RALEIGH, N.C. &

As Mike Nifong pushed forward with the Duke lacrosse rape case, a police investigator expressed concerns about the case. When he learned Nifong planned to seek indictments, his reaction was instinctively sarcastic.




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




Himan will be back on the witness stand today for the second day of Nifong's 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 tied to his handling of allegations that a stripper was raped and beaten by three players at a March 2006 party thrown by Duke's highly ranked lacrosse team.




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




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




"We didn't have any DNA. We didn't have him at the party," Himan said of former lacrosse player Reade Seligmann. "So I mean 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 North Carolina 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 only 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."




Himan's 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."




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 said his client would testify that he regretted making such statements. In his opening statement, he 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," he said.




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




Katherine Jean, the bar official prosecuting Nifong, detailed Nifong's meetings with the director of a DNA laboratory he hired, at which she said Nifong learned that none of the players' DNA matched that material found in and on the accuser. The bar has accused Nifong of keeping those test results from the defense.




"There is no evidence &

none &

of any sort of agreement with Mr. Nifong and anybody to exclude evidence," Freedman replied.