Nifong contests contempt charge

If convicted, former prosecutor faces jail

DURHAM -- Former Durham District Attorney Mike Nifong began fighting a criminal contempt of court charge today in the same courtroom where he once prosecuted people accused of crimes.

Nifong, who was stripped of his law license this month, is facing Judge W. Osmond Smith III on the charge, which arose from his handling of the Duke lacrosse case.

The former prosecutor pleaded not guilty this morning. And at the close of prosecution evidence this afternoon, Smith refused Nifong's motion to dismiss the charge.

If found in contempt, Nifong could face a $500 fine or spend up to 30 days in jail.

Smith, the Superior Court judge assigned to the Duke lacrosse case, said the hearing would address a narrow question: whether Nifong lied to him on Sept. 22, 2006.

That day, defense attorneys pressed Nifong about a May 2006 report on DNA evidence. The report was prepared by Brian Meehan, director of a private DNA-testing lab in Burlington.

Those tests revealed that DNA from unidentified had been found on the body and clothing of the woman who accused team members of raping her. Those results, which would have been helpful to the defense team, were not included in the May report.

Nifong's lawyer, Jim Glover of Chapel Hill, told the judge that Nifong had not read the DNA report at the time and wasn't fully aware of all it contained.

"I think you will find that although his statements were not literally true, they were not willful, purposeful lies," Glover said.

"The question is not whether those statements Mr. Nifong made are literally true or literally false," Glover told Smith. "The question is were they willfully and intentionally false and were they also part of an effort ... to hide potentially exculpatory evidence, and that's the issue before the court."

Benjamin Himan, the lead investigator in the case, testified that Brian Meehan, director of DNA Security, told him, Nifong and Sgt. Mark Gottlieb at one of two meetings in April that DNA from four other men had been detected.

The information was not included in the report, which went to defense lawyers on May 12.

Himan said he did not concern himself so much with what was in the report.

"Mr. Nifong asked for the report," Himan testified. "He looked at the report. I thought if he had thought something should have been in the report, he would have asked for it."

Nifong's lawyer suggested that the defendants were given evidence showing that none of their DNA was in and on the body of the escort service dancer who accused them.

Brad Bannon, a lawyer for one of the accused players, testified today that in November, he pored over documents that led him to realize that DNA from other men existed.

When Glover suggested that he had dug up nothing more favorable beyond what had been in the May 12 DNA Security report, the defense lawyer shot back angrily.

"That is absolutely false," Bannon responded. "And you know it."

Three lacrosse players had been charged with raping Crystal Gail Mangum, an escort service dancer hired to perform at a team party in March 2006. The three -- Dave Evans, Collin Finnerty and Reade Seligmann -- were declared innocent of all charges in April.

The contempt charges are limited to a short exchange during the September hearing, when Smith asked Nifong whether the May 2006 DNA report given to defense lawyers was complete: "So his [Meehan's] report encompasses it all?"

Nifong answered haltingly: "His report encompasses ever -- because we didn't -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that's just, that would be counterproductive. It did not happen here."

The judge pressed for an answer: "So you represent there are no other statements from Dr. Meehan?"

Nifong responded, "No other statements. No other statements made to me."

Himan testified today that the report did not include everything Meehan had discussed with Nifong and police in April and May.

Meehan has said that he told Nifong several times that tests found DNA from unidentified men on Mangum's body and underwear. Nifong has confirmed Meehan's account in interviews and sworn testimony.