June 2007
Featured Disciplinary Case
Topic
In extraordinary situations involving allegations of prosecutorial misconduct, the disciplinary authority can proceed with formal charges against a prosecutor notwithstanding the pendency of the criminal case that involved the alleged misconduct.
Summary
North Carolina State Bar v. Michael B. Nifong, N.C. State Bar Disciplinary Hearing Comm'n, No. 06 DHC 35 (N.C. June 16, 2007). Nifong was the elected Durham County North Carolina District Attorney. He was originally licensed in North Carolina in 1978. On June 16, 2007, he was disbarred in the most highly publicized lawyer disciplinary proceeding since In re Attorney William Jefferson Clinton, Arkansas Bar I.D. No. 73019, CPC Docket Nos. 2000-013 and 2000-018.
On December 28, 2006, the North Carolina State Bar filed formal disciplinary charges against Nifong for public statements that he repeatedly made during the investigation and prosecution of three Duke University undergraduates. The prosecutor’s statements violated, in relevant part, North Carolina’s provisions on extrajudicial speech, Rules 3.6 and 3.8(f). The defendants, all members of the Duke men’s lacrosse team, had been accused of various sexual offenses and the kidnapping of an exotic dancer during the course of a party. The disciplinary charges alleged that, beginning on or before March 27, 2006, Nifong made public comments and statements to the representatives of the news media about the Duke Lacrosse rape case. He readily participated in a significant number of interviews with various newspapers and electronic media outlets and made many specific comments about the investigation and the defendants. Some examples of his statements are as follows:
- "[t]he lacrosse team, clearly, has not been fully cooperative" in the investigation and "[t]he university, I believe, has done pretty much everything that they can under the circumstances. They, obviously, don't have a lot of control over whether or not the lacrosse team members actually speak to the police. I think that their silence is as a result of advice with counsel."
- "[m]y guess is that some of this stonewall of silence that we have seen may tend to crumble once charges start to come out,"
- "[a]nd one would wonder why one needs an attorney if one was not charged and had not done anything wrong."
- "[t]here are three people who went into the bathroom with the young lady, and whether the other people there knew what was going on at the time, they do now and have not come forward. 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."
- "[a]nd the investigation at that time was certainly consistent with a sexual assault having taken place, as was the victim's demeanor at the time of the examination."
- a rape examination of the victim done at Duke Medical Center the morning of the alleged attack revealed evidence of bruising consistent with a brutal sexual assault, "with the most likely place it happened at the lacrosse team party."
- “I am convinced there was a rape, yes, sir."
- "[t]here's no doubt a sexual assault took place."
- "I would like to think that somebody [not involved in the attack] has the human decency to call up and say, "What am I doing covering up for a bunch of hooligans?"
- "[t]he contempt that was shown for the victim, based on her race was totally abhorrent. It adds another layer of reprehensibleness, to a crime that is already reprehensible."
- "[t]he thing that most of us found so abhorrent, and the reason I decided to take it over myself, was the combination gang-like rape activity accompanied by the racial slurs and general racial hostility."
- "[t]he circumstances of the rape indicated a deep racial motivation for some of the things that were done. It makes a crime that is by its nature one of the most offensive and invasive even more so."
- "[w]hat happened here was one of the worst things that's happened since I have become district attorney."
- "I'm not going to let Durham's view in the minds of the world to be a bunch of lacrosse players from Duke raping a black girl in Durham."
At the time of the criminal investigation, Nifong was facing a bitter Democratic Party primary campaign in his home county. On May 2, 2006, he defeated two opponents in the primary, capturing approximately 45% of the total vote. Because Republicans fielded no candidate, Nifong was returned to office. According to the New York Times, Nifong, who served as a prosecutor for 28 years prior to the primary election, had never run for elected office before. He was appointed to be the District Attorney in 2005 when his predecessor was named a judge.
