RALEIGH - The Disciplinary Hearing Commission of the North Carolina State Bar rejected a motion to dismiss the most serious ethics charges against Durham District Attorney Mike Nifong at a hearing Friday afternoon.
"We have reached a consensus that the motion to dismiss will be denied... because it requires us to consider matters outside of the face of the complaint which would be inappropriate for us to do," said Lane Williamson, chair of the hearing commission, after listening to motions from Nifong's lawyers.
The Bar charged Nifong with breaking several rules of professional conduct in his handling of charges against three members of 2005-2006 men's lacrosse team.
It accused him in December of making inflammatory pretrial statements to the media. The Bar added a charge in January of withholding potentially exculpatory DNA evidence from the defense.
The hearing came two days after North Carolina Attorney General Roy Cooper dismissed all remaining charges against the indicted former players and harshly criticized Nifong's conduct in the case.
Nifong's lawyers, Dudley Witt and David Freedman, asked the three-member panel to drop the charges regarding Nifong's concealment of critical DNA test results Friday.
Witt said Nifong turned over the underlying data of the test results to the defense and informed attorneys that the lab director would be called on to serve as an expert witness months before a trial was set to begin.
Williamson, however, challenged this statement.
"An uncharitable person would say that's the way you would do it if you were trying to hide it," he said.
The results showed that the DNA collected from the clothing and body of Crystal Gail Mangum, the accuser in the case, was from four unidentified men but failed to match any of the members of the lacrosse team.
"[The lacrosse players] might have pled guilty never knowing that the DNA evidence was exculpatory," Bar counsel Katherine Jean said. "It's a scary concept."
Witt also said there are no guidelines as to what timeline a prosecutor must follow in turning over evidence to the defense in a criminal case."[The Bar has] the burden of proving that he violated an existing standard," he said. "They can't articulate the standard."
Williamson said that, ultimately, these arguments were irrelevant in a motion to dismiss the charges against Nifong and should be discussed at his trial, set for June.
If convicted of ethics violations, Nifong could face disbarment.
"The issues here are pretty simple," Williamson said. "Did he talk too much during the pretrial statements? Is there a legitimate law enforcement purpose for those statements... and on the DNA evidence did he reveal what he should have revealed by the time he should have revealed?"
A handful of Nifong supporters were in attendance at the hearing, including community activists Victoria Peterson and Jackie Wagstaff.
"I'm here because I think that the whole process is a constitutional violation of Nifong's rights," Wagstaff said. "I think in his professional duties as district attorney of Durham, he did what he had to do."
Others present at the hearing sported buttons bearing the words, "Fantastic Lies," in reference to David Evans' characterization of the accusations soon after they surfaced.
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