RALEIGH, N.C. (AP) _ 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.
Himan returns to the witness stand Wednesday for the second day of Nifong's trial, in which the North Carolina State Bar accuses the Durham County district attorney of 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 by three Duke lacrosse players at a March 2006 party.
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 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.''
Nifong's attorney, 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.
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.