Nifong appeals state's denial of aid in suit

Former Durham District Attorney Mike Nifong is asking the state to reconsider its decision not to help him in his battle against a civil suit brought by three exonerated former Duke lacrosse players.

Nifong had asked the state to pick up his legal tab because he was working as an officer of the state when he was prosecuting the lacrosse case.

But in a letter to Nifong and his lawyer, James B. Craven III of Durham, Grayson G. Kelley, the state's chief deputy attorney general, declined his request.

"The state must refuse to provide for such representation if the attorney general determines that the actions or omissions were not within the scope of the employee's official duties: the acts or omissions involved fraud, corruption or malice; defense of the action would create a conflict of interest; or, defense of the action would not be in the best interests of the state," Kelley said in the letter, dated Oct. 16.

Craven responded with a letter today.

"Obviously we are disappointed in your decision, and disagree with it," Craven said in his response. "It is certainly not a decision that provides much comfort for state employees threatened with civil liability for actions taken in the course of their employment with the state."

Craven cites two cases in his appeal for the state to reconsider.

"Even Allstate and Nationwide, neither known for their generosity, would have provided a defense here under a reservation of rights," Craven said. "I hope you will reconsider for no other reason than to provide some comfort to other potential defendants in similar cases. Otherwise a district attorney in North Carolina can only rest assured that the state may or may not be behind him or her, in this instance way behind him. As Mike Nifong said to me this morning, 'I don;t know why I continue to expect people to do the right thing.'"

The players filed suit in federal court in Greensboro this month alleging that Nifong, the city of Durham, the DNA laboratory hired by the disbarred former prosecutor and numerous police officials conspired to falsely charge the former Duke students with rape.

The suit charges that the defendants maliciously conspired to charge the players even though they knew that the allegations were "a total fabrication by a mentally troubled, drug-prone exotic dancer whose claims, time and again, were contradicted by physical evidence, documentary evidence, other witnesses, and even the accuser herself."

Nifong's letter last week to the Administrative Office of the Courts was an unusual request.

"Because I was a constitutional officer of the state of North Carolina at the time that the subject matter of the complaint arose ... and because the complaint arises out of the exercise of the duties of that office, I am hereby requesting that you make any necessary arrangements to secure my representation in this matter," Nifong said Oct. 8 in a letter to Judge Ralph Walker, director of the Administrative Office of the Courts, which oversees the state's court system.

Typically a request for state representation would be made directly to the state Attorney General's Office. But Craven raised concerns about Attorney General Roy Cooper in a follow-up letter to Walker.

Cooper, who in April described Nifong as a rogue prosecutor, "may well have a conflict and thus is unable to represent Mike," Craven said.

In April, Cooper dismissed the sexual assault and kidnapping charges against the three players: David Evans, Collin Finnerty and Reade Seligmann.

To national TV crews and reporters from across the country, Cooper declared the three players innocent of all charges and victims of a rush to accuse by a prosecutor who refused to consider all the evidence.

Mary Ann Tally, a defense lawyer who has followed many prosecutorial misconduct cases, said that if the request is granted, some taxpayers might object to spending state money defending the discredited former prosecutor.

"The sad truth of the matter is there are a lot of people who already are concerned, and those who aren't may be when they see, 'This affects my pocketbook,' " Tally said. "They say, 'I can either have the schools, the roads, or I have to defend a rogue prosecutor.' "