When officials announced an investigation of rape allegations against members of the Duke men's lacrosse team several weeks ago, it placed Durham in the middle of a "perfect storm"-a confluence of racial, socioeconomic, athletic, sexual and gender issues-exacerbated by the media.
Charlotte attorney and former federal prosecutor Rick Glaser, Trinity '76, said the case has been the focal point of national news since its inception.
He added that lawyers are taught early in their careers not to try cases in the media-an action that allows the public to preemptively convict the accused.
"I'm very disappointed that this case has seemingly been improperly vetted through the media," said Glaser, a former co-captain of the Duke lacrosse team and student body president.
Some lawyers questioning both the ethics of the case's extensive media coverage and the involved attorneys' willingness to talk to the press have sought guidance from the North Carolina State Bar's Rules of Professional Conduct, which are modeled after the rules of the American Bar Association.
The rules define the limitations surrounding trial publicity for lawyers involved in investigations.
They also govern the special responsibilities of a prosecutor in a criminal case. According to the statute, prosecutors are not permitted to make comments that may sway the public's opinion of the accused, unless the statements "serve a legitimate law enforcement purpose."
The Rules of Professional Conduct also state that a lawyer cannot communicate with a person represented by another lawyer in the case, unless there is a law or court order or the attorneys give consent.
Thursday evening, without executing a search warrant, several Durham Police Department officers entered Edens Dormitory to attempt to interview lacrosse players.
Some lawyers said this action may have violated the State Bar's ethics rules, if District Attorney Mike Nifong-who knows the players have legal representation-had knowledge of or ordered the police investigation.
Nifong was unavailable for comment.
He has declined requests for comment for several days.
The difficulty of interpreting the ethics rules lies in their many loopholes, said Duke Law Professor Thomas Metzloff.
Metzloff said statements to the media can serve a legitimate law enforcement purpose if they further investigations by encouraging anyone who has knowledge useful to an investigation to come forward.
Once charges have been filed in a case, the assigned judge can intervene to prevent the involved parties from commenting to the press.
No charges had, as of press time, been filed in the lacrosse case.
Although State Bar officials are unable to say whether any complaints have been filed against Nifong or any other attorneys, several lawyers say he may have violated Bar rules by making certain comments to the media.
Winston-Salem attorney James Fox, Trinity '68, Law '71, who has served on the North Carolina State Bar's Ethics Committee, said there is a "balancing act" when deciding what the press has the right to know.
"Anytime you make a statement at the beginning [of an investigation], you run the risk of going beyond what is necessary to keep the press updated with the information they need," he said.
Fox said he thinks Nifong's assertions in his initial comments to the press were not substantiated.
"I think a lot of criminal defense lawyers would tell you that they have not heard anything in the media yet that constitutes as probable cause [to file charges]," Fox added.
Keith Gregory, a Raleigh criminal defense lawyer who previously worked in the Wake County District Attorney's office, said that because of Nifong's experience, he trusts the prosecutor's decisions about when to speak to the media.
"He represents the state of North Carolina-he is not representing Mike Nifong," Gregory said. "He will do his job."
Gregory added that it is dangerous for either the prosecution or the defense to reveal too much information to the press or the opposing side in an ongoing investigation.
"I'm a proponent of not showing your cards too quickly," he said. "If you do, the other side knows where your aces are. If they do, the game is over."
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