State Bar Files Additional Charges against Defendant Nifong

In the latest indication of the gravity with which it holds the prosecutorial misconduct of Defendant Nifong, the North Carolina State Bar has filed additional charges against the former Hoax prosecutor. Citing numerous alleged instances of Nifong knowingly withholding evidence from the defendants and making false statements to the court, to the Bar’s Grievance Committee, and in media appearances, the State Bar has amended its complaint against Defendant Nifong. In painstaking detail, the amended complaint details Defendant Nifong’s pattern of deception that helped prolong the hijacked Hoax. Now totaling thirty-three pages, the revised complaint charges Nifong with violations of several Rules of Professional Conduct and North Carolina laws.

“Durham District Attorney Mike Nifong withheld DNA evidence in the Duke lacrosse case and then lied about it to judges and the North Carolina State Bar, according to a complaint filed today by the bar, which licenses and regulates lawyers.

“Today's complaint ratchets up the legal troubles facing Nifong; in December the bar had charged Nifong with making inflammatory public statements to the media and misrepresenting the facts in the case.” N&O

The additional charges were filed in response to the December revelation that Defendant Nifong had conspired with DNA Security, Inc. lab director, Dr. Brian Meehan, to withhold exculpatory evidence from the defense. Considering that the exposure of the conspiracy occurred on December 15, the Grievance Committee’s notification letter to Defendant Nifong dated December 20 indicates by its atypical, lightening fast issuance that the Bar felt a sense of urgency and a compelling need to confront the Nifong Problem. Not surprisingly, Nifong’s response to the Grievance Committee appears to have been written in vintage Nifongian, leading to additional charges that Nifong had not only lied to the public and the court, but also to the Bar itself.

“When the State Bar notified Nifong on Dec. 20 that the organization was investigating the withheld evidence and false statements, Nifong acknowledged that he knew of the DNA results in April and May, the complaint said. Nifong told the bar that he withheld the results out of concerns for the players' privacy concerns.

“That response was false, the bar said, because the DNA Security report listed the names of all the people tested, including the 46 lacrosse players.” N&O

Initially, Defendant Nifong was charged with violating four ethics rules. He now stands accused of repeatedly violating ten ethics rules, three NC general statues, the United States Constitution, and the June 22 Court order compelling discovery.

Ethics Rules Nifong is Charged with Violating

Rule 3.6 Trial Publicity

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(d) engage in conduct that is prejudicial to the administration of justice;

Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(d) after reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

Rule 3.4 Fairness to Opposing Party and Counsel

A lawyer shall not:

(d) in pretrial procedure,

(3) fail to disclose evidence or information that the lawyer knew, or reasonably have known, was subject to disclosure under applicable law, rules of procedure or evidence, or court opinions;

Rule 3.4 Fairness to Opposing Party and Counsel

A lawyer shall not:

(c) knowingly disobey or advise a client or any other person to disobey an obligation under the rules of a tribunal, except a lawyer acting in good faith may take appropriate steps to test the validity of such an obligation;

Rule 3.4 Fairness to Opposing Party and Counsel

A lawyer shall not:

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party

Rule 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

Rule 4.1 Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.

NC General Statutes Nifong is charged with Violating

§ 15A 282. Copy of results to person involved.

A person who has been the subject of nontestimonial identification procedures or his attorney must be provided with a copy of any reports of test results as soon as the reports are available. (1973, c. 1286, s. 1.)

§ 15A 903. Disclosure of evidence by the State – Information subject to disclosure.

(a) Upon motion of the defendant, the court must order the
State to:

(1) Make available to the defendant the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. The term "file" includes the defendant's statements, the codefendants' statements, witness statements, investigating officers' notes, results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant. Oral statements shall be in written or recorded form. The defendant shall have the right to inspect and copy or photograph any materials contained therein and, under appropriate safeguards, to inspect, examine, and test any physical evidence or sample contained therein.

§ 15A 903. Disclosure of evidence by the State – Information subject to disclosure.

(a) Upon motion of the defendant, the court must order the State to:

(2) Give notice to the defendant of any expert witnesses that the State reasonably expects to call as a witness at trial. Each such witness shall prepare, and the State shall furnish to the defendant, a report of the results of any examinations or tests conducted by the expert. The State shall also furnish to the defendant the expert's curriculum vitae, the expert's opinion, and the underlying basis for that opinion. The State shall give the notice and furnish the materials required by this subsection within a reasonable time prior to trial, as specified by the court.

The timing of the Grievance Committee’s notification to Nifong not only reveals the seriousness with which the State Bar views the district attorney’s alleged transgressions, but also sheds light on Nifong’s subsequent actions.

• Within one day of the letter from the Grievance Committee demanding a response to the new charges, Defendant Nifong outlined his defense to the charges in a three hour interview with the New York Times. While Duff Wilson may have been happy to buy Nifong’s hogwash, it is apparent that the State Bar was not.
• Also within a day of the Bar notice, Nifong dispatched henchmen Linwood Wilson, unaccompanied by any potential witnesses, to obtain from the accuser the latest revision to the Hoax, a re-write that appears conveniently tailored to obscure the significance of the hidden DNA evidence that is the basis of the new charges.
• Within two days of the letter, Nifong dropped the rape charges in a move that Hoax supporters praised as an effort to firm up the frame by possibly lessening the impact of the newly revealed exculpatory scientific evidence and the conspiracy to hide it.

Even the most naive observer would have difficulty not seeing these last desperate and vindictive moves by Defendant Nifong as selfishly and cynically motivated by the knowledge that he been caught and would soon be facing potentially career ending charges.

Experts quoted by the Associated Press indicate that the possibility of Nifong's disbarment is greatly increased by the new charges.

"If these allegations are true and if they don't justify disbarment, then I'm not sure what does," said Joseph Kennedy, a law professor at the University of North Carolina. "It's hard for me to imagine a more serious set of allegations against a prosecutor."

"The new charges "have significantly increased the chances for a serious sanction, possibly including suspension or disbarment," said Thomas Metzloff, a Duke law professor and member of the bar's ethics committee, which is not involved in prosecuting the case against Nifong."

Preliminary Hearing Summary

Defendant Nifong made his first appearance before the State Bar Disciplinary Hearing Committee this morning. Highlights of the hearing include:

• Lane Williamson, chair of the Committee graduate from law school with Defendant Nifong, is a former law partner of Seligmann defense attorney Jim Cooney, and has a daughter who graduated from Duke in 2005.
• All proceedings will be held in public. Anticipating substantial public interest, Williamson noted that a larger venue would be used for the trial which is now expected to take place in mid-June rather than May.
• Amicus briefs are anticipated and will be allowed even though the State Bar is not accustomed to, and has no provision for, dealing with them. Parties wishing to submit amicus briefs are invited to do so directly with Ms. Miani, Clerk of the Committee, who will then forward the briefs to the prosecution and defense counsel. If either party finds a brief to have merit, they may then have the brief filed regardless of whether opposing counsel agrees or not.
• Defendant Nifong was given thirty days to answer both the original set of charges and the additional charges filed today.
• Williamson appeared to expect that Judge Smith might also undertake disciplinary action against Defendant Nifong either in response to future defense motions or of his own accord. Noting that Superior Court had concurrent jurisdiction with the DHC, Williamson indicated a desire to defer to Judge Smith in the event he did proceed with disciplinary action "to the extent of seeing what happens there."

Transcript of Today's Hearing