Nifong made what appear to be his first public comments about the case to a reporter from The News & Observer on March 27, four days after the paper reported that 46 lacrosse players were ordered to submit DNA as part of a rape investigation. In the following weeks, Nifong granted dozens of media interviews, including several that were nationally televised.
He criticized team members for not cooperating with police, at one point using the term "a bunch of hooligans." He has been emphatic that he thinks the dancer was raped and that he has medical evidence and eyewitness testimony that will prove it. He has said that the racial slurs alleged to have been used against the dancers at the party made an "extremely reprehensible attack even more reprehensible." He has speculated that no DNA was recovered because the attackers may have used condoms. And he went on a cable news show and used his own arm to demonstrate how the alleged victim was choked.
Duke player lawyer Joe Cheshire explains the "safe harbor" rule.
In its ethical rules, the N.C. State Bar orders lawyers to refrain from statements outside the courtroom that they know might have "a substantial likelihood of materially prejudicing" legal proceedings. But once one side talks to the press, ethics rules say the other side can make statements "a reasonable lawyer" would believe are required to protect a client from bad publicity.
"If the district attorney didn't put us in this position to have to answer these questions, I would not be discussing this case in public," said Joseph B. Cheshire V, who represents a team captain who lived in the Buchanan Boulevard house where a rape is alleged to have occurred.
The DA should not have discussed (Commment to Rule 3.6, Trial Publicity):
(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
Nor should he have expressed:
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;.
The same holds true for when the media, as opposed to opposing counsel, attacks your client. The defense is entirely within its rights to be presenting information to the public.
Another ethical violation committed by Nifong in my view is his refusal to look at evidence the defense tried to show him before indictment that was exculpatory. He may not be required to present it to the grand jury, but he has an ethical obligation not to turn a blind eye towards it.
Rule 3.8 of the North Carolina Rules of Professional Conduct discuss special obligations of the Prosecutor. Comment 2 to the rule says:
Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused.
By the way, some commenters have questioned whether legal commentators (or lawyers not involved in the case) are subject to these rules. The answer is no. See comment 3 to Rule 3.6.
Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the rule applies only to lawyers who are, or who have been involved in the investigation or litigation of a case, and their associates.
Update: Here's another of Nifong's statements according to Newsweek:
According to Nifong, one of the players called out, "Did you bring any sex toys?" When the women answered no, a man said, "That's OK, we'll just use a broom."
