DA asks out of Duke rape case

The embattled district attorney in the Duke rape investigation, who faces disbarment for suspected “dishonesty, fraud, deceit or misrepresentation” in statements he made about the case, has asked that the prosecution be moved to the state attorney general’s office.

According to sources close to the 10-month-old prosecution, Durham County District Attorney Michael Nifong sent a letter yesterday to North Carolina Attorney General Roy Cooper asking that Mr. Cooper’s office appoint a special prosecutor to take over the case.

Mr. Nifong has come under intense public scrutiny over his handling of the investigation and was named Dec. 28 in an ethics complaint filed by the North Carolina State Bar. The complaint accuses him of breaking four rules of professional conduct while speaking to reporters about the investigation.

The complaint said Mr. Nifong made “extrajudicial statements” to reporters that “he knew or reasonably should have known would be disseminated … and would have a substantial likelihood of materially prejudicing” the case.

The veteran prosecutor faces a preliminary state bar hearing on Jan. 24. A trial date has tentatively been scheduled for May 11.

Mr. Nifong was not available yesterday for comment. Noelle Talley, a spokeswoman for Mr. Cooper, confirmed last night in an e-mail that Mr. Nifong had asked for the appointment of a special prosecutor, but she was not available to comment on the request. The Nifong letter to Mr. Cooper was first reported by ABC News.

“We are pleased, and we offer the attorney general our full and complete cooperation,” said Wade Smith, defense attorney for Collin Finnerty, one of the three men charged in the case. “We will meet with them at any time, and we are glad that people with such qualifications are going to take over the case.”

Mr. Nifong’s request came a day after he met with the accuser — the first time the two had actually talked face to face about the case. He spoke with her briefly after the accusations first surfaced in March, but — according to court records — had never specifically discussed the case.

While she was at Mr. Nifong’s office on Thursday, the accuser was served a subpoena to appear at a Feb. 5 hearing on a defense motion to suppress her identification of the three lacrosse players.

The Duke athletes — Mr. Finnerty, Reade Seligmann and David Evans — originally had been charged with rape after the woman, a student at North Carolina Central University who also worked as a stripper, said she was sexually assaulted during an off-campus party attended by Duke University students.

Mr. Nifong, who declared himself the lead prosecutor in the case, told reporters the 28-year-old woman was “gang raped” and beaten at the March 13 party thrown by Duke’s lacrosse team.

He later dropped the sexual assault charges a few days before Christmas to lesser sexual offenses and kidnapping when the woman said during a Dec. 21 interview with an investigator from Mr. Nifong’s office that she was not certain Mr. Seligmann had taken part in the assault and was unsure whether she had been penetrated by anyone.

The motion, filed in state court, said the accuser told investigator Linwood Wilson 10 months after the original accusations she was not now 100 percent certain that a rape as defined by the state of North Carolina occurred. That disclosure led Mr. Nifong to reduce the charges.

During an earlier interview with authorities, the woman said she was “100 percent” sure Mr. Seligmann had sexually assaulted her.

The Thursday meeting coincided with a defense motion asking a judge to prohibit the photo lineup in which the accuser identified the three lacrosse players.

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