Tuesday, June 12, 2007

Officer Himan's testimony

KC Johnson has written up portions of Officer Himan's testimony in the Nifong ethics trial. If Officer Himan's testimony is to be believed, he was a reluctant participant in the conspiracy to frame the Duke three. For example, when Nifong wanted to in indict, he indicated his skepticism in discussions with Nifong. But, when push came to shove, he went to the Grand Jury and gave the evidence that led to the indictments. So while Officer Himan was a reluctant participant, he was a participant nonetheless.

After Officer Himan's testimony, I don't understand how he can continue to be a police officer. If he ever testifies in court, his testimony today will give the defense attorney plenty of ammunition against him in cross examination. For instance, Officer Himan would have to answer "yes" to questions like these:

"Officer, have you ever participated in a police procedure that was designed to obtain information you felt would be misleading?"

"Did that procedure in fact produce information that you felt was misleading?"

"Did you then use that information to obtain criminal indictments against people you felt were innocent?"

The test of character that Officer Himan was faced with was not an easy one. Superiors wanted him to do things that he knew, or should have known, were wrong. Officer Himan failed to stand up to his superiors. In light of this, the honorable thing for Officer Himan to do now is to resign.

I also felt it would be interesting to look at how the authorities have treated reluctant participants in other criminal conspiracies. I did a google search to try to come up with some examples. WorldCom's controller David Myers was a reluctant participant in that fraud, according to his lawyer. Myers cooperated with prosecutors, and was later sentenced to one year and one day in prison. While this was doubtless unpleasant for Mr. Myers, it was still far better than 5-year sentence given to CFO Scott Sullivan, or the 25-year sentence given to CEO Bernard Ebbers.

I also came across a prostitution conspiracy in which the leader was sentenced to 43 months, and a reluctant particepant apparently was not given any criminal punishment. Also, there was an arson conspiracy in which the leader got 57 months, and an alleged reluctant participant got 40 months.

Strangely, the high-ranking hits did not include any drug conspiracies. Since this is the most commonly prosecuted type of criminal conspiracy, I did some more google searches to find some of those. Strangely, I didn't get any hits. Apparently, the authorities don't give participants in drug conspiracies any breaks if their participation was reluctant. Or if they do, they don't talk about it in those terms.

I hope that someday the conspiracy to frame the Duke 3 is the subject of a criminal prosecution. And I believe that reluctant participants such as Officer Himan should not escape punishment. However, their punishment should be far less than that given to Mike Nifong, who was the leader of the conspiracy.

Unfortunately, I believe it is much more likely that the criminal prosecution, if there is one, will not go that deep. If this happens, it will send a terrible message to police officers everywhere. Effectively, such a decision would tell them that it is OK to help frame someone, as long as your superiors order you to do so.


Anonymous said...

"My superiors made me do it".

That's called the Nurnberg defense.

I don't think it held water in 1945, and I don't think it will today, either...

Mandelbrot's Chaos said...

Before I read your comment, I was going to say the same thing. You're absolutely right.

Ralph Phelan said...

"Did you then use that information to obtain criminal indictments against people you felt were innocent?"

"No, I told the DA it was bogus and he went ahead anyway. I also told one of the defense lawyers it was bogus."

Actually, he's on pretty good ground here so far....

"Why didn't you tell *all* the defense lawyers?"

Now he starts to get into trouble.