DA Mike Nifong on Trial for Ethics Violations in Lacrosse Case

Durham, N.C. District Attorney Mike Nifong faces the music today for his conduct during the debacle that became the Duke lacrosse players' non-sexual assault case.

The ethics trial is being streamed at WRAL.com and you can watch live here.

The bar prosecutor's side:

"This didn't have to happen and the horrible consequences were entirely foreseeable," State Bar Counsel Katherine E. 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."


Jean said Durham police Inv. Benjamin Himan expressed concerns to his superiors about the case and the lack of evidence but that Nifong ignored those concerns and went ahead with indictments against Reade Seligmann, Collin Finnerty and David Evans.

In her opening statement, Jean detailed at length statements Nifong made to the media as well as meetings he had with the director of the DNA laboratory he hired, at which she said Nifong learned that none of the players' DNA matched that material found in and on the accuser.

The Bar has accused Nifong of keeping those test results from the defense and that he lied to both the court and Bar investigators.

From Nifong's lawyer:

It is not unethical to pursue what someone many believe to be an unwinnable case," Freedman said. "That is not an issue here today."

Freedman said Nifong made about 98 percent of his statements early on in the case before suspects were identified and charged. Nifong wanted to solve the reported crime and wanted to urge people to come forward with information about the case.

"And then, he stopped talking, realizing it would be improper to go on," Freedman said.

The state's witnesses:

State Bar prosecutors have also deposed Dr. Brian Meehan, the director of DNA Security, the lab that tested DNA evidence in the case. Meehan testified last year that he and Nifong agreed only to report to defense attorneys positive DNA matches to certain pieces of evidence. Several Durham police investigators are expected to be called by the State Bar.

Defense attorneys Wade Smith and Brad Bannon told WRAL they've been notified that they will be called to testify. Smith is expected to be the first witness for the State Bar and his testimony could take all day.

Nifong could be disbarred over his conduct.

Trial update here.

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    criminal actions (5.00 / 1) (#3)
    by zaitztheunconvicted on Tue Jun 12, 2007 at 12:04:30 PM EST
    why isn't withholding exculpatory evidence a criminal offense?

    and is lying or making misleading statements to the press by a DA a cause of a civil suit, if they desire to pursue it?

    defendants and prosecutor misconduct (5.00 / 1) (#20)
    by zaitztheunconvicted on Tue Jun 12, 2007 at 04:44:51 PM EST
    when persons or suspects or defendants lie to police, or even when they destroy evidence which the police have not yet obtained in a pending investigation, or even a likely or some conceivable investigation,

    society calls that "obstruction of justice," and society prosecutes that and convicts and imprisons.  I think I even read one case in which some person or his lawyer or both were prosecuted for obstruction of justice for destroying or damaging a hard drive with alleged child pornography on it.

    Yet, here we have a man acting with the power and authority of the state intentionally acting in a way to withhold from the defense exculpatory DNA evidence?  And, his actions put three accused persons through hell for months and interrrupted their lives, education and careers?  And Difong is not the first DA to act in such reprehensible ways.  And Jeralyn is suggesting that disbarment is too severe a punishment?

    I've read other books about wrongfully convicted persons.  In many of these cases of wrongful convictions, the police, the prosecution or both colluded in such a way as to modify, withhold or suppress the exculpatory evidence.  In some cases, prosecutors and police have encouraged witnesses to modify their testimony.  And, after it all comes out in the press, the result is this:
    1) they retire;
    2) they resign their current position and resume their police or prosecutor work a few counties away!

    Why does society tolerate such outrageous conduct as some do?


    I watched/listened to the stream for a while, and (5.00 / 2) (#4)
    by scribe on Tue Jun 12, 2007 at 12:09:09 PM EST
    during a break the station had the requisite "Expert commentator" discussing matters with the host.  Refreshingly the "expert commentator" had a calm demeanor and had actually represented professionals in ethics and professional discipline cases.  Among other things, Reporter/host asked Expert what it was like to be representing a person accused of professional misconduct like Nifong and what Nifong personally was going through.  Expert, heartfelt, told Host that the process was brutal for the accused, and that he'd seen grown, strong men, who'd done many daring, brave things in their lives (this is Carolina, so that's important) break down in tears in the office prior to the hearings.

