Return to Transcripts main page
North Carolina State Bar's Ethics Panel Completes Deliberations On Mike Nifong; Finds Him In Violation Of Some Ethical Conduct Rules
Aired June 16, 2007 - 14:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
SUSAN ROESGEN, CNN ANCHOR, CNN NEWSROOM: Two big stories we're following right now in the NEWSROOM. In Iraq, new clues in the search for those two missing U.S. soldiers. We're live with the latest.
And in North Carolina, District Attorney Mike Nifong, the prosecutor in the Duke rape case, could soon find out his fate. A decision in his ethics hearing could come anytime now.
I'm Susan Roesgen, filling in for Fredricka Whitfield, and you're in the CNN NEWSROOM.
We begin with breaking news in Iraq today. Troops have found I.D. cards belonging to these two missing U.S. soldiers, Alex Jimenez, and Byron Fouty. They disappeared in an ambush last month. Their I.D.s were found in a suspected Al Qaeda house in Samarra. And we got reaction earlier from Fouty's stepfather.
(BEGIN VIDEO CLIP)
GORDON DIBLER, PVT. BYRON FOUTY'S STEPFATHER: Our last conversation was on his birthday April 17th. He had been discussing his desire to go into being a medic. And I was real proud of him for that, for wanting to be a healer. Our last actual words were that we loved each other.
BETTY NGUYEN, CNN ANCHOR, CNN NEWSROOM: If you could send a message out today, what would you say?
DIBLER: If I could send out a message today, our hearts are anxiously awaiting his return. And we love him very much. And that his sister and I are both waiting with everything we have. And that his brothers and sisters that are helping support him are always thinking of him.
(END VIDEO CLIP)
ROESGEN: We go live now to Samarra, and CNN's Karl Penhaul, who is embedded with the 82nd Airborne -- Karl.
KARL PENHAUL, CNN INT'L. CORRESPONDENT: Susan it was in fact a unit of the 82nd Airborne Division that we're embedded with, that carried out the raid on that suspected Al Qaeda safe house.
What we've been told by the battalion commander, Col. Viet Luong is that that raid took place on June 9th, more than a week ago, now that the information, the details of the raid are what kept classified until now, both so that the families of specialist Alex Jimenez and of Private Byron Fouty could be informed of the find of the I.D. cards, but also because other information captured from that safe house could be analyzed.
What the battalion commanders told us about this raid is that it was carried out by a company of paratroopers, it was an air assault. So essentially they flew into the raid area aboard helicopters. The house is in a rural area just south of Samarra, in fact, about six miles south of Samarra, which is where we are now, in area surrounded by orchards and by farmland.
The reason they went there -- this is an intelligence-driven raid. They knew this house was occasionally used as a safe house by suspected Al Qaeda insurgents. And around 400 meters north of that house, they had made one of the largest weapon caches finds of the year so far.
So when they went in on this raid, a firefight broke out with insurgents inside the house, four insurgents, we're told, fled from the house, and at that stage, paratroopers breached, went into the house, and found bundles of documents. They found a lot of computer equipment, we're told a huge amount of computer equipment, in fact. They also found video production equipment, because it seems that the safe house was being used as a video production facility. Then the paratroopers took all that documentation they found back to their headquarters. It was only there that sifting through those documents they found the two I.D. cards of Specialist Jimenez and of Private Fouty.
At that stage, the battalion commander ordered a huge search of the area, 72 hour search, forensic teams and dog teams, but the battalion commander says there's nothing to indicate those two missing soldiers were physically ever in that area, Susan.
ROESGEN: All right, Karl, some compelling new information in the search for these two service men. We will continue to follow it. Karl Penhaul, embedded with the 82nd.
Now, the other big story we're following today, we're now awaiting a verdict in the ethics hearing for North Carolina District Attorney Mike Nifong, the man who prosecuted the Duke lacrosse rape case. A committee of Nifong's peers are deciding whether he can continue to practice law. CNN's Susan Candiotti is live again from Raleigh -- Susan.
SUSAN CANDIOTTI, CNN CORRESPONDENT: They are debating at this hour and might come back with a decision any minute now. The question before this panel is: Is Mike Nifong a liar and a cheat who carelessly accused three young men of rape? Or, as he himself says, is he a man that simply made a series of mistakes that they didn't do on purpose?
