State prosecutors take control of Duke sex assault case

Times Staff Writer

North Carolina's attorney general took control of the troubled Duke University sexual assault case Saturday, appointing two special prosecutors to review a prosecution clouded by ethics charges and crippled by an accuser who has given contradictory accounts of an alleged attack.

Atty. Gen. Roy Cooper, acting on a request from beleaguered Durham Dist. Atty. Mike Nifong, said state prosecutors would review the entire case. Witnesses will be questioned again, among them the accuser, a 28-year-old mother of three who last spring accused three former Duke lacrosse players of gang-rape.

Under state law, Cooper has the authority to dismiss the case, pursue the current charges, or add or remove charges against the three athletes, or others.

"We are taking a completely new, fresh look at this case, so anything could happen," Cooper told reporters at the state Capitol. He promised a "fair, impartial and thorough review."

Cooper said Nifong, in a phone call and a letter to his office Friday, said he "believed he had a conflict, and he believed he needed to be excused and there needed to be someone else to do this."

The conflict resulted from Nifong's prosecution of the case while simultaneously defending himself against ethics charges filed in the same case.

Nifong was charged Dec. 28 by the North Carolina State Bar with making prejudicial comments to the news media last spring. The bar is also investigating his withholding of exculpatory DNA evidence, according to lawyers familiar with the case.

Nifong's lawyer said the district attorney also feared that he was becoming a distraction to the prosecution of the highly publicized case.

The North Carolina Conference of District Attorneys rebuked Nifong on Dec. 29 and called on him to recuse himself.

Cooper, a two-term attorney general and Democrat, said the review would focus on the facts of the case, but any evidence of prosecutorial misconduct would be turned over to the bar association. He declined to answer questions about Nifong's handling of the case.

"We accept these cases with our eyes wide open to the evidence, but with blinders on for all distractions," Cooper said. "The path these cases travel will be lighted by the law and evidence only."

He referred to the Duke prosecution as three cases against three defendants.

State investigators will take possession of the entire case file this week, Cooper said. Police and district attorney investigators who conducted the original investigation will be interviewed but will not take part in the review, he said.

Cooper said his office would meet with the judge in the case to discuss court hearings. The case was expected to go to trial in the spring, with a pivotal hearing scheduled for Feb. 5 on a defense motion to throw out the accuser's identifications at a disputed photo lineup.

"I wish I could tell you this case would be resolved quickly," Cooper said. "Any case with such serious criminal charges requires a careful and deliberate review."

Cooper identified the special prosecutors as James J. Coman, head of the attorney general's Law Enforcement and Prosecutions Division, and Mary D. Winstead of the Special Prosecutions Division.

Reade Seligmann and Collin Finnerty, both 20, and David Evans, 23, remain free on bail on first-degree kidnapping and sexual offense charges. Nifong dropped rape charges against the three on Dec. 22, a day after the accuser said she was no longer certain that she had been vaginally penetrated by a penis -- a requirement for a rape charge under state law.

In a five-page police statement in April, the woman gave a graphic account of being penetrated vaginally, anally and orally by the three men as they screamed racial slurs. The woman is black and the men are white.

Last month, the accuser told a district attorney investigator that she was raped by two players, not three. She also gave new, conflicting details about the timing and circumstances of the alleged attack. But she has consistently said she was assaulted.

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