< Previous page

Debacle for bar

Dudley Humphrey, then-president of the bar, was met with derisive laughter when he asserted that Gell was not the victim in the prosecutorial misconduct case. "The system was the victim," Humphrey said.

The bar appointed a panel to review the Hoke and Graves case and make recommendations for handling future high-profile cases.

The Nifong case has been conducted differently.

The bar's investigation of Hoke and Graves was weak. Crucial witnesses were never contacted and the detective who was the only witness to the withholding of evidence was never interviewed.

Gell, who suffered the most from the prosecutorial misconduct, was never contacted by bar lawyers, nor was he informed that the Hoke and Graves trial was taking place.

For Nifong's case, State Bar representatives early on contacted the three exonerated lacrosse players: Dave Evans, Collin Finnerty and Reade Seligmann. Seligmann, Evans' father and Finnerty's mother are expected to testify.

The bar has turned to outside legal help, budgeting $125,000 to hire Douglas J. Brocker, a lawyer in private practice who built a reputation as a dogged and thorough prosecutor when he worked at the State Bar.

Brocker is working with Katherine Jean, the bar's top counsel.

For months, the two have pored over the extensive Nifong file and interviewed key witnesses under oath, including Nifong, Durham police investigators, the head of the private lab whose DNA test results were withheld and the nurse who examined the accuser in the Duke emergency room.

But perhaps the biggest difference between the coming trial and the past two is a rule change prompted by the Hoke and Graves case.

In 2004, the bar had the high standard of proving that the prosecutors knowingly withheld evidence. Hoke testified that he had not read the entire file and argued that the State Bar rules did not require prosecutors to do so.

New rule, new game

It will be much harder for Nifong to use that sort of negligence defense; the State Bar changed its rules to require prosecutors to diligently seek out evidence favorable to the defense and hand it over.

"What's ironic is that what Nifong allegedly did to those kids at Duke is exactly what Hoke and Graves did, that being withholding evidence of possible innocence," said Mark Chilton, the Carrboro mayor and an Orange County lawyer who has been outspoken on the Gell case.

"I hope it sets a precedent in some ways for the level of seriousness that the State Bar plans to deal with these things. It won't make me feel any better about the Gell case."

In the other high-profile case against prosecutors, the State Bar went vigorously after Kenneth Honeycutt and Scott Brewer of Union County, charging them with lying, cheating and withholding evidence in a 1996 death penalty case.

The bar's Disciplinary Hearing Commission, a panel that sits as judge and jury in such cases, dismissed the charge because defense lawyers in the murder case had missed a deadline for filing a grievance.

The bar tried to reinstate the charges, arguing that Honeycutt and Brewer had committed felonies such as obstruction of justice and subornation of perjury. But the Disciplinary Hearing Commission dismissed the charges, citing a clerical error at the office of the Clerk of the N.C. Supreme Court.

Many lawyers acknowledge that the State Bar's attention to the prosecutorial misconduct case against Nifong is different.

"The difference is that this case really has gotten so much publicity that the elder statesmen of the bar are embarrassed and they're going to demand something different," said Bill Massengale, a Chapel Hill lawyer and former prosecutor. "Mike Nifong's carrying the baggage for the Gell case and the baggage of the Honeycutt and Brewer case."

Nifong himself acknowledged that baggage in a letter Dec. 28 to the bar.

"For some time now, the 'word on the street' in prosecutorial circles has been that the North Carolina State Bar, stung by the criticism resulting from past decisions involving former prosecutors with names like Hoke and Graves and Honeycutt and Brewer, is looking for a prosecutor of which to make an example," Nifong wrote. "None of us, of course, wants to be that prosecutor; just as importantly, none of us wants to believe that such considerations would ever enter into the Bar's deliberations in any case."

< Previous page