RALEIGH, N.C. — Mike Nifong acknowledged inconsistencies in an exotic dancer's story that she was raped, beaten and sexually assaulted at a Duke lacrosse team party but decided to move forward with the case anyway, the lead investigator on the case testified Tuesday.
During an initial meeting at Nifong's office, Investigator Benjamin Himan said, he and his supervisor met with the district attorney to review the evidence and status of the case and that Nifong made a comment "to the effect, 'You know we're ******.'"
Among that evidence were search warrants, interviews with the accuser, Crystal Mangum, the second dancer and three lacrosse co-captains who lived at 610 N. Buchanan Blvd., where the March 13 party took place.
"He said it was going to be a circumstantial case - he said, she said - and that's how most rape cases are," Himan testified. "He said it was going to be hard to prove."
Nifong also insisted pressing ahead on indicting lacrosse player Reade Seligmann, even though detectives could not place him at the party at the time of the alleged incident, he testified.
"We didn't have any DNA. We didn't have him at the party," Himan said of Seligmann. "It' was a big concern to me to go for an indictment when we did not even know where he was -- if he was even there."
The testimony irritated attorneys for the lacrosse players. They said Himan's account was further proof that Nifong should have backed off the troubled case.
"When everyone who knew anything about the investigation kept saying, 'There's no evidence, slow down,' Mr. Nifong kept going forward," said Jim Cooney, who represented Seligmann. "To hear the details is just chilling."
Wrapping up more than three hours of testimony in which North Carolina State Bar prosecutors questioned him on every aspect of the investigation, Himan said he agreed with Attorney General Roy Cooper's decision to dismiss charges against Seligmann, Collin Finnerty and David Evans.
"Through interviews, it was a fact that Crystal was lying," he said "Every time she was questioned on something, she improvised it. … I don't know exactly what happened at that house, but I don't believe a sexual assault occurred."
The civil proceedings resume Wednesday at 9 a.m. in which Nifong's attorneys are expected to cross-examine Himan.
"Right now, you've heard the direct testimony," Nifong's attorney, David Freedman, said after the hearing. "I believe there's a lot more information the investigator has to add on cross-examination."
Nifong is on trial facing State Bar charges that he violated rules of professional conduct while handling the case for nearly a year. He is accused of making statements prejudicial to the defendants, making false statements to the court and withholding exculpatory DNA evidence from defense attorneys.
If the Bar's three-member Disciplinary Hearing Commission decides he is guilty, he could be disbarred.
"This didn't have to happen, and the horrible consequences were entirely foreseeable," State Bar Counsel Katherine E. Jean said during her opening statement. "The harm done to these three young men and their families and the justice system of North Carolina is devastating."
Freedman, in his opening statement, recounted the very early days of the case, highlighting evidence he said led Nifong to believe a crime had occurred.
"It is not unethical to pursue what someone may believe to be an unwinnable case," Freedman said. "That is not an issue here today."
Freedman said Nifong made about 98 percent of his statements early on in the case before suspects were identified and charged.
"I believe you will hear him testify that he regrets making those statements," Freedman said, adding that Nifong wanted to solve the reported crime and wanted to urge people to come forward with information about the case.
"And then, he stopped talking, realizing it would be improper to go on," Freedman said.
Jean also talked about meetings Nifong had with the Dr. Brian Meehan, director of DNA Securities Inc., at which she said Nifong learned that none of the players' DNA matched that material found in and on the Mangum.
"There is no evidence - none - of any sort of agreement with Mr. Nifong and anybody to exclude evidence," Freedman said.
Prior to Himan's testimony, Finnerty's defense attorney, Wade Smith, took the witness stand and testified that Nifong's actions in the early days of the Duke lacrosse investigation were "far over the line" and helped contribute to media frenzy when he made comments about the case.
"I think the statements he made, in effect, took this case out of the court system and deposited it in the hands of the public," Smith said during his testimony, which lasted more than an hour. "It was removed from the jurisdiction of Superior Court and put into the hands of the people of Durham County."
Smith also testified that he and other defense attorneys representing other lacrosse players had tried at least twice to meet with Nifong to talk about the case and engage in dialog.
"He said he was not hearing what we had to say," Smith said. "He said that he knew more about the case than we knew and that he knew things that we did not know. … The meeting ended with our feeling that we had pushed as far as we could."
Worried the pending ethics charges might result in an unfair trial, Nifong asked Cooper's office to take over the lacrosse prosecution in January. By then, most experts and legal observers had long since concluded the case could not be won.
Cooper agreed in April and dropped all charges against the three players. In a stunning rebuke, Cooper said there was no rape or attack, calling the indicted players "innocent" victims of a rogue prosecutor's "tragic rush to accuse."
Nifong's trial is garnering national interest as crews spent Monday wiring the courtroom at the North Carolina Court of Appeals. For the first time in history, the State Bar is holding a trial there to accommodate the large crowd.
The courtroom was opened at 8 a.m., and people were turned away because of a lack of space.
Among those watching from the gallery Tuesday were the mothers of Finnerty and Evans. Seligmann and Finnerty are expected to attend the trial at some point. Attorneys for all three players were in the courtroom Tuesday.