N.C. Bar Hits Durham Prosecutor with Ethics Complaint

Michael Nifong, a prosecutor in the Duke University sexual assault case, is facing a new round of criticism for his handling of the case. Thursday the North Carolina State Bar got involved, filing a formal ethics complaint against Nifong. Columnist Stuart Taylor and Melissa Block discuss developments.

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MELISSA BLOCK, host:

There are growing calls for the district attorney of Durham, North Carolina, to be removed from the prosecution of three Duke University lacrosse players for sexual assault. Adding to the controversy, a formal ethics complaint filed yesterday against the DA, Michael Nifong, by the North Carolina State Bar. The complaint says Nifong violated rules of professional conduct by making numerous misleading and inflammatory comments about the case. He could face punishment ranging from censure to disbarment. The accuser in the case is a black woman who was hired to strip at a Duke lacrosse party.

Stuart Taylor is a columnist for The National Journal and he's writing a book about the case. Thanks for being with us.

Mr. STUART TAYLOR (Columnist, National Journal): Nice to be with you.

BLOCK: How unusual is it for an ethics complaint like this one to come as a case is under way. This one hasn't been even gone to trial.

Mr. TAYLOR: It's very, very unusual. I'm not sure - I've not known of a case when it's ever happened before. And one of the unusual aspects of this is that this is only the first installment of what I expect will be a three or four part eventual complaint by the state bar. I believe this is a pretrial publicity portion.

I think other portions are coming involving hiding evidence of innocence and identification process designed to frame innocent players. The state bar has not yet said anything public about those complaints, but I think that's because they're still before the judge in the case. And bar authorities usually like to let judges finish up with an issue before they're starting on it.

BLOCK: Well, let's talk about the complaint that they have issued. You described it as pretrial publicity. What are some of these statements made by the district attorney, by Michael Nifong, that the state bar is now saying were unethical?

Mr. TAYLOR: Beginning on March 27th and proceeding for at least two weeks, almost on a daily basis, Nifong pronounced that there are clearly had been a rape by lacrosse players at this party, that it had been a brutal rape involving strangling and beating - he demonstrated the strangling on national TV - that it had been racially motivated, that they had been chanting racial slurs while they raped her and that there was no doubt about any of these things.

And all of these now appears to have been not only outrageous in the sense that prosecutors are not supposed to hold up targets of an investigation to unnecessary public vilification, even if they're guilty. But in this case, especially outrageous because of the - these statements were false and the DA had good reason to know they were false when he said them.

BLOCK: I can think of a lot of cases, though, where prosecutors do exactly that. That seems to happen all the time, and ethics complaints aren't filed?

Mr. TAYLOR: Well, I think what happens all the time is that prosecutors issue indictments and then they publicly quote the indictments. And the indictments will claim such charges. But what crosses the line into unethical is, A, before an indictment to be announcing a group of people, and, B, even in the context of an indictment to have gone beyond reciting what the charges are and claiming certitude of about various aspects of the alleged crimes that are not all a part of the indictment. The prosecutors are supposed to wait for trial.

Now, it's true that often prosecutors lather up their indictments and have press conferences. But this - well, this case goes way beyond what I've ever seen done in any case before.

BLOCK: This is now not a rape case since the charges were dropped, but it is a sexual assault case. What are the chances do you think that this case will actually go forward to trial?

Mr. TAYLOR: I think at this point they're very slender. The defense has filed some very powerful motions before this most recent spate of revelations about the prosecutor became public to have the case essentially dismissed on the ground that the accuser clearly cannot identify who raped her and that the process that the DA, Nifong, used to get her to identify them was basically a multiple choice test with no wrong answers is - here are all 46 lacrosse players and they're all suspects, pick three, any three. If the judge was on the sense before, I would think now the path of least resistance for him is to take Nifong off the case, and dismiss it.

BLOCK: Stuart Taylor, thanks very much.

Mr. TAYLOR: Thank you.

BLOCK: Stuart Taylor is a columnist with the National Journal. He's Chris co-writing a book about the Duke lacrosse sexual assault case.

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