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D.A. in Duke case gives up the fight

Under an ethics cloud, he withdraws from the racially charged drama.

January 13, 2007|David Zucchino | Times Staff Writer

DURHAM, N.C. — Under investigation for withholding evidence and making prejudicial statements, the prosecutor in the Duke University lacrosse sexual assault case withdrew from the explosive case late Friday.

The abrupt departure of Dist. Atty. Mike Nifong further disrupts a prosecution that was already showing signs of unraveling. The case is likely to grind to a halt if a special prosecutor is appointed by the state attorney general to review the investigative files and decide whether there is sufficient evidence for a trial.

For The Record
Los Angeles Times Monday January 15, 2007 Home Edition Main News Part A Page 2 National Desk 1 inches; 73 words Type of Material: Correction
Duke case: An article in Saturday's Section A said a second exotic dancer in the Duke University sexual assault case told police that lacrosse players shouted racial slurs during and after a team party where she and the accuser in the case performed. In fact, she said the slurs came only as she left the party. It was the accuser who told police the players used racial slurs as the two women danced.

James P. Cooney III, the lawyer for one of three white former lacrosse players accused of gang-raping a black exotic dancer in March, said he hoped Nifong's removal "will bring this prosecution to a close."

"We're all looking forward to working with an objective and competent prosecutor," Cooney said.

The woman's accusations fueled a passionate debate about race, sex and class at Duke, an elite, predominately white university that is just 10% black, and in Durham, a city with a large black population.

A student leader at traditionally black North Carolina Central University, where the ac-cuser was a student, told Newsweek that the players should be prosecuted "whether it [the rape] happened or not. It would be justice for things that happened in the past." Members of the Durham City Council called the lacrosse team "a ticking time bomb that has not been dismantled."

In a letter delivered to North Carolina Atty. Gen. Roy Cooper, Nifong asked the special prosecutions unit to take over the case, spokeswoman Noelle Talley said Friday night.

Nifong's attorney, David Freedman, said the prosecutor's withdrawal did not mean that Nifong thought he had a weak case, but that the ethics charges were creating a distraction.

The state bar association charged Nifong last month with violating four ethics rules by making prejudicial comments. A hearing is set for Jan. 24. Nifong could be disbarred or have his license suspended.

The association also is investigating Nifong's failure to turn over exculpatory DNA test results, according to lawyers familiar with the case. A lab director testified that Nifong withheld results showing that DNA from the woman's body and clothing came from several unidentified males, none of them the defendants or their teammates.

Bar association charges against a sitting district attorney are virtually unprecedented in North Carolina, local attorneys said. A district attorney asking to be taken off a case also is unusual, said Duke law professor James E. Coleman Jr.

The case has been fraying for weeks, dragged down by Nifong's heated rhetoric and legal missteps, and the accuser's conflicting accounts of the alleged assault at a lacrosse team party in an off-campus house March 14.

Nifong called the team "a bunch of hooligans." He indicted three players -- Collin Finnerty and Reade Seligmann, both 20, and David Evans, 23 -- on rape charges, saying they had shown "a deep racial motivation" and "contempt ... for the victim, based on her race."

With no DNA evidence or other witnesses to implicate the defendants, Nifong was forced to rely on the ever-shifting recollections of a woman who, according to court records, entertained strangers in hotel rooms and danced at a strip club.

After giving police a graphic account in April of being penetrated vaginally, anally and orally by the players, the woman told an investigator Dec. 21 that she was no longer sure she was vaginally penetrated by a penis -- a requirement for a rape charge under state law. Nifong dropped rape charges, but retained first-degree kidnapping and sexual offense charges.

On Thursday, the defense revealed that the woman told the investigator that only two men raped her, not three. She also changed the timing and other details of the alleged attack.

Police officers and district attorney investigators who handled the case will be removed if a special prosecutor is appointed, Coleman said. The prosecutor would rely on staff investigators and those from the State Bureau of Investigation.

"Given the state of the case, he would basically have to start over," Coleman said. "He'd do what Nifong should have done. He would determine whether there is any credible basis to believe a crime occurred."

A hearing scheduled for Feb. 5 will almost certainly be postponed, said Cooney, Seligmann's lawyer. On Thursday, the defense served a subpoena to the accuser as she met with Nifong in his office, he said. She would have been called to testify at the hearing.

The accuser, a mother of three, is still viewed by some as a victim. Her sex life has been held up to public scrutiny, right down to the color of the thong she wore that night. No one disputes that she was humiliated at the party and subjected to racial slurs. But her credibility, in Coleman's view, is "laughable."

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