News & Observer | newsobserver.com | Nifong, bar will both be judged

Published: Jun 10, 2007 12:30 AM
Modified: Jun 10, 2007 08:06 AM

Nifong, bar will both be judged

Recent lapses put regulators on spot

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Many North Carolina lawyers, starting with the state's attorney general, have shunned Durham District Attorney Mike Nifong as a rogue prosecutor.

But when he faces a disciplinary hearing this week for his handling of the sexual assault case arising from a Duke lacrosse team party last spring, the entire State Bar will face judgment with him.

The N.C. State Bar, the state agency that licenses and disciplines lawyers, will be on a symbolic trial for its own spotty history of effective oversight.

"I hope everybody is watching the State Bar," said state Sen. Tony Rand, a lawyer and the Fayetteville Democrat who is the Senate majority leader. "It's exceedingly important that they believe the agency that regulates the practicing bar is serious about ethical and misconduct cases."

As Nifong fights to save his law license, he goes before a bar battling its own image problems.

The State Bar has disbarred about 170 lawyers since 1996. But never has a North Carolina prosecutor been deprived of the ability to practice law, even for a single day, because of prosecutorial misconduct.

In 2004, the bar came under withering criticism for its tepid prosecution of two lawyers from the state Attorney General's Office who put an innocent man on death row.

In 2006, there was more uproar when the bar's judicial arm cited technicalities to dismiss charges of misconduct against two more prosecutors in a death-penalty case.

This time, there is pressure for the bar to get it right, especially when it comes to handling a case against a district attorney roundly criticized by the top prosecutor in the state.

Many people are expected to tune in to hear the testimony of Nifong, police investigators and others involved with the lacrosse case who have never been closely questioned in public.

State legislators will be watching. The bar's past lapses have prompted legislators to discuss whether lawyers should be trusted with the power to regulate themselves.

"We will be closely watched, both locally and across the country," said L. Thomas Lunsford, the State Bar director. "I'm confident anyone who watches attentively will come away convinced that we're taking this matter seriously and will be convinced it's been handled very appropriately."

The State Bar has charged Nifong with a number of ethical violations: making inflammatory statements out of court, misleading the public, hiding DNA evidence favorable to the defense and then lying about it to the court.

The last charge, withholding evidence, took center stage in the case of former death row inmate Alan Gell, a Bertie County man wrongly convicted of murder in a slaying that happened while he was in jail on unrelated vehicle theft charges.

In that case, two prosecutors from the Attorney General's Office, David Hoke and Debra Graves, withheld statements given by people who saw the victim alive after Gell had been jailed. The prosecutors also withheld a tape recording of the state's star witness saying she had to "make up a story" for the police.

The misdeeds of the prosecutors won Gell a new trial in 2002. With the tape and statements available to him at retrial, Gell was speedily acquitted of charges that could have led to a life sentence.

The bar delivered a written reprimand to Hoke and Graves after a two-day hearing on misconduct charges. The lenient punishment was widely criticized. In response, the State Bar held a public meeting in October 2004 in a downtown Sheraton hotel ballroom (by coincidence, the same room where the lacrosse players held a news conference after their exoneration in April).


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Staff writer Anne Blythe can be reached at 932-8741 or anne.blythe@newsobserver.com.
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