Bar denies Nifong's request

Allegation that he withheld evidence in Duke lacrosse case won't be dismissed

RALEIGH -- A State Bar panel on Friday denied Durham District Attorney Mike Nifong's request for dismissal of the most serious allegation against him -- that he withheld DNA evidence favorable to three defendants in the Duke lacrosse case.

F. Lane Williamson, chairman of the three-member Disciplinary Hearing Commission, announced the decision late Friday afternoon after nearly 20 minutes of deliberation.

The decision was another blow to Nifong in a week that brought a harsh rebuke from the state attorney general over his handling of the lacrosse case, dismissal of all charges against the three players accused of sexual assault and calls for the Durham district attorney to resign.

David Freedman, one of two Winston-Salem lawyers representing Nifong, said resignation had not been discussed. "Here's a man who's devoted his whole life to public service. He still wants to serve people," Freedman said after the hearing.

A crush of TV crews, photographers and reporters followed Nifong from the State Bar offices on Fayetteville Street to a parking deck several blocks away. "You'll look good in an orange jumpsuit," a heckler yelled.

Nifong had little to say Friday. "I'll do my talking inside the courtroom," he said.

One of the bar complaints against Nifong is that he made prejudicial statements in March and April when he called the lacrosse players hooligans. He insisted that a racially motivated gang-rape of an escort service dancer occurred at a lacrosse team party.

The more serious charge -- that he withheld DNA evidence and then lied about it to the courts -- is why Nifong and his attorneys went before the Disciplinary Hearing Commission on Friday afternoon.

For much of the hourlong hearing, Dudley Witt, the other lawyer representing Nifong, urged the panel to drop the charge because the lacrosse defendants got the DNA evidence well before any trial was scheduled.

But Williamson, chairman of the panel that will act as judge and jury in the proceedings, challenged the argument and described it as one that would be better made at the full hearing on Nifong's case.

Witt tried several tacks that give a glimpse of how Nifong's attorneys might attack the bar charges in June.

The definition of "timely" could become important.

Witt argued that bar guidelines were nebulous about what turning DNA over in a timely matter meant.

"What is the definition of 'timely' that a prosecutor needs to comply with?" Witt said. "If he gets a report in on Aug. 28, does he need to mail it off on Sept. 1?"

Bar's counsel: Nifong knew

Katherine Jean, counsel for the bar, the organization that oversees and disciplines lawyers, argued that Nifong knew that DNA from at least four men not on the lacrosse team had been found on evidence collected from the escort service dancer, Crystal Gail Mangum. That evidence was not turned over until December after numerous requests by the defense for all the DNA evidence.

Jean said there were numerous opportunities to turn over that evidence before the players were indicted or at the hearings shortly after they were charged.

Jean disputed Nifong's argument that the bar should dismiss the charge because the defense lawyers got the DNA evidence before a trial was set.

"In 95 percent of the criminal cases in North Carolina, there's a plea bargain," Jean said. "There's not a trial."