Duke Rape Case Prosecutor Faces Ethics Charges
N.C. Bar Association Cites Remarks to Media About Character of Accused Athletes
Friday, December 29, 2006; Page A08
RALEIGH, N.C., Dec. 28 -- The North Carolina Bar Association filed ethics charges Thursday against the prosecutor in the Duke University rape case, accusing him of saying misleading and inflammatory things to the media about the lacrosse players under suspicion.
The punishment for ethics violations can range from admonishment to disbarment.
Among the four rules of professional conduct that District Attorney Mike Nifong was accused of violating was a prohibition against making comments "that have a substantial likelihood of heightening public condemnation of the accused."
In a statement, the bar said it opened a case against Nifong on March 30, a little more than two weeks after a 28-year-old woman hired to perform as a stripper at a lacrosse team party said she was gang-raped.
The ethics charges will be heard by an independent body called the Disciplinary Hearing Commission, made up of both lawyers and non-lawyers.
Nifong did not immediately return a call to comment.
The bar cited 40 quotations and eight paraphrased statements made to newspaper and television reporters, saying many of them amounted to "improper commentary about the character, credibility and reputation of the accused" or their alleged unwillingness to cooperate. Most of the comments were made in March and April, in the early days of the case.
· Nifong referred to the lacrosse players as "a bunch of hooligans."
· He declared, "I am convinced there was a rape, yes, sir."
· He told ESPN: "One would wonder why one needs an attorney if one was not charged and had not done anything wrong."
· He told the New York Times: "I'm disappointed that no one has been enough of a man to come forward. And if they would have spoken up at the time, this may never have happened."
Nifong was also charged with breaking a rule against "dishonesty, fraud, deceit and misrepresentation." The bar said that when DNA testing failed to find evidence a lacrosse player raped the accuser, Nifong told a reporter the players might have used condoms.
According to the bar, Nifong knew that assertion was misleading, because he had received a report from an emergency room nurse in which the accuser said her attackers did not use condoms.
Defense attorney Joseph Cheshire, who represents one of the three athletes, declined to comment Thursday.
Last week, Nifong dropped the rape charges against the athletes after the stripper wavered in her story, saying she was no longer certain she was penetrated vaginally with a penis, as she had alleged several times before. The men still face charges of kidnapping and sexual offense.
In recent months -- and especially after last week -- legal experts and even Nifong's own colleagues have warned openly that the case appears weak.
"One wonders what the effect of this will be," Stanley A. Goldman, who teaches criminal law at Loyola Law School in Los Angeles, said after the ethics charges were filed. "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?"
The athletes -- Reade Seligmann, Collin Finnerty and David Evanshave maintained their innocence and called the charges "fantastic lies." The case is not expected to go to trial until at least the spring.
The weaknesses in the case include the lack of DNA evidence; the accuser's ever-shifting story; one player's claim to have an alibi supported by receipts and time-stamped photos; and the defense's insistence that the photo lineup used to identify the defendants violated police procedures and was skewed against the men.