Now, the ethics panel is deciding whether Mr. Nifong violated any rules, and if so, how he should be punished for his handling of the case. Closing arguments were made today by both sides, including against the man that the North Carolina attorney general once called a rogue prosecutor, as well as Nifong's attorneys who asked the panel to consider Nifong's years of service before throwing the book at him.
Mr. Nifong, you will recall, has already apologized just yesterday, for the very first time since this whole matter began. Apologized to the players, the lacrosse players, apologized to the public for his mistakes, but against emphasized, he said I didn't do this on purpose. And he also said that he plans to resign as district attorney.
Now, what can the panel do? The panel, if it decides he is in violation, can find him -- can sanction him. And, of course, the ultimate penalty would be taking away his license to practice law from here on in.
Susan, back to you.
ROESGEN: Susan, one thing I haven't heard in all of this, and you may know or you may not know this, but is there any other controversy in Nifong's background? Were there other cases now that are coming out that people are saying, you know, that he was kind of shady with his dealings with the defense on this too? Or was it just this one case that could mean his disbarment?
CANDIOTTI: Not to the best of my knowledge, not through any of the testimony we heard this day, so it is for that reason, primarily, that the defense lawyers are saying, look, this a man who -- yes, he made egregious mistakes -- many of them, but I hope you don't throw his whole career away for this one mistake.
However, that earned a rebuke from the chairman of the ethics panel who said, we're not just talking about one mistake, we're talking about a series of egregious mistakes, and you're not asking for a mulligan on this, are you? And the defense attorney said, no, no, we're not, but we hope you will consider his years of service.
ROESGEN: OK, Susan Candiotti reporting live for us. We will continue to keep an eye on that courtroom and will bring you the decision as soon as we get it.
We'll also be talking to our legal experts, civil rights attorney and law professor Avery Freidman, and Richard Herman, New York criminal defense attorney and law professor. They're going to join us to talk about that case and the $54-million pants case in just a few minutes.
Meanwhile, another problem has surfaced at Walter Reed Army Medical Center. This time it's a problem with the mail. The Army is investigating a pileup of undelivered mail, some of it more than a year old. The head of the mailroom there has been fired. And the commander of Walter Reed has ordered his soldiers to work around the clock sorting through 4,500 undelivered letters and packages.
A deadly suicide car bomb attack against Americans in Afghanistan. This was directed against a convoy carrying military personnel and U.S. civilian contract workers through Kabul. At least four civilians were killed. One of the soldiers responded by firing into the crowd, killing a person that one witness described as an innocent bystander, and then some in the crowd began chanting "Death to America."
And more violence still in the Middle East. Palestinians are trying to sort out their future now. This week's Hamas victory in Gaza has put Gaza and the West Bank on two different and bloody paths. While Hamas is trying to consolidate its power in Gaza, the rival Fatah faction is trying to do the same thing in the West Bank. What does it all mean, for us? CNN's Atika Shubert has been following the developments in Jerusalem.
ATIKA SHUBERT, CNN INT'L. CORRESPONDENT (on camera): After a humiliating defeat in Gaza, Fatah forces are now exacting their revenge across the West Bank. Fatah militant group, the Al Qqsa (ph) Martyr's Brigade, stormed into the Palestinian legislative council in Ramallah today, attacking the offices of Hamas legislators.
Most Hamas lawmakers stayed home precisely to avoid these types of attacks. Still Fatah gunmen attempted to apprehend the deputy speaker of parliament, dragging him out before a crowd, but he was later released.
This is the kind of lawlessness that the new prime minister, Salam Fayyad will have to face with his new emergency cabinet, but could get a boost if the United States decides to lift an embargo on the Palestinian Authority, in place now for more than a year.
Palestinian President and Fatah leader Mahmoud Abbas met with the U.S. consul general today to discuss the lifting of the embargo. It was originally put in place because of U.S. and Israeli objections to the Hamas-led government, but now that President Abbas has dissolved that government, the U.S. has indicated that it may consider lifting those financial sanctions.
In Gaza meanwhile, Hamas leaders insist they are still in charge and leading the Palestinian Authority, and while Hamas forces have taken over the streets of Gaza, they have not been able to control rampant looting there, including the home of the late Palestinian leader Yasser Arafat.
Now that the Palestinian territories have been divided in two, many Palestinians are asking, who's in charge and when will law and order be returned? Atika Shubert, CNN, Jerusalem.
ROESGEN: Well, speaking of who's in charge, the U.S. government says it continues to support Palestinian President Mahmoud Abbas, but as our CNN Senior Pentagon Correspondent Jamie McIntyre reports, the U.S. options in that region are limited.
