DA's statements, record at odds

Facts appear to contradict some of Nifong's words in the Duke lacrosse case

In the early days of the Duke lacrosse rape case, Durham District Attorney Mike Nifong's public statements appear to have contradicted certain facts in his own files.

After an escort service dancer said three men raped her at a lacrosse party, Nifong talked frequently with national and local reporters -- 50 to 70 interviews consuming 40 hours of his time, Nifong estimated. Nifong then went quiet in early April, refusing most interview requests.

A comparison of his words with documents that Nifong gave defense lawyers show that Nifong made what appear to be misstatements about condom use, a purported struggle and a 911 call made by a second dancer, among other things.

Nifong said the assailants might have used condoms; the accuser told an emergency-room nurse none were used, according to a defense filing. Nifong described a violent attack in which the accuser was choked and struggled to breathe; the accuser told a nurse she wasn't choked, the filing said.

Defense lawyers have filed some of the documents in court and characterized others, such as the medical exam, in affidavits.

Nifong declined through an assistant to answer questions Wednesday.

"Either he knew what the facts were and misstated them, or he was making them up," said James Coleman, a Duke law professor who has publicly requested that Nifong remove himself from the case. "Whether he acted knowing they were false, or if he was reckless, it doesn't matter in the long run. This is the kind of stuff that causes the public to lose confidence in the justice system."

North Carolina lawyers must obey the N.C. State Bar's Rules of Professional Conduct, which prohibit lawyers from making out-of-court statements that could prejudice the outcome of a case.

Prosecutors have added responsibilities: The rules prohibit them from saying things outside court that could heighten public condemnation of the accused.

Nifong has called lacrosse players "hooligans" and "reprehensible." Defense lawyers for Reade Seligmann have cited these comments and the bar's rules in asking that Nifong be removed from the case, a request pending before a Durham Superior Court judge.

Seligmann, 20, of Essex Fells, N.J.; David Evans, 23, of Bethesda, Md., and Collin Finnerty, 19, of Garden City, N.Y., have been charged with first-degree rape, sexual offense and kidnapping.

Attorneys for the three men have said that the accusations are false and that no assault or sex took place in the house.

Beside the professional rules of conduct, there are tactical reasons why prosecutors shouldn't discuss the facts and specifics of an investigation outside court, said Richard Myers, a former federal prosecutor and UNC law professor.

"Any good prosecutor is aware of the risk that facts may come to light that weren't clear at the beginning," Myers said. "They are careful not to lock themselves into positions that may later change."

Myers declined to discuss the Duke case specifically.

There is also a danger that defense lawyers would seek to call the prosecutor as a witness to explain the contradiction between his statements and the evidence, Myers said. A lawyer can't be an advocate and witness in the same case, so the prosecutor would have to recuse himself, Myers said.