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http://www.newsobserver.com/1185/story/509350.html
No gong for Mike Nifong -- yet
Steve Ford, Staff Writer
If the oddball election to fill the district attorney's post in Durham really was a referendum on the Duke lacrosse case, then we might reasonably conclude that the citizenry thinks Mike Nifong has no business prosecuting three athletes on charges of rape.

Nifong won, but polled less than a majority of the votes -- 49 percent. So, as The N&O's news articles have pointed out, more people wanted to give him the hook than to keep him in office. And somebody would have been hard-pressed to vote against Nifong for any reason other than a belief that the lacrosse players are being railroaded.

Does it amount to some kind of travesty, then, that Nifong is set to continue as D.A.? Not in my book.

That's not to say anybody should be comfortable with Nifong's performance in the case that has drawn scads of unwanted attention to Durham, Duke University and their uneasy co-existence.

But to throw him out of office on the sole basis of that performance would have had the effect of substituting the judgment of voters for the judgment of jurors. That's no way to settle the question of whether a crime occurred and, if so, who was responsible.

We have trials to settle such things, and we insist that matters of guilt or innocence be decided according to very specific rules meant to safeguard the rights of both accusers and defendants. What we don't do in this country is decide the merit of criminal charges at the polls.

The mix of politics and criminal justice can be volatile, verging on toxic. And in fact, among the multitude of criticisms aimed at Nifong is that he went overboard in pursuing the rape charges last spring, in the midst of a heated primary campaign, in order to gain favor with many Durham voters. That the accuser is black and the defendants white suggests who it was that Nifong supposedly was trying to impress.

Nifong won that primary and, with nobody else on the ballot at that point, must have figured he was good to go for his first elected term. (He'd been appointed when his predecessor was named to the bench.)

But as the three players were indicted, the investigation -- headed by Nifong himself -- came under more and more scrutiny. It turned out to have been notoriously slipshod. Photo lineups used flawed procedures. The alleged victim was allowed to offer a grab bag of conflicting accounts as to what had happened to her. Defendants' lawyers claimed that alibi evidence was ignored.

All the while, Nifong became more and more vulnerable to the accusation that he was hanging tough just because he had dug a hole for himself from which he had no graceful escape.

With the players' advocates, including many Durham voters aligned with Duke, burning to get even, it was no surprise to see challengers to Nifong materialize. But the challengers were phantoms, in a way. County commissioner Lewis Cheek agreed to have his name put on the ballot after a petition drive, but said he wouldn't serve if elected. Republican Steve Monks mounted a write-in campaign that clearly didn't have a chance.

If Cheek had won and declined to take office, a new D.A. would have been appointed by Governor Easley. Our editorial page staff considered whether to endorse Cheek, but decided that this was a candidacy with one purpose -- to short-circuit the lacrosse case prosecution. In our view, that wasn't a good enough reason to support him.

Nor did we feel Nifong had earned our seal of approval. In this contest, our opinion boiled down to a preference for letting nature take its course.

Where nature's course will lead for the protagonists in the ongoing criminal justice drama is anybody's guess. What's certain is that for the charges to be upheld, the accuser will have to wrangle her jumbled accounts into a coherent story and then withstand withering cross-examination. She'll have to explain embarrassing evidence such as the video that supposedly shows her performing an exotic dance at a strip club during the same time frame, just days after the alleged attack, when she was telling doctors and nurses she was in severe pain.

Nifong's instincts to stand up for someone who claimed she was victimized, setting aside stereotypes that might have led others to scoff at her claims, may have been noble. But his duty all along has been to seek justice, which means treating defendants fairly as well. As we've said on this page before, if at any time he loses confidence that he can prove guilt beyond a reasonable doubt, he should let the charges drop.

If the case goes to trial, at least jurors will make the decisions on the basis of all the available evidence and on the strength of testimony under oath. That's better than decisions being made outside the courtroom by the public at large, which likely would have been the effect if Nifong had lost.

Meanwhile, given the persistent questions about Nifong's handling of the case, the N.C. State Bar -- which oversees the conduct of this state's lawyers -- ought to be gearing up to take a look. If the case turns out to be house of cards, the man who built it should have some explaining to do.
Editorial page editor Steve Ford can be reached at 919-829-4512 or at sford@newsobserver.com