    I have some experience in this area (not nearly as much Expert, to be sure) and can say that defending someone against ethics charges is heartrending for lawyer and client - the professional places their whole life and life force into becoming and staying a professional.  You've all heard it:  "I'm a doctor/lawyer/professional", not "I practice medicine/law/whatever".  To have the core of that called into serious question and be threatened with losing that identity is, for many, as violative as the most vicious assault.

    So, while it may be true that Nifong was wrong and may be found to have acted unethically, have a little sympathy for the man behind the name.  There's enough hurt and injury to go around this mess.

    And, while it may be pleasant to savor some schadenfreude at the expense of Paris Hilton, remember, she's a human being, too.  As such, she is deserving of the same level of respect for her intrinsic value as a person (regardless of whatever her latest escapade might be).

    And, finally, while it may be very satisfying to revel in the prospect of Scooter Libby being frogmarched off the prison (and it surely is and every fiber of my being screams that he deserves it - and to be Gitmoized, for that matter), I have to keep myself dialed back and remember that, if one gives into those urges, one is no better than Scooter and his fellow denizens of the dark side. (and I recommend you discipline yourselves similarly).  

    So, please, everyone:  keep some perspective.  Lest we devolve to mob rule.

    I have a little sympathy for him too, (5.00 / 1) (#8)
    by Deconstructionist on Tue Jun 12, 2007 at 12:39:50 PM EST
      because I suspect he felt he was in a "damned if he does, damned if he doesn't" predicament. This does not excuse his conduct, but I'm pretty sure he would have been accused of being a racist tool of the privileged class had he not aggressively pursued the charges and faced political ruin. to me his big mistakes were the public comments which would seem to be clear ethical violations and what appears to be a willful withholding of exculpatory evidence.

       I would say the defense strategy is and will be based on factors supporting a mitigation of punishment rather than a finding he did not violate ethical rules. To me, the comments deserve sanction but I would think a surrender of office and admonishment would be fair. The failure to disclose exculpatory evidence of which he had knowlwdge is a worse sin in my book. If he gets off with less than a lengthy suspension of his license for that it will be surprising and given the mammoth attention focused on the case annullment is a real possibility.

      He's not being targeted just for bad judgment in pursuing a shaky  case because of politics. If his errors were limited to that he would be in far less peril.

      I don't know much about his prior record, good works, etc., but I'd try to show this was an aberrant incident in an otherwise exemplary career and try to establish his motives were not malicious ones based on a desire to hurt the defendants or pervert justice  but ones based on weakness and inability to handle a maelstrom for which he was not prepared.


    excellent points (none / 0) (#6)
    by Jeralyn on Tue Jun 12, 2007 at 12:13:13 PM EST
    Thanks, Scribe. That's good advice.

    not so fast ... (none / 0) (#11)
    by 4liberties on Tue Jun 12, 2007 at 12:51:49 PM EST
     I actually had to register to reply to this.

     Compassion is a good thing, but remember, prosecutors have the power to put people under significant hardship. You are talking about ethics charges against a "professional" (Nifong), but what about unjustified criminal charges that the defendants faced? Do prosecutors have compassion for those they prosecute, especially, when it is unfounded? It is more than a carrier ruined there, often it is an entire life, all in the name of "convicting somebody".

     Therefore it is actually of paramount importance to keep prosecutors to really high standards. Now, if Paris Hilton can be made an example of (to send the message), why cannot Nifong be made an example of? If there are no consequences for guys like Nifong, there is a lot more damage coming for people who just happened to be in the wrong place and at the wrong time, but did not actually commit any crime.


    Prosecutors will re-learn (none / 0) (#13)
    by fairleft on Tue Jun 12, 2007 at 01:15:19 PM EST
    to choose their hell-bent-to-convict victims wisely. Don't pick on the rich and well connected. That's about it.

    Throw the book at him. (none / 0) (#1)
    by Slado on Tue Jun 12, 2007 at 11:47:51 AM EST
    He started the storm the ruined these boys lives and then kept feeding it long after any reasonable person would have given up.

    Then he took the easy way out by removing himself instead of doing the right thing and ending it.