JAMIE MCINTYRE, CNN SR. PENTAGON CORRESPONDENT (voice over): Defense Secretary Robert Gates ruled out peacekeepers and ruled out supplying Fatah. ROBERT GATES, DEFENSE SECRETARY: I'm a little out of touch here, but to the best of my knowledge, the answer to both questions is no.
MCINTYRE: Experts say anything the U.S. does to aid the moderate, secular Fatah government of Mahmoud Abbas, against militant Islamic Hamas could be counterproductive.
FAWAZ GERGES, MIDEAST ANALYST: The more the Bush administration stays out of it, the better for regional stability, and also for American vital interests in that part of the world.
MCINTYRE: So as far everything the U.S. has tried has had unintended consequences. The U.S. encouraged the Israeli withdrawal from the Gaza Strip and the subsequent Palestinian elections, never anticipating it would bring Hamas, which the U.S. considers a terrorist group, to power.
It then engineered a boycott that simply increased local support of Hamas and fueled anti-American and Israeli sentiment. Even the delivery of non-lethal aid to forces loyal to Abbas just seemed to embolden Hamas to seize Gaza. What can the U.S. do about the possibility of a militant Islamic semi-state on the border with Israel? Not much. In fact the Israelis have no good military options, either.
PROF. SHIBLEY TELHAMI, UNIV. OF MARYLAND: If we occupy Gaza, they may weaken the current Hamas leadership as they have in the past but it doesn't resolve the problem, we're back to square one.
MCINTYRE (on camera): At the State Department, a spokesman acknowledged Mahmoud Abbas has lost control of Gaza and says the U.S. is now looking for ways to support President Abbas' new government without doing more harm than good Jamie McIntyre, CNN, Washington.
ROESGEN: We have an incredible story in Illinois today. A five- year-old girl feared dead comes out of the wood scratch and hungry after days alone, but alive. You'll hear her story in less than 10 minutes here in the NEWSROOM.
And some really awful pictures, dolphins shot to death near San Diego. That story is straight ahead.
And we are keeping an eye on this North Carolina courtroom, a decision could come any time now in the Mike Nifong ethics hearing. We'll bring you the decision as soon as we get it here in the CNN NEWSROOM.
ROESGEN: We are keeping an eye on the North Carolina courtroom where District Attorney Mike Nifong is in front of an ethics panel. Apparently, as you can see, the panel has gone back to deliberate his fate, and as Susan Candiotti told us just a few moments ago, in a live report, they would also at some point determine the penalty, which might be disbarment.
So let's bring in our legal experts, civil rights attorney and law professor Avery Freidman and Richard Herman, New York criminal defense attorney and law professor.
Hey, guys, yesterday Mike Nifong apologized to the students ...
RICHARD HERMAN, CRIMINAL DEFENSE ATTORNEY: Oh, come on, please.
ROESGEN: No, he teared up, said I'm resigning, but also said I still think something happened. Didn't that kind of like throw everything else out when he said that?
HERMAN: Out the window, Susan. At 2:06 today, you're the only person to mention the fact who knows how many times in the past this rogue, corrupt, animal prosecutor participated like there.
ROESGEN: Wait, wait, wait, rogue, corrupt, what do you base that on? Susan Candiotti said she hadn't heard anything in any testimony that suggested he was doing -- you know, he was doing bad stuff --
HERMAN: It's a question. We don't know. We just don't know, but look at the way he handled this case. This is an abomination. This is absolutely one of the worst things you can possibly have in a criminal prosecution, a corrupt prosecutor.
ROESGEN: Hey, wait, wait, wait. The reason we have tens of thousands of appeals by prisoners locked up all across this country every day is because defense attorneys always claim the prosecutor didn't turn over material.
HERMAN: Susan, the success rate ...
AVERY FREIDMAN, CIVIL RIGHTS ATTORNEY: Hold on. Hold on. One of the issues, Susan, was that the attorney general of North Carolina characterized his behavior as rogue behavior. I don't know that we've seen evidence of corrupt behavior.
HERMAN: We have.
FRIEDMAN: But we have 291 paragraphs in which the state bar alleges misbehavior, unethical behavior, and this case is going to turn on whether or not the bar was sufficient -- Doug Broker, who is prosecuting it for the state, was able to establish intentional behavior. That's where the sanction is going to zero in on.
