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Duke case D.A. to resign

Prosecutor, facing license loss, makes tearful apologies

Los Angeles Times

June 16, 2007

RALEIGH, N.C.

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Choking back tears at his ethics hearing, the prosecutor in the Duke University lacrosse team rape case stunned a packed courtroom yesterday, saying he was resigning as the district attorney of Durham County.

Michael B. Nifong's emotional announcement came after a bruising interrogation by his own lawyer, whose questions forced the district attorney to admit that he had unwittingly lied to judges and made prejudicial statements against three Duke players.

As two of the former defendants and their parents stared at him, Nifong apologized "to the extent that my actions have caused pain." He also apologized to the state's legal community for bringing "disrespect and disrepute to the bar."

Nifong's first public comments on his motivations brought to a close his 29-year career as a prosecutor in the Durham district attorney's office. But they did not end his legal jeopardy.

He faces sanctions from the North Carolina State Bar that could cost him his law license, and a likely hearing before a Durham judge for allegedly lying to the court during hearings in the rape case.

While admitting that he had withheld exculpatory DNA evidence, Nifong said he mistakenly believed he had turned over all test results to defense lawyers. Even so, he said, his actions helped "contribute to injustice" against the former lacrosse players, who were declared not guilty in April by the state's attorney general.

"My presence as the district attorney in Durham is not furthering the cause of justice," Nifong, 58, said in a muffled voice, fighting tears. "It is not fair for the people in my community to be represented by someone who is not held in high esteem."

Nifong said he had not even told his lawyer about his plans to resign. His wife wiped her eyes with a handkerchief as he spoke. The couple's son sat slumped in his chair, his head down.

A three-member panel of the bar, a state agency, will begin deliberations today on charges that Nifong made improper public statements, withheld evidence and lied to judges and defense lawyers. If found guilty, he could be reprimanded, his law license could be suspended or he could be permanently disbarred.

Nifong's admissions from the witness stand, coupled with the panel chairman's barbed questioning, appeared to increase the likelihood of guilty verdicts on at least some charges.

"Didn't a light bulb go off in your head and make you say: 'Whoa!?'" chairman Lane Williamson - a gruff, bearded lawyer from Charlotte - asked Nifong in an exasperated tone. Again and again during the rape prosecution, Williamson said, Nifong missed clear opportunities to stop committing ethical violations.

"I got carried away," Nifong said at one point.

Asked whether he had lied in court when he said he had turned over evidence, Nifong said: "It was a false statement in the sense there was information I had not given that I thought I had given."

During several grueling hours of testimony on the hearing's fourth day, Nifong was alternatively combative and contrite, if not penitent. When the Duke case broke, he was a newly appointed district attorney locked in his first campaign for re-election. Yesterday, he portrayed himself as a well-intentioned but hapless neophyte who didn't know when he was crossing ethical boundaries.

He testified that he had not properly questioned a stripper whose false rape charges triggered the prosecution, even after she gave contradictory accounts of the alleged assault at a lacrosse team party in March 2006.

He admitted that he had proposed a photo ID lineup that violated police procedures and that he did not supervise a district attorney investigator who improperly showed the stripper photos of named lacrosse team players.

And he said that he never read a 1,844-page report prepared by his own DNA expert. Nifong is accused of telling a lab director to withhold test results showing that DNA found on the stripper's body and underwear matched DNA from at least four unknown males - but did not match DNA from any of the 46 lacrosse team members.

It wasn't until months later, when the defense presented him with a detailed analysis of the highly technical report, that Nifong realized he had withheld the exculpatory test results, he said.

"My first reaction was ... 'Oh crap! I didn't give 'em this?'"

But Nifong, swallowing hard, said that "the allegation that I am a liar is not justified."

The district attorney's tearful apologies were greeted with contempt by Joseph B. Cheshire V, who represented former defendant David Evans.

"A cynical ploy designed solely to save his law license," Cheshire said. "His tepid apology is far too little and far too late."

Nifong took the stand after a half-hour of wrenching testimony from Reade Seligmann, 21, a former lacrosse player who was indicted on rape charges in April 2006. As he described being vilified on campus, Seligmann's mother sobbed in the gallery, as did the mother of Collin Finnerty, another former defendant who was in the courtroom.