Nifong says he meant no harm

The district attorney defends his conduct in the Duke lacrosse case

RALEIGH -- Attorneys for Durham District Attorney Mike Nifong say the veteran prosecutor did not mean to do anything wrong in the Duke lacrosse case.

Nifong did not intentionally withhold DNA evidence favorable to the accused, Winston-Salem lawyers David Freedman and Dudley Witt wrote in a 49-page filing submitted to the N.C. State Bar on Wednesday.

Nor did he mean to create pretrial prejudice when he gave numerous interviews to the news media after an escort service dancer said she was gang-raped at a lacrosse team party last spring, the lawyers said.

"There have been a lot of people rushing to judgment on this case and the underlying case," Witt said Wednesday. "It's important to allow a full hearing on this."

As three former Duke lacrosse players fight sexual assault and kidnapping charges, Nifong is in a fight of his own. The Wednesday filing provides the first glimpse of the strategy Nifong's attorneys plan to employ to save his law license in the face of ethics charges filed by the bar, which oversees and disciplines lawyers.

Nifong's attorneys responded to charges the bar brought in December and January.

In reply to the accusations that he withheld evidence, the lawyers said Nifong handed 1,844 pages of evidence to the defense Oct. 27.

After a thorough review of those documents, defense lawyers determined that a report by a private DNA laboratory in Burlington did not include test results favorable to the defendants.

A letter Nifong wrote to the bar Dec. 28 was included as an exhibit in the filing. In it, the prosecutor said that if the state had not provided 1,844 pages of DNA test results and notes, the defense would not have known about DNA results favorable to the accused.

"In other words," Nifong wrote to the bar, "their complaint can be summed up as 'We know they did not give it to us because they gave it to us.' "

Nifong did not mention that he handed over the documents only after a judge ordered him to do so.

Nifong's attorneys acknowledged that he made many of the comments between March 27 and April 3 that the State Bar deemed misleading and inflammatory.

Nifong is not disputing the specific quotes or statements that the bar accused him of making. The battle will be fought over what Nifong meant and why he said it.

"I'm struck by what he doesn't deny," said Thomas Metzloff, a Duke University law professor who teaches ethics.

Reasons for talking

After April 3, the lawyers said, Nifong tried to limit his comments about the case "to arguments he made in open court, press releases issued from his office and responses to questions directed to him at public forums which he attended in Durham County."

Nifong says he spoke to reporters because he wanted to encourage witnesses to come forward, and because he wanted to reassure the public that the case was being investigated. He denied that he was trying to heighten public condemnation of the accused or prejudice the case against the lacrosse team.

Nifong's attorneys wrote that he was making his comments before a specific person had been accused. Metzloff pointed out that Durham police called the entire Duke University lacrosse team in for DNA testing, thereby identifying the players as suspects.

"All members of that team suffered potential media scrutiny and suffered the kind of injury that the rule is meant to prevent," Metzloff said.

Nifong's response that he meant no harm could be more important for determining a punishment, Metzloff said.

Testing '04 law

The response to the bar comes as many prosecutors and defense lawyers are testing the limits of a state law that went into effect in October 2004. It requires the prosecution to hand over all evidence to the defense, whether it is requested or not.

In their filing, Freedman and Witt said Nifong did not have to summarize the results of all DNA testing if he instead turned over the underlying documents produced by the lab that performed the tests. Nifong gave the defense lawyers the highly technical test results and notes after a judge ordered him to do so.

Metzloff said handing over a haystack of evidence and not showing defense lawyers the needles may not be a winning defense.

In the filing Wednesday, Nifong's attorneys asked the bar to dismiss an accusation that Nifong withheld evidence. Nifong's attorneys wrote that the lacrosse defendants now have all the evidence against them and that they cannot show they have been harmed.

A question of candor

The State Bar is concerned with Nifong's candor to the court, Metzloff said.

"This is not a motion by the defendants where the argument, 'Hey, you got it all now, it'll be a fair trial,' makes any difference," Metzloff said. "This is a very different type of case. This is now the State Bar saying, 'You did not provide the information you should have provided the way you should have provided it.' "

Nifong was aware that the State Bar had been criticized for its failure to adequately discipline misbehaving prosecutors.

"The 'word on the street' in prosecutorial circles has been that the North Carolina State Bar, stung by the criticism resulting from past decisions involving prosecutors ... is looking for a prosecutor of which to make an example," Nifong wrote in the Dec. 28 letter. "None of us, of course, wants to be that prosecutor."