    Jeralyn? (none / 0) (#2)
    by Slado on Tue Jun 12, 2007 at 11:50:27 AM EST
    As a defense expert what would you argue for Nifong?

    Is there any reasonable/believable defense for him?

    I have judged him as guilty of terrible misconduct becasue of both his handling of the case and the preceived using of this case to get elected but I'm willing to listen?

    What would you argue?

    No I wouldn't defend him (5.00 / 1) (#5)
    by Jeralyn on Tue Jun 12, 2007 at 12:11:43 PM EST
    Ethical violations are not my specialty.  I wouldn't take the case for that reason. He needs to be defended by someone who specializes in representing lawyers and other professionals in disciplinary proceedings.

    I suppose his defense is that outlined by his lawyer in his opening statements.  But much of what he did I find inexcusable, like refusing to meet with the defense lawyers before indictment to consider exculpatory evidence and his over the top press comments about the players and his belief that the accuser had been raped.  He dug himself into a big hole, I really don't see how he comes out of this with a clean slate.  Disbarment is probably too harsh a remedy though if his record is otherwise unblemished.


    Thanks (none / 0) (#16)
    by Slado on Tue Jun 12, 2007 at 03:18:29 PM EST
    I am suprised you say disbarment should not be on the table.

    As I've said before if he was willing to do this to rich kids that could obviously lawyer-up what has his deparment done to people that don't have the money to go toe to toe with him?

    He should not practice law anymore.


    If I remember this correctly (none / 0) (#7)
    by sarcastic unnamed one on Tue Jun 12, 2007 at 12:30:02 PM EST
    because the report explaining the conclusions of the DNA analysis must be turned over to the defense, Nifong told Dr. Meehan (who's lab did the DNA testing) to omit from the report the results that were exculpatory to the defendants.

    The "report" is essentially the conclusions that can be drawn from analyzing the raw data of the DNA testing. The DNA raw data in this case being something like 20,000 computer print-out pages containing row after row after row of 0's and 1's.

    It was only a happenstance that during a hearing last fall the prosecution learned from Meehan that the "report" they got was incomplete and that there was a lot more DNA results/info that they didn't even know existed because Nifong kept the existence of this info secret from the defense.

    At this point the defense knew there was a good reason Nifong wanted the results buried but they had no way of knowing exactly why, and/or what the data showed.

    As a result, the defense filed motions but the only info they could get was the actual DNA raw data - all 20,000 pages of it - and not the conclusions that could be drawn from that data because Nifong had instructed Meehan not to write up the conclusions, so "officially" there were no conclusions.

    So one of the defense lawyers basically sequestered himself in a room with the 20,000 pages and over the course of several months became an expert in analyzing DNA testing's 0's and 1's and discovered what the DNA test results actually did say -


    1) the three defendants did not sexually, or otherwise, assault the girl


    2) that there was no evidence the girl was sexually, or otherwise, assaulted by anyone.

    Well, DNA analysis (5.00 / 1) (#10)
    by Deconstructionist on Tue Jun 12, 2007 at 12:51:29 PM EST
     does not exactly show either 1 or 2.

     All DNA analysis does is conclude (with an extemely high degree of probability) that a collected sample of tissue or fluid does or does not match a sample from a known contributor.

      Lack of a match does not mean that a defendant necessarily did not commit an assault or that there is no evidence of assault.

      A person can be sexually assaulted and a perpetrator leaves no DNA. A person can leave DNA without having committed a sexual offense. One person's DNA can be found but someone else could have committed an offense before or after without leaving DNA. etc.

       Obviously, the DNA evidence was highly probative here because a: DNA from persons other than the defendants was found but no DNA from the defendants was found. However, that, standing alone, does not disprove that she was a victim of an assault or that the defendants were the perpetrators.


    "standing alone?" fair enough, (none / 0) (#12)
    by sarcastic unnamed one on Tue Jun 12, 2007 at 01:12:38 PM EST
    but let's not leave anyone reading this with any question in their mind.

    The special prosecutor pronounced the boys innocent.

    This is after he looked at all the evidence, including the DNA evidence.

    There was no evidence, except her half-dozen or so wildly differing stories of what she said happened, that she was assaulted.

    What the DNA results did show was skin and/or sperm DNA from at least 5 other men (maybe more, I don't remember exactly) and no DNA evidence from either of the three defendants - nor any of any the other guys at the party for that matter.

