SYCAMORE – The former Northern Illinois University police officer accused of sexually assaulting a student off duty and off campus is asking a judge to ban two former police leaders from testifying in his case.
Bruce Brandwein, defense attorney for Andrew Rifkin, 26, of Northbrook, filed a motion Friday seeking to prevent former NIU police Chief Don Grady and Lt. Kartik Ramakrishnan from testifying as the case continues.
Grady was placed on paid leave and was eventually fired, NIU officials have said, over evidence mishandled in the Rifkin case. Grady has since filed a civil rights lawsuit against NIU claiming he was fired without a fair hearing. That case is still pending in federal court.
Meanwhile, NIU is paying Ramakrishnan through Nov. 30 without him working to settle their dispute over his employment status after trying to fire him over this case.
Associate Judge John McAdams ruled Friday that the sexual assault charge Rifkin faces will stand. Brandwein had argued that a legal concept in which a party cannot switch positions after it was successful in arguing a contrary position — called judicial estoppel — applied in Rifkin's case so the case should be dismissed.
Former State's Attorney Clay Campbell dropped the sexual assault charge against Rifkin in November 2012 after Judge Robbin Stuckert ruled that NIU police intentionally withheld evidence in Rifkin's case.
Current State's Attorney Richard Schmack brought the charge back because the victim in the case was not consulted when the case was dropped.
During his ruling, McAdams said judicial estoppel doesn't apply to all types of inconsistencies in a case.
"These different positions are legally inconsistent, not factually inconsistent," McAdams said.
Brandwein also plans to file other motions about how NIU police recorded video and audio statements with Rifkin. The audio in some of the video was turned off for about one hour while the people in the video were still talking, Brandwein said.
"I've never seen that in my career," he said.
Prosecutor Jessica Finley will write a response to Brandwein's arguments by Sept. 4, Rifkin's next court date. She had said that Rifkin signed a written confession admitting to forcing a sex act on an NIU student in his Cortland apartment in October 2011.
Brandwein argues it was not actually a confession because Rifkin signed the document without reading what investigators wrote when they interviewed him.
If convicted of criminal sexual assault, Rifkin faces up to 15 years in prison; probation is not an option.