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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Published: Jan 21, 2007 12:30 AM
Modified: Jan 21, 2007 02:40 AM
Winstead thrust into spotlight
Low-profile second-in-command in lacrosse prosecution known for dedication
MARY DOMBALIS WINSTEAD
BORN: Dec. 25, 1956
FAMILY: Married with three children. Her parents are Floye Dombalis and the late John Dombalis, owners and operators of the Mecca Restaurant in downtown Raleigh. She has two brothers. Her older brother is also a lawyer, and her younger brother runs the Mecca with their mother.
EDUCATION: Associate in arts, St. Mary's College; bachelor of arts, Wake Forest University; J.D., Wake Forest University.
WORK EXPERIENCE: Assistant district attorney, Wake County, from October 1981 to December 1986; assistant district attorney, Durham County, from April 1987 to March 1994; has worked in the special prosecutions section of the Attorney General's Office since April 1994.
Benjamin Niolet, Staff Writer
Mary Dombalis Winstead has kept a low profile throughout her 25-year career as a prosecutor. That's over now.
A week ago, Attorney General Roy Cooper appointed Winstead, 50, as a special prosecutor in the Duke lacrosse case. She will work with the lead prosecutor, Jim Coman.
Winstead's friends, family and colleagues say she is an ideal choice to handle such a case.
"She is a very competent and able lawyer," said Bill Thomas, a Durham lawyer who represented an unindicted lacrosse player and knew Winstead when she was a Durham prosecutor. "I found her to be most professional in her dealings with other lawyers and would certainly think with her expertise, she would be well-qualified to assume responsibility for the prosecution of a case like this."
Through a spokeswoman for the attorney general, Winstead declined requests for an interview. Associates, friends and family members described Winstead as a competitive person who was headed for the life of a prosecutor early on.
They also say she is a compassionate person who bakes a serious pound cake and can run people out of a room with her overenthusiastic cheering for Wake Forest University sports.
When she was 5, Winstead was already talking about being a lawyer, said her mother, Floye Dombalis. Winstead was one of three children born to Floye and her husband, John Dombalis. The couple ran the Mecca Restaurant, the downtown Raleigh institution that for 76 years has been popular with lawyers and justices of the state Supreme Court.
At home, the Dombalis children followed a strict set of rules. Their mother typed them out. Bedtimes were absolute -- Mary's was 8:30 p.m. in 1964. TV was forbidden on school nights. Failure to abide by the rules, Floye Dombalis wrote, would result in revocation of privileges. There weren't any to revoke, her children would later joke.
Young Mary, the middle child, was concerned with the rules. She documented the times her brothers would get home and gave the information to her parents. Later, at St. Mary's College in Raleigh, she was chairwoman of the Honor Board, the organization concerned with campus discipline.
After receiving an associate's degree from St. Mary's, she enrolled at Wake Forest. After graduation in 1978, she enrolled at the university's law school.
Marilyn R. Forbes, who has been friends with Winstead since law school, said Winstead is a gifted lawyer who could easily pursue a lucrative career in private practice. But she has remained a prosecutor.
"I have a lot of respect for people who really dedicate their career to the public sector, to serving the needs of the justice system, the people of North Carolina," Forbes said.
In 1981, she got her law degree and went to work as an assistant in the Wake County District Attorney's Office. In three months, she became an assistant prosecutor. In April 1987, she went to work in the Durham District Attorney's Office. In Durham, Winstead prosecuted rape, vehicular manslaughter, murder, armed robbery and trafficking cases.
Winstead and District Attorney Mike Nifong worked together. Although Winstead will not be charged with investigating Nifong, part of her job will be to review his actions in the lacrosse case. Alex Charns, a defense lawyer in Durham, said the fact that Winstead and Nifong were colleagues in Durham could raise eyebrows. Charns said he thinks Winstead can do the job, but in such a highly scrutinized case, the link seemed an unnecessary risk.
"I don't understand why the attorney general would do that, to put Mary Winstead in that situation," Charns said.
In April 1994, Winstead moved to the special prosecutions section of the Attorney General's Office. She was responsible for handling cases that were referred to the office as well as cases before the state appeals court.
She has handled high-profile cases including a scandal in 1999 involving a Wayne County Sheriff's deputy who was accused of having sex with inmates at the county jail. In 2005, she prosecuted an insurance fraud ring in which several people were accused of staging car wrecks for money.
Winstead is a warm friend, wife and mother, say her friends and family. But when a case is approaching, they all know to leave her alone, her mother said.
"When she has a trial or she is going before the Supreme Court justices for oral arguments, her nights and days are completely dedicated to that," Dombalis said. "I think she blocks everything out when it's time to go to work."
Staff writer Benjamin Niolet can be reached at 956-2404 or bniolet@newsobserver.com.