The particulars of the Duke case were an explosive mix to begin with:
Black accuser, white athletes. Southern town, walled campus. Racial epithets. Protest rallies. National media.
Then Nifong lit the fuse.
In the weeks following the March 13 party where the alleged rape occurred, Nifong referred to the players in interviews as “hooligans” used to having “expensive lawyers” get them out of trouble. He denounced the “blue wall of silence” that had supposedly formed around the perpetrators and said DNA would reveal exactly who had committed the rape.
Even after DNA tests failed to establish a link between the players and the woman, Nifong took the case to the grand jury, which returned indictments against three men: Dave Evans, Collin Finnerty and Reade Seligmann.
Defense lawyers and bloggers have been picking apart his case ever since.
The alleged victim — a single mother who attends historically black North Carolina Central University — has told at least a dozen different versions of her story, by one defense lawyer’s count. Toxicology tests failed to show she was given a date-rape drug, as Nifong suggested in one article. Seligmann’s attorney says Nifong refused to look at cell phone logs, ATM video and taxicab receipts that supposedly prove his client couldn’t have committed the crime.
Nifong’s public statements “almost certainly” violated a state bar rule that forbids prosecutors from making comments outside court that have “a substantial likelihood of heightening public condemnation of the accused,” wrote K.C. Johnson on the Web log Durham-in-Wonderland.
“Few prosecutors in history have publicized their case and condemned potential defendants as egregiously as Nifong did,” wrote Johnson, a Brooklyn College constitutional history professor.
Suggesting that Nifong was grasping at anything to keep his case alive, critics noted that the second dancer at the party allegedly changed her story after the prosecutor personally intervened to have her bail reduced in an old embezzlement case. Others faulted the supervising detective’s 33-page report — which was handed over to the defense four months after the alleged attack, and which contradicts what the rape nurse and others remembered about the accuser’s early statements.
“There is almost no evidence that could be construed as corroborating the alleged victim’s accusations,” says Rob Warden, director of Northwestern University Law Center on Wrongful Convictions. “The prosecutor appears to have acted precipitously, without due consideration of evidence to the contrary — evidence that does not fit into their theory.”
Chastened by the attacks, and by a judge’s order to limit “extrajudicial” comments, the 56-year-old prosecutor has ceased giving interviews, though he has used court appearances to rebut his critics.
During a recent evidentiary hearing, Nifong shot to his feet when Evans’ attorney Brad Bannon suggested that the prosecution had “very little evidence” other than the accuser’s word.
“Your honor,” Nifong said, “I object to his characterization of my case.”
On his campaign Web site, alongside photos of his wife, son, and Australian shepherd, Tillie, Nifong defends himself against allegations of misconduct.
“I have never understood why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant,” he wrote, saying he began giving “open-file discovery” to all defense attorneys 20 years before the state legislature required it.
“And that is why I have never had a conviction overturned for violating a defendant’s right to discover the State’s case against him.”
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