Friday, January 26, 2007


Reports in the “Washington Post” ( and elsewhere that the prosecutor in the Duke Rape Case(s), Mike Nifong, is now going to be brought up on more serious ethics violations before the North Carolina State Bar. The entire 33-page complaint claims that his actions “constitute a systematic abuse of prosecutorial discretion”.

The matter has been discussed previously on this site (“Put Up Your Dukes”) but let’s give it another go.

The Nifong case is a firebell in the night, alerting us to not one but two fires eating greedily away at the integrity of our criminal justice system. The first fire is Militarization and the second fire is – for lack of a formal phrase - ‘Sensitivity Reforms’.

From the ‘right’ the integrity of the system is being eaten away by the military-type prioritizing of Outcome of Integrity of Process, in order to control the Outcome and make sure it’s in your favor, to ensure – in a word – Victory. This is the military way. This is also the JAG way. It is ballsy and cocky and brash and in-your-face and gives modern- day males a chance to be gunslingers like the Strong Man With A Gun Whose Violence Saves and Redeems back in those old movies. It gives JAGs a chance to notch their resumes so that they too can stand at the bar (liquor type) and brag as loud as the line officers and pilots and other heroes, even though law school meant that they didn’t – most of them – ever actually get around to serving up there where the hot lead flies.

It gives wannabes and wannabe-reelected DAs a chance to grab some of that can-do military aura. All you have to do is to declare that justice is a ‘war’ and that therefore anything that has to be done to Win that war is Good. It makes the accused your ‘enemy’, and being an ‘enemy’, well then – bringing him down is the object of the drill, right? Any way it takes. Any way at all. Integrity is too expensive a commodity to be kept in regular supply in war. “Due Process” is just another word for letting the enemy win; it’s one of those ‘townsfolk’ phrases for hen-pecked shopkeepers and bonneted old ladies. No self-respecting gun-guy, especially if he’s the Good Guy, can ever stand to let those town-types get all prissy and wussy when it comes to Making Things Right.

That’s what the militarization of justice has done. And of course, in the military justice system, the whole thing is weighted toward the prosecution. On top of all the obvious but never-admitted factors that work against any accused in the system, the military prosecutor has all sorts of built-in powers that his poor wuss-pecked civilian counterparts do not. (See "Miiltary Justice Is No music", Parts 1 and 2, on this site.)

But the JAGs, and the gummint itself, have been working to rectify that. Many a JAG gets off the active-duty gravy train only to go into civilian law enforcement and prosecution. Others become law school faculty or heads of law schools; many are judges in the civilian courts. One was the Clerk of the Supreme Court not so long ago. Working from within the system, egging on ex-military who are now in law enforcement, keeping their ship sailing squarely before the wind of anti-crime ‘wars’ that feed off assorted public anxieties yet serve ultimately only to enhance the police power of the gummint at the expense of liberty and Integrity, these types sustain and intensify the relentless termite assault on Constitutional justice.

Meanwhile, in the name of ‘sensitivity’ and feeding off the same media-stoked public anxieties, advocates for ‘reform’ of the Process loudly bring pressure to effectively dismantle by pieces the strong bulwarks set up not only to protect individual citizens from the ever-to-be-inspected power of the government, but to protect the accused from the not-always-rational passions of the public, and to protect the public itself from perpetrating primitive acts of lynch-law ‘justice’ that will deform the minds and hearts and souls of the perpetrators and that can never be undone.

In the Nifong case, the specific ‘sensitivity’ was around the now-entrenched, highly Scripted ‘sex-offender’ campaign, which itself feeds off the fuels provided by feminist advocacy and advocates for victims, as well by anti-crime advocates and assorted religious advocacies.

Nifong’s behavior – as it is now coming to light – and the very bland, matter-of-factness with which it was carried on, reveals a pattern that should frighten us all. He arrogates to himself the cocky, you-can’t-touch-me attitude of the military prosecutor, relying on the now-de rigeur sex-offender prosecution Script wherein fearless prosecutor wreaks official vengeance on obviously-guilty (they being men and this being about sex) perps, supported by outraged community baying in full cry like a Greek chorus from Hell. Long live our glorious indefatigable Prosecutors! Or, as the French has it: ‘public procurers’. Nor does he think he's doing anything wrong, really. This is the way you 'do it' nowadays; this how 'justice' is done in our modern American reality.

The Prosecutor, fed by Right and Left, has swelled to a status and power far beyond what is safe and healthy for the integrity of our criminal justice system. That he has come a cropper in the Nifong case might merely indicate, as it did in Salem in 1693, that he went and picked on the wrong ‘witches’, i.e. students of a powerful and – the hot ironies! – militarily-inclined university with more than its share of deeply ‘old-school’ alumni who ain't gonna sit by and see their male heirs put through the sausage-grinder of sex-offense justice and its Script.

Whether Prosecutor Nifong simply picked the wrong ‘enemy’ against whom to deploy the usual sex-offense Script, or whether finally this firestorm is starting to cool, remains to be seen. Much damage has already been done; significant structural elements of our traditional Justice process have been damaged, perhaps irreversibly. Twenty years worth of students have grown up assuming that this Script as it has played out in various cases constitutes one of the most essential and valuable threads of our modern civic reality.

Nor is it probable that they are far-enough matured to note on their own the ominous similarities between the rush-to-convict (sex-offenses being only the most recent instance) and the rush-to-invade (Iraq being only the first in a planned sequence paving the oil-spattered road to Hell).

There is much to consider in this case. We must apply ourselves to reflect upon it and assess it soberly. Lest we wind up like Mr. Nifong, as described by Shakespeare: “Exit, pursued by a bear.” It’s no way for a great People to go out.

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