National News

Nifong's Hearing Might Be Months Away

Posted December 30, 2006
Updated December 31, 2006

— By the time the prosecutor in the Duke University lacrosse case is tried on ethics charges, the sexual assault indictment he sought against three players may have been long since dismissed.

If the woman who claims the players sexually assaulted her at a party can't identify them at a February hearing, Durham County District Attorney Mike Nifong has said, he will abandon the divisive case.

It will be weeks, if not months, after that before Nifong defends himself against charges that he violated four rules of professional conduct by making misleading and inflammatory comments about the athletes, said Thomas Lunsford, executive director of the state bar.

The bar association, which filed the ethics charges Thursday, will not schedule Nifong's trial-like hearing for at least three months, Lunsford said Friday.

At the next hearing in the lacrosse case, set for February 5, the defense is expected to ask a judge to throw out the results of photo lineup in which the accuser - a 28-year-old hired to perform as a stripper at a lacrosse team party - identified her attackers.

If that happens, experts have said Nifong would likely be forced to drop charges of kidnapping and sexual offense, and Nifong has acknowledged as much.

Earlier this month, Nifong dropped rape charges against the athletes after the woman wavered, saying she was no longer certain intercourse had occurred, a requirement under the wording of the state's rape law.

The athletes, Reade Seligmann, Collin Finnerty and David Evans, have maintained their innocence and called the charges "fantastic lies."

Even if the case survives the hearing, it is not expected to go to trial before spring.

Experts have said the ethics charges, which carry penalties ranging from admonishment to removal from the bar, create a clear conflict of interest that should lead Nifong to step down from the lacrosse case.

On Friday, the North Carolina Conference of District Attorneys - which doesn't have any regulatory authority - called on Nifong to recuse himself.

Stan Goldman, who teaches criminal law at Loyola Law School in Los Angeles, questioned how the ethics charges will affect the lacrosse case should Nifong continue as its prosecutor.

"Is this going to result in him treating the case more gingerly and deciding it's not worth pursuing, or is he going to get his back up and decide he's got to pursue this case to the end regardless?" Goldman said.

Joseph Kennedy, a University of North Carolina law professor, said the judge overseeing the lacrosse trial could remove Nifong.

"If the defendants are guilty, you want a prosecutor who's not hamstrung by questions of ethics. They would be in better position to secure convictions," Kennedy said.

"If the defendants are innocent, another prosecutor would be better able to dispassionately evaluate the evidence suggesting innocence."

The bar cited nearly 50 remarks Nifong made to reporters and said many amounted to "improper commentary about the character, credibility and reputation of the accused."

But Norm Early, a former district attorney in Denver who now works with the National District Attorneys Association, said the defense has been equally reckless.

"I think it's outrageous," Early said. "I think it's an escalation of the defense's attempts to get Mr. Nifong to drop the case or get him thrown off the case. I think it's extremely unfortunate that they are looking at his statements, and not the defense counsel, who have made many comments that were misleading and inaccurate."

Early, however, is among the many observers - including those who once defended Nifong's handling of the case - who have generally agreed he doesn't have enough evidence to win convictions. The ethics complaint, they said, has only worsened a bad situation.

"This is so sad," said Larry Pozner, a former president of the National Association of Criminal Defense Lawyers. "This case is going to end up with nothing but losers. Everybody who touched it and was touched by it will have lost something, and it is not a shining moment for the criminal justice system."


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  • geowilrlst Jan 1, 2007

    Nifong should not be allowed to be sworn in tomorrow !

  • yruatwit Dec 31, 2006

    auntysocial hit the nail on the head. The Bar is just one of a number of "Good ol Boy" networks that manipulate, distort or turn a blind eye to unethical or just plain illegal behavior within the ranks. Just look at the political arena and the legal "consulting and advising" that goes on during campaigns and while in office. "Advising" and "Consulting" are code words for "Knowledge (of the law and how to circumvent it)Is Power." I'll eat glass if the bar brings any kind of punishment or admonishment against Nifong. Is it any wonder that a possible hearing involving Nifong may be scheduled well into the future. What a sad tragedy this whole episode has been.

  • ladybug68 Dec 31, 2006

    Why is it Mr. Nifong thinks the "accuser" will not be able to identify the three from Duke? Their pictures have been everywhere and besides, he only gave her Duke players to choose from in the first place. Are we all so small minded that we think he will not make sure she knows who to pick when she shows up?? Not I.

  • isabella731 Dec 31, 2006

    This whole thing has been a bunch of "fantastic lies" from beginning to end. Anyone with half a mind can see that Nifong used this, in combination with one opponent (who would not serve if elected, remember?) who literally stole votes from the rightful winner of the Durham County DA election, to boost his campaign. If the quadruple-murder case is so much more important, why hasn't he spoken of THAT one so much in public? Families of victims should be considered, yes. The "hooligans" are innocent until proven guilty? Not according to the way this case has been handled. THEIR families haven't been considered during this situation. Please.....someone stop this before Nifong completely ruins what's left of the lives of these young men. Maybe Nifong will see what it's like to have his life ruined, if the Bar Association does its job properly.

  • AuntySocial Dec 31, 2006

    Does anyone expect the bar to actually punish Mike Nifong? Get real!! Remember Debra Graves and David Hoke maliciously withheld evidence that would have proved Alan Gell innocent of murder including a tape of their star witness saying she had to make something up. All they got was a slap on the wrist. Do you really think they will do anything worse to Mike Nifong? Don't be so sure....