Duke Rape Case: I’ll Be a Monkey’s Uncle

The North Carolina Bar has just filed ethics charges against Durham DA Mike Nifong. As has been noted here and elsewhere Nifong was quite public with his comments about the case during his bid for re-election. To many it appeared that Nifong was using the case as a campaign issue and that the merits of the case were actually extremely weak.

RALEIGH, N.C. (AP) – The North Carolina bar filed ethics charges Thursday against the prosecutor in the Duke lacrosse case, accusing him of saying misleading or inflammatory things to the news media about the athletes under suspicion.

The punishment for ethics violations can range from admonishment to disbarment.

Among the four rules of professional conduct that District Attorney Mike Nifong was accused of violating was a prohibition against making comments “that have a substantial likelihood of heightening public condemnation of the accused.”

The charges will be heard by an independent body called the Disciplinary Hearing Commission, made up of both lawyers and non-lawyers.

In a statement, the bar said it opened a case against Nifong in March 30, a little more than two weeks after the party where a 28-year-old student at North Carolina Central University hired to perform as a stripper said she was raped.

I’m completely stunned by this. I didn’t expect the North Carolina Bar to do anything to Nifong. I figured that when you have lawyers policing themselves they basically do damn little unless the lawyer in question is doing something really egregious like fornicating with sheep in public.

Another of the rules Nifong was charged with breaking forbids “dishonesty, fraud, deceit and misrepresentation.” The bar said that when DNA testing failed to find any evidence a lacrosse player raped the accuser, Nifong told a reporter the players might have used a condom.

According to the bar, Nifong knew that assertion was misleading, because he had received a report from an emergency room nurse in which the accuser said her attackers did not use a condom.

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Steve Verdon
About Steve Verdon
Steve has a B.A. in Economics from the University of California, Los Angeles and attended graduate school at The George Washington University, leaving school shortly before staring work on his dissertation when his first child was born. He works in the energy industry and prior to that worked at the Bureau of Labor Statistics in the Division of Price Index and Number Research. He joined the staff at OTB in November 2004.


  1. gar swafur says:

    it seems like a case of the pot calling an extremely dark kettle, black

  2. Anderson says:

    Professionals are supposed to police their own, & scream bloody murder if any outsiders try to do it for them.

    Steve’s right about the glaring hole in this system, but egregious cases raise the danger that the public will lose all confidence in that self-policing thang. This appears to be one of those cases.

  3. Kent G. Budge says:

    Self-policing can work better than you might guess. The key is for the consequences of failure to self-police to be really frightening. For example, the nuclear power industry is far more self-policing than most people realize, regularly enforcing standards stricter than those set by NRC. The reason is obviously: If one power plant screws up, the public uproar endangers every other plant operator’s $$billions in capital investment.

    The danger, obviously, is that self-policing will degenerate into coverups. With nuclear plants, the threat of discovery by an often hostile NRC makes coverups too risky. I don’t know if the same is true in the Bar.

  4. everybody says:

    There are feminist like Mercella Chester and Rachel Tavern and Ampoons willing to railroad these innocent boys to hide the fact that women often lie about being raped.

  5. E. Weinsoff says:

    Besides all of the charges against Nyfong one must appreciate the duties a prosecutor has to the public he represents.
    One essential duty is to protect the public from scurrilous charges and alleged victims who may seek a variety of ultimate ends.
    Here Nyfong lost his balance. For that he must suffer the disgrace that will follow. He must be able to fully carry out his duties or be replaced. A good community cannot long endure the the poor law enforcer. May I suggest that this man is either used up as a prosecutor and/or is suffering some malady. Either can’t be tolerated by the community.
    It is notable that the NC Bar has acted in the interest of the people,state, litigants and the profession.

  6. Anderson says:

    Kent, one reason the nuke industry is (doubtless) better at self-policing is that it’s constantly being menaced by … lawyers.

    Not so much in the legal profession. Sed quis custodiet ipsos custodes?, or whatever.

  7. Steve Verdon says:

    Anderson and Kent,

    I understand the reputation effect, but I also understand incentive problems/schemes as well. So while the reputation aspect can work effectivel to keep things on the “straight and narrow” this isn’t guaranteed. My understanding is that generally a state Bar Association has a large backload of cases, moves slowly if at all, and rarely does a heck of alot in terms of punishment. However, I do admit that this understanding is largely informed by the media and could be completely wrong. I know the media exaggerates shark and pit bull attacks, so perhaps that is the case here where actually the Bar Associations do alot, but most of it is just too boring to get much attention.

    Another problem I have is that lawyers, judges and politicians all tend to be…lawyers. Not necessarily bad, but there seems to be a serious potential for abuse. I don’t see the same thing with the nuclear power industry as it encompasses a large number of professions and you don’t see too many politicians, judges or even lawyers who describe themselves as “nuclear industry workers”.

    In any event this is a good development though as it shows that sometimes the professional association does indeed notice at least the most glaring cases and will take action.

  8. Kent G. Budge says:


    I would not be surprised if the bar associations often work quietly, as you suggest. The same is true, to some extent, of my example of self-policing in the nuclear industry. A plant must, by law, report serious incidents to NRC; but since the industry’s own safety organization enforces stricter standards than NRC, a lot of the stuff they jump on is jumped on quietly — before it reaches the level of an NRC-reportable incident. This might look like cover-up but it isn’t. It certainly works for the common good, even if that isn’t the specific intent.

    In the case of the bar, there is a strong incentive to dress down a lawyer in private rather than airing the laundry in public, so as to preserve the superb reputation (cough) enjoyed by lawyers among the citizenry.

    I don’t know whether the bar actually responds to the incentives this way; but it does strike me that the willingness of the bar to hold a press conference to loudly announce their charges against Nifong suggests that some kind of line has been crossed. They are preparing to let Nifong dance Danny Deever (figuratively speaking) for the good of the profession. I don’t think we can count on criminal charges or even disbarment yet, but disbarment is now at least a real possibility.

  9. Steve Verdon says:


    Good points.

    In the case of the bar, there is a strong incentive to dress down a lawyer in private rather than airing the laundry in public, so as to preserve the superb reputation (cough) enjoyed by lawyers among the citizenry.

    Especially the above. Quite humorous.

  10. RJN says:

    Perhaps elected officials should be required to renounce their bar memberships, and affiliations, during their terms of office.

    What would be really sweet is a Constitutional amendment limiting terms and requiring that every term filled by a lawyer be followed by a term filled by a non-lawyer. Oh, happy day.