DURHAM, N.C. — The former prosecutor who sought criminal charges against three Duke University lacrosse athletes is back in court to face a judge for possible criminal contempt.
With his wife and attorneys at his side, former Durham County District Attorney Mike Nifong walked into the Durham County Superior Courthouse Thursday morning for an administrative proceeding before Superior Court Judge W. Osmond Smith III.
Last month, Smith found probable cause to believe Nifong "willfully and intentionally made false statements of material fact" in regard to exculpatory DNA evidence in the Duke lacrosse case during two hearings last year.
A hearing on the matter had been scheduled for Friday, but Smith postponed that and scheduled a preliminary hearing Thursday to determine motions and formulate issues, among other matters.
Charles Davis, a Louisburg attorney Smith has assigned to prosecute the case, said he expected the court would set an actual hearing date Thursday.
Defense attorneys who represented the three players — David Evans, Collin Finnerty and Reade Seligmann — alleged Nifong broke at least a dozen rules and court orders designed to protect due process.
They claim Nifong knew early in the investigation there was no DNA evidence matching the accused players on neither the exotic dancer they were accused of raping nor her belongings.
Nifong is also accused of withholding the DNA test results, which did indicate profiles of four other men who were not lacrosse players. One of Evans' attorneys discovered the evidence months later while poring through nearly 2,000 pages of raw material Nifong eventually turned over.
If found in contempt, Nifong could have to pay hundreds of dollars in fines and spend at least 30 days in jail. Defense attorneys also want him to reimburse the former defendants for money spent on uncovering the truth about the DNA evidence.
Earlier this month, the North Carolina State Bar issued a formal order disbarring Nifong after a three-member disciplinary commission found he violated rules of professional conduct while prosecuting the case.
Those ethics charges were a factor in Nifong's decision to recuse himself from the lacrosse case in January, less than a month after he dropped first-degree rape charges against the three players.
Four months later, Attorney General Roy Cooper dismissed the remaining charges — first-degree sexual assault and kidnapping — declared Evans, Finnerty and Seligmann innocent and called them victims of a rogue prosecutor's "tragic rush to accuse."
During his State Bar hearing, a tearful Nifong announced his intention to resign as district attorney and submitted a letter to be effective a month later. He resigned immediately only after a hearing was scheduled to remove him from office.
Nifong could also face civil lawsuits from the three former defendants. In recent months, Finnerty's New York attorney has talked about pursuing one. Others involved have also said they are considering the possibility.
