Duke Student’s Lawyers Want D.A. off Case

Attorneys for a Duke University student arrested on suspicion of raping an exotic dancer demanded Monday that Dist. Atty. Mike Nifong be taken off the case, alleging in court documents that the Durham, N.C., prosecutor ignored key evidence “in his zeal to make national headlines and win a hotly contested primary.”

But Nifong’s supporters argued that the motion seemed motivated as much by politics as by law, coming on the eve of Nifong’s bid for election to a post he was appointed to last year.

“It’s just outrageous and unfortunate that things have been spun this way,” said Sharon Thompson, a Durham civil attorney. “There may have been a few missteps, but Mike is not the kind of person where his whole motivation is to benefit his campaign.”

The allegations were contained in a motion filed Monday on behalf of Reade William Seligmann, one of two Duke lacrosse team members indicted April 17 on charges of rape and kidnapping. Nifong said he was hoping to indict a third team member for participating in the alleged March 14 attack.

The case has also become the central issue in Nifong’s effort to keep his job as Durham County’s top prosecutor. Today he faces off in an election with two contenders who, like the players’ attorneys, have criticized Nifong for his bold statements early in the investigation. Some of those statements, critics say, seemed to unfairly implicate Duke lacrosse players before any indictments were handed down by a grand jury.

Monday’s motion -- filed by attorneys J. Kirk Osborn of Chapel Hill and Ernest L. Conner Jr. of Greenville -- introduced a new and unsparing tone to the criticism. The motion calls the case a “shakedown” and asserts that Nifong has been willing to “prostitute the truth” in the case to get elected.

The defense attorneys called for the appointment of an independent prosecutor. They also alleged that Nifong violated the North Carolina State Bar’s Rules of Professional Conduct by potentially prejudicing the jury pool, among other things. (A spokeswoman for the state bar would not comment Monday on such complaints, saying they could only be considered if a formal complaint were filed.)

A separate motion -- one of several filed Monday -- asks the court to suppress the accuser’s identification of the two suspects, arguing that the photo lineup that Nifong and police put her through was flawed.

It also alleges that the accuser has “serious credibility problems.” The motion makes reference to a 1996 rape allegation the accuser made, which police did not pursue for reasons that are unclear. It also alleges that the accuser stated that her husband threatened to kill her in 1998, but failed to appear at a hearing to prove her allegations, ending the investigation.

Durham police were unable to verify that allegation Monday evening.

Nifong would not return calls for comment, and it is unclear what chance the motions have of succeeding in court. A more immediate question, however, was how the filing would affect his political fortunes.

For weeks, other critics have suggested that Nifong, a white candidate, was pursuing the Duke case to make political gains in a county that is about 38% African American. The accuser, a 27-year-old college student, is black, whereas all but one of the Duke lacrosse members are white.

But a number of Durham lawyers -- prosecutors and defense attorneys -- have scoffed at the idea that Nifong would play politics with such a serious matter.

Brian Aus, a Durham defense attorney, noted that Nifong shied away from politics for most of his 25-plus years in the district attorney’s office. Last year, however, the top district attorney post opened up, and North Carolina Gov. Michael F. Easley, a Democrat, appointed Nifong, who by that time had tried more than 300 felony cases.

For the first time, Nifong has had to campaign to keep his job.

“But he is not a political figure,” Aus said. “He’s stayed in the past away from politics. The only reason I can see that he’s politically involved these days is because the governor appointed him to the job, and now he wants to keep it. But I don’t believe there was any political idea regarding these indictments.”

Over the years, Nifong earned a reputation among many Durham criminal attorneys as a tough prosecutor, but also a fair one: Aus said Nifong often gave the defense access to files beyond those he was required to turn over under North Carolina discovery laws.

Indeed, Nifong counts a number of the dozen or so lawyers on the Duke defense team among his friends and supporters: One of them, Bill Thomas II, gave $1,000 to Nifong’s reelection campaign in January, records show. Another, James D. “Butch” Williams, endorses him on Nifong’s campaign website.

While some of the players’ attorneys criticized Nifong’s specific actions in the Duke case in recent weeks, they continued to vouch for his fitness for public office. But Nifong’s refusal to meet with some of them and hear exculpatory evidence has been a source of frustration.

Nifong’s opponents, both of whom are private attorneys, present potential problems for him. Keith Bishop has no prosecutorial experience, but he is black, and was recently endorsed by an influential African American political group, the Durham Committee on the Affairs of Black People. Freda Black is a former prosecutor who won a conviction in the murder trial of novelist Michael Peterson in 2003.

Black has raised more money than Nifong -- about $45,000 to his $32,000, according to campaign finance records. (Bishop’s records were not on file with the State Board of Elections.)

Today’s election is a Democratic primary; no Republicans are running. If no candidate gets more than 40% of the votes, the top two vote-getters will go to a May 30 runoff. A new district attorney would take office Jan. 1.

In that scenario, Nifong could continue to pursue the case for months, but a successor might take the case to trial. Neither of Nifong’s challengers has said whether they would drop or pursue the case if elected -- but Nifong’s supporters said they were sure defense lawyers would be happier trying the case against a different district attorney.