N.Y. law firm badgers DA's faithful aides
BY JOHN STEVENSON, The Herald-Sun
January 20, 2007 11:42 pm
District Attorney Mike Nifong conceded long ago that he had become accustomed to receiving nasty mail about his handling of the Duke lacrosse sex-offense case, but now even his assistants have been badgered with invective by a New York law firm that wants Nifong ousted from his job.
Anton J. Borovina of the Melville, N.Y., firm Borovina and Marullo wrote Durham's assistant prosecutors this month, saying that if they had any sense of decency and honor, they would ask their boss to resign.
Attached was a letter to Nifong himself, calling him a "corrupt and morally bankrupt prosecutor" and a "low-life, a racist and a despicable human being." The letter asked Nifong to resign as district attorney for alleged "fraud and deception" and "gross prosecutorial misconduct" in his work on the lacrosse case, which he recently handed off to two special prosecutors appointed by the state attorney general.
Assistant Durham prosecutors contacted by The Herald-Sun on Friday said they ignored Borovina's message.
"I threw it in the trash," said Jim Dornfried.
Assistant District Attorney Tracey Cline said she did the same.
"I just felt like someone from out of state has no idea what's going on here," she added. "What he has to say is irrelevant to me."
Nifong could not be reached for comment.
Under mounting public and professional pressure, Nifong withdrew from the Duke case this month after getting three former lacrosse players indicted on charges of restraining an exotic dancer in a bathroom and sexually assaulting her during an off-campus party at 610 N. Buchanan Blvd. in mid-March 2006.
The defendants -- Collin Finnerty, Reade Seligmann and David Evans -- originally were charged with kidnapping the woman, raping her and committing another first-degree sex offense.
However, Nifong dismissed the rape allegations in December after the accuser changed her story. Felony kidnapping and sex-offense charges remain.
Critics claim that Nifong rushed to judgment in the case, seeking indictments without sufficient evidence and despite DNA results that did not incriminate any lacrosse players.
The case has now been taken over by two prosecutors from the state Attorney General's Office.
"The press has given much attention to the bizarre antics of your district attorney," lawyer Borovina wrote in his letter to Nifong's assistants.
He said Nifong had obtained the sex-offense indictments "based on flawed, contradictory and noncredible statements made by the alleged victim."
"I can only imagine the shame and embarrassment you must be experiencing," he wrote.
Reached by telephone, Borovina said he became too worked up over the lacrosse incident to remain silent.
He said he wanted Nifong's assistants "to get off their butts, stand up and walk to Mr. Nifong and tell him to step down. Do I think that's going to happen? No. But in my view, he [Nifong] won his election by fraud and by playing the race card. I want him disbarred. I want him to spend time in jail. I want him to think about this for the rest of his life."
The accuser in the lacrosse case is black, the defendants white.
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Nifong's out, but heat's still on
BY JOHN STEVENSON
January 20, 2007 11:50 pm
Although battered by mean-spirited mail about their boss, District Attorney Mike Nifong's subordinates continue to stand by him, while professors debate whether Nifong is subject to possible criminal or civil liability over his handling of the Duke lacrosse sex-offense case.
Nifong stepped away from the case earlier this month and handed it off to special prosecutors from the state Attorney General's Office.
But that did nothing to calm the debate, with some calling for Nifong to be sued on grounds that he violated the civil rights of three former lacrosse players by getting them indicted on sex-offense charges without sufficient evidence. Some contend he also should be charged criminally for obstructing justice by allegedly withholding DNA results favorable to the defendants.
One New York attorney even wrote to Nifong's assistants, asking them to urge their boss to step down. They have said they ignored the pleas.
With equal fervor, Nifong's supporters -- along with many neutral observers -- say that he has prosecutorial "immunity" against a civil lawsuit, and that there are no precedents for criminal action against him.
Nifong declined to comment for this article.
