News & Observer | newsobserver.com | Defense gets load of new evidence

Published: Jun 23, 2006 12:00 AM
Modified: Jun 23, 2006 07:37 AM

Defense gets load of new evidence

Durham rape case is called shaky

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DURHAM - District Attorney Mike Nifong on Thursday handed more than 536 pages of rape-case evidence, and a defense lawyer immediately said the new material casts more doubt on the charges against three Duke University lacrosse players.

Lawyer Joseph B. Cheshire V said after a court hearing that the documents, which bring the evidence divulged by Nifong to a total of 1,814 pages, contain a reference to the accuser saying she was raped by five people. Defense motions have pointed out that the woman has given different accounts of how many men she said raped her after an escort service sent her to dance at a March 13 team party.

"We've got none, we've got three, we've got five, we've got 20. I mean, pick a number -- any number you want to pick," Cheshire told reporters outside the courtroom. "She's told so many different stories I'm not sure how many there are."

Defense lawyers have declined News & Observer requests for copies of the evidence, and Cheshire did not make them available Thursday. An investigator in Nifong's office called into question Cheshire's claims Thursday.

When Cheshire told reporters that the woman claimed five people attacked her, investigator Linwood Wilson asked Cheshire to show him that page in the evidence.

"You're welcome to come get it," Cheshire said.

"Yeah, I'd love to see it," Wilson said.

Wilson walked away, and Cheshire continued talking with reporters.

Cheshire said half or three-quarters of the pages are copies of information already provided. But the new pages refer to a previously unknown police lineup -- the second in which the accuser could not identify a team captain charged in the case as one of her attackers, Cheshire said.

In one lineup, the woman said she recognized David Evans, 23, of Bethesda, Md.; Collin Finnerty, 19, of Garden City, N.Y.; and Reade Seligmann, 20, of Essex Fells, N.J. All three have been charged with rape, sexual offense and kidnapping.

Defense attorneys had requested a lengthy list of evidence from Nifong that state law entitles the defense to receive. In most other cases, the court appearance would have been informal and routine. But with dozens of reporters and spectators watching, Nifong went over the defense requests individually. The prosecutor said the new evidence should answer most outstanding questions. The defense lawyers were not satisfied.

They still wanted toxicology reports on the accuser, who police first thought was drunk when they found her after the party. Nifong said on his way out of court that he had no report to turn over. The lawyers also awaited records from a Durham detoxification center, where the woman first reported she was raped. Nifong said that he is waiting for the record but that it would be only a single-page log.

Also Thursday, Superior Court Judge Ronald Stephens reduced Seligmann's bond from $400,000 to $100,000. And he refused to entertain a request by The News & Observer to make public the accuser's medical records. Attorneys for Seligmann and Evans filed the records under seal out of caution that they not violate the accuser's privacy rights but asked that the judge open them.

The newspaper's lawyers cited the long history and practice of open courts in asking for the seal to be broken, but the judge refused to grant a hearing on the issue and did not explain why.

'Rodeo cowboy'

After the last round of indictments, Nifong stopped commenting publicly about the case, while defense lawyers stepped up their attack through court filings. Nifong's silence is occasionally broken by an off-the-cuff remark.

Before the hearings Thursday, Nifong walked up to Susan Filan, a legal analyst for MSNBC who was sitting in the courtroom gallery. Filan, a former prosecutor, once characterized Nifong as a "rodeo cowboy" on the air, but Thursday she had asked for an interview with him.

Nifong told her this: "Two words: rodeo cowboy."

"When he came out and said, 'Two words,' I stood up. I thought he was going to grant me an interview," Filan said.

The rancor that has simmered between Nifong and defense lawyers, particularly Cheshire, seeped out in court again. When responding to a request from Evans' lawyers, Nifong said that the legal team had asked for something that didn't exist.

"People who don't do a lot of rape cases probably don't know that," Nifong said.

"It made me feel really good that he would help me along in that way and try to give me some pointers," Cheshire said after the hearing.

The three players have another court appearance set for the week of July 17. A trial date could be set then.

Staff writer Benjamin Niolet can be reached at 956-2404 or bniolet@newsobserver.com.
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