Durham District Attorney Mike Nifong responded Wednesday to the North Carolina State Bar's complaints of his alleged misconduct in handling the Duke lacrosse case.
In the response, Nifong's attorneys said that although he did make most of the public statements the State Bar deemed unethical, he did not intentionally withhold potentially exculpatory DNA evidence from defense attorneys.
The Bar initially filed charges Dec. 28, accusing Nifong of making comments to the media that had "a substantial likelihood of heightening the public condemnation of the accused." On Jan. 24, the Bar charged Nifong for withholding DNA evidence that was favorable to the accused and then lying about it to court officials.
Nifong's lawyers, David Freedman and Dudley Witt, wrote in the response that the district attorney made many of the statements in question before defendants had been charged and without understanding the potential effects of his remarks.
"[Nifong] further admits that at the time he made said statements that he did not fully understand the extent of the national media interest in this particular investigation and as such he did not comprehend the effect said statements may have on any matters related to the case," Freedman and Witt wrote.
Nifong's attorneys also said the defendants will receive a fair trial because, "at a reasonable time prior to the trial, the Duke defendants knew of the existence of the potentially exculpatory evidence.'"
Duke law professor Tom Metzloff said, however, the State Bar's charges are not about whether the accused will receive a fair trial.
"[Nifong] is sort of saying, in basketball terms, 'no harm, no foul-there can't be a violation of the defendants' rights to a fair trial because they got all of the information in advance,'" he said. Nifong should have also mentioned the exculpatory evidence in his summary of the more than 1,800 pages of discovery, added Metzloff, who serves as an advisor to the Bar's ethics committee.
Although Nifong's attorneys argue his statements were not intended to harm the accused, Metzloff said the State Bar does not have to prove intent because the Rules of Professional Conduct apply to what an attorney knows or reasonably should know.
Nifong's attorneys said the statements were intended to reassure the community that the case was being "actively investigated" and to serve legitimate law enforcement purposes with the intent of urging anyone with evidence to come forward.
"In a sense, he's sort of using that to justify statements that went way beyond that nice-sounding phrase," Metzloff said.
Nifong also said that his comments were not addressed toward a specific accused-a requirement of the State Bar rule.
"My argument would be that there was an accused, and the accused was the Duke lacrosse team-a defined group of people, identifiable and defined by Nifong in having them all give DNA samples," Metzloff said. "There clearly was an accused in the sphere of the rule."
Although Nifong dropped rape charges Dec. 22 against David Evans, Trinity '06, Collin Finnerty and Reade Seligmann, the three members of the 2005-2006 men's lacrosse team still face charges of sexual assault and kidnapping.
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