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.
The charges he faces include withholding potentially exculpatory evidence, making inappropriate public comments about the case and lying to a judge and to state bar investigators.
Last spring, in the midst of a tight election campaign against a popular former prosecutor, Nifong secured indictments against Seligmann, Finnerty and Evans, charging them with first degree forcible rape and kidnapping. A stripper hired to dance at an off-campus Duke lacrosse team party in March 2006 originally said she was held in a tiny bathroom, beaten and raped repeatedly by three men at the party.
For many observers, the dramatic, yearlong case with its seemingly bottomless supply of surprises, had by then become a national symbol of prosecutorial malice.
Over the course of the ensuing year, the case slowly unraveled as the woman changed her story repeatedly and as a seemingly airtight alibi for at least one of the players surfaced in the form of receipts, security camera video and cell phone records.
Early this year, under tremendous pressure, Nifong ceded the case to the North Carolina Attorney General's office, which reviewed it and determined in April that there was not enough evidence to pursue the case. All charges were dropped.
North Carolina Attorney General Roy Cooper said at the time that there was no rape or attack, that all three players were "innocent" and that Nifong had erred grievously in his "tragic rush to accuse."
Seligmann and family members from the other two former suspects attended the first day of the hearing. One if not all three players are expected to testify. Nifong is also expected to testify at the hearing, which is predicted to last three to four days.
Freedman, Nifong's attorney, said this week that Nifong had no plans to resign in the face of criticism.
"Public opinion is not going to weigh in on how the proceedings develop and will not weigh in on the ultimate decision by the bar," Freedman told The Associated Press.
"Our purpose is not to sway public opinion but to present his case to the bar."