Prosecutor Opens Defense of Actions in Duke Case

Durham County District Attorney Michael B. Nifong, accused of misconduct by the North Carolina State Bar, attends a disbarment hearing in Raleigh.
Durham County District Attorney Michael B. Nifong, accused of misconduct by the North Carolina State Bar, attends a disbarment hearing in Raleigh. (Pool Photo By Gerry Broome)
By Sylvia Adcock
Special to the Washington Post
Wednesday, June 13, 2007

RALEIGH, N.C., June 12 -- Durham County District Attorney Michael B. Nifong, under fire by the North Carolina State Bar for his handling of the sexual assault case against three Duke University lacrosse players, mounted his defense Tuesday, contending it was his duty as a prosecutor to pursue a case if he believed a crime had been committed.

But testimony during the first day of a disbarment hearing against Nifong showed that both he and his police investigators had grave doubts about the strength of the case in the early days of the investigation.

Nifong "said it was going to be a circumstantial case -- he said, she said -- and that's how most rape cases are. He said it was going to be hard to prove the allegations happened," Durham police investigator Ben Himan testified.

Nifong's attorney told the panel of the bar's Disciplinary Hearing Commission that the Durham prosecutor was only doing his job. "It is not unethical to pursue what some may see as an unwinnable case," David Freedman said in an opening statement.

The lacrosse players -- David Evans of Bethesda; Reade Seligmann of Essex Fells, N.J.; and Collin Finnerty of Garden City, N.Y. -- were charged with raping and kidnapping an exotic dancer called to perform at a team party on March 14, 2006. But after the case was transferred to the state attorney general's office as Nifong faced misconduct charges from the bar, the three were exonerated.

The allegations against Nifong include making inflammatory pretrial statements, withholding evidence favorable to the defense, and lying about the evidence to a judge. The bar could reprimand Nifong or take away his law license.

In opening statements, the bar's attorney, Katherine Jean, said that in March 2006, when the sexual assault complaint came to Nifong's attention, "he was engaged in a contentious political campaign to keep his job. . . . He immediately recognized that this case would garner significant media attention." At that point, Jean said, he decided to handle the case himself.

In a meeting March 24 with Durham police investigators, Nifong learned that the accuser had already twice recanted to police, that her account of the number of men involved in the assault varied from three to five to 20, and that the other dancer hired to come to the house that night said her story was "a crock."

Jean said, however, that after the meeting, Nifong gave a series of interviews in which he detailed the accuser's allegations as if they were fact.

Freedman, Nifong's attorney, said Nifong had reasons to believe a crime had occurred. After the accuser gave police her account of an assault, police went to the scene of the alleged crime and discovered that everyone was gone. "Even the people who lived there," Freedman said. That aroused the suspicions, he said. When witnesses in the neighborhood were interviewed, they told of hearing racial slurs from the lacrosse players directed at the women leaving the house that night. Freedman also said that the accuser's statement that she was threatened with a broom was consistent with accounts given by three other residents of the house, who also said she was threatened.

Freedman said in an interview after the hearing that the case before the disciplinary board does not involve the strength or weakness of the case against the three athletes.

A key issue in the hearing will be whether Nifong intentionally kept information in a DNA report from defense lawyers. An analysis, done by a private lab, did not show the presence of DNA from any of the 46 lacrosse players. The bar's complaint against Nifong says he intentionally agreed with the lab director to keep that information out of a report to defense lawyers but later told a judge he did not know that the information had been withheld.

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