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Mike Nifong

Michael Byron Nifong (born September 14 1950) is a disbarred North Carolina attorney. He was formerly district attorney for Durham County, North Carolina (the state's 14th Prosecutorial District), but was removed due to his misconduct in the 2006 Duke University lacrosse case. Observers consider several criminal justice bills passed by the North Carolina legislature later that same year to have been influenced by Nifong's actions in the Duke University Lacrosse Team case.

Orlando Sentinel and The Washington Post Writers Group columnist Kathleen Parker has coined a neologism using his name: "Now we can 'Nifong' someone when we want to trump up criminal charges based on flimsy evidence allegedly for political purposes. In short, when we want to screw up someone's life. Freda Black, in her 2008 run for Durham County District Attorney, also employed this term as part of her campaign platform: "Don't get 'Nifonged' again!" .

Early life

Nifong was born in Wilmington, North Carolina, and graduated Phi Beta Kappa from the University of North Carolina at Chapel Hill in 1971 with a degree in political science. He registered as a conscientious objector during the Vietnam War era and participated in anti-war protests. After working as a teacher and social worker, he returned to UNC in 1975 and earned a law degree in 1978. In the same year, he was admitted to the bar.

After a year as a per diem assistant DA with the Durham County DA's office, he was hired on a full-time basis in 1979. He eventually worked his way up to chief assistant. After District Attorney Jim Hardin was appointed to a Superior Court vacancy in 2005, Governor Mike Easley appointed Nifong to fill out the remainder of Hardin's term. Nifong was sworn in on April 27, 2005.

Prior to the most intense criticism of his handling of the case (see below), Nifong won the Democratic primary on May 2 2006. Many critics have argued that Nifong brought the Duke case forward simply to win a tough reelection fight against two opponents in Durham, a city with a sizeable African American community.

Nifong won the general election in November 2006, receiving 49% of the votes, while Durham lawyer and Democrat Lewis Cheek received 40% even though he said he would not serve if elected, and Republican Party Chairman Steve Monks got 11% as a write-in candidate.

Duke lacrosse case

Nifong initially garnered strong support in some quarters such as some Duke faculty members, the national media, and feminist and minority groups, for his willingness to pursue sexual assault charges made by Crystal Gail Mangum, a black woman who was working as an escort and stripper, against white members of the Duke University lacrosse team.

As the details of the case emerged, however, Nifong came under severe attack not only from advocates of the indicted students but also by mainstream news sources such as 60 Minutes, The New York Times, The Washington Post, and the Los Angeles Times, The criticisms focused on a series of actions taken by Nifong: that he went public with a series of accusations that later turned out to be untrue; that he exaggerated and intensified racial tensions; that he unduly influenced the Durham police investigation; that he tried to manipulate potential witnesses; that he refused to hear exculpatory evidence prior to indictment; that regulations on the conduct of an identification exercise were breached by failure to include "dummy"photographs; that he had never spoken directly to the alleged victim about the accusations; and that he made misleadingly incomplete presentations of various aspects of the evidence in the case (including DNA results).

Nifong stated in a court hearing on October 27 2006 that, six months after the arrest of the Duke Lacrosse players, he had not yet interviewed the alleged victim. "I haven't talked with her about the facts of that night. ... We're not at that stage yet." According to Nifong, none of his assistants had discussed the case with her, either.

Critics of the district attorney requested that Nifong be investigated, punished and disbarred for his actions in this case. On December 12, 2006, it was reported that Republican Representative Walter Jones of North Carolina's 3rd district sent a letter to U.S. Attorney General Alberto Gonzales asking for an investigation into whether Nifong committed "prosecutorial misconduct" and violated the civil rights of the three suspects in the case; Gonzales stated that his office might investigate how Nifong had handled the case. Critics have noted that police were instructed to "Go through Mr. Nifong for any directions as to how to conduct matters in this case." This was an unusual move for a prosecutor to order.

On December 22, 2006, Nifong dropped rape charges against the three Duke lacrosse players after the stripper who accused them changed her story, saying that she was no longer certain whether she was penetrated vaginally with one or more men's penises. This also was a few days after it was revealed in court that Nifong had withheld evidence from the defense concerning the DNA tests performed. Nifong came "under heavy criticism" for pressing ahead with what appeared to many to be a weak case without any physical evidence. The defense argued that the accuser had given at least a dozen different accounts of the incident, changing the number of attackers from 20 to three, and modifying the methods by which she was assaulted.

