Posted on 12/03/2006 2:04:47 AM PST by abb
Mike Nifong's detractors in the Duke lacrosse case want him punished for forcefully pursuing charges
In the war that is the Duke lacrosse case, Mike Nifong's fierce fight will not end with the trial.
Durham's district attorney will face a barrage of attacks on the federal and state level from foes who are determined to have Nifong investigated, punished and disbarred for his actions in the rape case against three Duke University lacrosse players.
Dozens of people, some connected to the accused, have asked the governor and the state attorney general to intervene. Many have complained to the N.C. State Bar, the agency that licenses and disciplines lawyers. And a lawyer for one of the indicted players has urged members of Congress to have the U.S. Department of Justice open a civil rights investigation.
The request for federal intervention is aggressive and rare, said Richard Myers, a UNC-Chapel Hill law professor and former federal prosecutor.
"It's a fairly strong indication the defense has nothing to hide if they want more eyes on the ground," Myers said. "How effective it's going to be, who knows? You cast a wide net and hope someone gets interested."
The attacks are a sign of the long and vicious battle ahead in the Duke lacrosse controversy.
Three former players, Dave Evans, 23, of Bethesda, Md.; Collin Finnerty, 20, of Garden City, N.Y.; and Reade Seligmann, 20, of Essex Fells, N.J., are charged with rape, kidnapping and sexual offense. They are accused of gang-raping a woman hired though an escort service to dance at a team party in March.
Nifong has been criticized for statements he made in the week after the investigation became public, when he called the players "hooligans" and said he was certain a racially motivated rape had occurred.
After that first week, Nifong's torrent of comments slowed to a trickle. In his silence, the players and their attorneys have attacked Nifong, using his own documents and statements to accuse the veteran prosecutor of misconduct and to highlight weaknesses in the case.
Nifong declined to comment for this report. But in court, news releases and at news conferences, the prosecutor has responded to the criticisms against him, at times using language that sounds like an opening argument he might make to the State Bar in his defense.
At a July news conference, Nifong explained his early statements to the media by saying he was trying to inform the public that an investigation was in progress and to encourage cooperation from witnesses. Bar rules specifically allow prosecutors to make public statements for those reasons.
The request for a federal investigation came from Michael Cornacchia of New York, one of Finnerty's attorneys. He wrote to the U.S. attorney general, the FBI director, the congressional delegations of North Carolina and Long Island and others, saying Nifong had violated the civil rights of the three players. The case merits an immediate investigation by the U.S. Department of Justice, wrote Cornacchia, a former prosecutor who recently served as chief investigative counsel for the probe of the United Nation's oil-for-food program.
N.C. Attorney General Roy Cooper and Gov. Mike Easley received scores of letters requesting that they take over the case, something North Carolina law does not allow. These letters ranged from well-researched, artfully composed missives to profane rants from phony e-mail addresses. They came from family friends and business colleagues of the accused. Some were from outside observers. Many were sent from out of state, and a good number came from Durham.
Although State Bar complaints are confidential, at least 17 became public records when they were copied to the governor or state attorney general.
"I would think of this as misconduct by a DA and that for some reason, maybe political, he has painted a fabricated picture," wrote Edwin G. Beusse, a New York developer who works with Finnerty's father, in a letter Aug. 9. "Isn't there a check or balance for situations like this that are so far out there, that they're obviously false?"
Molly M. Maguire of Darien, Conn., wrote June 13, "It is frightening to think of any American being victimized by our own legal system and devastating to know that three promising lives are held hostage to a not-so-hidden political agenda." Maguire is a friend of the Finnerty family.
The chances of a federal investigation are unknown; a State Bar investigation is more likely. The bar complaints accuse Nifong of violating the ethics rules governing pretrial publicity and bringing disrepute to the justice system. The complaints cite specific actions by Nifong throughout the investigation as violations of State Bar rules.
Bar officials have responded in writing to the complainants, saying they take the matter seriously. State law prohibits them from saying whether an investigation is under way.
Whatever happens at the State Bar, the organization will be under pressure. The bar has been smarting from its handling of two high-profile cases involving prosecutorial misconduct over the past two years.
In 2004, David Hoke and Debra Graves were reprimanded for withholding evidence during the trial of Alan Gell, who spent nine years behind bars, half of that on death row, for a murder he did not commit. The withheld evidence included statements showing that the murder occurred while Gell was in jail on a petty charge and a tape-recording of the star witness talking about "making up a story" for police.
