D.A. in Duke case gives up the fight

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.

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.”

The former lacrosse players are now viewed by many in Durham as victims of a rush to judgment. Their public pillorying has drawn comparisons to the 1987 Tawana Brawley case, in which a young black woman falsely accused several white men of rape.

Even if the players are exonerated, their lawyers say, their reputations have been ruined. “This will hang over them the rest of their lives,” said Wade M. Smith, Finnerty’s lawyer.

Coleman, who led a Duke committee that examined the lacrosse team’s behavior, accused Nifong of “mooning the system.” In addition to withholding evidence, the defense says he allowed police photo lineups that violated the department’s rules by showing only photos of lacrosse players and by allowing investigators on the case to conduct it.

“Nifong is showing total contempt for the legal process,” Coleman said. “This guy has caused more damage in this city than anything I can recall.”

Nifong’s actions, coinciding with his first political campaign, have baffled longtime associates.

“He got caught up in the media, and he got addicted to it,” said Jackie Brown, Nifong’s former campaign manager, who went to work for his opponent.

“It wasn’t for political gain. Mike Nifong doesn’t have an ounce of political blood in his body. He has no political instincts -- zero.”

Durham defense lawyers describe Nifong as effective and highly professional during his 26 years as a prosecutor, before he was appointed district attorney in April 2005. His remarks to reporters were measured and nonjudgmental, they said.

But in the Duke case, Nifong said he would not allow “Durham’s view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham.”

“The sheer number of comments and the details he gave and the strong language he used -- it surprised everybody in town,” said H. Wood Vann, a Durham defense lawyer.

The comments were all the more puzzling because holes in the case emerged even before the three athletes were indicted.

Kim Pittman, 31, who also performed at the party, told police March 20 that the accuser’s claim was “a crock” and that she was with her for all but five minutes of the party. (In subsequent media interviews, Pittman has said that while she did not witness a rape, it could have happened.)

Both women worked for Angel’s Escort Service.

In a police statement March 22, Pittman said she decided to leave the party after a young man brandished a broomstick and threatened to use it on the strippers as they danced.

Others screamed racial slurs and threatened to rape the women, she said. But the accuser urged Pittman to stay, saying they could get more money from the men.

Pittman said she went to her car, leaving the accuser inside. A few minutes later, she said, one or two young men helped the accuser to the car, saying she had “passed out.” Pittman said that as she and the accuser drove away, men from the house screamed racial slurs.

In her April 6 police statement, the accuser said she and Pittman were persuaded to return to the house after two of the men apologized and offered them $1,200 to continue dancing; each woman had already been paid $400. Once back inside, she said, several men separated Pittman from her while three men forced her into a bathroom and raped and beat her while screaming racial slurs.

The accuser gave contradictory statements to police, doctors and nurses. She told one doctor the next day that she was drunk at the party after consuming “a lot of alcohol.” She told another doctor she had taken Flexeril, a muscle relaxant.

One of the doctors noted that the accuser had a history of bipolar disorder and was “at very high risk of narcotic abuse.”

Despite his faltering case, Nifong pursued the prosecution until Friday.

“Mike is like a pit bull,” Brown said. “Once he gets a notion in his head, it’s very, very hard to get him to change his mind.”

david.zucchino@latimes.com