On January 12, 2007, Nifong sent a letter to North Carolina Attorney General Roy A. Cooper asking his office to assume responsibility of the case. This came just days after the accuser changed her story yet again, now claiming that Reade Seligmann was not involved in the alleged attack. Previously she had accused him and two others of the alleged rape.

On January 13 Cooper announced that his office would take over the case.

On April 11 Cooper announced that all charges in the case would be dropped and that "based on the significant inconsistencies between the evidence and the various accounts given by the accusing witness, we believe these three individuals are innocent of these charges". He referred to Nifong as a "rogue" prosecutor.

Criticism

Defense lawyers and media outlets were very critical about how Nifong handled the case. Nifong responded by saying that the criticisms were a product of a defense strategy to malign the prosecution and intimidate the alleged rape victim.

Media outlets that launched blistering attacks on Nifong, demanding his resignation or recusal from the case, included, but were not limited to:

Nifong gave more than 50 interviews, many with the national media, according to his own account and confirmed by the News & Observer In these interviews, Nifong repeatedly said that he is "confident that a rape occurred, calling the players "a bunch of hooligans" whose "daddies could buy them expensive lawyers." Since early April 2006, however, Nifong has generally refused to talk to the media.

On July 18, 2006, defense lawyers charged that Nifong made "unprofessional and discourteous" remarks. During a preliminary hearing, Nifong said, "[Defense] attorneys were almost disappointed that their clients didn't get indicted so they could be a part of this spectacle here in Durham." One lawyer ascertained that "Nifong's statement is an insult to the legal profession as a whole and is certainly unwarranted by any facts in this case." Others saw it as a personal insult. Immediately following the remarks, Nifong went on vacation and could not be reached for further comment.

On October 27, 2006, Nifong stated in court that neither he nor his assistants had yet discussed the alleged assault with the accuser, saying they had so far left that aspect of the investigation to the police.

On December 12, 2006, Congressman Walter Jones, Jr., R-NC, wrote a letter to Attorney General Alberto Gonzales, "asking for an investigation into Nifong to determine whether he is guilty of prosecutorial misconduct".

On December 16, 2006, it was revealed that Nifong and DNA lab director Brian Meeham conspired to withhold exculpatory DNA evidence from the final report submitted to the defense team. DNA findings, by law, must be immediately reported to the defense.

The case's prosecution has been criticized by the legal analyst for the National Journal, Stuart Taylor, as well as New York Times columnists David Brooks and Nicholas Kristof. An investigation by CBS' 60 Minutes "reveals disturbing facts about the conduct of the police and the district attorney, and raises serious concerns." (This 60 Minutes segment was honored with a Peabody Award on April 4, 2007.) Several writers at Slate have also criticized the prosecution's actions and have especially criticized the mainstream media for accepting prosecution claims at face value in light of countervailing evidence.

In light of the fact that Nifong failed to turn over potentially exculpatory evidence to defense lawyers on December 22, 2006, The News & Observer wrote that "to press forward in the [...] case, District Attorney Mike Nifong must rely on scanty evidence while deflecting serious questions about whether he broke the law or violated the ethics rules governing prosecutors. Some critics have accused Nifong of using the case to improve his chances in his next election.

Ethics charges

On December 28, 2006; the North Carolina State Bar filed ethics charges against Nifong over his conduct in the case, accusing him of making public statements that were "prejudicial to the administration of justice" and of engaging in "conduct involving dishonesty, fraud, deceit, or misrepresentation." The 17-page document accuses Nifong of violating four rules of professional conduct, listing more than 50 examples of statements he made to the media.

The State Bar filed a second round of ethics charges on January 24, 2007. In this document, it accused Nifong of a "systematic abuse of prosecutorial discretion ... prejudicial to the administration of justice" when he withheld DNA evidence to mislead the court.

Nifong's lawyers filed a report asking for dismissal of some of the charges against him on March 19, arguing that his actions did not prevent the defendants from a fair trial since defense attorneys received a DNA report before a trial date was set. The State Bar denied the request, pointing out that North Carolina law "is unambiguous: Anyone subject to an NTO [Nontestimonial Identification Order] must be given any report of test results as soon as such a report is available." The Bar continued that "Nifong is effectively arguing that he can make false statements to a court which result in the entry of an order, and then use the order that is based on his misrepresentations to claim he committed no discovery violation.

At an April 13 hearing, another request for dismissal of charges was denied. Nifong's team argued that the law about revealing exculpatory evidence to the defense was too vague about a timetable. Attorneys for the State Bar pointed out that it was only through diligent efforts of the Duke players' defense team that the DNA report was finally made available to them.

