State Bar attorneys target Nifong motion

DURHAM -- As lawyers for District Attorney Mike Nifong continued to push for dismissal of part of the State Bar's ethics complaint, the bar issued its own rebuke of the veteran prosecutor's arguments.

The lawyers filed briefs late Friday to meet a deadline set by the Disciplinary Hearing Commission, which acts as judge in the bar's case against Nifong.

The State Bar has accused Nifong of breaking rules of professional conduct during his handling of the case in which an escort service dancer alleged she was gang-raped by three members of Duke University's lacrosse team at a party last March.

Nifong, who turned the case over to special prosecutors in January, is now in a fight to save his law license.

Katherine E. Jean, Carmen K. Hoyme and Douglas J. Brocker, the lawyers representing the bar, argue that Nifong intentionally withheld evidence favorable to the defense and then lied about it to the court and bar.

"In his motion to dismiss, Nifong urges the DHC to undertake statutory construction, interpretation of case law, and semantic hair-splitting," the lawyers said in their filing. "These are not appropriate tasks for the tribunal."

David Freedman and Dudley Witt, the Winston-Salem lawyers representing Nifong, argued that defense lawyers received a DNA report and the underlying data well before any trial.

"That Nifong disclosed both the report and the underlying data later than the Duke defendants would have preferred does not turn Nifong's disclosure, or failure to make what the defendants would consider timely disclosure, into a constitutional violation," they wrote.

"It was apparent to both sides that all the underlying data had not been turned over," Freedman said Monday during a telephone interview.

They presented several court cases to support their claim that the defendants' constitutional rights were not violated.

They also argued that neither state law nor court orders required Nifong to write a report of what he was told by the head of a private lab that did the DNA testing.

"It would be our contention that the State Bar is trying to create requirements that are not required by the constitution," Freedman said.

Lawyers for the bar argued otherwise.

The State Bar has said that Nifong first learned of DNA results favorable to the accused April 10 but instructed Brian Meehan, director of DNA Security, the Burlington lab that did the testing, not to list those results on a written report. The bar said Nifong never gave the players a complete report, as required by the State Bar and state law.

Defense lawyers repeatedly asked for the information.

Nifong turned over more than 1,844 pages of raw data only after a judge ordered him to do so.

Attorneys for the bar said that did not constitute a report, in part because Nifong did not provide information about conversations that he had with Meehan.

In September, Nifong told the court that a 10-page DNA report issued earlier encompassed all tests done by the private lab and everything discussed at meetings in April and May. Defense lawyers were not aware at the time that lab tests had turned up DNA from four men not on the lacrosse team.

"So you represent there are no other statements from Dr. Meehan?" a judge asked Nifong.

"No other statements," Nifong said. "No other statements made to me."

On Feb. 28, Nifong's attorneys wrote in a 48-page report that their client did not mean to do anything wrong in the Duke lacrosse case.

Nifong did not intentionally withhold DNA evidence favorable to the accused, they said, nor did he mean to create pretrial prejudice when he gave numerous interviews to the news media after the gang-rape allegations were made. Although rape charges were dropped, Dave Evans, Collin Finnerty and Reade Seligmann stand accused of sexual offense and kidnapping. They maintain they are innocent.

In their filing Friday, Freedman and Witt did not address the allegations that Nifong caused pretrial prejudice and "public condemnation of the accused" during early statements he made to the news media.

Lawyers expect a hearing to be set on the motion to dismiss the ethics complaint.