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January 13, 2007
Nifong Wants A Forfeit?

Durham District Attorney Mike Nifong, under fire for a series of unethical acts in his pursuit of a rape and sexual assault case against three Duke University students, asked to have the state replace his office on the case. Nifong's own legal troubles with the state Bar over his actions has made it impossible for him to continue as prosecutor:

Durham, N.C., District Attorney Mike Nifong has requested that he have himself removed from prosecuting the Duke lacrosse rape investigation. ABC News broke the story, first reporting Nifong's recusal Friday afternoon.

Three Duke lacrosse players, Reade Seligmann, Collin Finnerty and David Evans, were indicted in 2006 on charges of rape, sexual assault, and kidnapping after a lacrosse team party on the night of March 13. Rape charges were dropped in December after the accuser could not recall key details of the alleged attack.

A source close to the investigation said Nifong sent a letter to North Carolina Attorney General Roy Cooper asking his office to assume responsibility of the case. A press spokeswoman for Cooper confirmed to ABC News that his office has received a request for a special prosecutor on the case.

Last week, that spokeswoman said the attorney general would take on the Duke lacrosse case only if requested by Nifong, consistent with North Carolina law.

The end is near for this legal debacle. No one in their right mind would put the accuser on the stand after the changing stories she has told since the charges were filed in March. Absent the accuser, the prosecution has no case -- no physical match for the DNA found on the accuser, no witnesses, and a gibbered timeline that now has the rape occurring before the dancing at the party. Add in the obvious prosecutorial misconduct of conspiring to hide the DNA results from the defense, and we have the textbook example of a travesty.

Or, perhaps, a forfeit. The New York Times covers the story this morning, but for some reason, they ran it in the Sports section. They add some interesting background to the story:

Mr. Nifong made the decision following lengthy conversations with the accuser in his courthouse office Thursday and again today, according to the official involved in the case.

Mr. Nifong had planned to recuse himself since shortly after the North Carolina State Bar filed an ethics complaint against him on Dec. 26, because that put him in a conflict of interest between defending his actions and prosecuting the case, the official said. But he had not been able to talk with the accuser about that because she had been in precarious health at the end of a pregnancy, the official said. The woman gave birth Jan. 3.

The official said the attorney general’s office was expected to accept the referral. But the fate of the case is uncertain: Many experts wonder if the attorney general or another prosecutor will quickly drop the charges after assessing weaknesses in the credibility of the accuser, an African-American stripper who said she was sexually assaulted by three white lacrosse players at a team party last March 13. Defense motions have attacked her credibility and mental health.

So he wanted to recuse himself, but not until he spoke with the accuser. What does that mean? Did he want to see if he could construct another timeline for the accusation that would hold up against the defense alibis that had been publicly presented? He wasn't dropping the case, after all -- he was just asking the state AG to take over its prosecution, and the accuser shouldn't have a veto on that request.

If Nifong wanted to see justice done, he would have dropped the charges and then resigned his office. Instead, he's ducking the problem entirely by quitting before the case collapses in its February 5th preliminary hearing. Given the misconduct that surrounds this case, no one can argue that the three defendants can receive a fair trial in any event, and the ridiculous record of this case strongly suggests that the entire accusation is bogus. No judge worth his robes would allow this case to proceed, especially given Nifong's actions -- and Nifong knows it.

The AG should drop the case against the students and open an investigation of Mike Nifong for criminal actions in his handling of this case.

UPDATE: Could Nifong face criminal prosecution? If Brian Meehan's story to CBS holds up, the state AG could have grounds for perjury, or at least knowingly filing misrepresentations of evidence in a criminal court (via Memeorandum):

Meehan has stated that he told the prosecutor, Durham County District Attorney Mike Nifong, about the other DNA [that excluded the Duke team members] for the first time in mid-April. Later that same month, Nifong indicted three Duke lacrosse players. Meehan has also said in court proceedings that he and Nifong agreed before the evidence tests were completed that his report should be limited to positive matches between the accuser and the players at the team party where she says she was sexually assaulted last March. ...

Nifong took six months to tell the players' defense attorneys about the other DNA, as required by law — and during that time, Nifong filed a court motion that stated he was not aware of any potentially exculpatory evidence.

So now we have Nifong and Meehan agreeing to hold back exculpatory DNA evidence that indicated that the woman had sexual contact with more than one man, none of whom were Duke lacrosse players, and then filing a motion denying he knew of any exculpatory evidence. That sounds like perjury to me, although perjury is a technical charge that may not apply to court officers filing motions. If it isn't perjury, it should be a criminal offense for prosecutors to knowingly mislead the court in an attempt to pervert justice.

How could Nifong file charges after he knew the DNA evidence would exonerate the students? Did he hope to pressure the boys into pleading out in order for Nifong to save a little face after all of the incendiary comments he made to the media? It certainly seems that way -- and maybe the state AG should start investigating Nifong's previous cases to see if this is a pattern. In fact, the Department of Justice should start looking into the potential that the Durham DA's office serially violates civil rights in this manner.

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Posted by Ed Morrissey at January 13, 2007 8:55 AM

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