Published January 13, 2007
DURHAM, N.C. – Facing ethics charges that could lead to his disbarment, the prosecutor in the Duke lacrosse sexual assault case asked the state attorney general's office Friday to appoint a special prosecutor to take over the case.
District Attorney Mike Nifong sent a letter Friday requesting the special prosecutor, said Noelle Talley, a spokeswoman for the attorney general's office.
Late Friday, Nifong's attorney insisted he is not running from a weak case and said the veteran prosecutor is disappointed he won't be able to take it to trial. He said Nifong met with the accuser this week to tell her in person of his decision to recuse himself.
"He feels, as a result of the accusations against him, that he would be a distraction and he wants to make sure the accuser receives a fair trial," attorney David Freedman told The Associated Press. "He still believes in the case. He just believes his continued presence would hurt her."
The move came on a day when it was reported Nifong served his key witness a subpoena, forcing her to testify during a Feb. 5 hearing.
Nifong met for several hours with the woman who claims she was sexually assaulted by three Duke players during an off-campus party in March, WRAL reported, and it was there the subpoena was served.
It was not immediately clear what impact the decision would have on the troubled criminal prosecution of Reade Seligmann, Collin Finnerty and David Evans. Talley said Cooper's office, which had previously declined to comment when asked about the prospect of taking over the case, would speak with reporters on Saturday.
"If he accepts it, then they would transfer the files over, and they would probably have a lot of interviews to do," said Peg Dorer, director of the North Carolina Conference of District Attorneys. "It would probably stop things for a while I imagine."
Under North Carolina law, only a district attorney can formally request a special prosecutor. The request can be made when there are potential conflicts of interest, when a case is particularly complex or when there are other unusual circumstances.
"Once an ethics charge is brought, he had a conflict of interest with respect with the case," said Ron Sullivan, a criminal law professor at Yale University. "It's probably safe to say that Nifong felt that he couldn't be completely objective."
Legal experts and observers have railed against Nifong in recent weeks, calling his case pitfully weak and one he had little chance of winning.
"I think we're all delighted that we're going to have objective and competent prosecutors reviewing this case," said James P. Cooney III, an attorney for Seligmann. "We look forward to cooperating with those prosecutors fully and completely in bringing this prosecution to an end."
From its earliest days, Nifong led the investigation into allegations a 28-year-old student at North Carolina Central University — hired to perform as a stripper — was gang-raped and beaten at a March 13 party thrown by Duke's highly ranked lacrosse team.
In the months that followed, Nifong pressed ahead with the case despite the players' insistent claims the accusations were "fantastic lies." Experts have said it appears the case is based only on the testimony of an accuser who has told wildly different versions of the alleged assault — a shifting story that led Nifong to drop rape charges on Dec. 22.
The three players remain charged with sexual offense and kidnapping. The next hearing in the case is set for Feb. 5, although it's likely to be rescheduled. At that hearing, the defense is scheduled to ask a judge to throw out a key photo lineup and keep the accuser from identifying the players in court. Legal experts have said without that testimony, prosecutors would likely have to drop the case.
In late December, North Carolina State Bar charged Nifong with violating four rules of professional conduct for making misleading and inflammatory comments about the athletes under suspicion. The charges carry penalties ranging from admonishment to removal from the bar; a hearing in that case is scheduled for May 11.
News of the latest change in the accuser's story came in court papers filed Thursday by the defense. Citing a prosecution report, the defense said the accuser told investigators in December that Seligmann did not commit any sex act on her during the alleged attack but was repeatedly urged to join in.
During an earlier interview with authorities, the accuser had said she was "100 percent" sure Seligmann had sexually assaulted her.
"We wish and wanted him to dismiss the cases, but this is one of the right things for him to choose to do and we are pleased that highly competent attorneys will now be in charge of this case," said Wade Smith, an attorney for Finnerty. "We will meet with them, we will share information and we will assist them in every way we can."
In the weeks after the March party, the case focused attention on questions of race, class and the privileged status of college athletes. But as the investigation progressed, and Nifong started to hand over his evidence to the indicted players' defense attorneys, the case began to unravel — and the focus shifted to Nifong and accusations he used it for political gain.
Appointed district attorney in 2005, Nifong faced two challengers in May's Democratic primary and later in the November general election. He won both — but each time with less than 50 percent of the vote.
After he dropped the rape charges a few days before Christmas, there was hardly anyone left willing to defend Nifong. Legal experts said he couldn't win the case with the evidence he had, and even longtime colleagues were questioning his judgment and integrity.
Duke's administration had also steadily increased its criticism, culminating in the decision to invite Seligmann and Finnerty — suspended in the wake of their indictments — back to campus. Evans graduated the day before he was indicted.
The critique became much more serious when the bar filed ethics charges.
"I think justice is better served with a fresh set of eyes on this case," said Sullivan, the Yale professor. "This way, the personality of the prosecuting attorney won't be a factor in the investigation, and that's important."
The Associated Press contributed to this report.