Lacrosse Attorneys Want Criminal Charges Against Nifong
Posted June 22, 2007
Updated June 23, 2007
Durham, N.C. — Defense attorneys for three former Duke lacrosse players filed a motion in Durham County Superior Court Friday asking a judge to hold former District Attorney Mike Nifong in criminal contempt of court.
The 42-page motion, which alleges Nifong broke at least a dozen laws rules and court orders designed to protect due process, cites Nifong's alleged misconduct in court on Sept. 22 and Dec. 15 regarding potentially exculpatory evidence as well as misleading statements he made to the media regarding that evidence.
"Mr. Nifong engaged in a pattern of official misconduct that … included multiple material misrepresentations to multiple courts on multiple occasions," the motion said. "And it represented a continuing and ongoing violation of the multiple Constitutional, statutory, ethical and court-ordered duties imposed on Mr. Nifong in this case regarding that evidence."
Earlier this month, Superior Court Judge W. Osmond Smith II issued a court filing reminding Nifong that, as the sole judge presiding over the case, he reserved the right to discipline any attorney for misconduct.
Smith could make a summary judgment or hold a hearing in which Nifong would could defend himself. It's unclear, however, when Smith would rule or a hearing date would be set.
Nifong could face a possible fine as well as a jail sentence if he is found in contempt. Criminal contempt can carry anywhere from 30 to 90 days in jail.
Attorney David Freedman, who represented Nifong at his State Bar Trial, said he has not talked with Nifong since June 16. At this point, Freedman said, he has not been retained to represent Nifong on any other matters.
Defense attorneys are also asking the court to assess the costs incurred in uncovering evidence that revealed DNA profiles from four unidentified males on the accuser -- none of which was from any of the 46 lacrosse players who submitted DNA samples under a court order.
Brad Bannon, a defense attorney representing David Evans, testified last week during a ethics hearing that ultimately resulted in Nifong's disbarment, that he spent an estimated 60 to 100 hours poring through nearly 2,000 pages of raw data from DNA testing before discovering the genetic material of unidentified males.
Nifong released an initial report on the DNA testing to defense attorneys in May 2006 knowing that information but failed to release it to defense attorneys, Friday's motion said.
Bannon said last week that it wasn't until Oct. 27, more than six months after learning about the test results, that Nifong finally gave the defense the raw test data from DNA Security, the private Burlington lab hired to conduct more complex DNA testing than that of the State Bureau of Investigation.
"When the defendants finally discovered the withheld exculpatory evidence in December of 2006, Mr. Nifong then told multiple different stories about what he knew, when he knew it, and why the evidence was withheld," the motion said.
A North Carolina State Bar disciplinary committee disbarred Nifong last Saturday after finding he violated rules of professional conduct on similar charges: making inappropriate statements to the media, withholding DNA evidence from defense attorneys and making misrepresentations to the court about the evidence.
The former lacrosse players -- Reade Seligmann, David Evans and Collin Finnerty -- were indicted on charges of first-degree rape, sexual offense and kidnapping after an exotic dancer, Crystal Gail Mangum, said claimed she was raped at an off-campus party.
The case was dismissed more than a year later after Nifong recused himself, and North Carolina Attorney General Roy Cooper declared Seligmann, Evans and Finnerty innocent of the charges against them.
Cooper said in April that Mangum likely still believed the sexual assault allegation and wanted to proceed with the case but said "it's in the best interest of the justice system not to bring charges" against her.