    The three are innocent, Ms. Mangum made the story(s) up and Nifong actively and calculatedly tried to pervert justice - for whatever reason.

    imo, he should be punished to the full extent of the law.


    I was just speaking as to what DNA (none / 0) (#14)
    by Deconstructionist on Tue Jun 12, 2007 at 02:26:42 PM EST
    evidence means. It and every other type of evidence must be viewed in light of all the surrounding facts.

      That's one reason why  Brady violations like this are so bad. The system is premised on the belief a fair trial requires the State to disclose exculpatory evidence of which it is aware. Even if a prosecutor believes a person is guilty he has an obligation to conduct a fair trial.

       It's not quite true to say there was "no other evidence" besides the accuser's story. That's one reason why the violation here was so bad. There was a bunch of drunken guys who paid sex workers to come "entertain" them. The accuser was there,  she was vulnerable and the boys did have opportunity. "Something" happened that caused angry words to be heard by witnesses. etc.

         MANY cases were and still are prosecuted where physical evidence is lacking and people do get convicted in purely "he said, she said" cases.

       Cases where victims are of questionable credibility are problematic. For instance, being a sex worker does not mean you are necessarily lying and it certainly does not mean you can't be raped because your "job" is equivalent to implied consent. I think that in the beginning Nifong probably did believe the accuser and once he "committed" to that he lost all perspective and his moral bearings.



    Yes (none / 0) (#15)
    by sarcastic unnamed one on Tue Jun 12, 2007 at 02:53:21 PM EST
    "Something" happened that caused angry words to be heard by witnesses. etc.
    and apparently that "something" was that the false accuser was drunk and self-drugged, took the boy's $400 or so, quit "dancing" after something like 4 minutes, and the guys had had enough of her BS (and enough of the other stripper as well, who called her dancing partner's rape claim "a crock") and asked Ms. Mangum to leave.

    Which, according to the other hired stripper at the party, the divine Ms. M didn't want to do because she thought she could get some more money from the guys.

    Regardless, that "something" was not a brutal, simultaneous, multi-orifice gang-rape/beating by three lacrosse players in the bathroom, as she claimed.

    Because Nifong tried to withhold exculpatory evidence that supported the boy's factual innocence he should be held accountable.


    I'm not saying he should not (5.00 / 1) (#17)
    by Deconstructionist on Tue Jun 12, 2007 at 03:24:01 PM EST
     or that the accountability should be severe. I'm saying it is not accurate to say there was no evidence other than the accuser's claims, and also cautioning you to remember that just because this accuser is a liar does not mean some other accuser with a similarly "disreputable profile" might not be and police and prosecutor's are not expected to assume they are lying.

      I don't know the details of the rape-shield law in NC but it is quite possible that Nifong would have had a strong argument that the evidence of other DNA was inadmissible and what he should have done (all this assumes at the time he still had a good faith belief the crime was committed) was fully disclose the  evidence and then file a motion arguing that the defense was barred from seeking its admission because evidence of the alleged victim's sexual behavior is inadmissible because laws  and evidentiary rules (dubious one perhaps) in many jurisdictions do not allow such evidence other than evidence of prior sexual contact between alleged victim and accuser to refute allegatins of lack of consent.


    The flip side of that coin... (none / 0) (#18)
    by sphealey on Tue Jun 12, 2007 at 03:25:46 PM EST
    The flip side of that coin is the question "In how many other cases besides this one did you hide exculpatory evidence from the defense/accused?".



    Decon (none / 0) (#22)
    by sarcastic unnamed one on Tue Jun 12, 2007 at 04:53:09 PM EST
    I'm saying it is not accurate to say there was no evidence other than the accuser's claims, and also cautioning you to remember that just because this accuser is a liar does not mean some other accuser with a similarly "disreputable profile" might not be and police and prosecutor's are not expected to assume they are lying.
    The guys didn't do it, they are innocent. She wasn't raped, she made the whole story up. Those are the facts.

    Therefor any and all evidence must be exculpatory by definition and by their very nature, no? Unless you are counting mis-interpreted evidence...

    Secondly, I'm not sure why you keep bringing up her "disreputable profile" nor why you feel it necessary - or even appropriate - to "caution" me about assumptions regarding it.

