Judge eyes Nifong's conduct in Duke lacrosse case

DURHAM -- Durham District Attorney Mike Nifong is now facing possible discipline on a new front — before the Superior Court judge who had been presiding in the Duke lacrosse case.

Nifong goes to Raleigh on Tuesday to find out whether the N.C. State Bar will punish him for his conduct in the case.

But he also has troubles at home in Durham: The judge who oversaw the lacrosse case signaled this week that he retains control over the case and has the power to discipline lawyers who appeared before him.

Superior Court Judge W. Osmond Smith III wrote that significant concerns about evidence arose during a Dec. 15 hearing, months before the state Attorney General's Office dismissed the charges. At the 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 was found in and on the accuser's body.

The N.C. State Bar has charged Nifong with a number of ethical violations, including withholding DNA evidence favorable to the defense.

Under North Carolina law, the State Bar and trial court judges both have the power to discipline lawyers for misconduct, so Nifong faces the prospect of punishment from both.

Trial judges such as Smith can take a wide range of actions in disciplining lawyers; Smith could scold Nifong, disbar him or even send him to jail for contempt of court.

"Significant concerns regarding discovery issues arose from the December 15, 2006 hearing," Smith wrote in an order filed Tuesday. Although criminal charges were dismissed, Smith clearly has questions about Nifong's conduct: "Certain other of those concerns remain as they pertain to actions of counsel."

Smith said he has the authority and duty to act over several issues, including "matters related to disciplinary actions involving attorneys before the court."

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.

Attorney General Roy Cooper dropped charges against three former Duke University lacrosse players in April and 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 Beth 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."