The formal ethics hearing began on June 12 in Raleigh. On June 15, Nifong took the stand to testify in his own defense. During the testimony, he apologized to the families of the Duke athletes and stated that he would resign as district attorney. Joseph Cheshire, attorney for David Evans, one of the accused players, dismissed the apology as "a cynical political attempt to save his law license. Even at this point in the case, Nifong apparently still believed that a crime had occurred. The committee's chairman, F. Lane Williamson, asked Nifong directly if he still believed the accuser was attacked. After pausing for several seconds, Nifong said that while he could not say whether she was sexually assaulted, "something happened to make everybody leave that scene very quickly." He then mused aloud that he thought a non-sexual assault or an "intimidation" might have taken place. These assertions enraged the players' attorneys, and sent one of their mothers running from the room in tears.

During the trial, Nifong acknowledged he knew there was no DNA evidence connecting lacrosse players Reade Seligmann and Collin Finnerty to the 28-year-old woman who accused them of attacking her when he indicted them on charges of rape, sexual offense and kidnapping a year ago.

Disbarment

On June 16, 2007, the North Carolina State Bar Disciplinary Committee unanimously voted to strip Nifong of his law license after delivering a verdict of "yes" (i.e., guilty) to 27 of 32 charges. The committee found that Nifong's previously disciplinary record and acknowledgment of his improper pre-trial statements were substantially outweighed by (among other things) the players' vulnerability and his failure to acknowledge the "wrongful nature of (his) conduct with respect of the handling of DNA evidence."

Committee chair Lane Williamson called the case a "fiasco" and said Nifong's actions involved "dishonesty, fraud, deceit and misrepresentation." Williamson further stated, "At the time he was facing a primary, and yes, he was politically naive, but we can draw no other conclusion that those initial statements he made were to further his political ambitions." In the end, the panel concluded that "there is no discipline short of disbarment appropriate in this case given the magnitude of the offenses found."

Nifong agreed to surrender his law license and said he would not appeal; through his attorney, he said that disbarment was an appropriate punishment. Nifong is the first sitting district attorney in the history of North Carolina to be disbarred. Earlier in the day, Nifong offered to voluntarily surrender his law license. However, Williamson said that the panel had to issue a ruling, and issued its disbarment order shortly thereafter. Under North Carolina law, the order took effect 30 days after Nifong received it in writing. He will not be eligible to regain his license until 2012.

Immediately after the hearing, lawyers for the three players said they would seek to have Nifong held in criminal contempt of court for his false statements. They also said that calls for a federal civil rights investigation into the matter weren't out of line.The players' attorneys have called for an independent investigation into the case, and as of June 2007 Cooper was considering whether to open a criminal probe into the affair.

The players' attorneys said on June 18 that their clients were very likely to file a civil suit against Nifong to recover their legal expenses and restore their reputations. It is not known how much they can recover. Nifong had no income aside from his salary as DA, and public records indicate that he has no significant assets other than his home in Durham, real estate in western North Carolina and retirement accounts. According to The News and Observer, the players incurred $3 million in legal bills.

On June 18, Nifong submitted his resignation to Governor Easley and Durham County Chief Superior Court Judge Orlando Hudson, saying he would leave office on July 13. Hudson said that Nifong should have resigned immediately, saying that defense attorneys could challenge Nifong's authority. Easley, a former prosecutor and state attorney general, also felt that Nifong should have resigned immediately.

Early on June 19, Hudson issued an order suspending Nifong from office with pay. Under North Carolina law, this was the first step in a process that allows the chief judge of a county to remove that county's district attorney from office. Hudson also appointed a Raleigh attorney as special prosecutor to oversee the removal proceeding. A Durham resident had asked Hudson to remove Nifong in February on the grounds that Nifong engaged in willful misconduct and brought disrepute upon his office--two of the criteria for removing a district attorney from office. This process has been used only once before, when the district attorney for New Hanover and Pender counties was removed from office in 1995 for making a racial slur. Hudson delayed acting on it, however, pending the bar's decision.

On June 20, Nifong began talks with the special prosecutor about the possibility of leaving office immediately. But later that day, Easley appointed Jim Hardin, Nifong's predecessor, as acting district attorney. This came hours after Easley signed a bill that would allow the governor to remove a district attorney or judge from office if he or she has been disbarred or suspended from practicing law. Easley strongly supported the bill, which unanimously passed both houses of the legislature.

Easley had already let it be known that he would have removed Nifong from office immediately if he'd had the power to do so. It had been unclear how soon Easley could have removed Nifong under this new law. The bill does not allow a governor to remove a DA or judge until the State Bar formally issued its order of disbarment, and all appeals have been exhausted. However, as mentioned above, Nifong had said he would not appeal.

