It’s Not Just About Nifong, Part I

Last month, District Attorney Michael Nifong announced that he will not be bringing rape charges against the Duke University lacrosse players. (Other criminal charges are still pending). Nifong himself is under fire for his handling of the case. Conservative scholar Thomas Sowell says Nifong should be removed from office and disbarred. Fox's Bill O'Reilly goes further and says Nifong should be jailed. (For details on this case, start here).

Nifong's actions should be scrutinized and he should be held accountable for any wrongs he has committed. However, since this criminal case is receiving national attention, it is important that this matter be placed in its proper context. It would be a mistake for any observer to sigh and say, "It's so unfortunate that these young men were unlucky enough to be (a) falsely accused and (b) find themselves in the jurisdiction of a 'rogue' prosecutor." That's only part of the picture. The case is not just about Nifong. The laws and policies that are in place too often allow miscarriages of justice to take place.

Today, I will examine the law concerning speedy trials in North Carolina.

The criminal charges against the Duke students are based upon allegations arising from a party on the night of March 13-14, 2006. It will be a year before the criminal trial gets underway--so laypeople may be curious to know how the speedy trial protection comes into play. Unfortunately, this constitutional "guarantee" has lost its vitality.

Four years ago, the Supreme Court of North Carolina decided a case called State of North Carolina v. Henry Bernard Spivey. It is quite a story, which I will summarize below. (For those interested in reading the full legal opinion, go here. The legal citation is: 579 S.E.2d 251 (2003).)

The case began in October of 1994 when police officers arrested Henry Bernard Spivey, locked him up, and charged him with a crime. After that, no action was taken.

Weeks and weeks go by--no action.

Then months and months pass--no action.

After a full year goes by, Spivey, who has no formal education, writes out his own rudimentary legal motion to the court which he titles "Requesting a Prompt and Speedy Trial." In this motion, Spivey explains that nothing is happening on his case. Prosecutors are not doing anything. His own court-appointed lawyers are not doing anything. Spivey basically says the Constitution says that he is supposed to "enjoy" a right to a speedy trial ... I have been locked up for a year and I would like my trial.

Spivey's motion is totally ignored.

Two more years pass! Then, Spivey's court-appointed attorneys wake up and make a formal legal motion to dismiss the case because his right to a speedy trial has been violated.

No one is in any hurry to respond to this legal motion. Eight more months roll by until the court schedules a hearing on the speedy trial motion.

At this hearing, the judge listens to the arguments from the defense and the prosecution. The judge concludes that he needs further briefing on the legal issues and documentation from the court records to verify Spivey's claims.

At this juncture, one would think that the court would reconvene in a week, check the documentation, and resolve the issue before the court. It did not happen. Another entire year goes by until the case is reheard by a different judge. At this hearing, prosecutors admit that the prisoner, Spivey, has now been in jail for four and a half years without a trial. They admit that, but they do not concede that the prisoner has been denied a speedy trial.

The attorneys representing the State of North Carolina say Spivey has not proven any "wilful misconduct" by the government. And besides, the courthouse is clogged with cases and there are staffing shortages. Under these circumstances, delays are inevitable. Thus, there is no speedy trial violation.

The trial judge agrees with the state's argument. Spivey's constitutional argument is rejected.

Spivey's attorneys appeal, but the trial court is affirmed. Spivey's attorneys then take the case to the Supreme Court of North Carolina, but that court also affirms the ruling of the trial court.

Two justices dissent from the ruling. The dissenters point out that the idea behind the speedy trial guarantee goes all the way back to Magna Carta. They said the prosecutors in this case either did not recognize the problem that they were creating for themselves--or they ignored it. Either way, a crowded court docket cannot justify a delay of four years. The justices said they doubted whether a single citizen in the state would find the delay acceptable if it concerned a spouse--or a son or daughter who was waiting for their day in court. The dissenters also wondered about the ramifications of the ruling. What if the backlog of cases continues--or gets even worse? In the year 2020, will seven year delays become an accepted norm? The majority of the North Carolina Supreme Court did not respond to those questions.

State of North Carolina v. Spivey established a legal precedent in North Carolina for resolving speedy trial disputes.

That was 2003. Now speed up to the Duke University case. One of the accused students, confident of his innocence, requested a speedy trial. Prosecutor Nifong responds by saying that he does not want to have a quick trial. He would rather wait a year and try all of the students together. The judge must decide this dispute. The judge checks the precedents and denies the motion for a speedy trial. And his decision is legal and constitutional because of the Spivey precedent.

Practical result: Prosecutors in North Carolina have the power to drag a person's name through the mud for a long time before they have to prove their allegations in court.