You know what? When you watched the three-lawyer panel considering this, they hate him. They responded very affirmatively when the prosecution was going forward and very negatively towards the defense. So they have hinted what's coming up?
HERMAN: He acknowledged -- he acknowledges ethical violations here. The panel will come back and find that he violated the rules --
ROESGEN: Wait, wait, Mike Nifong acknowledged it?
HERMAN: He made mistakes, yes. He did.
FRIEDMAN: I read it as quite the opposite.
ROESGEN: He made mistakes, that's not necessarily an ethics violation.
HERMAN: Oh, please. Please!
ROESGEN: Doesn't an ethics violation, Avery, assume intent?
FRIEDMAN: Well, intent is imperative not only in terms of the determination of a violation, Susan, it's also important in terms of tailoring what kind of remedy, whether he will be disbarred, whether he's going to be fined, whether he's going to be sanctioned.
But in practical terms, whatever the result is, and I think this is important to identify early on, to practice law in North Carolina, who the heck is going to hire this guy?
HERMAN: Hey, Avery, you said this guy wasn't going to get disbarred. I have that tape. I'm telling you this guy is going to get disbarred, he should be disbarred.
And, Susan, please, don't talk about appeals. The percentage rate on reversals on criminal convictions is minute.
ROESGEN: I know.
HERMAN: It's minute.
ROESGEN: I know. A small portion win, OK.
FRIEDMAN: But this is neither civil nor criminal, it's an ethics prosecution.
HERMAN: These hearings are quasi-criminal and this man should be prosecuted criminally for obstruction of justice.
FRIEDMAN: And that may very well be.
ROESGEN: You know what, Gentlemen, I don't hear this kind of loud debate behind the door there. We see the panel coming out.
UNIDENTIFIED MALE: Here we go. Here we go.
UNIDENTIFIED MALE: Let's see how many violations right now.
ROESGEN: You know, gentlemen, while we wait for some sort of decision here, one of the things that struck me is they were so upset, the prosecutors about the publicity, they don't like that in North Carolina. They mentioned several times he violated the rules against pretrial publicity. Is that what really this is all about? That he grandstanded too much and they don't like that?
FREIDMAN: In part, Susan, it is. In fact part of the evidence is the remarks he made to CNN. That was part of the evidence of this trial.
HERMAN: And his lying to the judges, his lying to everyone.
FRIEDMAN: Wait, wait, wait. Let's answer Susan's question. The question about pre-trial publicity was the remarks about well, they haven't come forward, there's a wall of silence, when in fact they did come forward. Remarks about why do they need lawyers, they must be guilty? When in fact, you hire lawyers everyday if you're wrongfully accused.
HERMAN: This is criminal we're looking at. This is s a criminal, we're looking at right here on the screen.
ROESGEN: Oh, boy.
ROESGEN: OK, gentlemen. Let's see what happens here.
ROESGEN: Let's see if they're about to say something here.
You know, while we're waiting here, we've seen these students in the courtroom, you know, every day. How much pressure does that put on the panel?
HERMAN: None whatsoever.
FRIEDMAN: None. I agree. This panel goes to the beat of a different drummer, Susan. Here we go.
UNIDENTIFIED MALE: The hearing committee has deliberated and has reached the unanimous conclusion to each of the contested issues that have been submitted by the parties.
What I'm going to do is to read each of the contested issues that are listed in the pretrial order, and then to indicate yes or no, and in some cases, and in some cases with some explanation, but generally without any further elaboration. We'll have further elaboration at the conclusion of phase two as to certain matters.
And bear in mind that there are 19 issues, some of which are duplicative and some of which reflect that there were amendments to the applicable rules during the period we are talking about, so that you will hear what sounds like pretty much the same thing.
A yes will signify that we have found the issue to be proved by clear, cogent and convincing evidence, which is the standard of proof applicable to the bar's allegations. A no simply means that there has been a failure, or an absence of proof, to the standard of clear, cogent and convincing evidence.
The first issue reads as follows: Did defendant make extra- judicial statements to or in the presence of representatives of the news media, including those set forth in paragraphs 12 through 177 of the amended complaint? Yes.
Two, did defendant know or should defendant reasonably have known that his extra-judicial statements set forth in paragraphs 12 through 177 of the amended complaint would be disseminated by means of public communication? Yes.
Did defendant know or should defendant reasonably have known that his extra-judicial statements set forth in paragraphs 12 through 177 of the amended complaint would have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter in violation of rule 3.6-A? Yes.
