LAWFUEL – The Law Newswire – Michael B. Nifong, the prosecutor who brought rape charges against three Duke University students, found himself in a crowded courtroom today with the tables turned. Mr. Nifong’s law license is hanging in the balance of an ethics trial focused on his motives and tactics in pursuing the now-dismissed case, The New York Times reports.
Mr. Nifong is expected to take the stand later this week to explain his actions and face a tough cross-examination. He sat impassively during opening arguments and testimony, often holding his chin in hand, as a defense lawyer and the lead police investigator of the rape accusations described their doubts about the way he had handled the Duke case.
A decision on the ethics charge may come by Friday or Saturday and could result in penalties as severe as disbarment. Mr. Nifong, 58, is also facing two separate reviews by North Carolina superior court judges, one on whether to remove him as district attorney, the other on whether he lied in court.
The most dramatic moments came today from the Durham police detective who led the investigation, Benjamin W. Himan, who said he met with Mr. Nifong every two or three days. Mr. Himan said he had responded with disbelief when he learned Mr. Nifong planned to indict one student based on the word of the accuser, a stripper who had been hired to perform at a lacrosse team party.
At that point, Mr. Himan said, the police did not even know whether one of the suspects was at the lacrosse team party because his name was not on any list of attendees.
Mr. Himan said Mr. Nifong later told him that they had to believe the accuser on every suspect if they believed her on any suspect.
Mr. Himan also said he was “shocked” and “upset” that an investigator for the district attorney later interviewed the accuser by himself, not inviting him as the police investigator. When major inconsistencies emerged from that interview, Mr. Himan said, “It didn’t make any sense to what she had previously told us.”
David B. Freedman, Mr. Nifong’s lawyer, said after the court session that Mr. Himan’s testimony had been expected and that he looked forward to cross-examining him on Wednesday. Mr. Freedman said Mr. Himan would support Mr. Nifong on the key issue at the ethics trial: whether Mr. Nifong asked a laboratory director not to include some DNA evidence in a report.
Two of the three former students’ mothers watched the opening arguments. The students’ protestations of innocence were upheld decisively in April by the North Carolina attorney general, who called Mr. Nifong a “rogue prosecutor.”
Mr. Nifong’s wife, teenage son, brother and sister sat behind him in the courtroom.
The ethics charges were filed by the North Carolina State Bar on two broad fronts: That Mr. Nifong had inflamed the community and prejudiced the case against the defendants by saying before trial that he was certain a rape had occurred and calling the defendants racists and “hooligans.” And that Mr. Nifong had hid important DNA evidence and lied about it in court.
In opening arguments, Mr. Freedman agreed that some of Mr. Nifong’s public comments were “outlandish.” But he said they were not directed at any particular defendant but aimed instead to pressure witnesses to come forward.
Mr. Freedman said Mr. Nifong, a 29-year career prosecutor, had not realized the significance of the DNA evidence showing the woman who accused the lacrosse players of rape had traces of several other men’s DNA but none of the lacrosse players. The absence of lacrosse players’ DNA was included in a summary report, but not the existence of other male DNA.
A three-member disciplinary hearing commission will rule later this week on whether Mr. Nifong violated ethics rules and, if so, proceed immediately to a penalty phase, said F. Lane Williamson, a lawyer from Charlotte, N.C., who leads the panel. That decision could be appealed by either side to the State Court of Appeals.
In addition, two judges in Durham County have announced they will consider further penalties against Mr. Nifong, no matter what the outcome in the ethics trial.