The Dec. 28 ethics charges are expected to be expanded when the state bar's grievance committee meets again Jan. 18. Like a grand jury, the committee meets periodically; the current ethics charges stem from its most recent meeting in October and cover public statements Nifong made about the case last March and April. At its next meeting, the committee will deal with revelations from a Dec. 15 court hearing in which the state's DNA expert admitted he and Nifong agreed to keep secret from the defense early DNA results showing no Duke lacrosse player could be implicated in an attack upon one of two exotic dancers hired for the March 14 house party.
"That was a shocker. That was huge," says one defense attorney. So much of a shocker, in fact, that on Friday, defense lawyers filed a motion asking that the state's DNA expert be granted the status of a defense witness if a trial occurs.
L. Thomas Lunsford II, executive director of the North Carolina State Bar, confirmed to TIME that Nifong is expected to be served with the current complaint next week, after which Nifong's hearing before the bar must be placed on a hearing calendar within 150 days. It then must take place "between three and five months out," meaning no later than May, well within the time frame of any trial against the three players. Under the state's ethics rules, Nifong could get anything from a warning to disbarment.
"We've acted without reference to the ongoing case," says Lunsford of the timing of the complaint. "Our grievance committee instructed us to file a complaint at our earliest opportunity." Lunsford says Nifong, who would not comment on Friday, does not have to get a lawyer for his hearing, but that generally attorneys on misconduct charges do. All of this would be moot, of course, if Nifong were to resign from office or be forced off the case by the presiding judge. The North Carolina governor's office, which appointed him to the post, could also ask him to resign from office. Gov. Mike Easley declined to comment publicly Friday.
On Dec. 22, after the accuser acknowledged that she couldn't be certain she had been penetrated, Nifong dropped rape charges against the three students, leaving kidnapping and sexual offense charges intact. The next court hearings are scheduled for February, where the accuser may be asked to identify the defendants personally, and to hear a defense motion to suppress the accuser's original identification, which was made from multiple photo lineups that only included players.
"I bet large amounts of money he will lose his license over this," says one Durham attorney involved in the case. "He should quit, and it's entirely possible he'll dismiss all of the remaining charges before then. We see where this speeding train is heading. " The attorney stressed that the three players do not yet feel totally vindicated, since dropping the rape charges "actually makes the state's case easier."
The current ethics charges allege "conduct prejudicial to the administration of justice... engaged in conduct involving dishonesty, fraud, deceit or misrepresentation" and cites four violations of the state's Revised Rules of Professional Conduct. Among the 41 public statements cited by the bar is one alleging that Nifong knew was not credible: "I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex," Nifong said publicly, even after the accuser's own hospital exam statement was taken, in which she said her attackers did not use condoms.
Another cited comment: "In this case, where you have the act of rape — essentially a gang rape — is bad enough in and of itself, but when it's made with racial epithets against the victim, I mean, it's just absolutely unconscionable." Other examples filed included statements in which Nifong referring to lacrosse players as "hooligans" and admonished other players for not speaking out, all before charges were filed.
Joseph Kennedy, a law professor at the University of North Carolina, suggested that Nifong could simply recuse himself from the case, allowing it to go forward without him. In the opinion of Nifong's critics, however, without him at the helm of the prosecution, there is no legitimate case to be made.
—with reporting by Wendy Grossman/Houston