New Ethics Allegations In Prosecution at Duke

By Sylvia Adcock
Special to The Washington Post
Thursday, January 25, 2007

RALEIGH, N.C., Jan. 24 -- The North Carolina State Bar filed additional charges of ethics violations Wednesday against embattled Durham District Attorney Michael B. Nifong, the original prosecutor in the sexual assault case against three Duke University lacrosse players.

Earlier, the bar had accused Nifong of violating a code of professional conduct that prohibits attorneys from making improper pretrial public statements, citing dozens of interviews in the news media shortly after the case became public last spring. But in an amended complaint filed yesterday morning, he was also accused of withholding evidence from defense attorneys and making false statements to the judge, the lawyers and the bar's grievance committee.

Nifong, who until this month was handling the case of the athletes charged with sexually assaulting a stripper at a team party, could be faced with penalties ranging from a warning letter to the loss of his license to practice law. He turned over the prosecution of the lacrosse case to the state Attorney General's Office earlier this month so he could defend himself against the ethics counts.

A state bar official declined to characterize which of the allegations was the most serious. Tom Lunsford, executive director of the bar, said prosecutions against sitting district attorneys are infrequent. "It happens," he said.

Nifong appeared tight-lipped after a brief appearance before a disciplinary hearing officer, mostly to discuss scheduling. "It's going to be all right, Mr. Nifong, buddy," one supporter on the street yelled at Nifong as he entered the bar office in downtown Raleigh.

Flanked by his attorneys, he said he would speak only through them. "Anytime charges are brought by the state bar it's serious," one of the lawyers, David Freedman, said when asked about the gravity of the accusations.

The 33-page complaint says the violations "constitute a systematic abuse of prosecutorial discretion."

The counts of failing to turn over evidence stem from the prosecutor's agreement with the director of a private laboratory to include only test results of DNA found on the accuser that directly matched any of the lacrosse players. Matches from multiple males were found in the accuser's vagina and underwear -- none from the defendants -- but that information was not included in a report given to the defense.

The complaint notes that, on May 17, defense attorneys asked that any expert witnesses prepare and hand over "a report of the results of any (not only the ones about which the expert expects to testify) examinations or tests conducted by the expert." The next day, Nifong gave them a copy of the DNA lab report, but it omitted information about DNA from other males and did not include any documentation.

At a Dec. 15 hearing on the lacrosse case, Nifong told a judge that he was unaware of the potentially exculpatory DNA test results -- which the bar complaint said was a "false statement of material fact to a tribunal."

During the hearing, the lab director testified that he and Nifong had discussed what would be disclosed at a meeting last spring. After the hearing, Nifong told a reporter, "we were trying to, just as [the lab director] said, trying to avoid dragging any names through the mud" -- a statement that implied that he was aware of the results and aware that the information had been intentionally omitted, according to the bar complaint.

Lane Williamson, a Charlotte lawyer, will chair the disciplinary hearing commission. A hearing date was set for May. The bar hears several dozen disciplinary cases a year.

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