Complaints against Mike Nifong

December 3, 2006 

Public record requests to the governor and attorney general uncovered at least 17 complaints concerning Durham District Attorney Mike Nifong to the N.C. State Bar, which licenses and regulates lawyers. The complaints accuse Nifong of saying too much to the news media and of mishandling the investigation.

Public statements

The bar's rules limit what lawyers can say to the media. Lawyers cannot say things likely to prejudice a case, especially a criminal case. The rules caution lawyers to be careful when discussing the character or credibility of a suspect, a person's failure or refusal to make a statement, or any opinion about a suspect's guilt or innocence. And the rules say prosecutors must refrain from comments that would heighten public condemnation of the accused.

In March, Nifong called the players at the party "a bunch of hooligans" and said a racially motivated rape had occurred. He said the players weren't cooperating with police, and he questioned why they would hire lawyers. "I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham," Nifong said at a forum televised live April 12.

NIFONG'S DEFENSE

Nifong would not discuss the bar complaints, but in court, in news releases and at news conferences, he has mounted a defense, sometimes using language tailored to the bar rules.

At a July news conference, Nifong referred to bar rules that allow a prosecutor to inform the public that an investigation is in progress and to encourage cooperation from witnesses. But in a June e-mail message to a Newsweek reporter, Nifong explained his statements a different way.

"My initial cooperation with the press was based not on any perceived political advantage to be had, but on my (in retrospect, admittedly naive) belief that such cooperation would help effectuate a more accurate public discourse on an issue with great societal resonance," Nifong wrote.

Nifong has also tried to change the perception of how many interviews he gave. During March and April, Nifong told reporters that he gave more than 50 interviews consuming 40 hours during the last week of March. Six months later, Nifong amended those numbers, telling Superior Court Judge W. Osmond Smith III that his appointment book showed 15 to 20 interviews.

The administration of justice

"The prosecutor's duty is to seek justice, not merely to convict," according to State Bar rules. A prosecutor's systematic abuse of discretion can constitute "conduct prejudicial to the administration of justice."

Letter-writers complained that Nifong ordered police to conduct a photo identification procedure -- which became the basis for indictments -- that violated Durham Police Department guidelines. They wrote that he refused to discuss the case with defense lawyers before he brought indictments and that he reneged on a promise to use negative DNA results to rule out suspects. And they complained that he supervised the arrest of a taxi driver who is an alibi witness for one of the accused and failed to probe contradictions in the accuser's statements and physical evidence.

NIFONG'S DEFENSE

Nifong has not commented on the lineup procedure. He has said little about why he would not meet with defense lawyers. A defense lawyer said in court that Nifong had an assistant relay his reason: "I saw you on TV proclaiming your client's innocence, so what is there to talk about?"

Nifong defended the taxi driver's arrest, saying his office policy is to serve all outstanding warrants. The cab driver was later acquitted on the three-year-old shoplifting charge. Nifong said negative DNA results do not necessarily exonerate anyone. And he said that he does not discuss a case with a complaining witness because he does not wish to become a witness himself.

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