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.
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Nifong goes on the defense
State Bar adds withholding evidence and lying to earlier complaints against Durham DA
Joseph Neff and Benjamin Niolet, Staff Writers, N&O, Jan 25, 2007 03:05 AM
When Durham District Attorney Mike Nifong took his seat at the N.C. State Bar defense table Wednesday, the role-reversal became complete: The hunter is now the hunted.
Nifong was handed new, more serious ethics charges that accuse him of withholding favorable DNA evidence from defendants in the Duke lacrosse case and then repeatedly lying about it to judges and the state bar.
Wednesday's complaint heaped a new layer of legal troubles on Nifong, who was charged by the bar in December with making inflammatory public statements to reporters and misrepresenting the facts in the case. If prosecutors Katherine Jean and Douglas Brocker prevail, Nifong could face punishment ranging from a reprimand to losing his law license.
"Lying is really at the top of the list in terms of things lawyers just can't do. The whole thing is premised on integrity," said Joseph Kennedy, a UNC law professor. "And then lying about something as important as evidence suggesting innocence in a serious case, it just doesn't get any worse than that."
Nifong declined to answer questions Wednesday. David Freedman, one of his attorneys, said "any time any charges are filed with the State Bar, they're all serious, and we want to make sure we handle them all properly."
At the hearing, Nifong sat quietly at the defense table with his hands folded throughout the hearing, staring straight ahead. He did not once turn his head to look at the lawyers prosecuting him.
"The defendant, Mr. Nifong, is present," said Lane Williamson, who heads the bar's Disciplinary Hearing Commission and will act as a judge in the case.
Nifong has been intensely criticized for how he handled the case, which began in March when an escort service dancer said she was sexually assaulted by three lacrosse players. The three players charged -- Reade Seligmann, David Evans and Collin Finnerty -- have denied the charges of kidnapping and sexual offense and declared their innocence.
In December, Nifong dropped rape charges when the woman said she no longer knew whether she had been raped. In January, Nifong asked the attorney general to relieve him as prosecutor because of the earlier bar charges.
New charges
The new charges center on Nifong's handling of DNA evidence. In March, the State Bureau of Investigation examined the accuser's underwear and swabs taken from her body. The SBI couldn't find semen, blood or saliva.
In April, Nifong received a judge's permission to go to a private laboratory for more sophisticated tests, saying "the DNA evidence requested will immediately rule out any innocent persons."
The lab, DNA Security of Burlington, found DNA from at least four unidentified men but not a single cell from any lacrosse player. Brian Meehan, the lab director, discussed the results with Nifong in April and May.
Nifong should have given the results to defense attorneys, something required by state law, the N.C. State Bar rules and U.S. Supreme Court rulings.
Instead, Nifong hid the finding of DNA from unidentified men from defense lawyers, who repeatedly asked for all DNA test results, the complaint said. Nifong then lied to the court, either on paper or in direct comments to a judge, on five occasions from May to September, the complaint said.
The evidence spilled into public sight at a Dec. 15 court hearing where Meehan said that he and Nifong agreed in the spring not to report all the test results.
When the bar told Nifong on Dec. 20 that it was investigating withheld evidence and false statements, Nifong said he knew of the DNA results in April and May, the complaint said.
Nifong told the bar he didn't report the results out of concern about violating the privacy of the players, two of whom had been indicted. He also told the bar he didn't realize the favorable results weren't included in the May 12 report from DNA Security.
'Knowingly false'
The bar responded that Nifong's responses "were knowingly false." Privacy was not a concern because the DNA Security report listed all the people tested, including the 46 players. And Meehan had testified that he and Nifong agreed in the spring to withhold the results.
Every lawyer has a duty to be honest in court, said Mary Ann Tally, a defense lawyer who has followed previous bar cases against prosecutors. "For a lawyer to be accused by the State Bar of this type of conduct and this type of misrepresentation, to me this is one of the most serious charges that a lawyer could face," she said.
"It would be unprecedented for a prosecutor to be sanctioned and to lose his law license for this kind of behavior," Tally said. "If they can't do it in this case, I believe that the public and the Legislature will say they are incapable of doing it."
On Wednesday morning, reporters staked out the State Bar headquarters. When Nifong and his two attorneys walked down Fayetteville Street, television cameras swarmed. People on the street stopped to watch the procession -- a familiar site in Durham that had now moved to Raleigh.
Next door to the bar's office, Rodney Tillery was standing outside the Kimbrell's furniture store that he manages.
"It's going to be all right, Mr. Nifong," Tillery shouted.
Nifong thanked him.
At the end of the 30-minute hearing, Williamson, the panel's head, told Nifong and the lawyers present that he would not impose a gag order on them.
"I simply ask that you use your good judgment and discretion," Williamson said.
* * *
THE PLAYERS
The prosecution: State Bar Counsel Katherine Jean and Doug Brocker, a private lawyer who used to work for the bar, will try the case against Nifong.
The defense: Nifong is represented by David Freedman and Dudley Witt of Winston-Salem. Nifong may ask the attorney general to pay for his legal fees, arguing that he was acting in his public capacity. The attorney general can recommend the state pick up the fees; the request must be approved by the Council of State.
The judges: A three-member panel of the Disciplinary Hearing Commission will act as judge and jury. The chairman of the panel is Lane Williamson of Charlotte, who graduated with Nifong from UNC law school in 1978. Williamson said Wednesday that he has not seen or spoken with Nifong since graduation. Others on the panel include Sharon Alexander, a lawyer from Hendersonville, and R. Mitchell Tyler, a non-lawyer from Lake Waccamaw.
HOW IT WORKS
The charges against Durham District Attorney Mike Nifong will be heard at the State Bar. A trial date has not been set. The hearing will follow rules of a civil case: Each side can call witnesses in advance of the hearing and ask them questions under oath in depositions. The two sides must share their evidence with each other before trial.
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