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.