Published December 30, 2006
RALEIGH, N.C. – 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 cannot identify them at a February hearing, Durham County District Attorney Mark 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 Feb. 5, the defense is expected to ask a judge to throw out the results of a 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.
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, or losing one's license to practice law, 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 does not 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 does not 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."