Bar sharply criticized
The State Bar came under withering criticism for its prosecution of Hoke and Graves. During its investigation, the bar interviewed only Hoke and Graves and did not talk to key witnesses such as detectives or other lawyers. The uproar prompted the bar to conduct an unprecedented public self-examination, which found deficiencies and flawed practices in the case. One of the ensuing conclusions was that the bar should consider hiring outside prosecutors in high-profile cases.
In the second case, also involving a death penalty trial, the bar's prosecutor went after Kenneth Honeycutt and Scott Brewer aggressively, charging them with lying, cheating and withholding evidence. The bar alleged that the former Union County prosecutors had committed a string of felonies, including hiding evidence from the judge and jury, altering documents and lying to the trial judge.
The State Bar's Disciplinary Hearing Commission, a separate entity that acts as judge and jury in such cases, twice dismissed the case on technicalities. The bar has appealed; a special prosecutor is investigating the criminal case against the two lawyers.
The State Bar's charter is not to punish lawyers but to protect the public. The bar has intervened on an emergency basis in some situations, said general counsel Katherine Jean. For example, the State Bar can freeze a lawyer's trust account if it thinks the lawyer has been stealing money. And the bar can suspend the license of a lawyer in prison.
Mary Ann Tally, a defense lawyer who has followed the State Bar's misconduct cases, said that if a complaint against Nifong is later pursued by the grievance committee, there could be questions about why there was not immediate action.
"If they are complaints that have to do with what is going on right now and will continue to go on until this case is resolved, I guess the question I have is why isn't the bar doing anything about it right now?" Tally said. "It seems to me there's a tremendous amount of pressure on the bar and a lot of public expectation on, 'Can you do the right thing, and can you do it in a timely fashion?' " Staff writer Joseph Neff can be reached at 829-4516 or jneff@newsobserver.com. http://www.newsobserver.com/100/story/517392.html
mark
From ABC 11--
(12/12/06 -- DURHAM) - There's a new twist in the Duke Lacrosse rape investigation.
North Carolina Congressman Walter Jones is asking for a federal probe into the prosecution of the three Duke athletes accused of raping a woman at an off-campus party.
Jones has sent a letter to U.S. Attorney General Alberto Gonzales asking him to review Durham District Attorney Mike Nifong's conduct in the case.
Jones believes Nifong may have committed prosecutorial misconduct and denied the students their civil rights.
Jones claims Nifong directed Durham police to violate suspect identification procedures and made prejudicial statements to the media including calling the players "hooligans."
The accused players: David Evans, Colin Finnerty and Reade Seligmann are expected to go on trial sometime next year.
http://abclocal.go.com/wtvd/story?section=triangle&id=4845066
Rep. Jones asks for Nifong investigation
By Joseph Neff, Staff Writer, N&O, Published: Dec 12, 2006 12:20 PM
A North Carolina Congressman has asked the U.S. Department of Justice to investigate Durham District Attorney Mike Nifong's handling of the Duke lacrosse case.
In a letter to Attorney General Alberto Gonzales, U.S. Rep. Walter B. Jones said Nifong may have engaged in prosecutorial misconduct and violated the civil rights of the three lacrosse players charged with raping an escort service dancer hired to dance at a team party in March.
The players have emphatically said they are innocent and have said the accusations are lies.
Three former players, Dave Evans, 23, of Bethesda, Md.; Collin Finnerty, 20, of Garden City, N.Y.; and Reade Seligmann, 20, of Essex Fells, N.J., are charged with rape, kidnapping and sexual offense.
Nifong has come under intense criticism for his handling of the case. Jones, a Farmville Republican, said he was concerned that Nifong directed the Durham Police Department to conduct a photo identification procedure that violated the department's guidelines.
Jones also complained that Nifong's numerous public statements in the early stages of the case prejudiced the community against the players.
"Mr. Nifong's statements ranged from labeling the Duke players hooligans' to falsely stating that they refused to cooperate with his investigation," Jones said.
Jones' letter apparently came in response to a letter from a defense lawyer for Finnerty. Michael Cornacchia of New York City had written to federal officials, senators and congressional representatives, including the entire North Carolina delegation, asking them to support a federal investigation into Nifong's actions.
Nifong declined to comment Tuesday.
http://www.newsobserver.com/1185/story/520626.html
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