Four, did defendant's extra-judicial statements set forth in paragraphs 12 through 177 of the amended complaint have a substantial likelihood of heightening public condemnation of the accused in violation of rule 3.8.f of the revised rules of professional conduct? Yes.
With this further note of explanation, it will be necessary for us to have a finding, I believe, that the accused in this instance includes the set of suspects, that being the lacrosse players that were at the house on the night in question. And it is not necessary for us to make a finding, as a legal matter, that they were actually indicted or criminal defendants at the time.
Five, by making this misleading statements to or in the presence of representatives of the news media, did defendant engage in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of rule 8.4-C of the revised rules of professional conduct? No. A word of explanation there. The one statement at issue there involving whether or not condoms might be involved is, to our mind -- no -- no worse than certain others that were not alleged to involve dishonesty, fraud, deceit or misrepresentation in violation of rule 8.4.c.
For instance, the statement to the effect that the accused were not cooperating. And since it was not alleged that those statements involve an 8.4-C violation, we do not think it is appropriate to pick out this particular one and say that it is, although we have the option as a matter law, of finding some of the other statements to also include a rule 8.4-C violation, we decline to do so.
Number six, did defendant, by not providing to the Duke defendants prior to November 16th, 2006, a complete report setting forth the results of all tests or examinations conducted by DSI, include the potentially exculpatory DNA test results and evidence, A, failed to make timely disclosure to the defense of all evidence or information known to him that tended to negate the guilt of the accused in violation of former rule 3.8-B of the revised rules of professional conduct? Yes.
B -- cell phones off -- B, failed to make a reasonably diligent effort to comply with a legally proper discovery request in violation of former rule 3.4.D of the revised rules of professional conduct? Yes.
Did defendant, by not providing to the Duke defendants prior to November 16th, 2006, memorializations of Dr. Meehan's oral statements concerning the results of all examinations and tests conducted by DIS in written, recorded or any other form, a, fail to make timely disclosure to the defense of all evidence or information known to him that tended to negate the guilt of the accused in violation of former rule 3.8.D of the revised rules of professional conduct.
The answer is yes, with the proviso that the way that issue number seven is worded, with the word "memorializations" tends to imply that the violation is premised on the violation of discovery statute rather than 3.8.D. We think for purposes of issue 7-A, it may be more appropriate to call that "communication" in any form of Dr. Meehan's oral statements and not to say "memorializations".
B, 7-B, failed to make a reasonably diligent effort to comply with a legally proper discovery request in violation of former rule 3.4.D of the revised rules of professional conduct. That answer is no, based upon the converse of the distinction in A, that is, to the extent that that is based upon compliance with the discovery statute at the time there was evidence that the attorney general took the position that prosecutors did not have to provide such memorializations. And, therefore, there is a plausible reliance by the defendant upon that position at the time, which is no longer the law of the attorney general, and that is the basis for saying no to 7-B.
Eight, the defendant by not providing to Duke defendants after November 16, 2006, a complete report setting forth the results of all tests or examinations conducted by DSI, including the potentially exculpatory DNA test results and evidence, A, failed after a reasonably diligent inquiry to make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions, including all evidence or information known to him that tended to negate the guilt of the accused in violation of current rule 3.8-D of the revised rules of professional conduct. The answer is yes.
B, failed to disclose evidence for information that he knew or reasonably should have known, was subject to disclosure under applicable law, rules of procedure, or evidence, or court opinions in violation of current rule 3.4-D3 of the revised rules of professional conduct. The answer is yes.
Nine, did defendant, not providing Duke defendants until November 6th, 2006, memorializations of Dr. Meehan's (ph) oral statements concerning the results of all examinations and tests conducted by DSI in written, recorded or any other form: A, fail after a reasonably diligent inquiry to make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions, including all evidence or information known to him that tended to negate the guilt of the accused in violation of current rule 3.8-D of the revised rules of professional conduct. The answer is yes.
B, failed to disclose evidence or information that he knew or reasonably should have known, was subject to disclosure under applicable law, rules of procedure or evidence, or court opinions in violation of current rule 3.4-D3 of the revised rules of professional conduct. The answer is yes.
Number ten, did defendant, by instructing Dr. Meehan to prepare a report containing positive matches: A, knowingly disobey an obligation under the rules of a tribunal in violation of rule 3.4-C of the revised rules of professional conduct? The answer is yes.
