Nifong on Trial

June 13, 2007 — -- One of the top investigators working for Mike Nifong questioned the Durham, N.C., district attorney on the wisdom of seeking indictments against three Duke University lacrosse players last spring, according to testimony Tuesday in Nifong's disciplinary trial before the North Carolina State Bar.

Investigator Benjamin Himan testified that when he learned Nifong was going to seek first degree rape and kidnapping indictments against the players, Himan said he responded, "With what?"

"We didn't have any DNA. We didn't have him at the party," Himan said he told Nifong, referring to former Duke lacrosse player Reade Seligmann. "It was a big concern to me to go for an indictment with not even knowing where he was if he was even there."

Himan also testified that when he met with Nifong and other investigators to review evidence in the case the district attorney made the comment "to the effect, 'You know we're f---ed.'"

But David Freedman, Nifong's attorney, countered that as a prosecutor, his client believed the allegations were true or he didn't. Freedman said Nifong did.

If Nifong believed the accuser's allegations about indicted player Collin Finnerty, "then you have to believe her on Seligmann," Freedman said.

"Mr. Nifong did not generate a warrant on his own," Freedman said. "He had the investigators go in to present their case to a grand jury. There will be no evidence of any kind that they were instructed how to present the case to the grand jury."

Nifong is facing charges of prosecutorial misconduct from the North Carolina State Bar for his handling of the infamous Duke rape case, in which Seligmann, Finnerty and David Evans have since been cleared of all charges. If found guilty, the veteran prosecutor could be disbarred and consequently removed from his office as Durham County district attorney.

Nifong has previously acknowledged that he regrets some of the more inflammatory statements he made about the lacrosse players last spring to the local and national media, including calling the team members a "bunch of hooligans," but he maintains he did nothing intentionally unethical.