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In Duke case, D.A. is the defendant this time

The North Carolina bar accuses him of lying and withholding evidence.

June 13, 2007|David Zucchino | Times Staff Writer

RALEIGH, N.C. — Durham County Dist. Atty. Mike Nifong, a prosecutor for more than a quarter-century, found himself in the defendant's chair Tuesday, charged by the state bar with committing ethics violations during his rape prosecution of three former Duke University lacrosse players.

Leaning back in his chair, his chin on his hand, Nifong listened impassively as a North Carolina State Bar lawyer accused him of making prejudicial and misleading statements to the media, withholding exculpatory evidence and lying to two judges.

Katherine Jean, the attorney prosecuting Nifong, said he "repeatedly and intentionally misled the media and thus the public" while also "creating racial unrest in Durham." She said Nifong sought rape indictments even though he knew the exotic dancer making the accusations had given contradictory accounts to police and at one point had recanted.

Jean said Nifong also withheld test results showing that DNA found on the accuser's body and clothing did not match the accused players but had come from three unidentified males.

"This didn't have to happen. The horrible consequences were entirely foreseeable," Jean said during her opening statement. "The harm done to these three young men and their families and the justice system of North Carolina is devastating."

Nifong's lawyer, David Freedman, said the district attorney regretted his statements about the case, some of which were "clearly outlandish." But he said Nifong committed no ethics violations and did not intentionally mislead the public or judges.

"It is not unethical to pursue what some people might consider an unwinnable case," Freedman said in his opening statement.

Benjamin Himan, a lead police investigator on the case, testifying for the prosecution, said he expressed grave doubts about the case to Nifong early on. Himan said that after he and his boss reviewed the evidence, Nifong muttered: "You know, we're [out of luck]."

"He said it would be hard to prove the allegations in court," Himan said, adding that he was surprised when Nifong nonetheless sought an indictment.

"He always said it was going to be circumstantial -- 'he said, she said' -- and he said that's how most rape cases are," Himan testified.

In a case that split Durham along racial and class lines, Nifong relentlessly pursued the rape charges last year despite shifting accounts by a black woman whose rape accusations against three white athletes were later proved false. In April, North Carolina's attorney general dropped all charges against the defendants and called Nifong a "rogue prosecutor" who engaged in a "tragic rush to accuse."

If found guilty by a three-member panel of the bar's Disciplinary Hearing Commission, Nifong could be disbarred. The bar does not have the power to remove him from office or impose criminal penalties.

In media interviews last year, Nifong called former lacrosse players David Evans, Reade Seligmann and Collin Finnerty "hooligans" and said their assault on the exotic dancer at a team party in March 2006 was racially motivated.

Freedman said Nifong stopped making public statements after he realized that it would be "improper" to continue disparaging the defendants.

"He was not making [statements] to substantially prejudice a jury," Freedman said. "He believed a rape had occurred, and there were three people out there who were involved.... He wanted to solve this case.''

Responding to charges that Nifong told a private lab director to withhold from the defense the exculpatory DNA results, Freedman said: "There is no evidence -- none -- of any sort of agreement between Mr. Nifong and anyone to exclude any evidence."

Freedman pointed out that a grand jury -- not the district attorney -- indicted the defendants. "There will be no evidence of any kind that [investigators] were instructed how to present the case to the grand jury," Freedman said.

The bar has accused Nifong of lying to judges when he assured them that he had passed on all evidence to defense lawyers. Freedman said Nifong honestly believed he had turned over everything.

Saying Nifong "doesn't have a political bone in his body," Freedman portrayed him as an inexperienced politician who was distracted by a bruising election campaign. Nifong was running for his first full term after being appointed by the governor the year before.

Wade Smith, who defended Finnerty, described meeting with Nifong shortly before the defendants were indicted. He said he and two other defense lawyers asked Nifong to "slow down" and listen to their side of the story.

"He said he was not interested in hearing what we had to say," Smith testified. "He said he knew things we did not know."

Several other members of the defense team were in the courtroom Tuesday, along with the mothers of two of the former defendants. They wore wristbands supporting the former players.

Nifong is expected to testify later this week. Asked by reporters to comment after Tuesday's hearing, Nifong said he would do his talking on the stand.


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