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State Bar adds to charges against Nifong

By John Stevenson : The Herald-Sun, Jan 25, 2007 : 12:36 am ET

DURHAM -- Durham District Attorney Mike Nifong's legal woes snowballed Wednesday when the N.C. State Bar accused him of illegally withholding DNA evidence favorable to the Duke lacrosse defendants, lying to a bar committee examining his conduct, making false statements about evidence and systematically abusing "prosecutorial discretion."

Nifong's only comment Wednesday was succinct: "What I have to say, I'll say in the courtroom."

The bar gave Nifong until Feb. 23 to respond to the new and prior charges against him.

A hearing on the charges had been set for May 11. But it was agreed during a scheduling conference Wednesday that it probably will be pushed back to June at the earliest.

The hearing could result in anything from exoneration to a warning letter to disbarment for Nifong, who has been a Durham prosecutor for nearly three decades and district attorney since the spring of 2005.

The new charges come atop earlier allegations that he made unethical remarks about the case in its infancy last year, including a suggestion that some Duke lacrosse players were racially motivated "hooligans."

Nifong recused himself from the case earlier this month, and state Attorney General Roy Cooper named special prosecutors from his office.

The governor appointed Nifong to the top job after his predecessor became a judge. Nifong won a four-year term in November's general election -- a term now jeopardized by the State Bar allegations.

The allegations arose from a controversial, nationally publicized case in which Nifong won grand jury indictments against three Duke lacrosse players on charges of sexually assaulting an exotic dancer during an off-campus party at 610 N. Buchanan Blvd. last March.

The players originally were charged with kidnapping the woman by restraining her in a bathroom, raping her and committing another first-degree sex offense against her.

Nifong dismissed the rape accusations last month after the dancer changed her story, but felony kidnapping and sex-offense charges remain against the defendants: Collin Finnerty, Reade Seligmann and David Evans.

In its new allegation that Nifong withheld scientific evidence favorable to the defense, the State Bar referred Wednesday to tests conducted at DNA Security Inc. in Burlington between April 7 and 10 last year.

The private laboratory found DNA from up to four different men in or on the accuser's body, but none from any lacrosse players.

Nifong received those results during an April 10 meeting with Brian Meehan, president and director of the Burlington lab, according to Wednesday's new State Bar complaint.

Still, Nifong successfully sought indictments against Finnerty and Seligmann on April 17, with an indictment against Evans a month later.

An April 21 meeting between Nifong and Meehan further reinforced the finding that no DNA from any lacrosse players was in or on the accuser's body, the new State Bar complaint said.

But during one of the April meetings, Nifong and Meehan agreed that only "positive" matches to lacrosse players would be listed in an official report of test results, the complaint added.

"This agreement between Nifong and Dr. Meehan meant that the potentially exculpatory DNA evidence and test results would not be included in [the] report and, therefore, would not be provided to the Duke defendants," it said.

According to the complaint, Nifong was fully aware of the omitted results when he eventually provided the report to defense attorneys, just three days before Evans was indicted.

Nifong's failure to surrender a complete report was a violation of state law, the complaint alleged.

Next, the complaint said, Nifong compounded the error by telling defense attorneys he was "not aware of any additional material or information which may be exculpatory."

The complaint also quoted Nifong as advising a judge on May 18, 2006, that, "I've turned over everything I have."

"Nifong's response was a misrepresentation and false statement of material fact," the complaint said.

Yet Nifong continued telling a judge and defense attorneys that he had no additional DNA information, according to the complaint.

As recently as last month, Nifong indicated to a judge once again that he was unaware of genetic evidence potentially favorable to the defense and did not know about the exclusion of the evidence from DNA Security's report, the complaint said.

But later on the same day, Nifong admitted such information had been deliberately held back, saying the goal was to avoid sullying the names of anyone other than those indicted.

The admission came after Meehan, called to the witness stand by defense lawyers, acknowledged that he and Nifong had agreed to report only positive DNA matches.

Similarly, Nifong falsely told a bar Grievance Committee that he didn't know until Dec. 13 that evidence potentially favorable to the defense was excluded from the DNA report, Wednesday's complaint said.

That and other remarks Nifong made to the Grievance Committee were "knowingly false statements of material fact made in connection with a disciplinary matter," the complaint added.

http://www.heraldsun.com/durham/4-812604.cfm