NIFONG NIGOOD

Reports in the “Washington Post” (www.washingtonpost.com/wp-dyn/content/article/2007/01/24/AR2007012400507) 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.

PUT UP YOUR DUKES

Michael Donnelly outlines the Duke lacrosse (non-)rape case in “Injustice in Black and White” (www.counterpunch.com/donnelly12302006.html). What he describes is a classic example of very bad things, done in a very worthwhile cause, solidifying into a Standard Operating Procedure, and indeed erected into a Plan. And thus taking us into the dark territory (yes, Mr. Cheney’s “dark side”) of things Soviet, which decent folks figured had been buried in 1991 along with the Soviet state itself. And this is the key reason why it’s commented upon here: we’re dealing with something very clearly representing Soviet praxis, and – as noted elsewhere on this site – it was present at the creation of the Iraq invasion (a mission, the White House asserts, whose success has simply not yet actualized).

The DA in the case had said the newspapers early on “One would wonder why one needs an attorney if one was not charged and had not done anything wrong”. The answer of course, is that by the Year of Grace 2006 it had become clear to any number of defense-attorneys that any male even distantly associated with a ‘sex-offense’ already had one extremity in the sausage machine that has become sex-offense ‘justice’. No defense-attorney in his or her right mind, even before formally being retained and simply asked for advice, could advise any one in such a position to just go down to the station and have a chat with the folks down there.

Nor – as Donnelly accurately notes – were the defendants mediagenically ‘sympathetic’; indeed they were rather unlovely in a 1930s sort of way: macho frat-boys, many from well-heeled families, attending a powerhouse school with no small connection to the gummint and as close to an Ivy as one is going to find in the Carolinas.

The DA himself was up for election in a heavily black ‘town’, and going after such ‘gowns’ was a shrewd re-election gambit. That such political consideration would of itself be largely incompatible with the careful administration of criminal justice is so contrary to historic political praxis as to seem, like adherence to the authentic vision of Christ (or Gandhi), both ‘quaint’ and hopelessly ‘idealistic’.

But among the fuels for this fire the unholy mix of politics and criminal justiciaring was merely wood compared to the magnesium effect of the sex-offense phenomenon as it has now metastasized under the nurturance of advanced-level Advocacies and a media that has – to its own great profit – turned pretty much ‘yellow’.

And the whole concoction has been distilled to the point where it has become a Script: it has its own roles, its own plot, and – worst of all – its own set of reactions and opinions which are to be assumed by the public, to be delivered on cue. Any deviation from whole-hearted support for the approved opinions bids fair to land the opiner in some modern-day, ‘democratic’ form of gulag.

There were few trees not flattened so as to smooth and clear the path for the winds that were generated to fan the flames; firestorms like the one that blitzed London on December 29, 1940 are now a common development. Courts and legislatures, media, even the free and full expression of the voice of the citizenry were all flattened, watertight-doors jammed open to make it easier for ‘justice’ against these ‘monsters’ to be efficiently wreaked.

The professionalism of our modern (and militarized) police and investigators – so brightly, brassily, and proudly limned in numerous current and recent TV series – was clearly compromised, the only real question being: was that professionalism eroded by the effects of this thing or was that professionalism itself purposely skewed to become part of the problem before the fact? The philosophy of Muldoon of the Strong Arm Squad seems not to have really been buried, and it is quite possible that beneath the SWAT chic and learned discourse on the varieties of hi-tech weaponry by starry-shouldered, crew-cut paragons, the rough peasant justice of the 1890s has been brought back from its grave.

A Duke law professor noted that the self-proclaimed victim was helpfully prodded by police in a line-up, to the point that they removed any speed-bumps – embedded in lawful procedure precisely for the purpose of discerning truth – that might deflect her from identifying, or at least choosing, a couple-three defendants. The rough peasant Southern justice of the 1950s has been brought back from its grave, if indeed it was ever truly staked through its heart in the first place.

