The Complaint

Some quick reactions, with more detailed analysis to follow.

1.) This filing is the beginning of the end of Nifong’s career as Durham D.A.

The filing focuses 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.”

2.) There is no reason to believe that the bar will not take other actions against Nifong.

The bar surely would have to consider filing 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.

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.

3.) The bar dismisses Nifong’s canard that Rule 3.8(f) applied only once he had obtained charges against Reade Seligmann and Collin Finnerty.

First, the complaint notes that many of Nifong’s procedurally improper statements occurred after charges were filed.

Second, the complaint correctly reasons that nothing in the wording of Rule 3.8(f) suggests that it applies only after indictments have been obtained, rather than (as occurred here) once suspects have been identified.

4.) The 17-page complaint—the ethics equivalent of an indictment—is detailed.

The bar contends that Nifong’s improper statements affected the proper administration of justice in at least six ways:

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;
Improperly using hypothetical comments to explain away the existence of exculpatory evidence;
Improper commentary about the “character, credibility, and reputation of the accused”;
Improperly making statements that heightened public condemnation of the accused.

5.) One set of these violations was worse than all the others.

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

6.) It’s hard to see how Nifong can remain on the case when he is a defendant on ethics charges growing out of his conduct in the case.