Hardin was sworn in the next day, and served until September 2007, when Easley appointed Assistant District Attorney David Saacks to fill out the first half of Nifong's term. At the time of Hardin's swearing-in, negotiations were still underway between Nifong and the special prosecutor, and Hudson was proceeding with the hearing to remove him for good.However, according to a spokesman for the state's Administrative Office of the Courts, Nifong's tenure as DA ended with Hardin's swearing-in. Facing almost certain removal from office, Nifong formally resigned from office on July 2.

On June 22, the players' lawyers filed their promised motion asking Superior Court Judge Osmond Smith, who presided over the case, to hold Nifong in contempt. The players also wanted Nifong to pay for the 60 to 100 hours it took to prove that he misrepresented the DNA evidence. It charges that Nifong violated at least a dozen laws, rules and court orders designed to protect defendants' rights by playing "a game of hide and seek" with evidence that could have cleared the players. It also alleged that Nifong's misconduct "shocks the conscience and defies any notion of accident or negligence." Earlier in June, Smith had filed papers stating that he retained control over the case even though the charges had been dismissed, and had the power to impose his own sanctions against Nifong.

On July 25, Nifong issued a less qualified apology for his actions, saying he did not challenge Cooper's conclusion that there was "no credible evidence" to support the charges he'd made. However, he continued to maintain that that conclusion was based in part on evidence that he did not have, ignoring the facts that he disregarded a copious amount of exculpatory evidence and made no real effort to obtain additional evidence that might have undermined his case. While the players' attorneys expressed skepticism about his sincerity, they did withdraw their demands that he pay for the legal work it took to ferret out the DNA evidence.

In a letter addressed to the North Carolina State Bar on August 7, Nifong formally surrendered his law license. He then decried the "fundamental unfairness" with which his disbarment was conducted, contradicting his lawyer's assertion that Nifong believed disbarment to be an appropriate punishment. Bizarrely, Nifong thought it prudent to note in the letter that one of his puppies had chewed on and damaged his physical law license.

Sentence and Jail

On August 31, 2007, Smith held Nifong in criminal contempt of court, and sentenced him to one day in jail and a $500 fine..

On September 7, 2007, Nifong reported to the Durham County jail to serve a one-day jail sentence for contempt of court. He was held alone in a cell for his protection.

Sued by players

On October 5 2007, Evans, Finnerty and Seligmann filed a federal lawsuit alleging that Nifong engineered a wide-ranging conspiracy to frame the players. Also named in the suit were the lab that handled the DNA work, the city of Durham, the city's former police chief, the deputy police chief, the two police detectives who handled the case and five other police department employees. The players are seeking unspecified damages, and also want to place the Durham Police Department under court supervision for 10 years, claiming the actions of the police department pose "a substantial risk of irreparable injury to other persons in the City of Durham." According to the suit, Nifong's sole motive was to win support for his reelection bid; the suit alleges that Nifong told his campaign manager that the case would provide "'millions of dollars' in free advertising. Nifong asked the state attorney general's office and the Administrative Office of the Courts to pay his legal fees and help defend him, but both offices refused on the grounds that Nifong's actions involved "fraud, corruption (and) malice. In response, Nifong's attorney quoted Nifong as saying, "I don't know why I continue to expect people to do the right thing.

Bankruptcy filing

On January 15, 2008, Nifong filed for bankruptcy under Chapter 7 of the Bankruptcy Code. He listed assets of almost $244,000 and liabilities of over $180.3 million, the bulk of which being six $30 million "unsecured nonpriority claims," one for each of the six members of the 2005-2006 Duke Lacrosse team suing Nifong, among others.

While the filing automatically delayed the civil suit against him, it may not protect Nifong from civil liability for his actions in the case. Unsecured creditors can still pursue claims against someone filing for bankruptcy if the debt was incurred through "willful and malicious injury" to them. Indeed, Seligmann's attorney, noted Triangle lawyer David Rudolf, said that the players intend to pursue such a claim.

According to at least one bankruptcy law expert, Nifong's bankruptcy filing is a tacit admission that he doesn't have the resources to defend himself against the players' civil suit, and is trying to protect what assets he is allowed to protect under the law.

The supervisor for Bankruptcy has recommended that Nifong be denied protection, since he makes enough money above the requirement.

Judge William Stocks ruled against Nifong's Bankruptcy claim, and announced that the plaintiffs can pursue their lawsuit.

Footnotes

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