Published January 24, 2007
RALEIGH, N.C. – Former Duke lacrosse rape prosecutor Mike Nifong has been slapped with additional ethics charges by the state bar association, which has accused him of withholding DNA evidence and making misleading statements to the court.
The new charges by the North Carolina State Bar against Durham County District Attorney Mike Nifong were announced Wednesday and could lead to his removal from the state bar, according to a copy of the updated complaint. Nifong last year indicted three men from the Duke lacrosse team on charges that they raped a stripper at an off-campus party in March of 2006.
Since the players were indicted, the rape charges have been dropped — although sexual assault and kidnapping charges still stand — the accuser has changed her story about what happened that night multiple times, and Nifong has come under heavy fire for his handling of the case, withholding evidence from defense attorneys and not coming forward with DNA evidence that may have exonerated the players.
Nifong appeared with his attorney, David Freedman, at a procedural conference Wednesday morning to discuss scheduling and other administrative details of the ethics complaint. His presence was not mandatory.
Nifong declined to comment to reporters after the hearing, referring all questions to his attorney.
"I'd say anytime any charges are filed with the state bar they're all serious and we want to make sure we handle them all properly," Freedman said.
Nifong's trial on the ethics charges is technically set for May 11, although bar officials said at Wednesday's hearing they expect it will be pushed back to June. On Tuesday, Nifong received an extension to respond to the ethics complaint. His lawyer, David Freedman, said he was unsure of the new deadline.
Nifong's office arranged for a private lab to conduct DNA testing as part of the investigation into allegations the three Duke players raped the 28-year-old woman hired to perform as a stripper at a party thrown by the lacrosse team.
Those tests uncovered genetic material from several men on the woman's underwear and body, but none from any lacrosse player. The bar complaint alleges those results weren't released to defense lawyers in a timely fashion and that Nifong repeatedly said in court he had turned over all evidence that would potentially benefit the defense.
Nifong's actions constitute a "systematic abuse of prosecutorial discretion ... prejudicial to the administration of justice," the complaint read.
The amended ethics complaint filed Wednesday points out 11 instances between May and mid-December when Nifong said in court or in court filings that he knew of no additional exculpatory evidence, additional results from DNA testing or conversations with the DNA experts that would help the defense.
But according to the bar complaint, testing conducted at DNA Security Inc. had concluded by April 10 that none of the samples provided to police by 46 lacrosse players matched any material recovered from the accuser's "rape kit." A week later, Nifong charged Collin Finnerty and Reade Seligmann with rape.
In another example cited by the bar in its complaint, Nifong referred at a Sept. 22 hearing to repeated defense requests seeking full DNA results and any underlying information as a "witch hunt."
Defense attorneys were able to determine from other documents produced by Nifong that there may be additional test results they had not seen, the complaint said. They filed a motion in December that described the missing tests in detail.
At a hearing Dec. 15, the director of the DNA Security testified that he and Nifong agreed to include only DNA matches — and not the results finding no matches between the accuser and the tested players — in the report on his testing results. During the hearing, Nifong said he wasn't aware the test results were excluded from the report.
"The first I heard of this particular situation was when I was served with these reports — this motion on Wednesday of this week," Nifong said, according to the bar complaint.
Outside of court, the bar complaint said, Nifong gave a different version of events to a reporter. "We ... were trying to avoid dragging any names through the mud," Nifong said.
The bar charged Nifong in December with breaking four rules of professional conduct, including making misleading and inflammatory comments about the lacrosse team early in the case.
The bar could exonerate Nifong, give him a warning letter or disbar him.
The state bar's new complaint alleges violations of the following rules: Prohibits an attorney from making false statements of material fact or law to a tribunal; prohibits "extrajudicial statements that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding"; and prohibits a prosecutor from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.
The bar's executive director, L. Thomas Lunsford II, said in a statement that, "the allegations in the amended complaint speak for themselves. Given the inordinate amount of publicity that this matter has already received and the fact that the criminal case is still pending, it would not be appropriate for the State Bar to elaborate publicly upon the substance of the complaint as amended."
Seligmann, Finnerty and Dave Evans have been charged with sexual offense and kidnapping stemming from the March 13 alleged incident. Defense lawyers have strongly maintained the players are innocent.
Nifong dropped rape charges last month after the woman wavered in her account of the alleged attack on key details. He stepped down from the case this month because the pending ethics charges created a conflict of interest.
State Attorney General Roy Cooper has appointed two lawyers in his office to review the case.
Meanwhile, the Raleigh News and Observer reported Wednesday that with the North Carolina attorney general reviewing the Duke lacrosse case, the new prosecutors must weigh evidence gathered by Nifong's chief investigator, whose private detective career was marked by ethics complaints.
Nifong hired Linwood E. Wilson, a gospel singer with limited experience working criminal cases, less than four months before the March 13 lacrosse team party at which the accuser claims the assault took place.
The Associated Press contributed to this report.