Nifong faces ethics probe
By John Stevenson : The Herald-Sun
jstevenson@heraldsun.com
Dec 29, 2006 : 11:08 am ET
DURHAM -- The N.C. State Bar filed a complaint against Durham District Attorney Mike Nifong Thursday, accusing him of making unethical media statements in what started out as the Duke lacrosse rape case and evolved last week into a sexual assault and kidnapping case.
Nifong could not be reached for comment about the development that theoretically could cost him his law license or result in disbarment.
On the defense side, there was no comment Thursday from lawyers who in the past were outspokenly critical of Nifong's media statements, including an assertion that some Duke lacrosse players were "hooligans" who attacked an exotic dancer during an off-campus party in mid-March.
In fact, defense attorneys asserted earlier this month that a fair trial was impossible in Durham County because Nifong had poisoned prospective jurors with such remarks. They asked that the case be moved elsewhere.
Fueling more defense complaints against Nifong, Brian Meehan, director of DNA Security in Burlington, testified in a preliminary hearing Dec. 15 that he violated his own policies by agreeing with Nifong to initially withhold potentially exculpatory DNA information from the defense favorable to three accused players.
But the defense team said Thursday it would be inappropriate to comment on the pending bar action against Nifong.
Other attorneys said bar complaints are among the most dreaded nightmares imaginable in a law career.
"It's the equivalent of criminal charges as far as your career goes," according to veteran attorney Mark Edwards. "Think of it as similar to an audit letter coming from the IRS."
Duke law professor James Coleman, head of the schools' Lacrosse Review Committee, said he wasn't surprised by the complaint against Nifong.
"I think that early in the case, his conduct clearly violated the rules," Coleman added. "I don't think any explanation he makes can fly."
Coleman referred to the fact that Nifong, by his own count, granted dozens of interviews to local and national reporters while the case was in its infancy. Among other things, the prosecutor said he believed a rape had occurred even before DNA evidence put a damper on the situation.
Scientific testing by two laboratories indicated there was no DNA from any Duke lacrosse players in or on the alleged victim's body or clothing, although DNA from several other men was present.
Nifong's written explanation of his decision to drop the rape charges against the former Duke players said he made the decision after the accuser told an investigator from his office that she "cannot at this time testify with certainty that a ***** was the body part that penetrated her ******" during the alleged incident last spring.
But in a statement made the night of the alleged assault that is part of the court record, the accuser also told a sexual assault nurse examiner that "no condoms, fingers or foreign objects were used" during the alleged attack.
The accuser's latest statement -- which defense attorneys for the accused trio said contradicted what had been the only consistent element of her story -- undercut the basis for the rape charges. In North Carolina, rape by definition involves only vaginal intercourse.
The three former lacrosse players -- Collin Finnerty, Reade Seligmann and David Evans -- are charged with restraining the accuser in a bathroom and committing a first-degree sex offense against her. The suspects have maintained their innocence and are free under $100,000 bonds as they await a trial that is expected to occur in 2007.
Of the remaining charges against the three, first-degree sexual offense involves forced oral or anal sex and can be proven if there was any penetration, "however slight," of a person's genitals or rectum.
That charge typically carries a sentence of 20 to 25 years, the same as rape.
First-degree kidnapping involves attempts to "confine, restrain or remove [a person] from one place to another" without his or her consent, according to state law. The attempt has to be linked to an intention to ransom, harm or enslave the person, or to facilitate the commission of another felony. That charge typically carries a sentence of seven years.
Coleman predicted dire consequences for Nifong.
"I think they [the State Bar] will find he violated the Code of Professional Responsibility and will sanction him," the professor said. "I have thought all along that Mike Nifong ought to step aside. He has a cloud over his head. Now, his primary interest is going to be protecting himself and his right to practice law. It seems to me the public is entitled to a prosecutor [for the lacrosse case] who does not have a personal interest in the outcome.
"It's just a really unfortunate situation," said Coleman, referring to Thursday's bar complaint. "Mike Nifong used to have an excellent reputation among lawyers. For some reason, it seems he lost it on this particular case. It's too bad it's come to this."
John Burness, Duke's senior vice president for public affairs, said the bar complaint emphasized the need for Nifong to "put this case in the hands of an independent party who can restore confidence in the fairness of the process."
Duke President Richard Brodhead had said the same thing last week.
Without elaborating, the State Bar -- which regulates the conduct of attorneys -- said in a news release Thursday that Nifong stands accused of violating the following four ethical rules:
-- The first rule prohibits lawyers from making out-of-court statements that might be disseminated by the media and prejudice a case.
-- The second rule forbids prosecutors from uttering "extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."
-- The third rule prohibits conduct that involves "dishonesty, fraud, deceit or misrepresentation."
-- The fourth rule generically bans behavior that is "prejudicial to the administration of justice."
L. Thomas Lunsford II, the State Bar's executive director, said Thursday's 17-page complaint to a Disciplinary Hearing Commission "speaks for itself."
"The State Bar is aware of the great public interest in this matter," Lunsford said in his news release. "However, we want to be careful not to engage in inappropriate pre-trial publicity. For this reason, we will not discuss the allegations in the complaint publicly."
Lunsford said the State Bar's Grievance Committee had found "reasonable cause" to refer the matter to the Disciplinary Hearing Commission for trial.
The commission is an independent administrative court composed of 12 lawyers and eight public members. It sits in panels of three to hear complaints like the one against Nifong.
Every panel includes a non-lawyer member, and the State Bar's legal counsel acts as prosecutor.
According to Lunsford, Nifong will be prosecuted by State Bar Chief Counsel Katherine Jean and Douglas J. Brocker, a former deputy State Bar counsel now in private practice in Wake County.
A trial date had not been set as of Thursday.
The Disciplinary Hearing Commission can dismiss a complaint, issue a warning letter or impose an admonition, reprimand or censure. On a more serious level, it also can suspend a lawyer's license for up to five years or disbar him.
Meanwhile, spokeswoman Jennifer Canada confirmed Thursday that the state Attorney General's Office had received some 400 letters or complaints about the Duke lacrosse case and the way it has been handled. She said the letters would be kept on file, even though the attorney general lacks authority to investigate such issues.
If the Legislature were to choose to grant him that authority, Attorney General Roy Cooper would be "glad to add this to his list of duties," according to Canada.
http://www.heraldsun.com/durham/4-803663.cfm
