Nifong Makes New York Law Journal

The New York Law Journal, the nation’s best selling legal daily publication, published on Tuesday, January 30, 2007, an article on disgraced Durham County District Attorney Mike Nifong’s role as Hijacker of the Hoax. The title of the article - “District Attorney Scandal in the Duke University Case” - further reveals the extent to which it is now commonly accepted that Defendant Nifong has brought his office and profession into disrepute. Henry H. Korn, who wrote the article, is a senior partner in the New York law firm LePatner & Associates. He also serves as an Adjunct Professor at Pace University School of Law, and is a former Assistant United States Attorney with the Criminal Division of the Southern District of New York.

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Mr. Korn begins his scathing missive with a brief description of the nightmare the victims of the Hoax have endured in what he has dubbed the District Attorney Scandal.

“The month of April 2006 marked the beginning of the nightmare for three members of the Duke University men's lacrosse team when the Durham County district attorney, Michael B. Nifong, charged them with raping a stripper at a lacrosse team party. The charges were filed even though Mr. Nifong never interviewed the victim.

“He was quick to comment during this prosecution, however, that the defendants were guilty of the rape. Reviled by faculty and senior administrators at Duke who had prejudged them (and all members of the nationally ranked lacrosse team) and by the news media that escalated the feeding frenzy, [FN1] these three men faced the dark and dirty side of the criminal justice system, or what Norman Mailer once described as 'the belly of the beast.' [FN2]”

Mr. Korn continues with a very succinct detailing of the fragile frame created by Defendant Nifong, and how it fell apart piece by piece.

“As events unfolded, these men watched the case brought by Mr. Nifong unravel. The victim simply could not keep her story straight, only lately admitting that one of the defendants did not rape her. Although the DNA laboratory findings ultimately exonerated the men from any rape charge, in the initial report produced to defense counsel, Mr. Nifong chose to withhold the exculpatory evidence from the defendants. Their DNA, we learned in late December 2006, simply was not present on the person or property of the victim, while DNA from other men was present.

“It has also been reported that the photo identification was so seriously flawed that any in-court identification by the victim might be thrown out. We learned that Mr. Nifong did not meet the victim to assess her story against the evidence and never agreed to hear or review the defendants' evidence, although requested to do so by counsel. Additionally, we learned that Mr. Nifong, who was running for re-election as county prosecutor, held numerous press conferences and made highly disparaging remarks about the defendants, describing them as 'hooligans' whose 'daddies could buy them expensive lawyers. ' It has been reported in fact that Mr. Nifong, by his own account, gave 50 to 70 interviews in a one-week period.”

Moving on to Defendant Nifong’s numerous violations of NC State Bar ethics rules, Mr. Korn discusses both the first and the amended bar complaints brought against Nifong.

“Mr. Nifong conducted this investigation with such disregard for the code of professional responsibility governing the conduct of a prosecutor in North Carolina that on Dec. 28, 2006, the North Carolina Bar filed ethics charges against him, accusing him of making public statements that were 'prejudicial to the administration of justice' and of engaging in 'conduct involving dishonesty, fraud, deceit, or misrepresentation.' [FN3]

“The initial complaint identified scores of examples in its 181 separate numbered paragraphs of Mr. Nifong's disregard of the rules governing prosecuting attorney conduct. That complaint was superseded on Jan. 24, 2007 by a complaint including over 100 additional numbered paragraphs specifying how Mr. Nifong withheld or failed to provide potentially exculpatory DNA evidence, lied to the court and counsel and made false statements to the Grievance Committee after it sent him a notice of
grievance and he responded. [FN4]”

…

“In the superseding complaint, the North Carolina Bar broadened the charges. The superseding complaint charges Mr. Nifong with failing to provide a complete report containing the results of the DNA tests that would exculpate the defendants, in violation of North Carolina Gen. Stat. 15A-282, 15A-903(a)(1) and 15A-903(a)(2), (Complaint 227).

“In the superseding complaint, Mr. Nifong also was charged with misrepresentations and false statements to court and opposing counsel. (Complaint 230 et seq.) The complaint details scores of examples of his false statements and misrepresentations. According to the superseding complaint, he falsely stated, 'the State is not aware of any additional material or information which may be exculpatory in nature with respect to the Defendant. (Complaint 230).

"The complaint charges that he made false statements to the court, as well; for example, at a May 18, 2006 hearing, the court asked him if he had provided the defendants all the discovery materials and he stated, 'I've turned over everything I have.' (Complaint 235).

“Additionally, the superseding complaint charges that Mr. Nifong made 'misrepresentations and false statements to the State Bar's Grievance Committee' beginning on Dec. 20, 2006 when the Grievance Committee delivered its notice of grievance to him; the superseding complaint charges that his responses were false and misleading. For example, in his responsive letter he stated he did not realize that the potentially exculpatory DNA test results were not included in the lab reports from May 12 until he received a Dec. 13 motion to compel discovery, and the Bar complaint charges that such statements were 'knowingly false statements of material fact made in connection with a disciplinary matter.' (Complaint 288).”

After outlining the applicable North Carolina Rules of Professional Conduct and highlighting Defendant Nifong’s failure to interview the victim, Korn concludes with a prediction that additional revelations will be forthcoming that will further jeopardize the disgraced District Attorney’s license to practice law.

"There are sure to be many more developments in the story of how Mr. Nifong conducted the prosecution of the three Duke University students that will have direct impact on his license to practice law. This is a story that squarely teaches that 'rushing to judgment' without wisely stepping back and reviewing the evidence runs directly counter to the ethical obligations that govern how attorneys are required to conduct themselves. The harm of such ignorant conduct is that others are grievously wounded. Familiarity with, and adherence to, the code of professional responsibility provides the foundation for attorneys to avoid abuse of their license and harm others by so doing."