The accuser in the lacrosse case, an exotic dancer at the time, claimed she was sexually assaulted by three players during an off-campus party at 610 N. Buchanan Blvd. in mid-March 2006.
As a result, former Duke students Collin Finnerty, Reade Seligmann and David Evans were indicted on charges of kidnapping the woman, raping her and committing another first-degree sex offense against her.
However, Nifong dropped the rape charges last month after the woman changed her story. The other felony charges remain pending.
One of the main proponents of a civil suit against Nifong is Professor John F. Banzhaf III, who teaches law at George Washington University.
Banzhaf acknowledges that Nifong is immune to being sued for anything he did as a prosecutor.
But he theorizes that Nifong handled some aspects of the lacrosse case as an investigator or administrator rather than as a district attorney.
For example, when Nifong allegedly advised police to use what defense lawyers called an unconstitutional photo lineup, he did so in an investigative capacity and could be civilly liable for it, according to Banzhaf.
Anton Borovina, a Melville, N.Y., attorney following the case, said Friday there was yet another role in which Nifong might be liable: that of political candidate.
The lacrosse matter arose while Nifong was in a hotly contested, three-way Democratic primary last year. It continued to make waves through November's general election. Nifong prevailed both times.
"Prosecutorial functions can be separated from a function designed to get him elected," said Borovina. "If I make public remarks and bring false charges to aid my election campaign, a lawyer has the ability to persuade a jury I am not entitled to prosecutorial immunity."
Others disagree.
"I doubt that would hold water," North Carolina Central University law professor Irving Joyner said of the Banzhaf and Borovina theory on Friday.
"You would expect the prosecutor to consult with the Police Department," said Joyner, referring to the photo lineup. "That is a normal role and function of the district attorney. I haven't seen any facts that would suggest he crossed the line into some other role."
Joyner said he also saw no potential criminal liability for Nifong in connection with the temporary withholding of DNA results favorable to the defendants.
Under the law, any withholding of exculpatory evidence is remedied if the defense learns of it in time to fix the problem, Joyner noted.
Lacrosse attorneys learned about the DNA results long before a trial was scheduled. In fact, a trial date still hasn't been set.
Duke law professor James Coleman said Friday he thought Nifong withheld the DNA information because it discredited the accuser's version of events.
And when the information came to light, the accuser promptly changed her story and the rape charges were dropped, Coleman pointed out.
The professor said he had two questions about that sequence of events: Was the evidence deliberately concealed to keep the rape charges alive until December? And once the evidence was revealed, did Nifong coach the accuser to bring her story into compliance with the revelation?
"I don't know the answers," said Coleman. "I have no idea. But if the answers are yes, it appears there was at least an attempt to obstruct [justice]."
Other lawyers said they saw an obstruction charge against Nifong going nowhere.
Atlanta lawyer B.J. Bernstein, who was a Georgia prosecutor from 1988 until 1995, predicted in a telephone interview that Nifong would not be charged criminally.
"In terms of criminal liability, it would be very difficult," she said. "The standard of proof is beyond a reasonable doubt. I can't think of an instance where a prosecutor has been tried for something like that. It would be a tough sell. If that happened, it would be a new area of law for the entire country. How could you show it was a direct decision [to withhold evidence] as opposed to a mistake?"
If Nifong were charged with a criminal offense, the state Attorney General's Office presumably would prosecute him.
But some believe the state agency lacks clean hands.
"How are they going to prosecute [Nifong] when their own attorneys have done the same thing?" lawyer Mark Edwards asked last week.
Among other things, Edwards referred to a State Bar finding that then-assistant attorneys general David Hoke and Debra Graves withheld evidence favorable to murder suspect Alan Gell during a 1988 trial.
Gell was convicted and spent nine years behind bars, half of them on death row.
But when the withheld evidence subsequently was uncovered, Gell won a new trial and was quickly acquitted.
Hoke and Graves, who said they made an "honest mistake," received only reprimands.
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