Outcome Of Duke Case Could Mean Appeals Of Ousted DA Nifong's Convictions

Saturday, June 23rd 2007, 2:44 pm
By: News On 6

DURHAM, N.C. (AP) _ The official assessment of Mike Nifong's handling of the Duke lacrosse case _ ``intentional prosecutorial misconduct'' _ could not have been more harsh.

What's not yet clear: Will Nifong's misdeeds in his last case as a prosecutor give defense attorneys an easy path to overturn convictions from his nearly three decades in the Durham County district attorney's office?

``I don't think the fact that he was shown to be so unethical in the Duke lacrosse case will mean that other cases he's prosecuted will automatically be reversed or appealed,'' said Steve Cron, a defense lawyer from Santa Monica, Calif., who has practiced for 33 years.

``But his behavior in this case was so outrageous and so beyond what's required of an ethical prosecutor that everyone's going to start going back and looking.''

Nifong handed in his resignation last week after a disciplinary committee of the North Carolina State Bar determined he should be stripped of his law license. The panel found that Nifong broke more than two dozen rules of professional conduct while investigating a woman's allegations she was raped at a March 2006 lacrosse team party where she was hired to perform as a stripper.

He won indictments against three Duke athletes even though he knew DNA testing had identified genetic material from several men _ none of them members of the lacrosse team _ in the accuser's underwear and body. He did not disclose that information to defense attorneys for more than six months. State prosecutors eventually took over the case and declared the three players innocent.

The disciplinary committee concluded his actions were designed to help him win his first election as district attorney, in 2006.

Nifong initially planned to remain in office through mid-July, but that wasn't quick enough for Gov. Mike Easley and senior resident Superior Court Judge Orlando Hudson. By Thursday, they had installed his predecessor _ Superior Court Judge Jim Hardin _ to take over the office on an interim basis.

While Hardin plans to be in place for no more than few months, both he and the permanent district attorney Easley appoints later could find themselves in court defending Nifong's work in other cases.

``There will be people who might challenge some other cases,'' Hudson said. ``I don't know how many cases are out there potentially. I would expect that based on these hearings there will be inmates who challenge their convictions.''

Nifong joined the county prosecutor's office as a volunteer in 1978 after graduating from law school at the University of North Carolina at Chapel Hill and worked his way up to be Hardin's chief assistant.

He was diagnosed with prostate cancer in 1999 and took two years off from trying cases while undergoing treatment. When he returned he handled traffic court until being appointed DA when Hardin became a judge in 2005.

That limited the number of criminal cases he tried in recent years.

``I personally doubt (a review) will find anything at this stage because the cases are too old and that's not the reputation he had before,'' said Stan Goldman, who teaches criminal law and procedure at Loyola Law School in Los Angeles. ``But I think lawyers are going to file motions. It'll clog the courts for a while. Maybe they'll find something. I tend to think it's unlikely, but who knows?''

Longtime Durham lawyer Butch Williams, who represented an unindicted lacrosse player last year, predicted only a handful of attorneys will feel the need to review their old cases.

``I've known Mike for 28 years and I think this case is an aberration more so than the norm,'' Williams said. ``I don't think there's going to be any mass rush to the courthouse to go back and review because that was not the norm. ... To come back now and say, 'I didn't know this or that,' it would be mighty hard to get a review unless there are substantive issues.''

The recently created North Carolina Innocence Inquiry Commission, designed to investigate claims of actual innocence in past cases, does not expect an avalanche of filings involving Nifong's past work. The panel will look at inquiries from Durham on a case-by-case basis, the commission chairman, Superior Court Judge Quentin T. Sumner, said through a spokesman.

Carl Tobias, a professor at the University of Richmond law school, said any review of Nifong's work might serve another purpose: remedying the harm that Nifong's actions did to the reputation of Durham's criminal justice system.

``People are within their rights and it's legitimate to inquire,'' Tobias said. ``For a lot of people, there's a sense that on one big case he made a lot of mistakes. That doesn't mean he did before, but I think people need to find out so it does satisfy them.''