San Diego's Real Nifong - Voice of San Diego

Opinion UNVEILING THE UNSEEN

San Diego's Real Nifong

Thursday, April 19, 2007 | District Attorney Michael Nifong of Durham County, North Carolina, has nothing on San Diego when it comes to overzealous prosecutions and politically motivated witch hunts. The Hartless, Akiki, Wade, Genzler and Crowe cases provide graphic examples of lying, altering and manufacturing evidence, the encouragement of false testimony and unseemly relationships with criminals in order to prosecute innocent citizens.

Remarkable in its similarity to the lacrosse team prosecution, one of those cases involved a Sunday school volunteer, Dale Akiki, and the former San Diego District Attorney Edwin Miller.

Like Nifong, Miller rejected the protestations of his own prosecutors, the lack of physical evidence, conflicting stories, and he may have been influenced by his campaign for re-election. The result was the incarceration and prosecution of an innocent man. Complicit in this activity was Mary Avery, a former deputy district attorney who, in concert with a dysfunctional Probation Department and Child Protective Services, so perverted justice that it required a grand jury to restore the prosecutorial process to a fact-based operation.

As a result, Akiki spent nearly three years behind bars and the taxpayers of San Diego suffered an unnecessary trial costing millions of dollars. After a seven-month trial, it took less than seven hours for the jury to free Akiki. In a testament to their belief in his innocence, his jailers financed a limousine to carry Akiki home. The members of the jury angrily condemned both Miller and Avery for bringing the case to trial in spite of the complete lack of physical evidence.

After the trial, it was learned that one of Miller’s campaign contributors lobbied him to prosecute Akiki and recommended Avery, the founder of an organization funded by that contributor, to handle the case. A few months after the verdict, Miller was turned out of office, receiving just 13 percent of the vote, and Avery was re-assigned to less responsible duties. She subsequently resigned from the California State Bar.

Perhaps similar justice awaits Nifong, but what of the lives that are destroyed by overzealous prosecutors in their drive to win at all cost? The public must feel secure that the police powers of our society, be they in uniform on our streets, sitting in judicial robes, or investigating and prosecuting offenses, are motivated by a desire to do justice, not to win. That is why I am discomforted whenever I hear a district attorney, including San Diego’s Bonnie Dumanis, brag about the number of convictions they have obtained, rather than the innocents they have exonerated.

“The Prosecutor’s Notebook,” the bible of California district attorneys, clearly sets forth a prosecutor’s duties and ethical responsibilities as “doing the right thing in the right way.” It mandates the fundamental role and duty of a prosecutor as not just seeing that they “”win a case, but that justice shall be done.”

It says nothing about maintaining high conviction rates. In fact, district attorneys, not defense attorneys, are sworn to protect and defend the rights of the accused. Most prosecutors understand their duty and ethical responsibilities and prosecute with appropriate aggressiveness. However, I am concerned that there are those who still regard the criminal justice system as a competition, a game to be won. And, as long as their success and advancement is pegged to the number of convictions they obtain, there will always be a fundamental conflict of interest as well as prosecutorial abuses.

Wrongful prosecutions and convictions are unacceptable. And prosecutors who, even when faced with irrefutable evidence of a convicted person’s innocence, continue to defend their convictions as if their personal reputation depended upon it, are unacceptable.

Winning is not everything, justice is everything. A prosecutor has a duty to accept new and clearly exculpatory evidence, regardless of when it is discovered and presented.

During its investigation of the San Diego District Attorney’s office, the grand jury cited numerous incidents of abuse. A common one is overcharging — more charges brought against a defendant than are supported by the evidence. The purpose is to secure a guilty plea — and thus a conviction — through intimidation. The grand jury observed that

[T]here appears to be a prosecutorial reliance on the likelihood that a charge will produce a plea to a lesser offense. … The penalties for conviction are very high, and the cost of a defense prohibitive. … Pleas are often structured (by the district attorney) to salvage a “minor” guilt admission for the prosecution.

Of course, we need competent, just and aggressive prosecutors, just as we need competent, aggressive and just defense attorneys, to maintain the necessary balance in our criminal justice system. However, to regard prosecution as a game to be won is to cheapen its importance and expose all of us to danger. We need district attorneys not afraid to exercise enlightened leadership, who understand that winning is incidental, but justice is everything.

It would be refreshing to hear our district attorney express a commitment to uphold the United States Constitution and promise to uphold the core values of the office. A district attorney committed to “doing the right thing in the right way.”

Sanders is a practicing attorney, former Superior Court judge pro tem and deputy assistant secretary of the Navy. He can be reached via e-mail at wade2000@cox.net. Agree? Disagree? Send a letter to the editor.

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