Nifong Attorneys: DA Didn't Intentionally Violate Ethics Rules
Posted February 28, 2007
Updated March 9, 2007
Durham, N.C. — Attorneys for Durham County District Attorney Mike Nifong tell the North Carolina State Bar he did not intentionally violate ethics rules when prosecuting the Duke lacrosse case.
It was part of a 48-page written response filed Wednesday to ethics complaints levied by the State Bar against Nifong in the nearly yearlong high-profile case.
The embattled prosecutor had no comment Wednesday afternoon and referred all questions to his lawyers.
According to the point-by-point response, Nifong's attorneys admitted that Nifong did make many of the comments deemed by the State Bar to be misleading, but they denied that he intentionally withheld DNA evidence from defense attorneys
"A lot of people have been rushing to judgment on both the underlying case and this case," said Dudley Witt, one of Nifong's attorneys. "And after you allow someone to have a full hearing, I think you will find that he didn't do anything wrong."
Experts have said the most serious ethics charges Nifong faces are tied to his decision to hire a private lab to conduct DNA testing as part of the investigation into allegations three men raped the accuser at a March 13 team party, where she was hired to perform as a stripper.
The tests found genetic material from several men on the woman's underwear and body, but none from any lacrosse player. The bar said those results weren't released to defense lawyers and that Nifong repeatedly said in court he had turned over all evidence that would potentially benefit the defense.
In their response, Nifong's attorneys said the defense was provided with a report that outlined the results of that testing and was given notice the lab director would be called as an expert witness. The defense later requested the underlying data from that testing and also had the opportunity to question the lab director during a December court hearing.
Both happened before a trial date had even been scheduled in the case, which means the defense had plenty of time to examine the evidence, Nifong's attorneys argued.
"Consequently, (the bar) cannot establish that the Duke lacrosse defendants' due process rights to a fair trial were affected," they wrote.
The allegations of withholding evidence were added to an earlier ethics complaint against Nifong accusing him of violating professional conduct rules by making misleading and inflammatory comments about the athletes under suspicion.
Among the rules the bar said Nifong violated is one that prohibits comments "that have a substantial likelihood of heightening public condemnation of the accused."
Nifong's attorneys argue that statements he made from March 27 to April 3 were made at a time when no individual suspects had been identified. They write that they were an effort on Nifong's part to reassure the community the case was under investigation and to seek help from the public in obtaining information about the allegations.
"At the time he made said statements ... he did not fully understand the extent of the national media interest in this particular investigation and as such, he did not comprehend the effect said statements may have on any matters related to the case," they wrote.
In April and May, a grand jury indicted lacrosse players Collin Finnerty, 20, Reade Seligmann, 20, and David Evans, 23, on charges of first-degree kidnapping, rape and sexual assault. Nifong dropped rape charges against all three suspects in December after the accuser wavered in key details of her story.
Less than a month later, Nifong, having come under intense scrutiny for his handling of the case, asked the North Carolina Attorney General's Office to appoint a special prosecutor to take over.
"He feels, as a result of the accusations against him, that he would be a distraction and he wants to make sure the accuser receives a fair trial," Nifong's attorney, David Freedman said on Jan. 12. "He still believes in the case. He just believes his continued presence would hurt her."
In February, Durham resident Elizabeth Brewer filed a civil complaint against Nifong that basically mirrors the State Bar's complaint. It is the first complaint from a Durham citizen asking that Nifong be removed from office.
Senior Resident Superior Court Judge Orlando Hudson, however, issued a stay on the complaint until after the State Bar hearing is completed.
Nifong told WRAL on Feb. 9 that he looks forward to defending himself against the charges, which could lead to his disbarment. He added that there is more to the Duke lacrosse case than what the media has reported.
"I wish everyone would withhold judgment until they hear the evidence, as well as my response," he said.