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To Prosecute, or To Be Prosecuted? Why, In Light Of Formal State Bar Charges, District Attorney Mike Nifong Should Be Ordered Off The Duke Rape Case


Tuesday, Jan. 02, 2007

It was a week of back-to-back bombshells in the Duke Lacrosse rape scandal.

First, on December 22, Durham District Attorney Mike Nifong made the surprise announcement that he was dropping the rape charge (but only the rape charge) against the three former Duke lacrosse players at the heart of this case: defendants David Evans, Reade Seligmann, and Colin Finnerty.

Then, Durham's top cop got a surprise of his own.

Less than a week after Nifong dropped the rape charges, the North Carolina State Bar - the agency that, among other things, polices attorney conduct - announced it had filed formal ethics charges against Nifong himself. The bar claims Durham's District Attorney made inflammatory remarks about the defendants, and misled the public about certain evidence in the case.

Nifong now faces an investigation before the state bar's Disciplinary Hearing Commission, and the possibility of punishment ranging anywhere from private censure to disbarment.

Meanwhile, the North Carolina Attorney General's Office apparently has received more than 400 complaints against this District Attorney, spurred by his conduct in this matter. Moreover, North Carolina Congressman Walter Jones has called for a federal investigation against Nifong, to determine whether his handling of the case violated the defendants' civil rights.

To say that this level of public outcry against an elected law enforcement official is unusual, is the understatement of the year. While the public may have voted this man into office, and even re-elected him in the midst of this debacle, the public, laudably, is now doing its best to finally vote him off this case.

In this column, I will discuss why, in light of the formal ethics charges now pending against him, Nifong suffers from far too great a conflict of interest for him to possibly continue in his role as prosecutor in the case. If he does not soon either dismiss the charges outright, or hand over the prosecutorial reins to someone else, a judge should step in and take this case away from him.

Let's take these bombshells in chronological order, shall we?

The Oddity of DA Nifong's Pre-Trial Dismissal of Only One Charge

On December 22nd, DA Nifong announced his decision to dismiss, pre-trial, the top charge in the case against the three players - namely, the charge of rape. It was, frankly, an overdue, albeit nonetheless shocking, announcement. But even more shocking,

was the companion revelation that the additional charges, namely kidnapping and "sexual offense," would remain.

Typically, it just doen't happen this way.

Ordinarily, in a criminal case, when lesser counts are charged that directly relate to the top count - as is the situation here - those charges are included primarily to give the DA a tactical advantage in plea bargaining: If a defendant pleads guilty to the top count, the prosecutor may dismiss a lesser charge or two, thus ratcheting down the sentencing range.

Moreover, if no plea is reached, all charges typically stay put, for multiple charges give a potentially divided jury multiple options, allowing conviction on lesser charges, if the top count is difficult or impossible to prove.

All Charges in This Case, Not Just One, Should Have Been Dismissed

That said, it is especially odd - if not downright absurd - to dismiss the main charge, but not all of the charges, in this particular case. Nifong claimed that only the rape charge had been dismissed because the accuser could "no longer remember" whether she had actually been "penetrated" by any of the defendants, and penetration is an element of rape.

As readers are probably well aware, this isn't the only thing the accuser hasn't been able to recall along the way; far from it. Her changing stories have faulted as many as twenty Duke players in her alleged rape. If she had truly been raped, I believe she would have remembered both the penetration, and at least roughly the number of men who assaulted her. This additional supposed failure of memory thus simply adds to evidence supporting the dismissal of all charges.

True, the accuser may well have been severely intoxicated, and that is no defense to rape. However, proof beyond a reasonable doubt requires testimony that hangs together, rather than falling apart. Moreover, the utter lack of DNA evidence against any Duke player -- including tests that were negative for the defendants' DNA, and tests that were positive for the DNA of other men not on the team -- overwhelmingly favors dismissal.

In light of a lack of corroborative forensic evidence, this case turns on one thing: the accuser's credibility. Her defective memory on the top charge therefore affects her credibility on all charges.

Indeed, the accuser likely ought to be worried about potentially testifying under oath in this case to facts that are untrue. To do so is perjury - a felony. Filing a false rape report with police, on the other hand, a misdemeanor. You do the math.

A Prosecutor Whose Lack of Credibility Equals that of the Accuser

Now, let's move on to DA Nifong's own lack of credibility. The serious charges the North Carolina State Bar filed against Nifong aren't just accusations of improper and inflammatory commentary.

Nifong also stands accused of breaking a rule against "dishonesty, fraud, deceit and misrepresentation" -- by insinuating publicly that a lack of DNA evidence on the accuser could have resulted from the defendants' use of condoms, when the accuser specifically said her attackers did not, in fact, use condoms.

Why DA Nifong's Conflict of Interest and Apparent Misconduct Demand His Dismissal from this Case

One thing is for sure in this case: Defense attorneys will be asking the presiding judge to sanction DA Nifong for what they claim is a willful violation of ethical and evidentiary rules. Recently, a forensic scientist the DA hired to conduct early DNA tests admitted that DA Nifong himself ordered the expert to withhold relevant information from the defense!

Based on that order, the defense did not learn that DNA samples taken from the accuser revealed evidence of sex between the accuser and a number of other men - none of whom were in attendance at the party in question, and none of whom were Duke lacrosse players. It is as if, in a murder case, the gun bore four sets of fingerprints - none of which were the suspect's -- and the DA suggested that the gun was simply wiped clean.

Nifong claims this was merely an oversight, but that seems extremely implausible. After all, the expert was apparently fully aware of this evidence and ready to provide it, until Nifong said no. In addition, there's at least a strong credibility issue here that ought to make Nifong a star (if adverse) defense witness in this case, and thus require his disqualification.

Withholding exculpatory evidence from defense counsel violates the U.S. Constitution, as well as North Carolina's (and every state's) rules of criminal procedures. Sanctions for violations can range from fines against the offending attorney, to wholesale dismissal of the charges.

What sanctions are appropriate here? As noted above, DA Nifong should be disqualified, but that's a matter of fairness, not a sanction. His misconduct rises to the level that a healthy fine, and dismissal of these woefully unproven charges, would also be appropriate.

If DA Nifong isn't dismissed, he ought to step down. His role is to represent the people of the State - 400 of whom have filed complaints against him with the Attorney General's Office. His conduct has disgraced his office. The State Bar plainly wants him out: It could have waited to file its ethics complaint until after this case was resolved, and the fact that it didn't, says loud and clear that it wants Nifong out. Now.

Nifong will be lucky, in the end, if he himself avoids the punishment he sorely deserves. In its complaint against the D.A. for making "improper commentary about the character, credibility and reputation of the accused," the Bar quotes Nifong as saying, "One would wonder why one needs an attorney if one was not charged and had not done anything wrong."

I wonder what commentary DA Nifong will offer when and if he himself hires an attorney, as well he should right now.

Interested readers may also want to consult Spilbor's series of columns about this case, the most recent of which - containing links to earlier columns as well - is this one. - Ed.

Jonna M. Spilbor is an attorney and legal analyst on "Kendall's Court," airing Sundays on Fox News Channel's Weekend Live with Brian Wilson. She is also a frequent guest commentator on MSNBC, Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.

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