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Nifong Attorneys: DA Didn't Intentionally Violate Ethics Rules

Posted February 28, 2007
Updated March 9, 2007

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— 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.


This story is closed for comments.

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  • harris6j Mar 3, 2007

    I dare he tells everyone to hold their judgement until all of the evidence is heard, yet he did not do that in the beginning of this case. He intentionally ruined these 3 men's lives to get reelected. Period. We know that, he knows that, and now he is trying to soften up the situation by saying he did not mean to violate ethics rules... Please. Save it for the Stare Bar.

  • maillarrym1 Mar 1, 2007

    mail_larrym1 just by reading your post, we know who you are and what you stand for and the way you talk about the President is just short of treason. TREASON! Do you know what "TREASON" is? O.K. Let's state my case--"criticizing an incompetent lying president", "VS" Bush--(1)Knowingly and willingfully lying to the American people,(2) Knowingly and willingfully lying to the Congress of the United States; (3) Domestic failures including Alabama, Mississippi and Louisiana after Katrina; Education (or lack thereof) "No Child Left Behind" or the "Standard without Finance" policy; "Homeland Insecurity"; Financial Mismanagement ($300 billion depicit from $350 billion surplus in 6 yrs.);$100 billion PROFIT for rich oil friends-gas prices up (we pay); Did we mention the MANIPULATED invasion of Iraqi BEFORE we got Bin Laden? I'm for America; NOT BUSH THE DESTROYER of America, or RACISM. Unfortunately HISTORY and racism (here) goes hand in hand. TREASON?

  • maillarrym1 Mar 1, 2007

    giepa -at- earthlink -dot- net mail_larrym1 just by reading your post, we know who you are and what you stand for and the way you talk about the President is just short of treason...AND? Speak to the FACTS! Don't take it personal; just like I didn't take it personal when yall elected that idiot. You're probably "poorer" than me trying to take up for a person who would even give you the time of day! Yada! Yada! Yada!

  • maillarrym1 Mar 1, 2007

    BOTTOM LINE! No "rich white boys"; No Duke; NO STORY! Just prosecution and prison time--not for the DA--but for the ACCUSED! I said from day one that while this may be an "inconvenience"--there was NO way these guys were going to get any "serious time"--innocent or guilty. Check your NC Justice history and get back to me in the NEXT 500 years if you find such a case. Yada! Yada! Yada! Go Duke! (Now are you happy!) P.S. Bush still has caused this community, this state and this nation WAY more (with his lies) than Nifong! Go Duke! Yada! Yada! Yada!

  • giepa Mar 1, 2007

    mail_larrym1 just by reading your post, we know who you are and what you stand for and the way you talk about the President is just short of treason, I lost my case no money,and no color

  • Lovinit Mar 1, 2007

    It makes me sick that he can still get his pension if this thing drags out. Even if found guilty, what has he lost?

  • innocent bystander Mar 1, 2007

    nc609, I second what you say!

    To the NC Bar, please continue to do the right thing for the people of NC and see that this type of conduct never happens again. Mr. Nifong has abused his power and bungled this case so thoroughly that is impossible now for justice to be served. Feelings of sympathy, or the tradition of "professional courtesy" for your peers, must not influence your decision in this case.

    To echo the famous chant of the police/demonstrator riots during the 1968 democratic convention in Chicago, "The whole world is watching, the whole world is watching..."

  • 68_polara Mar 1, 2007

    I live in durham and I'm concerned at the lack of justice that we have here. Remember, you can be accused by anybody, at anytime, anywhere, of any crime. However, when you have a prosecutor that has ulterior motives, your life can be ruined. But evidently, that's what the majority of people want in durham, this guy was reelected as his lies were being discovered.

  • WXYZ Mar 1, 2007

    Thank you, Thank you, Thank you NC State Bar! Keep up the good work! The Public depends on you to keep DA's and lawyers honest and force them to obey the rules. Your evidence against Nifong is solid. Now, we are praying that the NC Bar will act quickly and take the strongest action against Nifong. This case must serve as an example of what the NC Bar is willing and able to do.

  • innocent bystander Mar 1, 2007

    It’s worth taking a few minutes to peruse Nifong’s formal response to the Bar’s allegations of his misconduct. He and his lawyers clearly relied heavily on the “Denying Culpability for Dummies” handbook. Some classics:

    1. Strategy #1: Muddle the key issue with irrelevant facts. “The complaint says I made that inflammatory statement about the defendants to a WRAL reporter but, ya know, it might have been a reporter for another network instead, therefore that accusation is totally false.”

    2. Strategy #2: Claim that your attention to other details made you miss the obvious. “Well, I was focused on whether any of the defendant’s DNA was present, so the fact that DNA from multiple other unknown males was found on the accuser’s body and clothes didn’t hit me as being important or exculpatory, never mind that she had claimed that she hadn’t had sex with anyone for a week before the attack. A lot of people go for weeks without bathing or changing clothes.”