B, request a person other than a client to refrain from voluntarily giving relevant information to another party in violation of rule 3.4-F of the revised rules of professional conduct? That answer is no.
Eleven, did defendant, by representing to the court that he had provided all potential exculpatory evidence: A, make false statements of material fact or law to a tribunal in violation of rule 3.3-A1. The answer is yes.
B, engage in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of rule 8.4-C of the revised rules of professional conduct. The answer is yes.
Twelve, the defendant, by representing to opposing counsel that he had provided all potentially exculpatory evidence: A, make false statements of material fact to a third person in the course of representing a client in violation of rule 4.1. The answer is yes.
B, engage in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of rule 8.4-C of the revised rules of professional conduct? The answer is yes.
Thirteen, did defendant, by representing to the court that the substance of all Dr. Meehan's oral statements to him concerning the results of all examinations and tests conducted by DSI, were included in DSI's report: A, make false statements of material fact or law to a tribunal in violation of rule 3.3-A1, the answer is yes.
B, engage in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of rule 8.4-C of the revised rules of professional conduct, the answer is yes.
Fourteen, did defendant, by representing to opposing counsel that the substance of all Dr. Meehan's oral statements to him concerning the results of all examinations and tests conducted by DSI were included in DSI's report: A, make false statements of material fact to a third person in the course of representing a client in violation of rule 4.1? Yes.
B, engage in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of rule 8.4-C of the revised rules of professional conduct, the answer is yes.
Fifteen, the defendant, by representing or implying to the court at the beginning of the December 15, 2006 hearing, that he was not aware of the potential exculpatory DNA results or alternatively, was not aware of their exclusion from DSI's report: A, make false statements of material fact or law to a tribunal in violation of rule 3.3-A1, the answer is yes. B, engage in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of rule 8.4-C of the revised rules of professional conduct? The answer is yes.
The defendant, by representing to the Grievance Committee of the State Bar that the agreement with Brian Meehan to limit the information in DSI's report was based on privacy concerns of releasing the names and DNA profiles of individuals providing known reference specimens: A, knowingly make a false statement of material fact in connection with a disciplinary matter in violation of rule 8.1-A. The answer is no.
B, engage in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of rule 8.4-C. The answer is no.
Seventeen, did defendant, by representing to the Grievance Committee of the State Bar that he did not realize that the potentially exculpatory DNA test results were not included in DSI's report when he provided it to the Duke defendants or thereafter: A, knowingly make a false statement of material fact in connection with a disciplinary matter in violation of rule 8.1-A, the answer is yes.
B, engage in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of rule 8.4-C. The answer is yes.
Eighteen, did defendant, by representing to the Grievance Committee of the State Bar that his statements to the court at the beginning of the December 15 hearing referred not to the existence of the potentially exculpatory DNA test results, but to the Duke defendants' purported allegation that intentional attempt had been made to conceal such evidence: A, knowingly make false statements of a material fact in connection with a disciplinary matter in violation of rule 8.1-A, the answer is yes.
B, engage in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of rule 8.4-C, the answer is yes.
Here, I wish to note the consensus of the hearing committee in regard to those issues that I have just read involving misrepresentations by the defendant in his response to the Grievance Committee. We have some concern that those charges, more or less as a matter of policy, are perhaps not warranted from the standpoint that we have concerns that it is very rare that persons are charged with making false statements to the Grievance Committee in their responses.
And that if defendants are charged with that, it may have a chilling effect upon defendants or respondents making a full and complete disclosure to Grievance Committee complaints, if they are afraid that -- well, if you just disagree with what I tell you and that if we go to trial and I lose, then by necessity, I have misrepresented something to you, that that is perhaps unwise as a matter of policy.
Nevertheless, it is alleged here, and we do find that in certain instances, there were violations, but we would simply note that in this particular case, it may be, at least in our view, something of an instance of over-charging.
Nineteen, did defendant through one or more of the above violations, engage in conduct prejudicial to the Administration of Justice, in violation of rule 8.4-D. The answer is yes.
At the conclusion of phase two, we will provide certain additional reasoning for our findings and overall conclusions and, of course, as to the discipline imposed. Looking forward to the conclusion of the proceedings, what we will do is, as we normally do, ask counsel for the State Bar to prepare a proposed written order for us and to provide that to the defendant's counsel for their review and submission to us, and of course, we may make and probably will make a number of changes to it. I'm saying that now so we don't have to go over that again.
At this time, we'll go into phase two. I ask the State Bar, do you have additional evidence to present on phase two?