Duke’s role is tortured. It pretends to the aura of the Ivy, but is actually deeply connected to the aforementioned gummint (and, at the risk of repeating myself, particularly to the JAG racket). Yet an echt Ivy nowadays must be ‘sensitive’ and ‘responsive’ (nor are those concepts in themselves at all undesirable). So the Duke honchos had to keep the ‘town’ happy, and not appear to be out of step with the Script, while at the same time not giving their alumni the impression that their fair-haired bhoys would be exposed to the crassery of criminal prosecution for frat-boy pranks from which great preparation for high-ranking or deep-connected government and business careers is irreplaceably derived. The battles of Democracy are won on the playing-fields and in the frat-houses, and we shall never surrender, and all that. Like a military now very Southron and evangelical – when not blatantly Fundamentalist – Duke wants to draw increased devotion from the quick-burning fuels of self-assurance and undisputed authority, leading to a clarity based not on deep, patient, sometimes tortured, always serious thought but rather based on having pushed all the troublesome pieces off the board. And yet simultaneously it wants to be seen as a major University in … some … sense. And, given our modern American reality, it most likely qualifies.

Prosecutor Nifong pulled some moves that could be called ‘sailing close to the wind’ but which are now securely ensconced within the Script: giving out inflammatory and skewed comments to the media, selectively releasing such facts as he chose, the thinness of the case cloaked by the lubricating miasm of ‘outrage’ and ‘sensitivity’ so that the public might not be given the uneasy impression that it was jumping the gun in concluding that the defendants were true ‘perps’, deserving of all the honors thereto appertaining in our prison-happy, perfect-security society. But then he went and outright lied to the court that there was no DNA evidence one way or the other, when indeed he had two sets of it that not only did not implicate the three selectees, but also did not implicate the other 40-plus members of the lacrosse team, and actually did indicate the ‘contributions’ (ah, the ever tasteful CSI!) of 7 other unidentified males.

This invites serious reflection on the effect that long-term (the Tawana Brawley episode took place about 20 years ago now) Emergency-ism and Outrage-ism is having on our domestic, civilian law enforcement personnel. Their sense of immunity to prosecution seems to be climbing toward that enjoyed by the JAGs and their investigative ‘organs’, who carry on that thing they do shielded and fortified by concentric rings of defenses: national security, special military concerns that ‘civilians’ wouldn’t understand, the gauzy, muzzy golden aura of the military as the embodiment of all things good and true as resurrected by the Reagan era, and now the even more useful waves of Advocacy-stoked ‘outrage’ that forgive without investigating any of their mis- or mal-feasances that inconveniently do manage to blunder out onto the stage. And all of this insurance on top of the foursquare organizational dogma that JAGs and military investigators are almost as free from Original Sin as generals and admirals. In the Southron theology, virginity seems to be enjoyed not only ,by the Mother of God, but also by the authority figures of the gummint (the aforementioned frat-boy forays and perhaps preacherly prayer-trips into gay sex and crystal meth not excepted).

A reflexive public response according to a Script – any Script – is hugely toxic to law enforcement and to society. Once a public response loses the vitality and unpredictability of serious sifting for the truth and becomes an almost completely predictable element, then the sad effects of Original Sin – especially when working within a so powerful and privileged an entity as a law enforcement organization – can figure a way around, just as water – however polluted – will still find its way in through any opening afforded to it through inadvertence or design. The hard job of Peopling means having to demand careful sifting for Truth, so that Our authority is not deployed in the service of un-Truth.

Nor let us be sidetracked by the pious bray that Nifong was ‘an isolated instance’, a ‘rogue’ individual: he had the bad karma to get caught doing the dirty, but he’s a full-fledged member of the fraternity. This very powerful fraternity.

Surely we’re seeing the problem in the Iraq war now. Other turkeys may be roosting over here already. Something other than concrete and steel structures has been seriously hit in this country, and not by furriners. This calls not for a tool as simple as the musket over the fireplace but rather for the inhabiting of those superior aspects of ourselves upon which the Framers and the beleagured (yet ever cagey) Lincoln pinned their deepest hope.

If the ability to People might be thought of as the Child, then each of us is a Joseph or a Mary, responsible for its safety and its thriving, against interests that wish our integrity great ill. Not a whit of which would be news to Washington, Jefferson, Franklin, Lincoln … however much they may have refrained from the embrace of the Bible stories (and they did) to frame their arguments and analyses.

