Nifong on Defense

In an article this weekend, the News and Observer details some of the many complaints filed against District Attorney Mike Nifong and his public attempts to begin his defense against those complaints.

“Public record requests to the governor and attorney general uncovered at least 17 complaints concerning Durham District Attorney Mike Nifong to the N.C. State Bar, which licenses and regulates lawyers. The complaints accuse Nifong of saying too much to the news media and of mishandling the investigation.”

“Nifong would not discuss the bar complaints, but in court, in news releases and at news conferences, he has mounted a defense, sometimes using language tailored to the bar rules.”

In particular, the N&O notes that many of the complaints against DA Nifong address violations of State Bar ethics rules 3.6 and 3.8 as they relate to extrajudicial statements.

“The bar's rules limit what lawyers can say to the media. Lawyers cannot say things likely to prejudice a case, especially a criminal case. The rules caution lawyers to be careful when discussing the character or credibility of a suspect, a person's failure or refusal to make a statement, or any opinion about a suspect's guilt or innocence. And the rules say prosecutors must refrain from comments that would heighten public condemnation of the accused.”

“In March, Nifong called the players at the party "a bunch of hooligans" and said a racially motivated rape had occurred. He said the players weren't cooperating with police, and he questioned why they would hire lawyers. "I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham," Nifong said at a forum televised live April 12.”

With regard to the defense of his numerous inflammatory and extrajudicial statements, the N&O notes a few specific examples.

“At a July news conference, Nifong referred to bar rules that allow a prosecutor to inform the public that an investigation is in progress and to encourage cooperation from witnesses. But in a June e-mail message to a Newsweek reporter, Nifong explained his statements a different way.

"My initial cooperation with the press was based not on any perceived political advantage to be had, but on my (in retrospect, admittedly naive) belief that such cooperation would help effectuate a more accurate public discourse on an issue with great societal resonance," Nifong wrote.

“Nifong has also tried to change the perception of how many interviews he gave. During March and April, Nifong told reporters that he gave more than 50 interviews consuming 40 hours during the last week of March. Six months later, Nifong amended those numbers, telling Superior Court Judge W. Osmond Smith III that his appointment book showed 15 to 20 interviews."

In August, we noted that his defense against the pending charges had begun when Washington Post columnist Andrew Cohen falsely accused the defense attorneys of committing the violations that Nifong stands formally accused of.

“Equally outrageous is the more devious deception created by not addressing Mr. Nifong’s extra judicial statements. We are absolutely amazed that any discussion of rule 3.6 and the Duke case would pretend to ignore Mr. Nifong’s role in this part of the drama. Mr. Cohen’s discussion remains woefully incomplete and deceptive by means of this omission."

“One might expect that the Post would be more concerned with seeking confirmation of the exact number of 3.6 AND 3.8 complaints filed with the North Carolina State Bar in regard to Mr. Nifong, the exact number of those complaints against Mr. Nifong that are currently being investigated and the faulty rationale behind Mr. Nifong’s defense of some of those complaints by attempting to make a distinction between pre and post indictment. While Mr. Cohen asks, "What will Titus do?" We prefer to ask, "What is the State Bar doing?"

It should be noted that in the same press release mentioned by the N&O, DA Nifong emboldens part of the following statement:

“…my initial comments on the situation before there was a case against any identified defendant which would trigger the ethical rules resulted in my being accused of unethical behavior…”

Bizarrely, Nifong attempted to invent a non-existent distinction between pre and post indictment as if he was not bound by ethics rules until some invisible line had been crossed. Comment [5]-(4) of Rule 3.6 clearly demonstrates that there is no intended distinction between a prosecutors ethical responsibilities to defendants and suspects.

[5] There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;