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Nifong Wants State to Represent Him in Civil Case

Posted October 15, 2007

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— Former Durham County District Attorney Mike Nifong has asked that the North Carolina Attorney General's Office represent him in a federal lawsuit filed by the three former Duke University lacrosse players he prosecuted last year.

"Because I was a constitutional officer of the State of North Carolina at the time that the subject matter of the complaint arose … and because the complaint arises out of the exercise of the duties of that office, I am hereby requesting that you make any arrangements to secure my representation in this matter," Nifong wrote in a letter, dated Oct. 8, to the director of the Administrative Office of the Courts. (Read the letter.)

If not, because of a conflict of interest or "any other disability," the disbarred prosecutor wants private counsel and wants the state to pay for it.

"I am requesting that you authorize payment by the State of North Carolina of all fees, costs and expenses arising out of my representation in this matter by private counsel," Nifong wrote.

Earlier this month, attorneys for the three wrongly accused players – David Evans, Collin Finnerty and Reade Seligmann – filed a complaint against several defendants, including Nifong and the City of Durham, seeking unspecified punitive and compensatory damages, attorney fees and numerous changes in the way the Durham Police Department handles criminal investigations.

A spokeswoman for the attorney general said the office is reviewing Nifong's request. Neither Nifong nor his attorney, James B. Craven III, returned calls Monday.

Former federal prosecutor Dan Boyce said Nifong's request is not unprecedented among former state employees facing legal action, but the circumstances of the case could prove difficult for Nifong. (Watch Boyce's full interview.)

"It's another unique issue because of his actions in this case," Boyce said.

"It could be that the Attorney General's Office might say this was outside the normal scope of the duties of the state prosecutor and refuse to provide state funds for defense," Boyce added.

If the attorney general decides Nifong was acting within his scope, Boyce said, another set of issues might arise – whether the attorney general's office would have a conflict of interest.

"And it might even include the appearance of any impropriety, because the attorney general's office said some egregious things about Mr. Nifong's conduct," Boyce said.

Upon dismissing the case on April 11, Attorney General Roy Cooper called Evans, Finnerty and Seligmann innocent victims of a "tragic rush to accuse and a failure to verify serious allegations."

Without naming Nifong, he came down forcefully against "overreaching prosecutors" and called for a law that would allow the state Supreme Court to remove a district attorney from a case whenever such a move would assist the pursuit of justice.

"There were many point in this case where caution would have served justice better than bravado," he said. "In the rush to condemn, a community and a state lost the ability to see clearly."

Evans, Finnerty and Seligmann were charged in April and May 2006 after exotic dancer Crystal Mangum claimed she was raped at an off-campus party held by lacrosse players. Nifong pursued charges of first-degree rape, kidnapping and sexual assault until December, when he dismissed the rape charge against the three men.

Less than a month later, he recused himself from the case and asked for a special prosecutor to handle it.

The lawsuit charges Nifong and the other defendants conspired to keep alive a pitifully weak case as he faced a tightly contested election in the Democratic primary for district attorney.

The ex-players contend that Nifong, the police department and others withheld exculpatory evidence, intimidated witnesses who would undermined the investigation, made numerous public statements to smear the lacrosse players and used a photo lineup that had only lacrosse players so Mangum would name team members as her attackers.

The city plans to fight the lawsuit, which also demands numerous changes in how the Durham Police Department handles investigations and trains its officers.

Nifong resigned from office in July. He also served one day in jail in September after a judge held him in criminal contempt of court for lying about having turned over critical DNA test results to defense attorneys.

120 Comments

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  • nycole125 Oct 16, 2007

    InChambers is so right: "Nifong's request to the AG will be interesting to follow. In my opinion, including the actions he took as DA outside the scope of his duties resulting in his own downfall, he used the case as his ticket to re-election. Is that against the law? No, but it clearly shows how blindly ambitious and immoral he was at the expense of those innocent men and a trusting constituency. I do not believe that he may feel any remorse or regret for what he did and may think only in terms of what is legal or illegal and what may be to his advantage - there's the rub." He did a lot of harm to Durham, the DPD & the 46 players.Now he should defend himself and not impose his mistakes on the public

  • BUCKEYEnNC Oct 16, 2007

    I have a suggestion! How about having Dr. Whatshisname from NAACP, Jesse and Al pay for his defense. Let's think about it. They came out and fanned the flames around this whole mess to begin with. Not to mention the nut job who started this fiasco, let her help him. She helped him get elected!!!!

  • 68_polara Oct 16, 2007

    As much as I agree with you loudonengland and as much as I dislike what he did, I still must say that it is the state's responsibility to represent him. I just hope municipalities take a good look at just how much money an official can cost a government when an employee isn't stopped from acting with gross prejudice.

  • BUCKEYEnNC Oct 16, 2007

    Wow! I bet Gov Easley is really regretting appointing Nifong to office now!!! Too bad the taxpayers of Durham and the State of NC will have to pay for his mistakes. They would have been better off if they had settled out of court. Now they (acutally us as taxpayers) will probably more money in defending a lawsuit than the actual damages!!!!!

  • Nancy Oct 16, 2007

    I quote Howard Wasserman on this case:

    'First, the court must separate Nifong's prosecutorial functions from his non-prosecutorial conduct, with Nifong likely enjoying absolute prosecutorial immunity -protection against any liability - for the former. The phrase "prosecutorial functions" refers to conduct prosecutors perform as advocates for the state. This means those acts "intimately associated with the judicial phase of the criminal process." The judicial phase begins, at the latest, at the point that a prosecutor has enough (or believes he has enough) to go to the grand jury for indictment. '

    The AG's office is involved in the case, they cannot be a disinterested party as they did an investigation as well as Cooper publicly denouncing Nifong as a rogue prosecutor.

    Nifong acted outside the duties of his office, and as such, they are not obligated to defend his actions.

  • nisa-pizza Oct 16, 2007

    I think if he chose to operated outside the laws under which the AG's office are sworn to uphold then he shouldn't have the benefit of council from them. Isn't that why he was disbarred to begin with?

    He's supposed to represent the state and operate within the confines of the law when prosecuting someone.

    He should have paid attention and taken more notes from those "Law & Order" episodes before taking the Bar Exam.

  • londonengland Oct 16, 2007

    There is no way on God's green earth, that we the taxpayers of North Carolina should have to pay for Mike Nifong to have representation for what he did. What he did is unconscionable and very wrong. He should go to prison for what he did to these men.

  • londonengland Oct 16, 2007

    There is no way on God's green earth, that we the taxpayers of North Carolina should pay for Nifong to have representation on his defense. What he did was unconscionable and very wrong. He needs to find and pay for his own representation. He needs to go to prison for what he did.

  • pleshy Oct 16, 2007

    But until such time as Fraud and/or malice is demonstrated, he should get the AG attorneys. It isn't about Nifong, it is about the office. The AG is required to defend the office regardless of the distaste we might have for the occupant.

  • GoBoSox Oct 16, 2007

    Some of you have stated that Nifong SHOULD be defended by the state for his "errors and omissions" in the course of his duties. Well, E&O insurance clearly excludes fraudelent and malicious acts. Accordingly, he should be on his own!

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