Criticism surrounding embattled Durham District Attorney Mike Nifong came to a head recently when the North Carolina State Bar made public an ethics complaint it had filed against him in October.
The timing and severity of the complaint have crystallized criticism of Nifong's handling of the Duke lacrosse case and prompted questions about his future involvement in its prosecution.
In a 17-page document, the bar accused Nifong of violating four Rules of Professional Conduct, which define the ethical limitations surrounding pre-trial publicity for lawyers involved in investigations. If found guilty, Nifong would face punishments ranging from a letter of warning to disbarment.
"If they can show some sense that this was a really deliberate effort to sensationalize the case, and that includes making it a racial issue, that will be a problem [for Nifong]," said Duke law professor Thomas Metzloff.
The complaint cites more than 100 examples of public statements Nifong has made to the media since March. The bar alleges that these extrajudicial comments "have a substantial likelihood of heightening the public condemnation of the accused," and involve "dishonesty, fraud, deceit, or misrepresentation."
Nifong is also accused of making improper statements expressing his personal opinions about the guilt of the accused and whether a crime had occurred.
"There are some people who think that what Nifong did wrong is not so much publicity, but how he's handled the case," Metzloff said.
Many of Nifong's critics claim that his actions were motivated by his quest to win the hotly contested primary election in May. Nifong won both the primary and general elections and was sworn into office Jan. 2.
"Without some proof with that direct connection to the election, I would expect that this is a public reprimand case," Metzloff said.
Extrajudicial comments are typically regulated by the presiding trial judge after the trial is over, said Jim Maxwell, a Durham lawyer who has represented lawyers facing state bar complaints.
"In my own experience, it's the first time I know of an actual complaint in any matter-civil or criminal-while the litigation is still pending," he said.
Although it could be possible to distinguish between the complaint against him and the criminal case, there is the potential for conflict, Maxwell said.
"On the face of it, it would appear difficult to [distinguish] when on the one hand he is defending himself for actions relating to the prosecution of the lacrosse players," he added.
In late December, the North Carolina Conference of District Attorneys issued a public statement asking Nifong to recuse himself from the prosecution of the lacrosse case.
"It had come to the point from my executive committee's perspective where it was no longer feasible-between the media representation and the state bar's filing of a grievance-to adequately advocate for the victim or seek justice for the defendants," said Peg Dorer, director of the North Carolina Conference of District Attorneys.
In September, the group sent Nifong a letter offering assistance, to which he never responded. Though similar letters are not uncommon, the committee had never before issued a public statement requesting a prosecutor's recusal from a case, Dorer said.
"It's very important to protect the autonomy of district attorneys in their cases. If the facts had proven to be correct, [the bar] might not have filed a complaint," Metzloff said. "So many of the statements seem to have no basis in his investigation."
Although Metzloff said he expects Nifong to request the state bar hearings be put on hold until the lacrosse trial is over, he added that "a legal conflict of interest requires" the district attorney's recusal.
The complaint, issued by the Grievance Committee, has been referred to the Disciplinary Hearing Committee. Although the DHC acts independently of the bar, it can accept the bar's recommendations, said Tom Lunsford, executive director of the North Carolina State Bar.
The matter must be tried no sooner than 90 days and no later than 150 days after the time the defended lawyer is served, he added.
The Grievance Committee meets again next week, and some legal experts speculate that Nifong could face charges of suppressing exculpatory evidence.
In a Dec. 15 pre-trial hearing, Dr. Brian Meehan, director of the DNA Security Lab in Burlington, N.C., admitted to collaborating with Nifong in withholding the names of the lacrosse players that DNA testing excluded from matching genetic material found in the body and underwear of the alleged victim after she claims she was raped March 13.
Every lacrosse player tested by the prosecution was excluded from any possible match to any of the genetic material found. Defense attorneys argued that this information, which was not included in the discovery, would illustrate their clients' innocence.
Nifong announced Dec. 22, however, that the accuser could not remember whether she had been raped. Joe Cheshire, defense attorney for David Evans, Trinity '06, called the timing of the release of the lab results and the dismissal of rape charges "transparent coincidences" because no DNA matching the players was found in the alleged victim's body.
The next pre-trial hearing is set for the week of Feb. 5, when defense attorneys said they hope to win the motion to suppress the identification procedures used in the investigation.
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