AARON BEARD Associated Press DURHAM, N.C. -
Nine months after the Duke lacrosse scandal broke, hardly anyone is willing to defend the prosecutor. Defense attorneys, legal experts and even longtime colleagues are raising serious questions about District Attorney Mike Nifong's judgment and integrity.
The central question: Why is he pressing on with a case that looks pitifully weak and is getting weaker all the time?
"I think they're going to be found not guilty - if they go to trial," said Bob Brown, an attorney in private practice who once worked with Nifong in the prosecutor's office and faced him as a public defender. "The trial will be a bloodbath."
Stan Goldman, who teaches criminal law at Loyola Law School in Los Angeles, said if Nifong takes the three lacrosse players to trial with the evidence he appears to have now, "this guy would be the poster child in public defenders' offices around the country as the quintessential bad DA."
Nifong has been under fire from the start over weaknesses in the case, which include a lack of DNA evidence and the accuser's shaky credibility. But even some of those who were willing to give him the benefit of the doubt were alarmed last week, when he dropped the rape charges after the stripper who accused the athletes wavered in her story. The men still face kidnapping and sexual offense charges.
Among other questions raised in recent weeks: Why didn't Nifong give the defense all the DNA evidence as soon as he got it? Why did it take months for anyone from his office to interview the accuser? And why did he suggest that police conduct an apparently faulty photo lineup?
"I don't see how any member of the public can have confidence in this case. I think it's making a mockery of our criminal justice system to permit this guy to keep fumbling along," said Duke University law professor James Coleman, one of Nifong's leading critics. "It's either total incompetence or it's misconduct on a scale that is extraordinary."
Nifong did not return repeated requests for comment for this story, but told The Associated Press in an October interview he feels a responsibility to prosecute the case. The case is not expected to go to trial until at least the spring.
Legal observers generally agree Nifong will almost surely need more evidence than has been made public so far to convict Reade Seligmann, Collin Finnerty and David Evans, who have maintained their innocence and called the charges "fantastic lies."
"Prosecutors are not supposed to be bringing and continuing cases unless they have a good chance of winning," said John Banzhaf, a professor at George Washington University Law School. "He has to prove the case beyond a reasonable doubt. Unless he's got about 10 aces up his (sleeve), in my judgment there's no way he could satisfy that criteria."
But Woody Vann, who represented the accuser several years ago and is one of the many members of the Durham bar who staunchly defended Nifong's professionalism when the story first broke, said if the prosecutor had a witness to corroborate the woman's story, it would have come out by now.
One of the biggest problems with the case is the lack of any DNA evidence connecting any member of Duke's lacrosse team to the accuser, a 28-year-old student at North Carolina Central University hired to perform as a stripper at a March 13 team party.
Nifong has said he doesn't need DNA to win the case. But the DNA evidence that does exist suggests she had sex with several other men close to the day of the party. The defense has said she claimed she did not have intercourse for at least a week before the party.
The defense has further said that in the hours after the party, the woman told wildly different versions of what happened. She variously estimated the number of attackers at three to 20 and said at one point that she was not raped at all.
Victims' rights advocates say rape victims are often unable to focus on the details immediately afterward. But the accuser told Nifong's investigator last week - nine months after the party - that she was no longer certain she was penetrated vaginally with a penis, as she had claimed several times before. That led Nifong to drop the rape charges.
Norm Early, a former district attorney in Denver who now works with the National District Attorneys Association, said he could not understand why Nifong didn't dump the rest of the case, too.
"It's such an incredible reliability problem that you wonder how the prosecution could rehabilitate her on the other charges," Early said.
And Vann said: "If the case rises or falls on her testimony, he's got issues. It would be difficult having this be a successful prosecution."
Among other weaknesses in the case: The accuser's credibility was damaged, at least in the court of public opinion, when it was learned that she claimed a decade ago that she was gang-raped. That case never led to an arrest.
Also, Seligmann has ATM and fast-food receipts, surveillance pictures, time-stamped photos and other evidence that suggest he was not at the party when the rape supposedly took place.
In addition, the defense contends investigators violated police procedure during a photo lineup that used only pictures of lacrosse players, even though investigators knew other men attended the party. The lineup should have also included "fillers" of men authorities knew were not there, the defense says.
"If the lineup and her identification is thrown out, then there's nothing to go to court on," Goldman said. "There's no case. The entire case is based on her ID of these guys. There's no DNA evidence. There's merely the accusation of rape and she wouldn't be allowed to say who did it."
The defense is scheduled to argue the point in court Feb. 5. The accuser will appear at that hearing, and Nifong told The New York Times last week that if she could not identify her attackers, he would not hesitate to drop the remaining charges.
Nifong could also be made to answer for his decision to initially withhold from the defense DNA test results that found genetic material from several men - none of them Duke lacrosse players - on the accuser's underwear and body.
Joseph Kennedy, a law professor at the University of North Carolina at Chapel Hill, said the withholding of the results violates North Carolina law and state rules governing attorney conduct.
Backers of the lacrosse team are convinced the players are victims of a reckless prosecution, and the North Carolina State Bar has received complaints asking for an investigation of Nifong. Bar counsel Katherine Jean would not comment, but the possible punishments for misconduct range from admonishment to disbarment.
Vann said the many of the things complained about, including the belated disclosure of the DNA results, can be explained away as oversights or poor judgment - not misconduct on Nifong's part.
"He did spend 28 years in the DA's office of being involved with cases of all nature - some, many as serious and more serious than this one - where he has performed his job at the highest standards," the lawyer said.