UNIDENTIFIED FEMALE: Yes, sir. The State Bar will call Jerry Parnell (ph).
UNIDENTIFIED MALE: All right.
ROESGEN: OK, we have just heard Lane Williamson, the Chairman of the Disciplinary Hearing Commission there on the Ethics Panel in North Carolina give a whole lot of yeses and very few nos. They have basically found District Attorney Mike Nifong in violation -- serious violation of several ethics rules. They're in North Carolina. They're now going into what they call phase two, that's the penalty phase, to decide what his punishment will be.
We want to bring back in now our legal experts, Avery Friedman and Richard Herman. And Richard, I've got to start with you because you said, oh, this guy's a crook, this guy -- you know, broke all the rules. Well, you know what? They just said on this panel, dishonesty, fraud and deceit, yes.
Richard, your thoughts?
HERMAN: It's devastating, it's absolutely devastating. And you know, this man -- he is going to be disbarred here, he is going to be prosecuted criminally, he's going to be sued civilly. What he did was just a total abomination, and he's going to have to pay for it right now. Like Johnny Cash sang, you know, ring of fire down, down, down, this guy is done. He's finished.
ROESGEN: All right, Avery, you know, prosecutors always, we assume, try to keep the defense in the dark and in some capacity, and they're not supposed to do anything illegal. They are supposed to turn over the exculpatory evidence, as the panel said there, they are supposed to share evidence that might help the defense.
Doesn't this sort of thing really happen all the time in this country, but in this case, this man is caught in it?
FRIEDMAN: Well, in the many reported cases, Susan, that you see, courts will talk about isolated examples of a prosecutorial abuse. In this case, there is no case in American jurisprudential history where a record has been built on the level of prosecutorial abuses, the pattern that the prosecutor dealt with in this case against Michael Nifong.
So, while you're correct, it happens, again there's some fundamental rules that is, you got to play fair. And the Ethics Panel did something quite extraordinary in reviewing each of the 19 areas. Not only did it deal with the refusal or the failure of Michael Nifong to provide it to opposing counsel, that we know, but the interference by fraud and deceit of the Administration of Justice, the misrepresentation, fraud and deceit made to a court.
So, this panel was very careful in dealing with all aspects of this case, not just opposing counsel. This is a profoundly significant decision, and again, through phase two, what we're going to hear is the panel dealing with what should be done, giving the bar an opportunity to submit a post-hearing brief on what should be done with Mr. Nifong.
ROESGEN: All right, profoundly significant, gentlemen, you just sort of put a button on this. What does this mean for the legal community in general in this country? Not just in this case here in North Carolina, but what sort of message is this sending to prosecutors all across the country? Richard?
HERMAN: Well, you know, Susan, unfortunately, this happens more often than you'd like to believe, all over the country, every single day. There are tremendous prosecutors who go by the letter of the law, and I tip my hat to them, but there are people like Nifong out there, they're just not exposed.
This is going to send a message to them, that you better play fair, you better -- you have the burden of proof beyond a reasonable doubt and you better be fair, because you're going to be looked at. You're going to be looked at. He did a disservice to rape victims all over the country, this Nifong, this animal.
ROESGEN: OK, Avery, to be fair, let's give you the last word here.
FRIEDMAN: Well, in all fairness, this guy's not going to be practicing law. He better see if there's a greeter position over at Wal-Mart.
ROESGEN: All right. A very, very serious finding of ethics violations today in the Mike Nifong case.
Before we leave this topic, we've got to check back in with CNN's Susan Candiotti, who's been doing a superb job covering this for us.
Susan, you're there, you've just heard what we've all heard, your reaction? SUSAN CANDIOTTI, CNN CORRESPONDENT: Well, obviously this panel said it was looking for clear and convincing evidence, and it found it. It was interesting to me to watch the expressions on the faces of the people in that courtroom.
I'm watching from outside, so I'm watching the monitor as you are, but to see Mr. Nifong sit there and hear yes, guilty, time and again, by my count, 14 of the 19 counts, and appeared to me that he was breathing heavily at some point, but he certainly didn't change the expression on his face. He did appear to be in pain in hearing what this panel had to say.
And then to see the various pictures of the lacrosse players. In many cases, sitting there with their parents, watching, listening intently, not laughing, but very seriously listening, and at times nodding as if in approval.
