Nifong, Bar Will Both Be Judged: Recent Lapses Put Regulators on Spot

Jun 10, 01:35 PM

Current Headlines: By Anne Blythe and Joseph Neff, The News & Observer, Raleigh, N.C.

Jun. 10--Many North Carolina lawyers, starting with the state's attorney general, have shunned Durham District Attorney Mike Nifong as a rogue prosecutor.

But when he faces a disciplinary hearing this week for his handling of the sexual assault case arising from a Duke lacrosse team party last spring, the entire State Bar will face judgment with him.

The N.C. State Bar, the state agency that licenses and disciplines lawyers, will be on a symbolic trial for its own spotty history of effective oversight.

"I hope everybody is watching the State Bar," said state Sen. Tony Rand, a lawyer and the Fayetteville Democrat who is the Senate majority leader. "It's exceedingly important that they believe the agency that regulates the practicing bar is serious about ethical and misconduct cases."

As Nifong fights to save his law license, he goes before a bar battling its own image problems.

The State Bar has disbarred about 170 lawyers since 1996. But never has a North Carolina prosecutor been deprived of the ability to practice law, even for a single day, because of prosecutorial misconduct.

In 2004, the bar came under withering criticism for its tepid prosecution of two lawyers from the state Attorney General's Office who put an innocent man on death row.

In 2006, there was more uproar when the bar's judicial arm cited technicalities to dismiss charges of misconduct against two more prosecutors in a death-penalty case.

This time, there is pressure for the bar to get it right, especially when it comes to handling a case against a district attorney roundly criticized by the top prosecutor in the state.

Many people are expected to tune in to hear the testimony of Nifong, police investigators and others involved with the lacrosse case who have never been closely questioned in public.

State legislators will be watching. The bar's past lapses have prompted legislators to discuss whether lawyers should be trusted with the power to regulate themselves.

"We will be closely watched, both locally and across the country," said L. Thomas Lunsford, the State Bar director. "I'm confident anyone who watches attentively will come away convinced that we're taking this matter seriously and will be convinced it's been handled very appropriately."

The State Bar has charged Nifong with a number of ethical violations: making inflammatory statements out of court, misleading the public, hiding DNA evidence favorable to the defense and then lying about it to the court.

The last charge, withholding evidence, took center stage in the case of former death row inmate Alan Gell, a Bertie County man wrongly convicted of murder in a slaying that happened while he was in jail on unrelated vehicle theft charges.

In that case, two prosecutors from the Attorney General's Office, David Hoke and Debra Graves, withheld statements given by people who saw the victim alive after Gell had been jailed. The prosecutors also withheld a tape recording of the state's star witness saying she had to "make up a story" for the police.

The misdeeds of the prosecutors won Gell a new trial in 2002. With the tape and statements available to him at retrial, Gell was speedily acquitted of charges that could have led to a life sentence.

The bar delivered a written reprimand to Hoke and Graves after a two-day hearing on misconduct charges. The lenient punishment was widely criticized. In response, the State Bar held a public meeting in October 2004 in a downtown Sheraton hotel ballroom (by coincidence, the same room where the lacrosse players held a news conference after their exoneration in April).

That public meeting was a public-relations disaster.

Debacle for bar

Dudley Humphrey, then-president of the bar, was met with derisive laughter when he asserted that Gell was not the victim in the prosecutorial misconduct case. "The system was the victim," Humphrey said.

The bar appointed a panel to review the Hoke and Graves case and make recommendations for handling future high-profile cases.

The Nifong case has been conducted differently.

The bar's investigation of Hoke and Graves was weak. Crucial witnesses were never contacted and the detective who was the only witness to the withholding of evidence was never interviewed.

Gell, who suffered the most from the prosecutorial misconduct, was never contacted by bar lawyers, nor was he informed that the Hoke and Graves trial was taking place.

For Nifong's case, State Bar representatives early on contacted the three exonerated lacrosse players: Dave Evans, Collin Finnerty and Reade Seligmann. Seligmann, Evans' father and Finnerty's mother are expected to testify.

The bar has turned to outside legal help, budgeting $125,000 to hire Douglas J. Brocker, a lawyer in private practice who built a reputation as a dogged and thorough prosecutor when he worked at the State Bar.

Brocker is working with Katherine Jean, the bar's top counsel.

For months, the two have pored over the extensive Nifong file and interviewed key witnesses under oath, including Nifong, Durham police investigators, the head of the private lab whose DNA test results were withheld and the nurse who examined the accuser in the Duke emergency room.

But perhaps the biggest difference between the coming trial and the past two is a rule change prompted by the Hoke and Graves case.

In 2004, the bar had the high standard of proving that the prosecutors knowingly withheld evidence. Hoke testified that he had not read the entire file and argued that the State Bar rules did not require prosecutors to do so.

New rule, new game

It will be much harder for Nifong to use that sort of negligence defense; the State Bar changed its rules to require prosecutors to diligently seek out evidence favorable to the defense and hand it over.

"What's ironic is that what Nifong allegedly did to those kids at Duke is exactly what Hoke and Graves did, that being withholding evidence of possible innocence," said Mark Chilton, the Carrboro mayor and an Orange County lawyer who has been outspoken on the Gell case.

"I hope it sets a precedent in some ways for the level of seriousness that the State Bar plans to deal with these things. It won't make me feel any better about the Gell case."

In the other high-profile case against prosecutors, the State Bar went vigorously after Kenneth Honeycutt and Scott Brewer of Union County, charging them with lying, cheating and withholding evidence in a 1996 death penalty case.

The bar's Disciplinary Hearing Commission, a panel that sits as judge and jury in such cases, dismissed the charge because defense lawyers in the murder case had missed a deadline for filing a grievance.

The bar tried to reinstate the charges, arguing that Honeycutt and Brewer had committed felonies such as obstruction of justice and subornation of perjury. But the Disciplinary Hearing Commission dismissed the charges, citing a clerical error at the office of the Clerk of the N.C. Supreme Court.

Many lawyers acknowledge that the State Bar's attention to the prosecutorial misconduct case against Nifong is different.

"The difference is that this case really has gotten so much publicity that the elder statesmen of the bar are embarrassed and they're going to demand something different," said Bill Massengale, a Chapel Hill lawyer and former prosecutor. "Mike Nifong's carrying the baggage for the Gell case and the baggage of the Honeycutt and Brewer case."

Nifong himself acknowledged that baggage in a letter Dec. 28 to the bar.

"For some time now, the 'word on the street' in prosecutorial circles has been that the North Carolina State Bar, stung by the criticism resulting from past decisions involving former prosecutors with names like Hoke and Graves and Honeycutt and Brewer, is looking for a prosecutor of which to make an example," Nifong wrote. "None of us, of course, wants to be that prosecutor; just as importantly, none of us wants to believe that such considerations would ever enter into the Bar's deliberations in any case."

Staff writer Anne Blythe can be reached at 932-8741 or anne.blythe@newsobserver.com.

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