Nor can the role of the media in all of this be discounted. If it weren’t for the media re-embracing a form of ‘yellow journalism’, even when claiming that it was only the old Progressive ‘muckraking’ in a fresh Good Cause, then the scope and duration of the sex-offense mania – with all its truly dangerous consequences – could not have thrived as long as has been the case. And perhaps the entire run-up to the Iraq war might have been baffled, had the media hewed to Truth first, rather than down-playing slowly-brewed and expensive Truth for the cheap, fast red-white-blue lightnin’ of reflexive Outrage and patrioteering.

Now dozens of thousands of Our young remain obedient to Our word in the bloody wrack of the Eastern front, thousands of them are dead, and they have caused – willy or nilly – the deaths of further multiple thousands. We have much to do.

In his excellent little book “Postscript to Yesterday: American Life and Thought 1896-1946”, published in 1947, the eminently readable and insightful Lloyd Morris devotes a chapter, “The Uses of News”, to the development of the news-gathering trade in those eventful 50 years. Joseph Pulitzer determined that the best way to uncover wrongdoing was “to create by destroying, to affirm by attacking” [the quotations are from Morris], insisting always upon the truth of his facts but never failing to deploy them in the most sensational fashion possible, until it was finally observed back then that “trial by newspaper was becoming an increasing threat to judicial processes; the invasion of private rights was often without redress for the injured”.

William Randolph Hearst competed with Pulitzer for pre-eminence. He “was known far and wide for his opinions, not his standards” and “his editorial world was a world of sharp focus, lacking the light and shadow of profound moral conviction”. There is a texture to existence; it – like much of the desert – is not simply flat, lifeless, and predictable (as the Italian armored columns chasing Omar Muktar found out to their great damage and discomfiture). An inaccurate ‘clarity’, based not on a strenuously formulated awareness but rather on a juvenile ignoring of any complications, is bound to set one up for a world of hurt. And take maybe a lot of others into the blood and mire along with one. In the Cause of enhancing “democracy" Hearst poured gallons of garishly colored ink down the throats of the public, insisting that his hyped-up stories would make it easier for folks to grasp them, which as citizens they needed to do. About which the great Progressive muckraker Lincoln Steffens observed: “to give us a better government he would make us a worse people”. The thought cannot be avoided that some of our modern day ‘media’ honchos are channeling Mr. Hearst far more effectively than anyone in the White House used to draw upon astrological charts.

To the “New York Times” came Joseph Ochs, back in the 1890s. As he went on, observing the operating styles and philosophies of Pulitzer and Hearst, he decided that his newspaper would carry only “all the news that’s fit to print”. In other words, as against Hearst and even the truth-respecting but sensational Pulitzer, he would treat the intelligent American citizen to a wide and full and accurate record of all the important developments in all the relevant issues of the day, carefully presented. A ray of light, a light-house that – we would have to admit – has not been as well-tended of late; nor can the ship of the Republic any longer rely on it solely.

In an ever-spiraling cycle, the news media seem to be drawn down to frothy sensationalism rather than upward to serious deliberation. That it is in a good Cause – and toward increased profits – cannot justify it: Truth is being sacrificed. And if the rejoinder comes in the question “And what is Truth?” then a fundamental mistake has been made that, at the very least, should be clear to any who profess a working familiarity with the Old or the New Testament.

Whether Our own decreasing sensitivity to Truth and our own failing capabilities to determine it, and to demand It in our society – is a cause or an effect, is one of those questions that can indeed go on forever. The task immediately before Us is to take a more sober and serious road than heretofore, and thus to face full-on the massive and now monstrous issues that beset us and – through us – the world and its peoples. Whether the American thumb remains heavy enough to hold the world in place is a question of secondary concern; whether the American soul is still capable of being a Beacon and a Modell to the world’s peoples is the question of the day. How We answer it “shall mark us down in honor or dishonor to the latest generation.”

The New Year waits with eager groaning the revelation of the children of the Republic. What say We?