We do expect to hear from them when they take a recess at the very next time, but what's expected next, as you've heard, is this penalty phase when some of these players might very well take the stand again to talk about what this tragedy has really meant in their lives, how it has changed, and how they were frowned upon by people, how they had to live through this experience.
And then of course Mr. Nifong will also put on character witnesses on his behalf to talk undoubtedly about the career he has had in practicing law. If he didn't make any mistakes before this, this one certainly makes up for that. And so he will try to, obviously throw himself at the mercy of this panel, but as the expert said, most people seem to think that it's a given, that he will lose his license, but naturally, it's up to the panel to make that decision.
ROESGEN: All right, Susan, we will be watching to see what happens this afternoon. Thank you to Avery Friedman, Richard Herman, and again, our CNN Correspondent Susan Candiotti. We will be right back.
ROESGEN: A lot happening now in the news, here's a quick update on what's going on. This is a live picture of the funeral services in North Carolina for Ruth Graham. Her husband, the world-famous evangelist, Billy Graham, is at the service, but he's not expected to speak. This is one of the granddaughters.
And in Iraq, coalition forces searching an enemy safehouse, found the identification cards of those two missing U.S. soldiers who've been missing since May, but there is no word on what might have been happened to them.
And now, let's go more in depth on those I.D. cards, those two missing American soldiers. The I.D. cards were found in a house near Samarra, and that city is in a volatile area north of Baghdad and it's about 120 miles north of where the two U.S. servicemen disappeared back in May. The U.S. military is calling the discovery of this suspected al Qaeda safehouse an important find.
(BEGIN VIDEO CLIP)
MAJ. GEN. BENJAMIN MIXON, CMDR., MULTI-NATIONAL DIVISION-NORTH: This was definitely a video production center where they could link into the Internet, as well as a possible command and control site. This was a tremendous intelligence find for coalition forces, and hopefully we will find more information on the data that's on the computers about the whereabouts of our great soldiers.
(END VIDEO CLIP)
ROESGEN: And the general also had these words for the families of the two missing soldiers.
(BEGIN VIDEO CLIP)
MIXON: I would tell them to not give up hope, we will continue to search, but our hearts and our prayers go out to them for strength during these very difficult times.
(END VIDEO CLIP)
ROESGEN: The U.S. military says that an extensive search of that suspected enemy safehouse turned up no evidence on whether the American soldiers had ever been there or where they might be now.
We'll take a short break and be right back.
ROESGEN: Now, one of our CNN heroes. Today, we're going to take you to Kabul, Afghanistan, where a famous makeup artist has come home to help the women of his country build a future.
UNIDENTIFIED MALE: Explain to me everything you want to explain.
MATIN MAULAWIZADA, "COMMUNITY CRUSADER": Afghanistan offered me a lot, and I wanted to bring a little something back. It's a tiny project, but I wanted to really make sure to bring something. The Afghan women, they've survived years of war, years of suppression, still they do, and they prevail. So, to me, the strength of Afghan women are just remarkable, and I wanted to work with them.
Widows, in particular, rely on the mercy of their families, so they kind of become servants, and I wanted to change that one person at a time, if I could. My entire point was to make sure that widows and women are able to proudly work and be proud of their work and work outside their house and provide wealth for their families.
It's just amazing. It sells itself, really.
UNIDENTIFIED FEMALE: (SPEAKING FOREIGN LANGUAGE)
MAULAWIZADA: They read and write the equivalent of a fourth grader now. Mentally, they're prepared to go to work. They know how to take measurements, they know how to do -- to write measurements. Once they learn enough, they will basically be businesswomen, and look at their embroidery on this.
I'm hoping that I would send them to courses that they could actually manage a business, grow a business. My whole dream is for them to basically have the confidence to see the beautiful objects that they're making, and know that people are enjoying and appreciating them.
They're doing the work, and all I'm offering is basically an opportunity for them to show what they have.
ROESGEN: Stay right here on CNN, where we are continuing to follow the Nifong ethics hearing. We'll also have the latest developments in the search for those two missing U.S. soldiers in Iraq. These are their I.D. cards.
And just ahead from CNN's special investigations unit, the Britain tourists don't see, a look at the lives of young Muslim radicals. We'll be back in a moment with a quick check of the headlines. Don't go away.
ROESGEN: I'm Susan Roesgen, and here's what's making news now. The stories we're following for you in the NEWSROOM.
The U.S. military says the I.D. cards of these two missing U.S. soldiers have been found in a raid on an enemy safe house near Samarra.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.voxant.com.