Early doubts about Duke case

RALEIGH, N.C. - The lead investigator in the botched rape case against three Duke University lacrosse players softly told a disciplinary panel yesterday that he knew all along that the woman who made the accusations was lying.

First she said she had not been raped at the March 2006 party where she performed as an exotic dancer, Investigator Ben Himan said. Then she said she had been raped by 20 men. Finally, she said she was raped by three men whose photos had been shown to her in a PowerPoint presentation in Durham County District Attorney Michael Nifong's office.

"Every time she was questioned on something, she improvised it," Himan said. "I don't know exactly what happened that night at that house, but I don't believe a sexual assault occurred."

Himan was one of two witnesses to testify yesterday, the first day of a North Carolina State Bar hearing to determine whether Nifong violated legal ethics rules in his prosecution of the case. If the disciplinary panel hearing the case finds that he did, he could lose his law license and his office under state rules.

In her opening statement Katherine Jean, a prosecutor for the bar association, said Nifong was in the middle of a difficult re-election campaign at the time, and he exploited it to win votes.

North Carolina Attorney General Roy Cooper, who assumed control of the case earlier this year amid an uproar over Nifong's tactics, concluded in April that the three players - Collin Finnerty, 20, of Garden City, Reade Seligmann, 21, of Essex Fells, N.J., and David Evans, 24, of Bethesda, Md. - were innocent and no assault took place at the party that night.

As Jean spoke, Mary Ellen Finnerty, Collin's mother, looked on somberly. On her wrist she wore a blue rubber band with the jersey numbers of the three accused players and the word "innocent." Finnerty, who expects to be joined by her husband and son later during the hearing, declined to comment after the proceedings, which are expected to last through Saturday.

Nifong's attorney, David Freedman, said it's easy to criticize Nifong's actions now, but at the time Nifong believed he was doing the right thing. A nurse who had examined the dancer who made the charges said she appeared to have been sexually assaulted; an e-mail from one of the players referred to "skinning" one of the "strippers," and neighbors said they had heard the players shouting racial slurs at the dancers, who are black.

Freedman said since Nifong believed that a crime had taken place, he was ethically bound to attempt to prosecute it.

"It is not unethical to pursue what someone might believe is an unwinnable case," Freedman said.

Nifong, who is expected to testify later in the hearing, sat somberly as he listened. "I'm going to do all my talking in the courtroom," he said.

The first witness to testify, Wade Smith, one of Finnerty's lawyers, said Nifong showed a disregard for the truth in the case from the start, and seemed to care only about winning.

At an earlier hearing, Nifong laughed out loud when Seligmann's lawyer said his client had an airtight alibi, Smith said.

"I have not seen a derisive laugh like that in the face of so earnest a comment," he said.

Smith also described learning, several months into the case, that Nifong had been aware of DNA that did not belong to the lacrosse players, which was found on the dancer who said she had been raped. Nifong did not tell the defendants about that evidence.

Himan said he was so shocked when Nifong told him that he was going to indict Seligmann - even after Seligmann produced his alibi - that he responded: "With what [evidence]?"

The charges against Nifong

Making inflammatory, false and misleading statements to the media that could heighten "public condemnation" against the accused.

Withholding DNA evidence that might have exonerated the players

Making false statements about the DNA evidence to a judge and to the state bar's grievance committee.

Withholding other evidence, including memoranda that "tended to negate the guilt of the accused."

The penalties

If found at fault by the state bar, Nifong could face a reprimand, suspension or a minimum 5-year loss of his license to practice law.