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."