Pressure on Nifong in Duke case

Misstatements may cost him his career

DURHAM -- To press forward in the Duke University lacrosse case, District Attorney Mike Nifong must rely on scanty evidence while deflecting serious questions about whether he broke the law or violated the ethics rules governing prosecutors.

Nifong has acknowledged that the case now hangs on what the accuser says from the witness stand in a hearing scheduled for February. Meanwhile, pressure on Nifong continues to build.

The State Bar has received multiple complaints demanding that he be disbarred. A congressman has called on the U.S. Justice Department to investigate him. And when the case returns to court, Nifong might have to explain repeated misrepresentations to judges about what evidence he had and why he did not disclose it all, as state law requires.

Nifong dropped the rape charges on Friday, but felony charges remain pending against three former members of the Duke University lacrosse team: David Evans, 23, of Bethesda, Md.; Collin Finnerty, 20, of Garden City, N.Y.; and Reade Seligmann, 20, of Essex Fells, N.J. They are charged with attacking their accuser, an escort service dancer, at a team party last March.

Nifong did not respond to a request for comment last week, and he declined to come out of his office on Friday when reporters asked him to talk about the rape charge dismissal. He has told The News & Observer that he would not discuss the case outside of court. But on Thursday, he granted The New York Times a three-hour interview, the newspaper reported Saturday.

In May, Nifong gave the defense a 12-page report disclosing that DNA taken from the accuser's body did not match that of any member of the lacrosse team. He did not disclose that DNA from unidentified men had been found on her body and underwear.

In the New York Times story, Nifong acknowledged that he should have turned that favorable evidence over to the defense. And he said withholding that information was an oversight -- he thought he had already turned it over.

That was Nifong's third explanation why he did not turn over the evidence. At the start of a court hearing Dec. 15, he told a judge that the first he knew about the favorable evidence was two days earlier, when defense lawyers filed a motion on the matter.

At that Dec. 15 hearing, a DNA expert hired by Nifong, Brian Meehan, testified that he and Nifong agreed to withhold test results showing that DNA from the unknown men had been found. After Meehan testified, Nifong told reporters that withholding the test results from a written report was a conscious decision to respect the players' privacy rights.

"We were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud," Nifong said. "His report made it clear that all the information was available if they wanted it and they have every word of it."

But Nifong has bigger problems than his conflicting statements to reporters.

Since May, Nifong has repeatedly misrepresented his actions in filings and in face-to-face dealings with judges. Nifong has repeatedly said that he disclosed everything about the DNA evidence.

Federal and state law and state ethics rules require prosecutors to hand over all exculpatory evidence -- evidence that might indicate a person's innocence -- in a criminal case. Nifong acknowledged to The New York Times that the DNA tests results were "potentially exculpatory."

The misrepresentations began in May.

ON MAY 18, NIFONG FILED A NOTICE saying he had handed all evidence in his possession to the defense. He knew of nothing else favorable to the defendants, he wrote.