By JILLIAN DUCHNOWSKI -
SYCAMORE – An attorney for the former
NIU police officer accused of raping a student off-duty and off-campus in
October 2011 wants prosecutors to stick with a position once they adopt it.
Even if they are different prosecutors.
Defense Attorney Bruce
Brandwein filed a formal request this week asking a judge to toss the charges
against Andrew Rifkin, 26, of Northbrook, because former State’s Attorney Clay
Campbell dropped them after a judge found NIU police had mishandled evidence in
the case.
After he defeated Campbell in
the November 2012 election, State’s Attorney Richard Schmack reinstated the
case, stating Campbell had not consulted the alleged victim before dropping the
charge.
In his motion, Brandwein cites
a legal concept called judicial estoppel.
“Under the judicial estoppel
doctrine, where a party assumes a certain position in a legal proceeding and
succeeds in maintaining that position, he may not thereafter, simply because
his interests have changed, assume a contrary position,” Brandwein wrote in the
motion.
But Schmack said the judicial
estoppel doesn’t apply to this situation, as Campbell did not make a legal
argument when he dismissed the charges.
Campbell made a statement
before doing so, but prosecutors have the authority to drop or file charges
without providing an explanation, Schmack said. Schmack’s office cannot be
pursuing a legal position contrary to Campbell’s, because Campbell didn’t
present one to begin with, Schmack said. Rifkin’s case is next due in court
July 1. If convicted of criminal sexual assault, Rifkin could be sentenced to
up to 15 years in prison; probation would not be an option.