RALEIGH, N.C. -- As Mike Nifong was calling the Duke
lacrosse team a "bunch of hooligans" in public, he was privately
acknowledging that the rape case would be hard to prove and that
the accuser's story was filled with inconsistencies, a police
investigator testified Tuesday.
But the Durham County district attorney insisted on pressing
ahead with the case, police Investigator Benjamin Himan said on the
opening day of Nifong's ethics trial.
"We didn't have any DNA. We didn't have him at the party,"
Himan said of lacrosse player Reade Seligmann. "It was a big
concern to me to go for an indictment with not even knowing where
he was -- if he was even there."
The North Carolina State Bar has charged Nifong with several
violations of the state's rules of professional conduct, all tied
to his handling of allegations that a stripper was raped and beaten
at March 2006 party thrown by Duke's highly ranked lacrosse team.
If convicted by the disciplinary committee hearing the case, he
could be stripped of his license to practice law in the state.
"This didn't have to happen," said Katherine Jean, the bar
official prosecuting Nifong, during a 25-minute opening statement
that outlined in minute detail his actions in bringing indictments
against lacrosse players Seligmann, Collin Finnerty and Dave Evans.
All three were later cleared by North Carolina Attorney General
Roy Cooper, who concluded they were "innocent" victims of a rogue
prosecutor's "tragic rush to accuse."
"The harm done to these three young men and their families and
the justice system of North Carolina is devastating," Jean said.
Jean hinted at Himan's testimony during her opening statement,
prompting Nifong's attorney, David Freedman, to respond that his
client told police only that if they believed the accuser's
allegations against Finnerty, "then you have to believe her on
"Mr. Nifong did not -- did not -- generate a warrant on his
own," Freedman said. "He had the investigators go in to present
their case to a grand jury. There will be no evidence of any kind
that they were instructed how to present the case to the grand
But Himan testified that he was surprised when he learned that
Nifong planned to pursue an indictment against Seligmann,
sarcastically asking his superior, "With what?" He said he met
personally with Nifong to express his concerns, and even tried to
reach out to the defense attorneys retained by the lacrosse
"I didn't want to indict someone that shouldn't have been
indicted," Himan said. "I tried to give every opportunity for
someone to tell me where they were."
Himan also said Nifong acknowledged early during the
investigation that the accuser had made several inconsistent
statements about what took place at the party. Nifong used an
expletive to express his dismay with the situation, Himan said,
adding that he never saw Nifong challenge the accuser about the
"He said it was going to be a circumstantial case -- he said,
she said -- and that's how most rape cases are," Himan testified.
"He said it was going to be hard to prove."
Attorneys for the lacrosse players said Himan's account was
further proof that Nifong should have backed off from the troubled
"When everyone who knew anything about the investigation kept
saying, 'There's no evidence; slow down,' Mr. Nifong kept going
forward," said Jim Cooney, who represented Seligmann. "To hear
the details is just chilling."
Nifong's attorneys did not get a chance to question Himan before
testimony concluded for the day. The trial is expected to last for
four more days.
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 him of making
misleading and inflammatory comments about the athletes.
"It took this case out of the court system and deposited it
into the hands of the public," testified Finnerty's attorney, Wade
Smith. "I do believe the community was inflamed because of those
Freedman said his client would testify that he regretted making
such statements. In his opening statement, he recounted the very
early days of the case, highlighting evidence he said led Nifong to
believe a crime had occurred. "It is not unethical to pursue what
someone may believe to be an unwinnable case," he said.
In January, after Nifong had turned the case over to state
prosecutors, the bar added allegations that Nifong withheld
evidence from defense attorneys and that he lied both to the court
and bar investigators.
Jean detailed Nifong's meetings with the director of a DNA
laboratory he hired, at which she said Nifong learned that none of
the players' DNA matched material found in and on the accuser. The
bar has accused Nifong of keeping those test results from the
"There is no evidence -- none -- of any sort of agreement with
Mr. Nifong and anybody to exclude evidence," Freedman replied.
Reporters and observers -- including Evans and Finnerty's mothers
-- packed the state Court of Appeals courtroom where the hearing was