As Mike Nifong was calling the Duke lacrosse team a "bunch of hooligans" in public, he was privately acknowledging that the rape case would be hard to prove and that the accuser's story was filled with inconsistencies, a police investigator testified Tuesday.
But the Durham County district attorney insisted on pressing ahead with the case, police Investigator Benjamin Himan said on the opening day of Nifong's ethics trial.
"We didn't have any DNA. We didn't have him at the party," Himan said of 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."
The North Carolina State Bar has charged Nifong with several violations of the state's rules of professional conduct, all tied to his handling of allegations that a stripper was raped and beaten at March 2006 party thrown by Duke's highly ranked lacrosse team.
If convicted by the disciplinary committee hearing the case, he could be stripped of his license to practice law in the state.
"This didn't have to happen," said Katherine Jean, the bar official prosecuting Nifong, during a 25-minute opening statement that outlined in minute detail his actions in bringing indictments against lacrosse players Seligmann, Collin Finnerty and Dave Evans.
All three were later cleared by North Carolina Attorney General Roy Cooper, who concluded they were "innocent" victims of a rogue prosecutor's "tragic rush to accuse."
"The harm done to these three young men and their families and the justice system of North Carolina is devastating," Jean said.
Jean hinted at Himan's testimony during her opening statement, prompting Nifong's attorney, David Freedman, to respond that his client told police only that if they believed the accuser's allegations against Finnerty, "then you have to believe her on Seligmann."
"Mr. Nifong did not — 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."
But Himan testified that he was surprised when he learned that Nifong planned to pursue an indictment against Seligmann, sarcastically asking his superior, "With what?" He said he met personally with Nifong to express his concerns, and even tried to reach out to the defense attorneys retained by the lacrosse players.
"I didn't want to indict someone that shouldn't have been indicted," Himan said. "I tried to give every opportunity for someone to tell me where they were."
Himan also said Nifong acknowledged early during the investigation that the accuser had made several inconsistent statements about what took place at the party. Nifong used an expletive to express his dismay with the situation, Himan said, adding that he never saw Nifong challenge the accuser about the inconsistencies.
"He said it was going to be a circumstantial case — he said, she said — and that's how most rape cases are," Himan testified. "He said it was going to be hard to prove."
Attorneys for the lacrosse players said Himan's account was further proof that Nifong should have backed off from the troubled case.
"When everyone who knew anything about the investigation kept saying, 'There's no evidence; slow down,' Mr. Nifong kept going forward," said Jim Cooney, who represented Seligmann. "To hear the details is just chilling."
Nifong's attorneys did not get a chance to question Himan before testimony concluded for the day. The trial is expected to last for four more days.
Nifong's public pronouncements of confidence in the case — which included calling the players "hooligans" and saying he didn't need DNA evidence to win a conviction — formed the basis of the bar's initial ethics complaint, which accused him of making misleading and inflammatory comments about the athletes.
"It took this case out of the court system and deposited it into the hands of the public," testified Finnerty's attorney, Wade Smith. "I do believe the community was inflamed because of those comments."
Freedman said his client would testify that he regretted making such statements. In his opening statement, he recounted the very early days of the case, highlighting evidence he said led Nifong to believe a crime had occurred. "It is not unethical to pursue what someone may believe to be an unwinnable case," he said.
In January, after Nifong had turned the case over to state prosecutors, the bar added allegations that Nifong withheld evidence from defense attorneys and that he lied both to the court and bar investigators.
Jean detailed Nifong's meetings with the director of a DNA laboratory he hired, at which she said Nifong learned that none of the players' DNA matched material found in and on the accuser. The bar has accused Nifong of keeping those test results from the defense.
"There is no evidence — none — of any sort of agreement with Mr. Nifong and anybody to exclude evidence," Freedman replied.
Reporters and observers — including Evans and Finnerty's mothers — packed the state Court of Appeals courtroom where the hearing was being held.