- The Washington Times - Friday, December 29, 2006

RALEIGH, N.C. — The North Carolina bar filed ethics charges yesterday against the prosecutor in the Duke lacrosse rape case, accusing him of saying misleading and inflammatory things to the media about the athletes under suspicion.

The punishment for ethics violations can range from admonishment to disbarment. The complaint also could force District Attorney Mike Nifong off the case by creating a conflict of interest.

“He’s got this hanging over his head,” said Thomas Metzloff, a Duke law professor and member of the bar’s ethics committee for the past 10 years. “It relates so much to his underlying conduct in the case.”

Among the four rules of professional conduct that District Attorney Mike Nifong was accused of violating was a prohibition against making comments “that have a substantial likelihood of heightening public condemnation of the accused.”

In a statement, the bar said it opened a case against Nifong on March 30, a little more than two weeks after a 28-year-old woman hired to perform as a stripper at a lacrosse team party said she was gang-raped.

The ethics charges will be heard by an independent body called the Disciplinary Hearing Commission, made up of both lawyers and non-lawyers.

Nifong did not immediately return a call for comment.

The bar cited 40 quotations and eight paraphrased statements made to newspaper and TV reporters, saying many of them amounted to “improper commentary about the character, credibility and reputation of the accused” or their supposed unwillingness to cooperate. Most of the comments were in March and April, in the early days of the case.

Among them:

• Nifong referred to the lacrosse players as “a bunch of hooligans.”

• He declared: “I am convinced there was a rape, yes, sir.”

• He told ESPN: “One would wonder why one needs an attorney if one was not charged and had not done anything wrong.”

• He told the New York Times: “I’m disappointed that no one has been enough of a man to come forward. And if they would have spoken up at the time, this may never have happened.”

Nifong also was charged with breaking a rule against “dishonesty, fraud, deceit and misrepresentation.” The bar said that when DNA testing failed to find any evidence a lacrosse player raped the accuser, Nifong told a reporter the players might have used a condom.

According to the bar, Nifong knew that assertion was misleading because he had received a report from an emergency room nurse in which the accuser said her attackers did not use a condom.

Defense attorney Joseph Cheshire, who represents one of the three athletes, declined to comment.

Last week, Nifong dropped the rape charges against the athletes after the stripper wavered in her story, saying she was no longer certain. The men still face charges of kidnapping and sexual offense.

In recent months — and especially after last week — legal experts and even Nifong’s own colleagues have warned openly that the case appears pitifully weak.

“One wonders what the effect of this will be,” Stan Goldman, who teaches criminal law at Loyola Law School in Los Angeles, said after the ethics charges were filed. “Is this going to result in him treating the case more gingerly and deciding it’s not worth pursuing, or is he going to get his back up and decide he’s got to pursue this case to the end regardless?”

The athletes, Reade Seligmann, Collin Finnerty and David Evans, have maintained their innocence and called the charges “fantastic lies.” The case is not expected to go to trial until at least the spring.

The weaknesses in the case include the lack of DNA evidence; the accuser’s ever-shifting story; one player’s claim to have an alibi supported by receipts and time-stamped photos; and the defense’s insistence that the photo lineup used to identify the defendants violated police procedures and was skewed against the men.

Before the ethics charges were filed, Bob Brown, an attorney in private practice who once worked with Nifong in the prosecutor’s office, predicted the case would be a “bloodbath” for the prosecution if it went to trial.

Among other questions raised in recent weeks: Why did it take months for anyone from Nifong’s office to interview the accuser? And why did Nifong initially withhold from the defense DNA test results that found genetic material from several men — none of them Duke lacrosse players — on the accuser’s underwear and body?

“I don’t see how any member of the public can have confidence in this case. I think it’s making a mockery of our criminal justice system to permit this guy to keep fumbling along,” Duke University law professor James Coleman, one of Nifong’s leading critics, said before the ethics charges were filed. “It’s either total incompetence or it’s misconduct on a scale that is extraordinary.”

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