Duke DA Answers Critics: Denies Unethical Conduct, Wants Some Charges Dropped

Durham County District Attorney Mike Nifong has filed his response to allegations by the North Carolina Bar Association that he acted unethically in his handling of the Duke lacrosse team case.

In the document, released Wednesday afternoon, Nifong systematically denied all the charges against him and struck back, calling for many of them to be dismissed.

In the document, which is Nifong's first complete and official response to the bar association's charges, he addresses allegations that he violated any rules of professional conduct. A complaint filed by the North Carolina Bar Association accused Nifong of violating at least a dozen of those rules by allegedly withholding possible exculpatory DNA evidence from the defense, making misleading statements before a judge, and making inappropriate comments about the case in a series of press interviews.

According to the bar association's complaint, Nifong exhibited "conduct that involves dishonesty, fraud, deceit or misrepresentation, as well as conduct that is prejudicial to the administration of justice."

That complaint triggered a disciplinary process that required Nifong to respond. It also requires him to appear at an ethics trial, currently scheduled for June 2007, during which a three-member panel will decide whether Nifong is guilty of the alleged violations.

If it sees fit, that panel can choose to punish Nifong -- and the punishment could be harsh. Among the range of disciplinary options, the bar could choose to issue Nifong a private admonition, suspend his law license or permanently disbar him. The latter two options mean he would lose his position as the Durham County district attorney, not to mention his retirement pension.

The North Carolina Bar Association, along with defense attorneys for the three indicted Duke lacrosse players, have accused Nifong of withholding potentially exculpatory evidence from DNA tests that compared samples from Duke lacrosse players against samples of evidence taken from the accuser.

A rape kit was performed on the accuser hours after the March 13 party, at which she claimed to have been sexually assaulted by members of the Duke lacrosse team.

It was determined from those tests that no DNA evidence from the accuser's body or clothing matched samples provided by members of the Duke lacrosse team. There were, however, sample traces of DNA from five to nine unidentified males found on her underwear and rape kit swabs.

"Nifong did in fact provide the [Duke Lacrosse defendants], through discovery, a report of the results of all tests and examinations," the response said.

Attorneys for Nifong argue that because there was no trial ongoing at the time -- no trial date had even been set -- the due process rights of the Duke lacrosse players were not violated by the alleged withholding of DNA evidence.

"Unless the omission deprived the defendant of a fair trial, there was no constitutional violation … no breach of the prosecutor's constitutional duty to disclose," the response said.

The party where the alleged rape occurred took place on March 13, 2006. Nifong learned about the case on March 22 and by March 27, he was giving a series of interviews to local and national media. The bar argued that Nifong, a prosecutor for almost 30 years, should have realized his comments to the press would have been widely distributed, and that they had "a substantial likelihood of prejudicing the criminal adjudicative proceeding."

Nifong's statements to reporters included information about the evidence and testimony in the case, as well as the alleged refusal of Duke lacrosse team members to cooperate with the investigation.

When it comes to his interviews with local and national media outlets, Nifong's attorneys argued that if the prosecutor was guilty of anything, it was inexperience. Finding himself in the middle of the Duke lacrosse case while running a primary election campaign for district attorney, Nifong was a political novice with no experience handling high-profile national cases.

He didn't realize, lawyers argued, that the Duke lacrosse case would become a press spectacle. Once the media's intense interest in the case became clear, they said, he stopped giving interviews and restricted his comments to printed releases and a handful of candidate forums.

The Duke players' defense team refutes that argument, in part by pointing to a letter sent from defense attorney Joe Cheshire to Nifong. The letter was dated March 30, three days after Nifong began making public statements.

Cheshire admonished Nifong, saying, "Your reported comments have greatly prejudiced any court proceedings that may arise."

"I do not understand why you will reportedly speak to the media in such certain, condemning terms before all the evidence is in … despite your knowledge of the presumption of innocence and your position as an officer of the court bound by the rules of professional conduct related to pretrial publicity."

Nifong's controversial comments included this statement to the News & Observer in April: "I would like to think that somebody has the human decency to call up and say, 'What am I doing covering up for a bunch of hooligans?'"

Nifong also stated in a March 2006 television interview that "[T]here is no doubt a sexual assault took place."

At one point, Nifong suggested that lacrosse players may have been wearing condoms at the time of the alleged assault and becuase of that, there was no DNA left behind. This became one of his most controversial comments after it was determined that he made that statement after he saw a medical report that states no condoms were used in the alleged attack.

In his repons, Nifong offers some insight into the discrepancy. He admits to having seen the medical report, but says that based on his experience, "a complaining witness rarely ever knows whether a condom was used in a sexual assault." Because Nifong was not sure whether or not a condom was used, he argues, there is no reason his statements were misleading.

Ethics Case Takes a Personal Toll; Nifong Ambushed, Family Heckled

Sources close to Nifong said the Duke lacrosse case and the charges of unethical conduct have taken an enormous personal toll on the embattled prosecutor.

They said Nifong's teenage son is heckled at school, his office gets hate mail from around the country, and he has been aggressively pursued by the press. Cameras recently ambushed him as he was stepping out of his house in a bathrobe; the footage later appeared on Fox News.

A source working in Nifong's office said things have been "business as usual" at his workplace, but that he is "clearly holding up a wall" as he tries to keep a smile on his face.

To blow off steam, Nifong plays music in his office -- he is known to shut his door and blast bluegrass music on particularly bad days.

"One thing that hurts him is that he's being portrayed as not being fair," Nifong's friend Bob Nauseef told ABC News. Nauseef has been asked by Nifong to serve as a potential character witness in the ethics case.

"I think of all things during this whole process, I think he feels like that he has been as fair as he could be," Nauseef said.

"He's devastated," Nifong attorney David Freedman told "Good Morning America" several weeks ago. "It's very upsetting to be attacked. … It's like he's public enemy No. 1."

Freedman added, however, that given the chance, Nifong would bring the charges again.

"I have asked him if he would do it all over again. … He said yes, because he believes that indeed that this [crime] occurred. He may regret some of the things he may have said. [But] I don't think he would have changed his mind about the charges."

Friends of Nifong say it's the charge of lying before the court that upsets Nifong the most.

"I think what troubles him is the allegation of untruthfulness to the tribunal to the judge," said Nauseef.

"If you polled the courthouse before this case happened, you might have found lots of adjectives to describe Mike Nifong, but two of them you would never hear from folks is 'untruthful' and 'unethical,'" Nauseef said.

There is no trial date set for indicted Duke lacrosse players David Evans, Collin Finnerty and Reade Seligmann. They still face charges of kidnapping and first degree sexual offense.

Special prosecutors Jim Coman and Mary Winstead from the North Carolina attorney general's office will decide whether to drop those charges or to take their case to court. The next hearing in the case is scheduled for May 7.