Judge Finds Probable Cause to Proceed With Nifong Contempt Charges

Durham, N.C. — The sole judge who presided over the Duke lacrosse case has found probable cause to proceed with criminal contempt charges against for former Durham County District Attorney Mike Nifong.

In the order issued Thursday, Superior Court Judge W. Osmond Smith III said he had found probable cause to believe Nifong "willfully and intentionally made false statements of material fact" during a hearing held last year. He set a court date for July 26.

Meanwhile, a hearing to determine whether the disbarred prosecutor should be removed from office was continued until 11 a.m. Monday, pending his resignation.

Wake County attorney Robert Zaytoun said Thursday morning he talked to Nifong, who indicated his intention to submit a letter of resignation to the governor on Monday. It would be effective immediately.

Zaytoun, who was appointed special prosecutor for the hearing, said Nifong was out of state and not at a place where he could communicate in writing.

He continued the hearing until Monday, pending Nifong's resignation. Hudson will either accept it or issue an order to remove him from office.

Thursday's hearing stems from Durham County resident Elizabeth Brewer's February civil complaint alleging willful misconduct in connection with Nifong's prosecution of former lacrosse players David Evans, Collin Finnerty and Reade Seligmann, who were indicted last spring on first-degree rape, kidnapping and sexual assault charges.

Nifong dismissed the rape charges in December, and in April, North Carolina Attorney General Roy Cooper dismissed the case and, in a rare move, declared all three men innocent.

In February, Hudson stayed actions on Brewer's request -- allegations were similar to those of the North Carolina State Bar -- until Nifong's ethics hearing.

Nifong was disbarred June 16 after a disciplinary committee determined he violated several rules of professional conduct. Under State Bar rules, however, the disbarment isn't effective until the organization issues an official order.

Concerned about potential problems with open cases, Hudson then suspended Nifong last Tuesday after he announced his intent to resign from elected office on July 13.

On Thursday, Brewer's attorney, Betty Lawrence, said Nifong had plenty of opportunity to willfully resign from office and that he should be removed.

"It's not material to us whether he's removed from office today, Monday, a week from today," Lawrence said. "What is material to us is that he is removed from office."

Allowing Nifong to resign, she said, would be "one final insult to the citizens of Durham County."

"I'm not going to make a rush to judgment in a couple of days over Mr. Nifong. This case is going be resolved on Monday," Hudson said. "There is no defense for Mr. Nifong to these proceedings. So, you don't have to guess how this is going to turn out."

Smith's order stems from a 42-page motion filed last Friday by defense attorneys in the case. They allege Nifong broke at least a dozen rules in court on Sept. 22 and Dec. 15 regarding potentially exculpatory evidence indicating DNA profile matches on evidence from the accuser from four males who were not lacrosse players.

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, the motion said.

In his order, Smith said Nifong must appear for the July 26 hearing and that if he does not show, he could be arrested. If convicted, Nifong faces up to 30 days in jail and a fine of up to $500.

Smith also appointed Charles M. Davis, of the Franklin County Bar to serve as special counsel to prosecute the case.