Tar Heels have a lot to teach Florida

By MARTIN DYCKMAN Special to the Times
Published June 21, 2007

WAYNESVILLE, N.C. - North Carolina has a lot to teach the Floridians who flock to this state in summer and fall and, in increasing numbers, settle here. The Tar Heels' greater care and concern for higher education is, to Florida's disgrace, well known. More recently, North Carolina confronted the problem of miscarriages of justice by establishing the nation's first Innocence Commission. The Legislature also authorized up to 20 localities to experiment with instant runoff voting, a simple subject that somehow looks like quantum physics to the less adroit minds in Tallahassee.

Of immediate interest, however, is the swift and decisive way in which North Carolina disposed of the rogue prosecutor Mike Nifong.

The attorney general exonerated the Duke University athletes whom Nifong had indicted despite strong evidence of their innocence. The North Carolina State Bar's Disciplinary Hearing Commission disbarred Nifong for ethical violations despite his promise to resign his office and surrender his law license. When Nifong sought to hang on four more weeks, a senior Superior Court judge replied, "I will suspend him in the morning."

None of it could have happened in Florida - except for the misconduct itself.

Had Nifong been the state attorney for Hillsborough or Pinellas-Pasco, his bogus case might have been dismissed eventually or reversed on appeal. But the Florida attorney general would have been powerless to intervene before trial. Most importantly, the Florida Bar could not have laid a glove on Nifong. He would have been immune to disbarment so long as he managed to cling to office.

This is not theoretical. It has happened.

In 1972, Gov. Reubin Askew had on his desk a Florida Department of Law Enforcement report implicating Gordon Oldham Jr., state attorney for the 5th Circuit, in a "continuing and ongoing criminal conspiracy" to violate the civil rights of Jesse Daniels, a mildly retarded young man whom Lake County Sheriff Willis McCall had framed on a rape charge almost 15 years earlier. They had sent Daniels to the mental hospital at Chattahoochee to avoid a trial that would expose the falsity of his "confession." An appeals court eventually ordered Daniels released from the hospital and brought to trial, at which point Oldham dropped the charge. But as the appeal was progressing, the hospital director complained to the FDLE that Oldham had threatened him over his support for Daniels' release.

The FDLE's report in October 1972 undoubtedly figured in Askew's decision not to reinstate the suspended sheriff following his acquittal on a second-degree murder charge in the death of a black prisoner. McCall was defeated for re-election but Oldham remained in office, immune from any Bar probe, until his defeat in 1984.

Concurrently, the Florida Supreme Court had blocked the Bar from proceeding against Robert Eagan, the state attorney in Orlando, over a grievance dating to his law practice before his election in 1969. The court ruled that as a state attorney must belong to the Bar, disbarment would be tantamount to impeachment, a power reserved to the Legislature. Eagan confirmed in 1975 that the Supreme Court had privately reprimanded him.

The effect of the decision was to make the 20 state attorneys and 20 public defenders virtually untouchable for any ethical violations, past or current, so long as they remain in office. Although the governor can suspend them, the action has to be justified to the state Senate, which dislikes the time and expense involved.

The state attorneys have more discretion - and more power - than anyone else in the justice system. Their decisions to charge or not charge, to bargain or not, are essentially unreviewable. Such absolute power should be balanced by ethical accountability. The time is long past for the Supreme Court to rescind the Eagan precedent. Or for the Constitution to be amended to give Florida's Bar authority comparable to North Carolina's.

Martin Dyckman, a retired associate editor of the St. Petersburg Times, is author of Floridian of His Century: The Courage of Gov. LeRoy Collins.

[Last modified June 20, 2007, 22:04:32]