What makes the Nifong disciplinary action so unique was the fact it was filed by Bar Counsel during the pendency of the underlying criminal case. Indeed, the charges were filed even before the criminal case had proceeded to the trial phase. As later noted by the North Carolina Hearing Commission:
That was a controversial decision, I believe. It was certainly unprecedented that the State Bar would take disciplinary action against a prosecutor during the pendency of the case, when indeed the presiding judge had concurrent and coextensive disciplinary jurisdiction. That was a step--although we were not privy to the decision to do that--I am sure that was a matter of serious debate as to whether to do that, because that in itself took the justice system off track.
Even more stunning procedural revelations were to follow the initial disciplinary filing against him. On January 24, 2007, the Bar filed an amended complaint. This time, even more serious allegations of prosecutorial misconduct were lodged. The new charges alleged that Nifong had intentionally violated
Brady v. Maryland by withholding DNA evidence from the defense. The amended complaint also alleged that he had made material misrepresentations to the judge who was presiding in the criminal case and to the disciplinary authority. In the wake of the amended charges, Nifong removed himself from the case and eventually, the State Attorney General dismissed all criminal charges; all three criminal defendants were declared to be innocent.
During June 2007, the disciplinary case was tried before the Disciplinary Hearing Commission, an independent administrative court composed of twelve lawyers and eight public members. This tribunal has the authority to enter a direct sanction a lawyer. The Commission, as is its practice, convened as a panel of three, including two lawyers and one non-lawyer, to hear the evidence. The trial was televised. The case was prosecuted by the State Bar’s Chief Counsel, Katherine E. Jean, Staff Attorney Carmen Hoyme, and Douglas J. Brocker, an attorney in private practice and a former deputy counsel to the State Bar. The disciplinary prosecutors did a masterful job of marshalling the evidence and making the Bar’s case. The Commission found at the conclusion of the proofs that:
This matter [the criminal case] has been a fiasco. There is no doubt about it. It has been a fiasco for a number of people, starting with the defendants, and moving out from there to the justice system in general We've heard evidence over the last several days of how that came about, and we are lawyers and a school administrator. We're not psychologists. You have to ask yourself why, why did we get to the place that we got? It seems that at the root of it is self- deception arising out of self-interest. Mark Twain said that "when a person cannot deceive himself, the chances are against his being able to deceive other people." And what we have here, it seems, is that we had a prosecutor who was faced with a very unusual situation, in which the confluence of his self-interest collided with a very volatile mix of race, sex and class, a situation that if it were applied in a John Grisham novel would be considered to be perhaps too contrived. And at that time he was facing a primary, and, yes, he was politically naive. But we can draw no other conclusion but that those initial statements that he made were to further his political ambition. And having once done that, and having seen the facts as he hoped they would be, in his mind the facts remained that way in the face of developing evidence that that was not in fact the case. And even today, one must say that in the face of a declaration of innocence by the Attorney General of North Carolina, it appears the Defendant still believes the facts to be one way and the world now knows that is not the case.
The disbarment decision was not unexpected by many in the lawyer regulatory community. The North Carolina Bar had received substantial criticism in late 2004 after two state prosecutors were reprimanded for violating the
Brady rule in a capital murder case. In that earlier action, prosecutors failed to take action to produce exculpatory witness statements in a murder case. At the time of the misconduct, both lawyers were employed in the North Carolina Attorney General's Office in the Special Prosecutions Division.
North Carolina Bar v. David F. Hoke and Debra C. Graves, 04 DHC 15 (Dec. 2, 2004). In response to criticism from the public and the media about that reprimand, viewed by many observers to be inadequate in light of the nature misconduct, the North Carolina State Bar Council created a special committee to review the
Hoke and Graves case and determine whether the State Bar’s ethics rules or disciplinary procedures could be improved.
The Nifong hearing findings are reported at: http://www.ncbar.com/Nifong%20Findings.pdf. The hearing findings for the Hoke and Graves case are reported at: http://www.ncbar.com/discipline/printorder.asp?id=146.
