06/13/2007

By AARON BEARD  / Associated Press

Mike Nifong never asked the Durham police officer investigating the Duke lacrosse rape case to withhold evidence and didn't coach him before his appearance before a grand jury, the detective testified Wednesday at the veteran prosecutor's ethics trial.

During their cross examination of police investigator Benjamin Himan, Nifong's attorneys asked him to recount the early days of the now-defunct case that started when a stripper told police she was raped at lacrosse team party in March 2006. Nifong won indictments against three players, who were later cleared by state prosecutors.

The North Carolina State Bar has charged Nifong, the Durham County district attorney, with several violations of the state's rules of professional conduct — all tied to his actions in the lacrosse case.

On Tuesday, Himan said he was concerned authorities didn't have enough evidence against Reade Seligmann, one of three players eventually charged with rape, kidnapping and sexual offense. When he learned Nifong planned to seek an indictment, Himan said his reaction was instinctively sarcastic: "I think I made the response, 'With what?'"

Himan said Wednesday that Nifong knew about the accuser's history of mental illness, and about a past accusation of rape that didn't lead to an arrest, before he made the decision to seek indictments against Seligmann, Collin Finnerty and, later, Dave Evans.

Nifong's attorney, Dudley Witt, questioned Himan on Wednesday about his reservations about indicting Seligmann.

"(Nifong) said if you believe her in one part of the story, you have to believe her on the other part of the story," Himan said. "You can't pick and choose."

There were not nearly as many people in the courtroom Wednesday on the second day of the ethics trial. But among those attending was Seligmann, joined by his parents and attorney Jim Cooney, who said Tuesday that Himan's account was further proof that Nifong should have backed off the case.

"When everyone who knew anything about the investigation kept saying, 'There's no evidence, slow down,' Mr. Nifong kept going forward," Cooney said.

Seligmann and his teammates were later cleared by state Attorney General Roy Cooper, who concluded the players were "innocent" victims of a rogue prosecutor's "tragic rush to accuse."

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 Nifong of making misleading and inflammatory comments about the athletes.

Freedman has said his client will testify that he regretted making such statements and that in the early days of the case evidence led Nifong to believe a crime had occurred.

In January, after Nifong turned the case over to state prosecutors, the bar added allegations that Nifong withheld evidence from defense attorneys and lied to both the court and bar investigators.