RALEIGH - The North Carolina State Bar will file an order to disbar Durham District Attorney Mike Nifong, a commission ruled Saturday.
The decision is the result of a five-day trial in which the Bar accused Nifong of making extrajudicial pretrial statements and withholding potentially exculpatory evidence from the defense team in the lacrosse case.
Although Nifong said he intended to leave his post July 13, Superior Court Judge Orlando Hudson ordered that he be stripped of his duties and placed on paid leave effective Tuesday. Durham County Sheriff Worth Hill collected Nifong's keys and badge from him at his home Tuesday morning.
While testifying in his own defense Friday, Nifong said he would leave his post, but the delayed date drew condemnation from many, including Gov. Mike Easley.
In announcing Saturday's decision, Disciplinary Hearing Commission Chair Lane Williamson called the case "a fiasco" and said that any sanction short of disbarment would have been inappropriate. The panel found that prosecutors had successfully proven 27 of the 32 charges made against Nifong.
Williamson said the case brought into sharp focus the importance of justly wielding prosecutorial power.
"Mr. Nifong, it must be said, for whatever reason... lost sight of that [responsibility] and wandered off the path of justice," he said. "We can draw no other conclusion but that those initial statements that he made were to further his political ambition."
A last-ditch offer from Nifong to surrender his law license was rebuffed by Williamson, who said the commission was obliged to make a ruling. Nifong did, however, forfeit his right to an appeal.
During an impromptu press conference outside the Court of Appeals building, where the trial was held, attorney Joe Cheshire and other lawyers for the indicted former lacrosse players said the decision is a victory in the fight against prosecutorial misconduct.
Cheshire said Nifong was only one example of an unfortunate trend and added that he hopes the ruling will serve to warn other wayward district attorneys.
"Until a prosecutor who was willing to cheat got disbarred or went to prison, [prosecutorial misconduct] would not end," he said. "[The decision] was, as the English say, 'spot-on' and probably hard for him to hear. It's a shame he didn't listen to people who were trying to tell him that months ago."
The attorneys added that the case only resolved favorably because of fortuitous circumstances, and that with minor changes in the course of events, David Evans, Trinity '06, Collin Finnerty and Reade Seligmann might have each been sentenced to 30 years in jail.
In closing statements Saturday, Nifong's lawyers did not deny that he had acted improperly, but tried to convince the panel that his missteps were a result of negligence and not of intent to do wrong.
Although the decision was hailed by some as "closure," it is unlikely that the lacrosse story has ended. Superior Court Judge Osmond Smith could hold Nifong in contempt of court-a charge carrying with it penalties ranging from fines to imprisonment-for lying to the court. There may be civil suits against Nifong, attorney Jim Cooney and other lawyers also called for the United States Department of Justice to launch an investigation into the case.
The defendant on the stand
After answering questions from his attorney concerning his handling of the case, Nifong delivered a prepared statement to the court Friday afternoon. In a tearful speech, he apologized to Evans, Finnerty and Seligmann and announced that he would resign from his post regardless of the commission's ruling.
"It is not fair for the people of my community to be represented by someone who is not held in high esteem by either the members of the community or members of the profession," he said.
Although Nifong acknowledged that he had made mistakes, he said he was "trying to do the right thing."
The sincerity of his sorrowful plea, though, was tarnished later during cross-examination when Nifong said in response to one of Williamson's questions that he still thought "something happened in that bathroom."
The cross-examination by the Bar's lawyers centered on two main issues. Lawyer Doug Brocker focused on Nifong's repeated claims from May through September that he made available all of the DNA evidence to the lacrosse players' defense attorneys. Brocker questioned Nifong about why he did not reveal to defense attorneys certain conversations between him and Dr. Brian Meehan, director of a private lab that performed the tests. In one such conversation, Meehan told Nifong that DNA from unidentified men was found in and on the body of Crystal Mangum, the alleged rape victim.
"I was not aware the information was not in the report," Nifong said.
He also faced questions from Brocker and Williamson about the many statements he made directly after charges were filed.
Cheshire said Nifong's "tepid apology is far too little and far too late." He also emphasized that Nifong's failure to notice that certain DNA evidence was missing from the report was an example of "unexcusable neglect."
Reade Seligmann's Testimony
Seligmann, the first witness to testify Friday morning, laid out for the court his experiences from before the charges were filed until after they were dropped by North Carolina Attorney General Roy Cooper.
He detailed how on April 17, 2006, he and his father were sitting in the Durham office of his attorney when they found out that one of the two sealed indictments was for him.
"My dad fell to the floor, and I sat on the ground and said, 'My life is over,'" Seligmann said. "My first thought was how was I going to tell my mom."
When he found out in December that the rape charges would be dropped but that sexual assault and kidnapping charges would remain, he said it felt like a "sick joke."
Joining Seligmann at the trial were Finnerty and both men's families. Evans arrived late Friday evening.
Brad Bannon delivers humor, passion
"Who really cares about Nancy Grace?" attorney Brad Bannon asked judges Thursday as laughter circulated through the courtroom.
Bannon, a member of the lacrosse players' defense team, took the stand to testify about the harmful effects of Nifong's pretrial statements to the media.
"At that point in time I don't think there was anything we could have said to combat those statements made by that man," he said. "We saw a pattern develop where a narrative was created and... we had to make sure the public knew the truth."
Bannon focused on his own responsibility in the case-scouring the approximately 1,800-page DNA report the defense team received from Nifong in late October.
Though the evidence came with no cover letter or explanation of the lengthy technical jargon used in the report, but after 60 to 100 hours of work he discovered test results that showed the presence of unidentified male DNA on objects and body samples of Mangum, Bannon said.
He also presented new evidence to the court showing-in a "conservative estimate"-that the accuser's rape kit items contained DNA from four unidentified males.
During his more than four hours of testimony, Bannon also recounted difficulties he and other defense attorneys encountered in securing discovery evidence and other materials that he said could have proved the men's innocence earlier.
"[It is] not so much how was it exculpatory, it's how it wasn't exculpatory," Bannon said, referring to how the evidence Nifong denied defense attorneys could have changed the course of the case had they had access to all available information as it was discovered.
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