    I have made no comments that suggest, nor do I believe in the slightest, that "all girls like her" are liars.

    I also didn't suggest, nor do I believe in the slightest, that police and prosecutors should assume "all girls like her" to be liars.

    The facts, as I have made abundantly clear - and nothing else - prove her to be a liar. Her occupation has nothing to do with it.

    For cripe's sake.


    No (none / 0) (#25)
    by Deconstructionist on Tue Jun 12, 2007 at 05:31:45 PM EST
     Evidence exists:

    that the accuser and the accused were together at a private party with a bunch of drunk rowdies That is EXTREMELY CRUCIAL evidence, there is no "misinterpretation" of anything there and that is not exculpatory which is why  the one kid used ATM receipts to establish that at least part of the time he was elsewhere-- not being there is exculpatory but being there is inculpatory.

      The accuser claimed to have been attacked. There was no misinterpretation there either. The issue was her credibility not whether people understood what she was accusing them of doing.

     Remember evidence of  means, motive and opportunity is admissible. The facts that this was a party where the accused were present, where drinking was occurring and the atmosphere was sexually charged are all evidence and the kind of evidence that scares the defense because it damn sure isn't helpful.

       The fact is that if the accuser had been a better and more consistent liar this might have ended differently despite the lack of DNA evidence.  Were it not for the inability to sustaine her credibility this case would look in broad terms very similar to a LOT of prosecutions for sexual offenses.

       No physical evidence tying the accused to the crime is not at all uncommon. when presence at the scene can be established by direct testimony the lack of circumstantial physical evidence becomes less crritical. Because MANY sexual assaults occur where the victim has neither physical trauma or trace evidence from the attacker those shortcomings in the evidence are explained by experts for the state and then the jury has to decide who to believe.

      One thing I don't think a lot of people grasp is that "proof" in the legal sense simply means admissible evidence the fact-finder credits as being true. If I accuse you of stealing my car and say I saw you take it without my permission, you can be convicted without any other evidence if the jury believes me. If in addition to my saying it,  there is independent evidence placing you by my car at the time I say it was stolen, you might have reason to worry even if I am lying



    Fair enough (none / 0) (#27)
    by sarcastic unnamed one on Tue Jun 12, 2007 at 05:50:07 PM EST
    that makes sense.

    I forgot to add (none / 0) (#9)
    by sarcastic unnamed one on Tue Jun 12, 2007 at 12:42:45 PM EST
    imo, all his other morally and legally reprehensible acts in this case aside, that one act alone was a cunning, devastating and thoroughly dishonest perversion of justice and calls for whatever punishment the law provides.

    Sure (none / 0) (#19)
    by Deconstructionist on Tue Jun 12, 2007 at 03:33:12 PM EST
     I don't know much of anything about Nifong's history. If he has a history of questionable behavior with reagrd to professional ethics that should be considered as well in meting out punishment.

    I don't see severity on the horizon (none / 0) (#21)
    by atlanta lawyer on Tue Jun 12, 2007 at 04:45:15 PM EST
    I do think he should be treated rather severely. We should keep in mind that whatever happens, he will not loose his freedom, nor his ability to make a living, (though he'd have to do it as something other than practicing law.), and also that this is not a government agency deciding his "punishment", but lawyers, as professionals, policing each other.  

    But frankly, I have my doubts that that will happen.  I'm glad to see the bar taking these issues seriously. As far as I'm aware, it is, unfortunately, almost unheard of for prosecutors to face a disciplinary board for things like this.  In fact, I don't know N.C. discovery rules, but constitutionally, and statutorily in many states and the federal system, there's no duty to hand over exculpatory evidence until after the state's witnesses have testified.  Much of what he did stinks, much of what he did happens every day.  I don't think they should "make an example out of him" in the figurative sense of that phrase, but more of these issues should be taken up by the bars,  and he should face a suspension of his licence, and that should be the typical way of dealing with it.

    That is wrong (none / 0) (#26)
    by Deconstructionist on Tue Jun 12, 2007 at 05:37:49 PM EST
      you are mistaking Jencks with Brady. Prosecutors are required to disclose exculpatory evidence in their possession in accordance with the scheduling order and have a continuing obligation to disclose prior to trial as evidence comes to them.

