SYCAMORE – Former DeKalb County State’s Attorney Clay Campbell is expected to testify today in a former Northern Illinois University police officer’s request to dismiss the rape charge against him.
Defense attorney Bruce Brandwein filed a motion April 29 asking a judge to toss out the charges against Andrew Rifkin, 26, of Northbrook, because 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. Rifkin is accused of forcing a sex act on an NIU student in his Cortland apartment in October 2011, when he was not on-duty as a police officer.
In his motion, Brandwein cites a legal concept called judicial estoppel, which states someone can’t assume a different legal position when he has already succeeded in maintaining a contrary position.
“There was no new information available when [Rifkin] was re-indicted,” Brandwein said.
But Schmack has said that judicial estoppel doesn’t apply to this situation, as Campbell did not make a legal argument when he dismissed the charges.
“When a state’s attorney dismisses a case, he has the absolute right to do so at any time,” Schmack said. “He doesn’t have to give an explanation. Once a state’s attorney moves to dismiss it, it gets dismissed.”
Campbell was the only person subpoenaed to testify, Brandwein said. The rest of the hearing will be legal arguments from the attorneys.
Meanwhile, the civil rights lawsuit former NIU police chief Don Grady filed against the university is still pending. Michael Fox, Grady’s attorney, expects to take testimony of people involved in the suit within the next month.