Prosecutor Seeks to Bow Out of Duke Case

Embattled DA Asks State to Take Over

Durham County District Attorney Mike Nifong is shown in a Nov. 7, 2006, file photo in Durham, N.C. The accuser in the Duke lacrosse sexual assault case told prosecutors in December that one of the three players charged did not commit any sex act on her during the alleged attack, according to papers filed Thursday, Jan 11, 2007, by the defense. This was was one of several changes the accuser made in her story during a Dec. 21, 2006, interview with an investigator from Nifong's office, the defense said. (AP Photo/Gerry Broome, File) (Gerry Broome - AP)

After months of stinging criticism about his handling of the Duke University sexual assault investigation, Durham District Attorney Michael B. Nifong sought to bow out of the case yesterday, requesting that the North Carolina Attorney General's Office handle the prosecution.

His decision to recuse himself was welcomed by the defense team representing the three Duke lacrosse players initially accused of raping a 28-year-old stripper at a team party.

"We feel very good about this. It's a fresh set of eyes looking at the case," said William Cotter of Raleigh, one of three attorneys for Collin Finnerty of Garden City, N.Y. "We think it's more likely that they will listen to us and we will certainly be cooperative with him or her."

The defense believes that another prosecutor would, after reviewing the contradictions of the alleged victim's accounts and the paucity of physical evidence, drop the case.

Attorney General Roy Cooper's office deferred questions about Nifong's action until a news conference scheduled for Saturday.

Nifong's request closely follows a formal ethics complaint made by the North Carolina State Bar, charging Nifong with violating ethics rules by engaging in "dishonesty, fraud, deceit or misrepresentation" and by making comments that stirred "public condemnation of the accused." The bar complaint creates an ethical conflict that prevents Nifong from continuing the prosecution, lawyers said.

The case -- involving a black accuser and white suspects -- initially touched off a national debate about racism and privilege, as Nifong labeled the team from the elite university a "bunch of hooligans" and some portrayed reported actions at the party as the result of campus racism.

Since then, however, the case against the three has been staggered by contradictions in the alleged victim's story and Nifong's withholding of exculpatory evidence.

The victim's account has changed repeatedly on key points -- such as whether she was penetrated by a penis. The change prompted Nifong to drop rape charges against the three men Dec. 22, but they still face charges of sexual offense and kidnapping, which carry significant prison terms.

At the same time, some of Nifong's initial statements about the strength of the evidence he had gathered have proved to have been misleading.

The director of a private DNA-testing laboratory said it had omitted from its report that DNA from multiple men -- none a match to the defendants -- was found on vaginal and rectal swabs, on the accuser's body and on her underwear. Brian Meehan, the lab director, said he and Nifong had agreed to leave out that information because the case was so "explosive."

"Everyone just got run over by this guy who made these statements for which there was no support," said Duke Law School professor James E. Coleman Jr., who is African American and chaired the faculty committee that prepared a report looking into the lacrosse team's past.

Nifong "prejudged the case and injected inflammatory opinions that it was racially motivated," Coleman said, but "he had not done the investigation, so he had no idea what happened."

Calls to the District Attorney's Office after hours yesterday were not returned.

On Thursday, more contradictions in the victim's account were revealed in a motion by defense attorneys.

In an interview last month with a district attorney's investigator, the alleged victim said she had been attacked by two players -- not three, as she had said in previous accounts.

"The accuser's most recent recollections of events demonstrates clearly that she cannot accurately recall and describe her attackers and that any identification made by her is necessarily unreliable," defense attorneys wrote.

While the defense attorneys hold out hope that a new prosecutor may decide to drop the case, the move could also enable the prosecution to go forward -- if there is any suitable evidence.

Joe Kennedy, an associate professor of law at the University of North Carolina at Chapel Hill, said that if there is strong evidence that a crime was committed, a new prosecutor could divorce himself from Nifong's ethical problems. The new prosecutor could argue that the withholding of DNA evidence from defense attorneys was wrong but still argue that a crime had been committed.

He described the move as a "win-win" for both sides of the case.

But one of the lead defense attorneys in the case, Joseph B. Cheshire said he is "very confident" that a new prosecutor in the case would drop the charges after a review of the evidence.

"We are extremely pleased to be rid of him," Cheshire said of Nifong. "The word of the accuser changes every time she opens her mouth. Anybody who takes an objective look at this case will dismiss it."

Whoriskey reported from Miami; Adcock, from Durham, N.C.