     It is statements of government witnesses that are not required by law to be disclosed until the witness testifies but almost always courts order early disclosure because it would cause delay if statements were not disclosed prior to trial and the defense needed a recess to examine them and prepare cross-examinationafter every witness


    Oh, and being unwilling to talk to the defense (none / 0) (#23)
    by atlanta lawyer on Tue Jun 12, 2007 at 04:54:07 PM EST
    before indictment?  That's routine with Paul Howard's office here in Atlanta. Before indictment, you're usually only allowed to talk to a "line" ADA who has no authority to dismiss a case, only to indict.  And as far as defense evidence goes, that's something they'll consider only after indictment.  Once a case is indicted, it's impossible to get it removed from your criminal history without the DA's consent.   Did I mention that short of murder, most, and I mean 90% or more of cases are indicted with 12 days of arrest?  I've known of cases where the only evidence was eyewitness ID, the eyewitness expresses doubt about the ID before indictment, shows up in court to say so, but the case gets indicted anyway.

    how about this for a just sentence? (none / 0) (#24)
    by cpinva on Tue Jun 12, 2007 at 05:08:41 PM EST
    make mr. nifong personally responsible for the financial costs associated with the defense of the three wrongly accused parties, from the point where it became obvious they did nothing.

    further, make him responsible for the unnecessary expenditures borne by the state and local governments, in the prosecution of this case.

    what he did was beyond inexcusable, it was a total perversion of our system of justice, the model we point to with pride, to the rest of the world.

    This is a bar proceeding. (none / 0) (#29)
    by Deconstructionist on Wed Jun 13, 2007 at 08:46:11 AM EST
      The jurisdiction is limited. I don't practice in NC but typically in these proceedings the available sanctions are limited. Payment of costs of the disciplinary proceedings and restitution to clients (in addition to license snactions, of course) are typically available but not "quasi-tort" damage awards to injured third parties.

       Here, a civil action might be brought and the plaintiffs would have to first convince a court that Nifong's actions were such that the normal immunity is inapplicable. Then if they showed he breached a duty owed the plaintiffs and that as a forseeable consequence the plaintiffs suffered financial and other injury he could be held liable. (Questions of whether the government is vicariously liable for his actions and the duty of the state or its insurer to provide compensation would also be present.)

      As for criminal charges, it might be possible to prosecute him, especially if it is established he lied under oath during an official proceeding. (I believe the bar charges do include allegations he lied to its investigators but I'm not sure if it is alleged to have been a sworn statement.) That would not be "perjury" but depending on NC statutes it might be "false swearing." there may be other statutes potentially implicated as well.

      I'd say a criminal prosecution is unlikely but a civil case much more likely.



    Like most prosecutors, he deserves no sympathy (none / 0) (#28)
    by Yes2Truth on Tue Jun 12, 2007 at 06:48:30 PM EST

    How much sympathy has Nifong ever shown to those he has prosecuted for victimless crimes and those that he probably (surely) knew were frame-ups and ridden with manufactured, hidden, and false evidence?  

    Obstruction of Justice (none / 0) (#30)
    by OkieFromMuskogee on Wed Jun 13, 2007 at 10:37:30 AM EST
    From what I can tell, Nifong did THREE things wrong in this case:

    • The way that he shot off his big mouth to the press was completely irresponsible.  As I understand it, trials are supposed to be conducted in the courtroom, not the press.

    • He withheld exculpatory evidence from the defense.

    • He continued the prosecution when it was no longer reasonable to do so, while refusing to listen to the facts from the defense or from his own staff.

    A Trifecta!

    It appears that when the police or the prosecution withhold exculpatory evidence from the defense, that act does not constitute the crime of  "obstruction of justice."  Why is that?  It sure sounds like criminal behavior to me.

    If Nifong has any assets left after paying his legal fees in this "ethics" matter, I suspect that the civil suits that are looming over the horizon will bleed him dry.  Isn't there something about violating civil rights under color of law?  He's got it coming.

    I certainly don't think disbarment for him is too severe.  He ought to be in jail.  And he has no one to blame but himself.  Unlike Scooter, he can't even blame his problems on Dick Cheney!