Durham DA may face another entanglement

DURHAM -- District Attorney Mike Nifong, who already faces serious charges by the State Bar, could find even more trouble ahead from a judge concerned about the prosecutor's handling of the Duke lacrosse case.

A week before Nifong is scheduled to go before the N.C. State Bar to find out whether that organization will punish him for his conduct in the case, Judge W. Osmond Smith III filed a memorandum in Durham County Superior Court noting that he retains control over the lacrosse case and has the power to discipline Nifong as well.

Smith, the Superior Court judge who presided over the case against three former Duke lacrosse players, wrote that significant concerns about evidence arose during a Dec. 15 hearing, months before Roy Cooper, the state attorney general, dismissed the charges and called Nifong a "rogue prosecutor."

At the December hearing, DNA expert Brian Meehan testified that he and Nifong agreed to withhold test results from the defense, including the fact that DNA from unidentified men not on the lacrosse team was found in and on the accuser's body.

"Significant concerns regarding discovery issues arose from the December 15, 2006 hearing," Smith wrote in the memorandum filed Tuesday. "Since the hearing was recessed without completion ... these concerns were not addressed by the Court at that time, and due to subsequent developments have not yet been addressed by the Court."

Power to discipline

Under North Carolina law, both the State Bar and trial court judges have the power to discipline lawyers for misconduct. Trial judges such as Smith can take a wide range of disciplinary actions; Smith could scold Nifong, disbar him or even send him to jail for contempt of court.

Cooper dismissed criminal charges against the three former Duke lacrosse players in April and took the unusual step of declaring their innocence.

Even though the criminal charges are dismissed, Smith wrote, a number of issues remain unresolved. Those include any requests the players might have to expunge their records and any matters related to sealed records.

Smith also wrote that he maintains authority over the actions of attorneys involved in the case, including Nifong.

The N.C. State Bar has charged Nifong with a number of ethical violations, including withholding DNA evidence favorable to the defense and then lying about that to judges and other court officials.

Nifong did not return a call to his office seeking comment.

David Freedman, one of two Winston-Salem lawyers representing Nifong before the Bar, downplayed the new court document.

"This order does not just come out of thin air," Freedman said. "This is in conjunction with the letter that Judge Smith sent to the State Bar this week as to why he could not be a witness for anybody. I contend the two need to be read hand in hand."

James Coleman, a Nifong critic and a Duke University law professor who has followed the lacrosse case closely, lauded Smith for leaving the disciplinary possibility open.

"Judges should not tolerate this crap," Coleman said. "They see it all the time. If they don't do anything about it, that's how it keeps going on. [Nifong's] behavior was a total affront to the court."

"Prosecutors can ruin lives very easily, they do it and clap their hands and say never mind and move on," Coleman added. "Courts have basically ignored it. I've seen misconduct by prosecutors in a capital case where everyone recognizes the misconduct, but the judge declares it a harmless error. Then the prosecutors show up at the execution."

Another peril

Nifong also faces potential trouble from the senior judge in Durham, Superior Court Judge Orlando Hudson, who is in charge of a pending request from Durham resident Beth Brewer to remove Nifong from office.

Hudson has declined to hear the matter, saying he will wait for the State Bar to resolve its ethics charges against Nifong.

When Cooper dropped the charges against the three former Duke lacrosse players, he criticized Nifong's zeal to prosecute.

There have been calls for the prosecutor's resignation since Cooper's biting admonishment of Nifong on national TV and his declaration that the accused players were innocent of all charges against them.

In April, Hudson said that despite Brewer's push to move ahead with a hearing, he planned to wait for the bar proceedings.

"She may not understand what a benefit the bar hearing would be to the court in a subsequent hearing to remove him," Hudson said of Brewer's April request.

"In that State Bar hearing, there are going to be issues that are very similar to what the court would have to find. I really think it's going to be a very thorough trial."