Nifong's Motion to Dismiss State Bar Charge Denied
Posted April 13, 2007
Updated April 17, 2007
Raleigh, N.C. — The North Carolina State Bar's disciplinary committee denied Durham District Attorney Mike Nifong's request to dismiss one of three Bar charges, which alleges he withheld DNA evidence in the Duke lacrosse case.
The decision by the three-member panel came shortly after an hour-long hearing, at which committee chairman F. Lane Williamson repeatedly challenged the arguments made by Nifong's attorneys.
"I just don't see where this gets you on your argument to dismiss," Williamson said.
They argued for nearly an hour, claiming their client provided defense attorneys with a report outlining test results months in a timely manner and gave notice the lab director would be called as an expert witness.
Attorney David Witt argued that the State Bar should clarify its guidelines on the definition of "timely."
"What is the definition of 'timely' that a prosecutor needs to comply with?" Witt said. "If he gets a report in on Aug. 28, does he need to mail it off on Sept. 1?
"I think you have to have some definition out there so that a prosecutor knows what 'timely' is when we're dealing with an issue of an attempt to subject a prosecutor's license to discipline"
State Bar prosecutor Katherine Jean argued for about 10 minutes, saying that if the discovery of the DNA evidence "hadn't come to light through the extraordinary diligent efforts of the defense counsel," the defendants might have pleaded guilty never knowing the DNA evidence was exculpatory.
And for innocent defendants who plead guilty who do not have the means to fight, she said it seemed the defense was arguing "no harm, no foul."
"It's a scary concept," she said.
Nifong has been at the forefront of the criminal investigation against the three former lacrosse players -- David Evans, 24, Reade Seligmann, 21, and Collin Finnerty, 20 -- even after he recused himself from the case in January.
Finnerty's attorney, Wade Smith, said there was no excuse for Nifong withholding the evidence for so many months.
"It's true. They can say, 'Well shucks, we were going to give it to them.' When?" he said. "We say, 'When?'" We needed it. And they waited, as I recall, nine months. And why? What game were they playing?"
Nifong had little to say Friday afternoon as he left the hearing.
"My statement (Thursday) is in really plain language. I think it speaks for itself," a besieged Nifong told reporters. "And I really don't have anything to add to that statement I'm sure you've seen, and I will stand by that statement."
North Carolina Attorney General Roy Cooper, earlier this week, dismissed charges of sexual assault and kidnapping against Evans, Seligmann and Finnerty and declared them innocent.
In a statement issued Thursday, Nifong apologized to the three cleared players, saying he hoped Cooper's actions "will serve to remedy any remaining injury that has resulted" from the case.
In December, the State Bar filed a 17-page complaint in which it cited more than 100 examples of inflammatory public statements Nifong made to the media before the former players were indicted.
Less than a month later, the State Bar amended the complaint, alleging he withheld DNA evidence from defense attorneys -- exculpatory evidence that could show a defendant is not guilty of a crime.
Nifong's attorneys also argued that the defense later requested and received the underlying data from the DNA testing, and also had the opportunity to question the lab director during a December court hearing.
"There were no constitutional or statutorial violations because the material was turned over," David Freedman, one of Nifong's two attorneys, told The Associated Press before Friday's hearing.
After the hearing, Freedman said his client was "clearly disappointed." He called Nifong a good public servant. and said they would continue their fight at trial.
"Mr. Nifong was elected to be the DA of Durham County, and he's served the people of Durham County for 29 years, and he intends to fulfill the duties he was elected to do," Freedman said.
A full trial before the three-member disciplinary panel on all the charges is set for June 12.
Nifong could also face criminal charges as well as civil lawsuits from the three former defendants, although their attorneys have not said whether they plan to do so.
Prosecutors generally have immunity for what they do inside the courtroom, but experts say that protection probably doesn't cover some of Nifong's actions, such as calling the lacrosse players "a bunch of hooligans" in one of several interviews deemed unethical by the State Bar.