Durham District Attorney Election

Today is election day in North Carolina and voters will choose the next District Attorney for Durham County. The Herald-Sun, the great defender of the status quo, predictably endorsed current Assistant District Attorney Tracy Cline. In doing so, it presented a variation of the Durham government party line that Mike Nifong and Mike Nifong alone is to blame for the Lacrosse Hoax stating, “[Nifong’s] actions did not reflect deep flaws within the DA's office.” On the contrary, the Lacrosse Hoax revealed some very deep flaws within the District Attorney’s office indeed.

Tracy Cline’s problems are well known. She was Nifong’s second chair in the lacrosse case and would have helped him try the case had it gone to trial. In October, however, she claimed that she had very little role in the hoax. According to the Herald-Sun,

Some suggested during the lacrosse meltdown that Nifong’s assistants dropped the ball by not reining in their boss, halting the scandal in its tracks.

Cline agreed last week that attorneys have a duty to report unethical conduct among their colleagues.

But she said she lacked insights into what Nifong was doing.

“I didn’t have any personal information about what went on in the lacrosse case, other than what the media reported,” she said. “My job was to keep the courtrooms running. That is what I was focused on.”

First, the assertion that she did not know the facts of the case is almost certainly false. Having worked as second chair, I can tell you that the second chair knows as much about the case as the lead attorney and often knows more. In fact, in the normal course of things, the second chair handles the day to day chores and basic prep work. Evidence presented at Nifong’s bar hearings suggests that was the case here.

More importantly, Cline did not need to know one thing about the Lacrosse case to know that Mike Nifong was an unethical attorney and that he should have been reported to the bar. From the very beginning of the hoax, I tried to make the distinction between Nifong’s conduct and the facts of the case. Even if one could plausibly claim not to know all of the facts of the case, all of Nifong’s misconduct took place in public for all to see. Anyone with a television set could watch him do it.

North Carolina Rule or Professional Conduct 8.3(a) states,

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the North Carolina State Bar or the court having jurisdiction over the matter.

It is no exaggeration in the least to say that every single lawyer in the District Attorney’s office is an unethical attorney. Mitchell Garrell, another assistant district attorney who is running against Cline tried to make an issue of Cline’s involvement in the hoax at a candidates forum. However, Garrell has some explaining of his own to do.

In any event, the problems with the assistant district attorneys during the Lacrosse Hoax go beyond a passive refusal to report Nifong to the bar. Many actively supported his bid for election and worked on his campaign. They did so with the full knowledge that he was an unethical and corrupt attorney. At a polling place during the 2006 general election, Nifong supporters who claimed to be attorneys in his office were falsely claiming that Nifong had a “smoking gun” that he would reveal at trial. That night, when the results were announced at the courthouse, an assistant district attorney taunted Duke students who were there to support Lewis Cheek saying, “poor little Duke kids didn’t get your way.”

Even after Nifong was disbarred, assistant district attorneys continued to support him and defend his actions. ADA Stormy Ellis pronounced herself “shocked that he has been tainted as a ‘rogue prosecutor.’ It scares me to think that one case can mar you for the rest of your life.” At Nifong’s contempt hearing, I heard a male voice behind me mutter, “Objection!” to a prosecution question it evidently did not like. I did not see who said it, but moments later David Saacks, who is now the acting District Attorney, stood up from directly behind me when he was called as a witness. At this same hearing, ADA Jan Paul, who had come to the hearing to support Nifong, refused to speak with investigative reporter Joe Neff of the News and Observer because she blamed him for Nifong’s downfall.

I do not endorse either of the remaining candidates, Freda Black or Keith Bishop. I just hope the people of Durham can find someone who is willing to provide ethical leadership and surround his or herself with ethical people.

While the ethics and moral outlook of assistant district attorneys might not seem that important, consider that the Lacrosse Hoax was not the work of a criminal mastermind. Instead, it was what happened when a venal and small minded career assistant found himself in a situation that tested his character. Consider also, that he likely developed the habits and attitudes he displayed during the Lacrosse Hoax working in that office for 27 years and who knows what other misconduct he might have committed before his actions became subject to public scrutiny.

Unfortunately, the best chance for positive change in the Durham County District Attorney’s Office was when Governor Easley had the opportunity to appoint Nifong’s successor. What Easley needed to do was appoint someone from outside the Durham legal community who would go into that office with an eye toward firing most of the people there. Instead, he turned Jim Hardin, Nifong’s predecessor back into the office apparently with an eye toward stabilizing the current situation there.