Local News

Judge Finds Probable Cause to Proceed With Nifong Contempt Charges

Posted June 28, 2007

— 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.

92 Comments

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  • CauseTaker Jun 29, 10:43 p.m.

    "there is no proof and has not been able to be confirmed since the beginning of this hoax that [Crystal Mangum] was then, or is now, currently enrolled in college."

    Press reports have asserted that Crystal Mangum was a full-time student at NCCU at the time of the alleged incident.

    The point I am expressing is that Mangum is not so mentally incapacitated that she should not be held responsible through civil charges for her wrongdoing if the players decide to procede with that action.

  • Nancy Jun 29, 2:04 p.m.

    "A thorough discovery would likely find that Nifong has assets to afford restitution to the players and their families, whose combined defense amassed in the millions of dollars according to press reports."

    I am quite certain that his assets are in his wife's name or shared assets which cannot be attached in a judgement. That is not to say he can have monetary judgements against him, it is merely that it will not be necessarily from current assets.

    "She is not so mentally incapacitated to prevent her from attending college."

    there is no proof and has not been able to be confirmed since the beginning of this hoax that she was then, or is now, currently enrolled in college.

    Her major was supposedly (again, not confirmed) criminal justice. Considering her criminal background, I doubt she could have gotten her record expunged and entered the field if she graduated.

  • CauseTaker Jun 29, 12:46 p.m.

    ...continued...

    AG Roy Cooper stated in his press conference that the State will not seek criminal charges against Crystal Mangum because it's not in the State's interest. The lacrosse players, however, are not prevented from pressing civil charges. I agree with everyone who has stated Mangum should be held accountable for her actions that lead to the Duke Lacrosse Case fiasco. Her mental condition can only go so far in her defense. She is not so mentally incapacitated to prevent her from attending college. People with various mental issues are frequently held accountable for their actions in courtrooms.

    Nancy: "As to a link? I could not find my post with any link, so you'll have to enlighten me as to the topic/link was in reference to?"

    My reply, which originally included the link, was edited out by WRAL. The link is still in your comment, or was last night. I don't want to encourage the WRAL staff to edit another of my posts by searching for and including it here again.

  • CauseTaker Jun 29, 12:05 p.m.

    "There will never be "closure" on this - Judges and Mangums will not be held to justice and the 3 and their families will have to get anything for restitution out of the county or Duke U. because Nifong does not have the personal assets to accomodate the damages."

    Eventually there will be "closure" on this, but only after the legal process has run its course. It will, however, take some time before all cases are satisfied.

    A thorough discovery would likely find that Nifong has assets to afford restitution to the players and their families, whose combined defense amassed in the millions of dollars according to press reports. Bail for the 3 accused lacrosse players was set unusually high (at $400K each) with no regard to their ability to pay, so speculatively, what's to stop Judge Smith from awarding damages to the players and their families with no regard to Nifong's ability to pay? This is a serious question for anyone with some knowledge of law.

    AG Roy Cooper stated in his press

  • Moe Jun 29, 11:25 a.m.

    Nifong should be put through the ringer. Previous note--what about the "victim" who started this?? She should be right there with him.

  • Nancy Jun 29, 11:02 a.m.

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

    what? do you want to spend taxpayer dollars forcing him out of office? the man wants to resign, let him. it costs us nothing.

    I personally don't want to pay to hear someone tell him he's fired."

    ---

    You're worried about cost ... now? The cost was the false indictments and the man hours to forward a hoax. True justice is being served now, and you're worried about cost? I guess I don't understand your laments.

  • Nancy Jun 29, 11:00 a.m.

    "I'm losing respect for the judges and anyone related to Duke who is keeping this issue alive, which now appears for political reasons. The man is leaving. Move on. "

    When laws a broken, justice must be served, I'm sure you would agree. This is the fallout from all the wrongs done. Are you now saying that since the boys were found innocent, that this should be over? That the laws broken by many should be wholly ignored? Is that justice? I don't believe you really mean that.

    If you were the target of either a police dept or a prosecutor that ran a sham case that could have put you in jail for 30 years over a false claim, would you be so willing to let them off the crimes they committed in forwarding this frame job against you? I would hope not.

  • wakebrdnrc Jun 29, 10:36 a.m.

    He should lose his retirement. Look what damage he has done.

  • Nancy Jun 29, 10:26 a.m.

    "He could not have removed Mr. Nifong from office today in his absence because that action would have defeated Mr. Nifong's right to due process and potentially lead to a suit from Mr. Nifong. Removing an elected official from office is a legal process, one example is to look at Nixon's impeachment.

    The link to the statute you provided is a "404 Error", otherwise I would have read it."

    The hearing date was set June 19th, long before Nifong left town, he had every opportunity to prepare and be present. He chose not to. He thumbed the system, again.

    As to a link? I could not find my post with any link, so you'll have to enlighten me as to the topic/link was in reference to?

  • silver Jun 29, 9:53 a.m.

    Nifong was wrong in many ways, but hate to see anyone go through this because he made the mistake of protecting the trash that lied on the young men. I still think the young so called mother/woman should be in the court beside Nifong and be put through the mud and not to exclude jail time. The young woman is going on with her life without a care in the world.

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