Friday , June 22, 2007
Beleaguered and disbarred former District Attorney Mike Nifong, who prosecuted the Duke University lacrosse rape case, could wind up in jail if a motion is granted asking that criminal charges be filed against him.
The three Duke lacrosse players falsely accused of rape by an exotic dancer filed the motion Friday against the ex-Durham County district attorney who built the case against them.
The 42-page motion asked the judge to hold Nifong in criminal contempt of court — particularly in his withholding of pertinent DNA evidence that would have cleared the college students — and to impose sanctions against him. If granted, the prosecutor could land in prison.
There was no word on when the Superior Court judge would hand down a decision.
After accuser Crystal Mangum alleged that Reade Seligmann, Collin Finnerty and Dave Evans had raped her at a party and physical evidence was collected from her in March 2006, Nifong "began a pattern of official misconduct regarding DNA evidence in this case that violated nearly every rule and law ... designed to protect due process and the pursuit of truth in criminal investigations and prosecutions," the motions states.
DNA was found from multiple and as-yet unidentified males — but no semen — and Nifong "misled the public by suggesting condoms were used by the alleged attackers and that there was no DNA evidence discovered for comparison purposes," the defendants argue. The accuser said repeatedly in her statements that the alleged attackers hadn't worn condoms, the motion states.
The players, who have been exonerated, are also asking for financial reimbursement from Nifong to cover the extensive legal fees and other costs of defending themselves in the case.
The request was filed to Superior Court Judge W. Osmond Smith III, who oversaw a pair of hearings last year during which Nifong answered questions from the court about critical DNA test results ordered by his office. That testing identified genetic material from several men — but no members of the lacrosse team — in the accuser's underwear and body.
Nifong knew about those test results in April 2006, but didn't give the information to defense attorneys until more than six months later. Even then, it came in the form of nearly 2,000 pages of raw data that took a defense attorney dozens of hours to decipher.
"When the defendants finally discovered the withheld exculpatory evidence in December of 2006, Mr. Nifong then told multiple different stories about what he knew, when he knew it, and why the evidence was withheld," the defense request said.
Last year, Nifong unrelentingly pushed an investigation into a woman's claim she was raped at a lacrosse team party where she had been hired to perform as a stripper. He won indictments against Seligmann, Finnerty and Evans for rape, kidnapping and sexual offense.
He eventually recused himself after being charged with several ethics violations, and state prosecutors later declared the three players innocent.
"Each one of Mr. Nifong's stories is demonstrably incredible and contradicted by the other, as well as the record evidence in the subject," the defense request said.
"Mr. Nifong's pattern of prosecutorial misconduct regarding the DNA evidence in this case is so extensive — and occurred across so much time and on so many different fields of legal and ethical obligation — that the sheer scope of it shocks the conscience and defies any notion of accident or negligence."
Nifong was disbarred last Saturday for breaking more than two dozen rules of professional conduct in his handling of the Duke lacrosse rape case. He said in a letter released Monday that he would leave office July 13.
Duke suspended Seligmann, Finnerty and Evans after they were charged with raping the dancer at an off-campus party. The university also canceled the team's season and their coach, Mike Pressler, was forced to resign. The players' families racked up millions of dollars of legal bills in their defense.
Last week, Duke said it had reached an undisclosed financial settlement with the three former lacrosse players.
The rape allegations were debunked in April by state prosecutors, who said the players were the innocent victims of Nifong's "tragic rush to accuse." Nifong dropped the rape charge in December but still forged ahead with sexual assault and attempted kidnapping charges.
On Thursday, North Carolina Gov. Mike Easley signed legislation that grants him the authority to remove any district attorneys or judges who lose their law license. While the law was crafted partially because of Nifong, it will likely be moot in his case.
Before Easley can act under the law, the North Carolina State Bar must issue its disbarment order in writing.
On Tuesday, lawmakers unanimously approved that legislation. Representatives in the House voted 116-0 in favor of the bill. It then went to the Senate, which signed off on minor changes made in the house after already approving it unanimously in early April.
Also Tuesday, Superior Court Judge Orlando Hudson suspended Nifong with pay. The county sheriff, who immediately stripped Nifong of his badge and the keys to his office, was ordered to prevent Nifong from carrying out any duties of the office.
"There is probable cause to believe that the district attorney has engaged in willful misconduct in office and conduct prejudicial to the administration of justice, which brings the office into disrepute," Hudson wrote in his order.
There was no word on whom Easley will choose to fill Nifong's shoes. But Durham County's former district attorney, Jim Hardin, was sworn in Thursday as a temporary replacement.
Easley chose Hardin as interim district attorney, a job Hardin held from 1994 to 2005 before becoming a judge. Easley plans to name a permanent replacement later.
"There was no reason for me to tell him no, and there were a lot of reasons for me to agree to come back and do whatever I can to help this office and move this office forward," Hardin said after being sworn in on Thursday.
He would not comment specifically on the lacrosse case, saying only that he hoped to restore credibility and integrity to an office tarnished by Nifong's misconduct.
Hardin said he expects to hold the job for 30 to 60 days, though he said it was "a very fluid timeline." He resigned his judgeship but expects to return to the bench.
In the midst of his investigation, Nifong beat two challengers in the May 2006 Democratic primary for district attorney and later won the office in the November general election.
FOX News' Megyn Kelly, Catherine Donaldson-Evans and The Associated Press contributed to this report.