Henican: When prosecutor is the accused

Finally, turnaround time.

Mike Nifong wasn't sitting in the prosecutor's chair yesterday. Not this time he wasn't.

As the courtroom came to order in Durham, N.C., the local district attorney found himself in a far less familiar and far less comfortable spot. He was plopped in the place that defendants usually are. At long last, the fickle finger of official accusation was pointing straight at him.

And he couldn't have been enjoying the turnaround one little bit.

So much more exciting - wasn't it? - to be the one bringing the charges. So much more gratifying to be the one representing the state. So much less risky to be the accuser instead of the accused.

Those days could soon be history.

The charges in the Duke-lacrosse rape case are months behind us. But they aren't quite done yet. They won't be finished until the fate of Mike Nifong is settled once and for all.

From beginning to end, this was his case. He brought it. He propelled it.

He pursued it. And he pushed it as a torrent of doubt was over the evidence he apparently thought he had. And now he will face the consequences of the biggest and wildest prosecution of his career.

Now turnarounds in public life are rarely exact. And this one certainly isn't.

The penalty Nifong is facing is nothing compared to the one risked by the most famous criminal defendants of his prosecutorial career, those three Duke University lacrosse players he prosecuted so doggedly.

Had they been convicted at trial, they could have spent decades in a North Carolina prison. The worst that can happen to Nifong is the loss of his license to practice law, should this professional disciplinary panel be convinced he violated various ethics rules.

But there is a broader issue at stake here. It has to do with prosecutorial discretion: How much leeway does a prosecutor have in bringing a shaky case?

Before this is over, we will know.

As the case began, you had to say this much: A whole lot less discretion than Mike Nifong showed here.

In his opening statement yesterday, Nifong's attorney David Freedman did what he could. He said his client regretted certain public comments he made early in the case. And this was a tough case. But nothing in the law, the attorney said, says prosecutors can only bring slam-dunks.

"It is not unethical to pursue what someone may believe to be an unwinnable case," the lawyer said.

And Nifong didn't get the arrest warrants all by himself. "He had the investigators go in to present their case to a grand jury," Freedman said.

"There will be no evidence of any kind that they were instructed how to present the case to the grand jury."

About then, the testimony began, and the facts didn't quite seem to comport.

On the witness stand, investigator Benjamin Himan testified that he'd been told Nifong planned to indict two Duke students, Collin Finnerty and Reade Seligmann.

Himan's two-word reaction at the time: "With what?"

One big problem, the investigator said, was that no one could prove Reade Seligmann was even at the party when a dancer said she'd been raped by him.

"We didn't have any DNA," the investigator said. "We didn't have him at the party. It was a big concern to me to go for an indictment and not even know where he was, if he was even there. ... I didn't want to indict somebody that shouldn't have been indicted."

Katherine Jean, the state bar prosecutor, had predicted this. She also focused on what may prove even more damaging to the DA, what went on outside the courtroom.

"Mr. Nifong intentionally sought out the world's attention," the bar prosecutor said. "When the world was focused squarely on North Carolina and its justice system, Mr. Nifong repeatedly and intentionally misled the media and therefore the public about a very serious case."

The result, she said, could come as no surprise.

"This didn't have to happen, and the horrible consequences were entirely foreseeable," Jean said. "The harm done to these three young men and their families and the justice system of North Carolina is devastating."

Devastating indeed.

And will not be over until this is.