DURHAM, N.C. – Mike Nifong, whose law career came to a crashing halt this week, could soon be summoned back to the courthouse he was ousted from to answer contempt charges.
Lawyers for the three exonerated Duke lacrosse players asked Judge W. Osmond Smith III on Friday to find the former district attorney in criminal contempt of court for withholding crucial DNA evidence from their clients and then lying about it to the court over a seven-month period.
“Mr. Nifong knowingly played a game of hide and seek and seek and seek and seek with the Defendants and the Court,” the motion said.
Smith, who was appointed in August to oversee the lacrosse case, was on his way back from a judges conference in Asheville on Friday and could not be reached for comment.
It was unclear how Smith is likely to proceed. He could call a hearing in which Nifong could defend himself.
If found in contempt, Nifong could face a possible fine as well as a jail sentence of up to 30 days.
Joseph Kennedy, a UNC-Chapel Hill law professor who has followed the lacrosse case, said the contempt allegations should have been before the court already.
“The judge in this case probably should have had a contempt hearing back in December when it became clear that Nifong may have lied to him,” Kennedy said. “Judges rarely challenge prosecutors on issues of ethical misconduct. They should do so more often.”
Kennedy said he was concerned that the continued focus on the prosecution of Nifong could steer attention away from larger justice system problems highlighted by the lacrosse case.
The system is filled with other cases of prosecutorial misconduct, Kennedy said, and others who are falsely accused of crimes.
The former Duke lacrosse players spent more than $3 million on a defense team that poked hole after hole in Nifong’s case.
But many criminal defendants do not have those kinds of resources available to them. In the last fiscal year, the state spent $3.45 million – just slightly more than the three lacrosse players – on public defenders and appointed lawyers in 12,368 cases in Durham County.
“These are the systemic problems that in my mind need attention,” Kennedy said.
Nifong could not be reached for comment Friday.
Smith is scheduled to be in Durham on Monday.
Earlier this month, after criminal charges were dismissed, Smith filed court papers saying he retained control over the case and had the power to discipline Nifong no matter what the State Bar did.
In his memoradum, Smith wrote that he had significant concerns about evidence that surfaced during a Dec. 15 hearing.
Defense lawyers in the lacrosse case contend that Nifong engaged in a pattern of prosecutorial misconduct that violated at least a dozen laws, rules and court orders designed to protect due process and the pursuit of truth.
The lawyers also are asking Judge Smith to assess Nifong fees for the 60 to 100 hours of work it took Brad Bannon, known as the DNA code-cracker, to ferret out hidden test results in 1,844 pages of DNA documents.
“Mr. Nifong’s pattern of prosecutorial misconduct regarding the DNA evidence in this case is so extensive – and occurred across so much time and on so many different fields of legal and ethical obligation – that the sheer scope of it shocks the conscience and defies any notion of accident or negligence.”
Nifong, soon to be stripped of his law license, was suspended this week by Judge Orlando Hudson, the county’s chief resident Superior Court judge.
Jim Hardin, a traveling Superior Court judge, resigned from the bench on Thursday to temporarily run the Durham district attorney’s office for two months.
Hardin was a Durham district attorney for 11 years before his appointment to the bench in April 2005.
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