white Duke lacrosse players should be sacrificed to make up for past injustices to "the black community," whether their accuser, Crystal Gail Mangum, told the truth or lied.
Justice seeks the truth, not revenge.
In the United States (and that still includes North Carolina), the criminal justice system is supposed to mete out justice on a case-by-case basis, based on the merits of each case, not to use cases to make reparation for past injustices.
"Jury nullification is a jury's refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented. Instead, a jury bases its verdict on other grounds and so asserts the jurors' own view of justice; a consequence of providing a right to trial by one's peers. Although a jury's refusal only relates to the particular case before them, juries are reluctant to pass a verdict contrary to law and therefore jury nullification often has far reaching implications signalling as it does an unwillingness by ordinary people to accept the law....:Historical examples include the revolutionary use by Americans who refused to convict under British law, juries who refuse to convict due to perceived injustice of a law in general, the perceived injustice of the way the law is applied in particular cases; and cases where the juries have refused to convict due to their own prejudices such as the race of one of the parties in the case."
In the Duke case, there seems to be a great temptation to use jury nullification TO CONVICT (or at least refuse to acquit) for a purpose supposedly more important than doing justice in the case:
The hijacking of the criminal justice system outrages the vast majority of Americans, but not people like Mr. Hall, who instead are enamored with the idea that the Duke Three are being prosecuted at the instance of Crystal Gail Mangum.
People enamored with that idea don't care that each of the Duke Three passed a polygraph test and Ms. Mangum did not. They say that the polygraph test must have been rigged, or the Duke Three are pathological liars and Ms. Mangum was wise not to take one, because it might have been rigged.
The enamored people have an explanation for everything that indicates the Duke Three are innocent and Ms. Mangum lied. Examples: The DNA results were rigged. It is to be expected that a rape victim would be confused as to whether or not she was raped, and whether there were three, four, five or twenty rapists.
The second stripper, Kim Roberts Pittman, should not be believed, the enamored people now say, because she has a criminal record. But Ms. Mangum should be believed despite her criminal record (or perhaps because the person she nearly ran down during her joyride was a policeman).
Many blacks in Durham County, North Carolina apparently believe that instances of the criminal justice system mistreating blacks constitute a good reason to proceed to trial in the Duke case.
Perhaps it is unfair to say that they believe two wrongs make a right, but they do see to be caught up in a variation of the eye for an eye and a tooth for a tooth approach to criminal justice in which miscarriages of justices involving blacks demand miscarriages of justices involving whites.
NCCU Law Professor Irving Joyner, who is monitoring the Duke case for the North Carolina NAACP, yearns for a jury trial of the Duke case in Durham. He seems to believe that a Durham jury may convict when jurors elsewhere would not: "This case originated in Durham and should be tried here" and Mr. Nifong "still has a viable shot at victory before a jury in Durham."
Professor Joyner explained why he specified a "Durham" jury as giving Mr. Nifong a chance to win: "A Durham jury may see things differently than would an Orange or Wake County jury because the Durham jury will probably have more African-Americans on it than would be involved in most other counties in North Carolina."
But, a verdict should not depend upon the county in which the case is tried or the color of the accuser, the accused, the prosecutor or the jurors.
On June 6, Professor Joyner appeared on "The Situation with Tucker Carlson" (MSNBC). His comments reflected his "community" approach.
A few days earlier, the 1898 Wilmington Race Riot Commission, on which Professor Joyner had served as vice chairman, had issued a report urging North Carolina to provide reparations for the 1898 racial violence that sparked an exodus of more than 2,000 black residents from Wilmington, North Carolina..
Herewith the exchange between Professor Joyner and Tucker Carlson:
Carlson: Joining us from Raleigh, North Carolina, tonight...is vice-chairman of the 1898 Wilmington Race Riot Commission, Irving Joyner.
Mr. Joyner, thanks for coming on.
—first, let me just say that the more you read about this 1898 massacre, the more horrifying it is. And I‘m not in any way attempting to minimize what happened. You can‘t minimize it.
My question that [is] simple, to whom would you pay reparations, since nobody—or pay anything, because nobody who was alive then, the perpetrators or the victims is alive today. So who gets paid?
JOYNER: Well, we‘re not trying to get paid for anyone.
JOYNER: What we‘re trying to do is to redress—redress a wrong that occurred, a wrong that happened not only to individuals, but to an entire community, and it is the community that deserves to be repaired. And it is that community that our recommendations are directed toward aiding and assisting in this situation.
CARLSON: OK. Now you‘re talking about taking public money and giving it to a group of people in repayment, in part, for wrongs that happened long ago to people who are no longer alive, committed by people who are also no longer alive. And so why should...
JOYNER: That‘s one approach. That‘s one approach. I mean, that‘s one way to look at it. I think the better way...
CARLSON: OK. That‘s factually accurate, I believe.
JOYNER: We‘re taking—we‘re taking tax money that these people are putting into the government and redirecting it back to that community, so that that community can be repaired. So it‘s not this money is coming from some third party or from your pockets.
CARLSON: Wait a second. Well, it‘s coming from everyone‘s pockets, including from person who had—I mean, every person it‘s coming from had no role in this massacre. I mean, nobody who pulled the trigger or incited people to riot is still alive. Why should people who were not responsible for a crime pay for the crime? How is that fair?
JOYNER: Well, because many people benefited—many people benefited from the wrong that was done, primarily the Democratic Party of North Carolina. The state of North Carolina itself. The Raleigh News-Observer and others.
These are individuals or groups that we can document involved themselves in the harm that occurred. So the state is the only organ left that can provide the redress that is needed to repair this community.
CARLSON: It‘s just so unfair, though. The state is all of us. So when you say my tax dollars, you tax dollars. Our next door neighbors tax dollars. None of us had anything to do with this.
It‘s so unfair it seems to me, so contrary to principles of American justice, based of course, on the individual, individual perpetrator, individual victim to do this.
I mean, why not say—I could say, well, my great-great-grandmother was killed by your great-grandfather. You owe me $15,000 for the mental distress I‘ve suffered... and you would say to me, I didn‘t have anything to do with this. I‘m not responsible for what my great-grandmother did. And you‘d be right.
JOYNER: I [think] you‘re talking about something entirely different [from] what we are dealing with...in Wilmington, North Carolina. We made a case for a documented overthrow of a legitimately elected government. It harmed people not only in Wilmington, but African Americans all over the state of North Carolina.
CARLSON: I believe that.
JOYNER: It has nothing to do with your grandfather being harmed by anyone.
CARLSON: I believe everything...
JOYNER: We‘re talking about, Dan, we‘re redirecting—let me job name this prize. We are talking about redirecting state money into an area that is devastated, that has a lingering impact or effect from this massacre, which occurred in Wilmington, North Carolina and it‘s time for the state middle to repair the damage that was done there. That‘s all we ask. And it‘s time ....
It should NEVER be time to prosecute innocent people as entertainment!
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.