Analyzing the Complaint

“Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation . . .”

--The North Carolina State Bar v. Michael B. Nifong, p. 16.

In yet another extraordinary turn of events in a case that has involved many such turns, yesterday afternoon, just after 5.00pm, the North Carolina State Bar announced that it had filed an ethics complaint against Mike Nifong. The filing focused solely on his procedurally improper public statements, which the Bar (correctly) contends violated Rule 3.8(f) of the Code of Professional Responsibility. That provision requires prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Importantly, the bar complaint also alleges that Nifong’s violations of 3.8(f) were of such magnitude that they ran afoul of Rule 8.4(c) and Rule 8.4(d), which state that prosecutors cannot “engage in conduct involving dishonesty, fraud, deceit or misrepresentation”; or “engage in conduct that is prejudicial to the administration of justice.”

1.) The Timing

The bar was not required to publicly release its complaint. Indeed, the bar could have filed the complaint under seal, with the understanding that the Disciplinary Hearing Commission would address the Nifong matter after the lacrosse case ended.

That the bar acted publicly—and did so out of the blue, not even waiting for its next scheduled meeting, in mid-January—can only be interpreted as an unequivocal repudiation of Nifong by the legal leadership of his state. It is no coincidence, in short, that the complaint was publicly released less than a week after Nifong’s most bizarre move to date—his manipulation of the evidence to drop charges of rape but retain allegations of sexual assault, in light of the December 15 hearing.

In some respects, the symbolism of the filing is almost as important as the substance.

That the bar would act in this manner suggests that the complaint is only the first shoe to drop, and that other actions will be taken against Nifong. If the bar found Nifong worthy of discipline for his extra-judicial comments, then it surely would have to consider an ethics complaint against Nifong for his conspiracy with Dr. Brian Meehan to hide the exculpatory evidence. Given the recent nature of this revelation, no public filing on this matter could occur at this stage, since procedurally, Nifong is entitled to a response period before the bar decides whether to move forward.

Also, the bar would at least have to consider ethics complaints on issues relating to Nifong’s ordering the police to violate their own procedures in the flawed April 4 lineup. Yet it would be unlikely that a complaint would be filed as long as the matter is pending before Judge Smith.

2.) The Specifics

The complaint divides Nifong’s comments into six types of violations. The worst type, it contends, involved the D.A.’s public speculation that a condom might have been used, when he knew or should have known that the accuser had explicitly stated that her alleged assailants did not use condoms (at least in the version of events she was offering at the time).

The two remarks the bar highlights:

(March 31, MSNBC): “If a condom were used, then we might expect that there would not be any DNA evidence recovered from say a vaginal swab.”

(April 11, Charlotte Observer): “I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex.”

With these remarks, according to the bar, “Nifong engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.” The bar correctly kept in mind the context of DNA and Nifong’s public statements. In the March 23 NTO and then in public statements on March 27 and March 28, Nifong had repeatedly asserted that DNA existed and would both clear and innocent and identify the guilty. Then, suddenly, the DNA tests came back without a match—and, according to the bar, the D.A. decided to engage in “fraud” and “deceit” to explain away the results.

Consider the ramifications of this wording, and how it would affect any trial or even the February 5 hearings. Defense attorneys do not need to undermine Nifong’s credibility—the State Bar has already publicly associated him with such characteristics as dishonesty, fraud, deceit, and misrepresentation.

In the 17-page complaint—the ethics equivalent of an indictment—the bar laid out the five other ways in which Nifong’s improper statements affected the proper administration of justice:

• Improper commentary on the lacrosse players’ invocation of their constitutional rights;
• Improper commentary on the evidence to be presented in the case;
• Improper commentary about the guilt of the accused;
• Improper commentary about the “character, credibility, and reputation of the accused”;
• Improperly making statements that heightened public condemnation of the accused.

In the process, the complaint detailed many of the quotes that close followers of the case long had have found outrageous—and, indeed, that were many months ago indexed, in one of the most important archival developments of the case, by Nancy Kidder.

Cited statements included:

• “I’m disappointed that no one has been enough of a man to come forward.”
• “One would wonder why one needs an attorney if one was not charged and had not done anything wrong.”
• “There is evidence of trauma in the victim’s vaginal area that was noted when she was examined by a nurse at the hospital. And her general demeanor was suggestive of the fact that she had been through a traumatic situation.”
• “Somebody had an arm around her like this, which she then had to struggle with in order to be able to breathe, and it was in the course of that struggle that the fingernails—the artificial fingernails broke off.” (the infamous “chokehold” interview)
• “The contempt that was shown for the victim, based on her race was totally abhorrent. It adds another layer of reprehensibleness, to a crime that already reprehensible.”

The motion itself is here. The cumulative effect of these quotes—inflammatory statement after inflammatory statement; misleading assertion after misleading assertion; inaccurate claim after inaccurate claim—is extremely powerful.

3.) The defendant (Nifong) has a very weak case.

Nifong has offered a variety of defenses for his actions: (1) that he didn’t “accuse anybody of any crime”; (2) that he just wanted to encourage people to “cooperate with the investigation”; (3) that he sought to “effectuate a more accurate public discourse on an issue with great social resonance”; (4) that Rule 3.8(f) doesn’t apply until people are indicted; and (5) his speaking out reassured people that “the community was in good hands with respect to this case, and they did not need to worry about it.”

Item (5), of course, is transparently absurd in light of the bar’s filing. The bar makes short shift of items 1-3, as well.

The complaint spends some more time with item (4), noting that Nifong made at least 10 procedurally improper statements “after suspects had been identified.”

4.) Nifong has become a pariah among serious thinkers about the law.

Two hours before the ethics complaint became public, the AP’s Aaron Beard filed a story filled with condemnations of Nifong from prominent law professors. Beard apparently couldn’t find any law professor to defend Nifong.

Loyola Law’s Stan Goldman: if Nifong succeeds in getting the case to trial, “This guy would be the poster child in public defenders' offices around the country as the quintessential bad DA.”

Duke Law’s James Coleman, the shining light of this case: “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. It’s either total incompetence or it's misconduct on a scale that is extraordinary.”

According to the AP article, even former Nifong enablers such as Woody Vann and Norm Early have essentially ceased defending him.

5.) By making the complaint public, the bar has presented Nifong with a conflict of interest in remaining on the case, since he is now a defendant on ethics charges growing out of his conduct in the case.

The result: he likely will be recuse himself or be removed as prosecutor. Since any member of his office would face the same conflict of interest as Nifong, it’s hard to see how Judge Osmond Smith could allow a Durham assistant district attorney to prosecute the case.

Such a development would bump up the case to the special prosecutions division of the Attorney General’s office. But why would Roy Cooper want to take over a sinking ship? And would any other DA in the state be willing to step in and prosecute the case if Cooper refuses to involve himself? In short, the bar’s actions raise the possibility that this could become the case without a prosecutor—setting the stage for a dismissal.

A final note: readers of the comments section of this blog should recall that DIW reader Kemperman spoke personally with a member of the bar’s executive board several weeks ago, and foretold of this move by the bar. A major hat tip is in order.

A few weeks before the election, Friends of Duke spokesperson Jason Trumpbour predicted that Governor Easley would choose the next D.A.—immediately if Lewish Cheek prevailed, sometime thereafter if Nifong won, given the likelihood of ethics charges. In light of the bar’s actions, Trumpbour looks prescient.