Duke D.A. asks to step aside

N.C. prosecutor to be replaced

families of lacrosse players pleased

January 13, 2007|By Jeff Barker | Jeff Barker,Sun Reporter

The embattled district attorney in the Duke University lacrosse sexual assault case asked for a special prosecutor to replace him yesterday, leaving players' families hopeful that charges will be dismissed.

District Attorney Michael Nifong faces an ethics complaint filed last month by the North Carolina State Bar for critical statements he made early in the case about lacrosse players that could be considered prejudicial.

Critics said that Nifong couldn't simultaneously defend himself and prosecute the 10-month-old case and that he needed to step down from the case.

He did so yesterday in a letter to the state attorney general without commenting publicly on his decision.

David C. Evans of Bethesda, the father of indicted player Dave Evans, told The Sun in an e-mail that he was gratified that the case was going to be handled by someone "objective."

"We are happy to hear that an independent, objective prosecutor will now look at the evidence of this case," said Evans, a Washington attorney.

"We believe any prosecutor who looks at the evidence must conclude this [sexual assault] never happened and that these charges should never have been brought in the first place."

The younger Evans, who graduated in May, was among three players charged with a sexual offense and kidnapping after an African-American exotic dancer said she was raped by three white men at an off-campus team party in March.

The charges set off demonstrations on and off campus as some in the community accused the players of having a racist or sexist "culture."

Unraveling

Nifong stepped down as his case seemed to be unraveling. On Dec. 22, Nifong dropped rape charges against Evans and the other two defendants after their accuser expressed doubts about her earlier statements. He left other charges intact.

Then, on Thursday, a defense motion said that the stripper had told an investigator that defendant Reade Seligmann of Essex Fells, N.J., had watched the assault without participating.

The defense has also attacked the process by which the defendants were identified, accusing Nifong of improperly "stacking" the photo lineup.

Nifong's attorney, David Freedman, told the Associated Press that Nifong still believes in the case but feels he would be "a distraction" if he stayed on.

Duke President Richard Brodhead had called last month for an independent prosecutor.

"As President Brodhead has emphasized, this matter needs to be placed in the hands of an independent party who can restore confidence in the fairness and integrity of the legal process," John Burness, a Duke senior vice president, said last night in a prepared statement.

"We hope this change will lead to a fair and speedy resolution of this case."

Nifong's replacement could be named from the special prosecutors' section of the state Department of Justice or from outside, Duke law professor James Coleman said last night.

"I think everything will be stayed [put on hold] until the new prosecutor is appointed and has an opportunity to review the case and conduct any additional investigation they think is appropriate," Coleman said.

"The new prosecutor has to do what Nifong should have done from the start - try to determine whether a crime occurred and whether there is evidence sufficient to convict," Coleman said.

Mixed feelings

Sally Fogarty, the mother of Duke player Gibbs Fogarty of Bethesda, said yesterday that she has mixed feelings about Nifong's recusal.

While she is pleased to have him off the case, she said, the lacrosse parents want to be certain that Nifong is held accountable for the "nightmare" he put Evans, Seligmann and defendant Collin Finnerty through.

Fogarty also expressed concern that the case could now be delayed. "The first thought that came to mind was does this mean that somebody is going to have to start all over again and continue this suffering?" Fogarty said.

But Coleman counseled patience.

"I think it's in everyone's interest to have a new prosecutor go forward and not be pressured to short-circuit this," Coleman said. "I think this thing needs to be done correctly."

jeff.barker@baltsun.com

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