James F. Bogen, Esq.  - Cincinnatus Standard Staff Writer
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The Duke Rape Case Unraveling
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When I wrote about the Duke rape case last May, I predicted that the defense attorneys for the players charged would have a field day at trial.  I also questioned the motives of Durham County District Attorney Michael Nifong for bringing the charges in the first place.  But I didn't think to predict that Nifong's office would be off the case and that he would now be facing an ethics complaint from the North Carolina State Bar.
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As most of you know, the accuser in the case just cannot stop changing her story, which led to the rape charges being dropped.  Then in late December the state bar filed a complaint against Nifong for making misleading and inflammatory comments about the athletes who were charged.  That led Nifong to turn over the case to the state attorney general.  And then earlier this year, the state bar filed another ethics complaint against Nifong for failing to turn over exculpatory DNA evidence to the defense in a timely fashion and repeatedly misrepresenting to the court that he had turned over all evidence that would potentially benefit the defense.  Now Nifong is facing the possibility of being disbarred.
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This case brings into play a number of rules from the code of professional responsibility, the ethics code that governs all lawyers.
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Under the code of professional responsibility, a lawyer shall not make any public statements about a case that they know or reasonably know will have a substantial likelihood of prejudicing the proceedings on the case.  We all know about the inflammatory public statements that Nifong has made about this case.
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A prosecutor is also obligated not to bring criminal charges when the charges are not supported by probable cause.  When an accuser is caught in a lie by DNA evidence, keeps changing her story either to match an alibi claim of one defendant or forgetting whether or not sex occurred, it definitely raises questions about the validity of the charges.
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A prosecutor is also obligated to make timely disclosure to defense counsel all known evidence that may negate guilt, mitigate the degree of the offense, or reduce the punishment (exculpatory evidence).  Nifong's failure to disclose the results of DNA testing that uncovered genetic material from several men on the accuser's underwear and body (and none from any of the players) is definitely a violation of this provision.  On top of that, Nifong repeatedly misrepresented to the court on the record that he had turned over all exculpatory evidence to the defense.
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The code of professional responsibility also prohibits lawyers from making false statements of law or fact.  The Ohio Supreme Court has interpreted this to mean that a lawyer may not, by his silence on the record, lead the judge to believe incorrect information.  Complete candor with courts is required of all lawyers.  Their first duty is to the court.
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It is always troubling when people like Nifong come out of the woodwork and try to destroy people's lives just to further their own careers.  Nifong did plenty of damage by bringing the charges.  And the consequences were pretty far-reaching:  Duke University suspended two of the players (the third one graduated), cancelled the rest of the lacrosse season, and forced out the coach.  All because of an overzealous prosecutor who was trying to retain his office in an election year.
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It looks to me that the players will have one heck of a lawsuit against Durham County, Michael Nifong, and Duke University.  And you know their families have the resources to bring it.  The lacrosse coach may also have a good case for an employment suit against the university.  It was almost comical how the university suddenly invited back the two accused players who have not yet graduated.  It will be interesting to see the carnage from lawsuits that result from Nifong's actions.  And it will be nice to see him disbarred.
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James Bogen is an attorney in solo practice in Cincinnati.  Any questions or comments can be directed to Mr. Bogen at attorneybogen@yahoo.com.
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