Officer's Concerns Didn't Stop Duke Case

As prosecutor Mike Nifong pushed forward with the Duke lacrosse rape case, a police investigator expressed concerns that there was a lack of evidence.

When he learned that Nifong planned to seek indictments, police investigator Benjamin Himan testified Tuesday, his reaction was instinctively sarcastic.

"I think I made the response, 'With what?"' Himan said.

There were not nearly as many people in the courtroom Wednesday as Nifong's attorney, Dudley Witt, started his cross examination of Himan on the second day of the ethics trial. The North Carolina State Bar has charged the Durham County district attorney with several violations of the state's rules of professional conduct.

All the claims involve Nifong's handling of allegations that a stripper was raped and beaten at a party thrown by the Duke lacrosse team in March 2006.

CBS News national correspondent Byron Pitts reports the state argued Nifong lied to a judge and intentionally withheld DNA evidence that would have exonerated the three Duke lacrosse players he'd charged with rape and kidnapping.

If convicted by the disciplinary committee that is hearing the case, Nifong could be stripped of his license to practice law in the state.

Himan testified Tuesday that Nifong acknowledged privately that the accuser's story was filled with inconsistencies and the case would be hard to prove.

"We didn't have any DNA. We didn't have him at the party," Himan said of former lacrosse player Reade Seligmann. "It was a big concern to me to go for an indictment with not even knowing where he was — if he was even there."

Nifong won indictments against Seligmann, Collin Finnerty and Dave Evans. The three were later cleared by state Attorney General Roy Cooper, who concluded they were "innocent" victims of a rogue prosecutor's "tragic rush to accuse."

Another member of Nifong's legal team, David Freedman, said his client told police that if they believed the accuser's allegations against Finnerty, "then you have to believe her on Seligmann."

"Mr. Nifong did not — did not — generate a warrant on his own," Freedman said. "He had the investigators go in to present their case to a grand jury. There will be no evidence of any kind that they were instructed how to present the case to the grand jury."

Attorneys for the lacrosse players said Himan's account was further proof that Nifong should have backed off the 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.

Nifong's public pronouncements of confidence in the case — which included calling the players "hooligans" and saying he didn't need DNA evidence to win a conviction — formed the basis of the bar's initial ethics complaint, which accused Nifong of making misleading and inflammatory comments about the athletes.

Nifong's defense? He never intentionally lied to the judge and never knew for certain that DNA evidence had been admitted, because he failed to fully read his own evidence report, reports Pitts. As for his pretrial statements, in hindsight, he made a mistake.

Freedman has said that his client will testify that he regretted making such statements and that in the early days of the case evidence led Nifong to believe a crime had occurred.

In January, after Nifong turned the case over to state prosecutors, the bar added allegations that Nifong withheld evidence from defense attorneys and lied both to the court and bar investigators.