RALEIGH - Embattled Durham District Attorney Mike Nifong told investigators as early as March 2006 that the Duke lacrosse rape case had serious flaws, Investigator Benjamin Himan told a packed courtroom Tuesday.
Himan, a Durham Police Department officer, testified Tuesday and Wednesday in the first two days of Nifong's trial before the North Carolina State Bar on charges of making inflammatory pretrial statements to the media and withholding potentially exculpatory DNA evidence.
A three-person panel, which will decide the case and Nifong's punishment, also heard testimony from Wade Smith, an attorney for the formerly indicted Collin Finnerty; Dr. Brian Meehan, laboratory director of DNA Security, Inc.; Jennifer Leyn, an agent for the State Bureau of Investigation; and Brad Bannon, an attorney who was on the defense team for David Evans, Trinity '06, who was indicted in the case.
Testifying Tuesday afternoon, Himan said Nifong acknowledged inconsistencies in accuser Crystal Mangum's account at a March 27, 2006, meeting.
"He made the comment, 'You know we're f-ed,' or something to that effect," Himan said.
The DPD officer also said he had misgivings when he was informed by his supervisor, Sgt. Mark Gottlieb, of plans to indict then-men's lacrosse players Finnerty and Reade Seligmann.
"I think I made the response, 'With what?'" Himan said. "We didn't have them at the party, so it was a big concern for me to go forward with the indictments if we didn't know they were there.... I didn't want to indict someone who shouldn't be indicted."
Prosecutors also asked Himan about initial investigations. He said players had been cooperative with DPD-contradicting public statements Nifong made in March 2006.
In opening statements, defense attorney David Freedman said although his client made "outlandish" statements, he did not willfully commit ethics violations. Prosecutors painted Nifong as motivated by the promise of votes in the May 2006 election.
Nifong, dressed in a black suit, white shirt and Carolina-blue tie, sat passively for most of Tuesday's session, resting his finger on his face and occasionally grinning or conferring with his lawyers.
If convicted, Nifong could face penalties ranging from reprimand to disbarment.
Smith was questioned about Nifong's statements and demeanor before the trial. In cross-examination, Freedman suggested that media scrutiny might have been "overwhelming" for Nifong, who was inexperienced with the press.
The trial continued Wednesday as Himan took the stand again to finish testifying before the panel.
Succeeding Himan on the stand, Meehan testified that he provided Nifong with an incomplete DNA report because he believed more evidence was on its way and that the analysis of Mangum's DNA samples released May 12 was only an "interim" report.
The initial report indicated that there was no match between DNA found on the accuser and that of any of the 46 samples from lacrosse players, but it did not include the information that DNA on Mangum matched that of several unidentified males.
Meehan said he was led to believe that Nifong would commission a second, more conclusive report that would include the background information regarding the DNA matches.
"I had in my mind there was a final report [coming]," Meehan said. "We knew that there would be additional specimens. If an investigator knows more specimens are coming, we wait until the final report."
He said the incomplete report was not an attempt to hide evidence, maintaining that he "did not withhold anything."
Leyn testified regarding her experience as an SBI agent assigned to the case, both analyzing the accuser's rape kit at the start of the case and reviewing the procedures followed by Meehan and DNA Security once North Carolina Attorney General Roy Cooper took over the case in January.
The session ended with Bannon commenting on Nifong's numerous statements to the media asserting the guilt of the lacrosse players.
Seligmann attended Wednesday's hearing with his attorney, Jim Cooney. who said he plans to testify "only if the Bar calls me."
Also Tuesday afternoon, Durham activist Victoria Peterson was ejected from the hearing after apparently threatening Finnerty's mother.
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