A week before Durham County District Attorney Mike Nifong was disbarred by the North Carolina State Bar, Judge W. Osmond Smith III filed a memorandum in Durham County Superior Court declaring that he retains control over the Duke lacrosse case and has the power to discipline Nifong, Raleigh's News & Observer reported on June 7.
   In it, Smith, the judge who has presided over the case since August, wrote that significant concerns "regarding discovery issues" arose at the December 15, 2006 hearing, the one where it became plain to the nation that Nifong was withholding DNA evidence.
   Now that it's politically safe, Smith wants to address Nifong's misdeeds in his courtroom. 

                 
   Nifong's enablers: Judge W. Osmond Smith, Attorney General Roy Cooper and Governor Mike Easley

   When a case goes so awry that a prosecutor embarrasses himself before the nation, so off course that the state's attorney general has to step in, you've got to wonder what the judges in that case were doing for almost a year. 
   The public has all but forgotten that Nifong and the defense attorneys weren't in that courtroom alone, that three key judges presided over the Duke lacrosse case. As I reported in Creative Loafing last year, from April 2006 forward, Nifong repeatedly insisted in court and court filings that he had given the defense all the discovery in the case, only to dump thousands of pages on them later. 
   "After spending the summer insisting he had turned over all his evidence in the Duke lacrosse rape case, Mike Nifong unloaded thousands of pages of raw DNA test data on defense attorneys in October, a lawyer testified Thursday during Nifong's ethics trial," the Charlotte Observer reported. 
   It wasn't the first time Nifong turned over information the defense was entitled to after claiming he didn't have it. At the time, the media just wasn't interested in covering the other data dumps. While the DNA evidence Nifong withheld from the defense has gotten the lion's share of the media attention, it was just one of many pieces of evidence it was clear Nifong withheld for months. 
   Here's a excerpt from my Nov. 11, 2006 column:

   "By Oct. 11, the defense team had sent its umpteenth letter to Nifong, again demanding what they have fought for repeatedly in court but still don't have -- records of any of the interviews Nifong has had with the accuser.
   When did she tell him she was raped? Did she give him a time line? Who raped her? No one knows, but Nifong has claimed publicly that he interviewed her and believes her story. He's also denied to the court that he has ever interviewed her. Meanwhile, the list of police investigators' notes -- Nifong is serving as the head of the investigation -- that remain "missing" could fill an entire Citizen Servatius column.
   Here's just one of the latest blatant examples. In a Sept. 20 motion, Nifong wrote that the victim "told the undersigned District Attorney that she had never at any time knowingly and voluntarily taken Ecstasy." Clearly, Nifong and perhaps others have talked to this woman, and the defense has a right to the content of those interviews. But Nifong has yet to produce them. Either that or Nifong lied in the Sept. 20 motion. Neither scenario is confidence inspiring, yet there are dozens of these glaring time/space paradoxes involving the alternate universes Nifong apparently inhabits."

   Presiding over all of this since August was Smith, who sat through hearings in which the defense outlined the missing evidence and Nifong offered explanations that transparently didn't make much logical sense. Smith did question Nifong's answers, but not too deeply. 
   State discovery law allowed Smith to take a range of actions if a prosecutor were caught withholding evidence the defense was entitled to, as Smith clearly wants to do now, including dismissing the case. Yet Smith chose not to take action until the smoke had cleared. 
   Smith was one of three judges who ignored Nifong's time-space paradoxes and flagrant violation of North Carolina's open file discovery laws and allowed the case to move forward. Any one of them could have stopped Nifong at any point when or after Nifong was caught lying to the court on the record. But none of them did.
   Instead, one of the other judges in the case, Ronald L. Stephens, practically endorsed Nifong days before the November election in the New York Times after months of ignoring Nifong's lies to the court about the existence of evidence the defense had requested. 
   "He's a good person, he's a good lawyer, but he's in a situation he has never been in before," Stephens told the Times. At other times Stephens neglected to throw those who hurled hate speech at the defendants out of the courtroom, instead asking them to sit elsewhere.
   As Durham-in-Wonderland blogger KC Johnson, a professor of constitutional history at Brooklyn College, delineated here, Stephens could have and should have stopped the case from going forward on multiple occasions when Nifong failed to meet evidence standards, but instead chose not to.
   Why did these judges do it?
   As Johnson noted at the time, the repercussions for any judge who got too aggressive with Nifong would have been enormous at that point. In August, the New York Times was still publishing stories that suggested that Nifong had a case and that the accuser had been raped. The situation was still racially charged.  
   Had Smith, Stephens or Judge Kenneth C. Titus cracked down on Nifong for breaking the discovery laws the bar now acknowledges Nifong broke, they would have made national news as the judge who sided with the "rich boys'" defense attorneys to make the charges go away. The media would have scrutinized every hair on their heads looking for the mythical racial bias they were determined to find.
   There may have been another reason. Durham County, where Mike Nifong ran for district attorney, has a voter registration that is 35 percent black. Caswell County, one of the counties in Smith's district, has a voter registration that is 37 percent black. Person County, the other county his judicial district spans, is 25 percent black. Stephens' district covers part of Durham. Ditto for Titus' district.
   At the bar hearing, Mecklenburg County Assistant District Attorney Marsha Goodenow testified that Nifong threatening to charge lacrosse players with aiding and abetting the crime if they didn't come forward with evidence could be considered coercion. 
   If this is obvious to Goodenow now, why wasn't it obvious to any of these judges then? Where were the state's district attorneys, including Attorney General Roy Cooper, while Nifong was committing "coercion" on the pages of the nation's newspapers? Where was the state bar? And where was Governor Mike Easley, who appointed Nifong but studiously avoided comment until saying nothing became embarrassing?
   Nowhere. And the state bar is hoping that after a week of high-drama, the public will forget all about it.