DA on the spot for comments

Nifong, defense remarks in lacrosse case raise ethics questions

DURHAM -- Defense lawyers and legal experts say District Attorney Mike Nifong may have crossed ethical lines in public comments about rape allegations involving Duke University lacrosse players, potentially prejudicing jurors and setting off a media maelstrom.

For his part, Nifong says that he has done nothing wrong, though he has ceased talking with reporters about allegations made by an escort service dancer hired to perform at a March 13 team party. He would speak only about his handling of the case Friday.

"In terms of what I said, no, I wouldn't say I regret anything I've said," Nifong said. "I think what I have learned, basically, is that if you cooperate with the media out of a sense of duty to public truth, you make yourself a victim."

There have been high-profile criminal cases in the Triangle before, but local observers were hard-pressed this week to remember a case with so much back-and-forth between the prosecution and defense playing out in a 24-hour news cycle. It has some suggesting a judge should step in with a gag order.

Defense attorneys for the lacrosse players say it is their clients who have been victimized by Nifong, and they blunt criticism of their own extensive public comments by saying they are just attempting to limit the damage. Some also said photos, ATM receipts and other evidence they claim exonerates the two team members arrested Tuesday were given to the media only after Nifong refused to look at them.

In its ethical rules, the N.C. State Bar orders lawyers to refrain from statements outside the courtroom that they know might have "a substantial likelihood of materially prejudicing" legal proceedings. But once one side talks to the press, ethics rules say the other side can make statements "a reasonable lawyer" would believe are required to protect a client from bad publicity.

"If the district attorney didn't put us in this position to have to answer these questions, I would not be discussing this case in public," said Joseph B. Cheshire V, who represents a team captain who lived in the Buchanan Boulevard house where a rape is alleged to have occurred.

Ken Broun, a law professor at UNC-Chapel Hill, stopped short of saying that Nifong has broken the rules but said he thinks the State Bar should investigate his public statements.

"What the bar is going to have to do is look at the first comment from Nifong," Broun said.

The State Bar cannot confirm whether a complaint has been filed against Nifong or whether it is already looking into the matter, said Thomas Lunsford, the organization's director.

Nifong made what appear to be his first public comments about the case to a reporter from The News & Observer on March 27, four days after the paper reported that 46 lacrosse players were ordered to submit DNA as part of a rape investigation. In the following weeks, Nifong granted dozens of media interviews, including several that were nationally televised.

He criticized team members for not cooperating with police, at one point using the term "a bunch of hooligans." He has been emphatic that he thinks the dancer was raped and that he has medical evidence and eyewitness testimony that will prove it. He has said that the racial slurs alleged to have been used against the dancers at the party made an "extremely reprehensible attack even more reprehensible." He has speculated that no DNA was recovered because the attackers may have used condoms. And he went on a cable news show and used his own arm to demonstrate how the alleged victim was choked.

"I did not accuse anybody of any crime," Nifong said Friday. "The only detail I revealed was that based on the medical exam, the woman was the victim of a sexual assault. ... I don't believe that constitutes trying a case in the media."