Rape charges dropped, others remain
'Not a spider web of evidence' against defendants, one of their lawyers says
Published: Sat, Dec. 23, 2006 12:00AM
Modified Sat, Dec. 23, 2006 08:38AM
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closeDURHAM -- District Attorney Mike Nifong dismissed rape charges against three former Duke University lacrosse players Friday, raising more questions about the accuser's reliability and intensifying pressure on the prosecutor.
Nifong dropped the charge of first-degree forcible rape against David Evans, 23, of Bethesda, Md.; Collin Finnerty, 20, of Garden City, N.Y.; and Reade Seligmann, 20, of Essex Fells, N.J. All maintain their innocence. The three still face charges of first-degree sexual offense and first-degree kidnapping. The defendants are in no less peril because the sexual-offense charge carries the same punishment as the rape charge.
Nifong dismissed the charges at 11:37 a.m. with a standard form and an attached one-paragraph explanation. According to the dismissal form, Investigator Linwood Wilson interviewed the accuser Thursday.
REMAINING CHARGES
A first-degree sexual offense, punishable by at least 12 years for first offenders, is defined as a forcible sexual act other than vaginal intercourse in which the attacker uses a weapon, seriously hurts the victim or another person, or was aided and abetted by others.
Kidnapping is defined as confining, restraining or removing from one place to another a person against his or her will for specific purposes such as collecting ransom, committing a felony or hurting the victim. To prove first-degree kidnapping, prosecutors must show additional elements to the crime such as the kidnapper sexually assaulted the victim. First-degree kidnapping carries a minimum sentence of three years, eight months.
THE ACCUSER'S STORIES
March 13: The accuser is hired to dance at a Duke University lacrosse team party.
March 14: The accuser gives different accounts of what happened that night to police and medical personnel: She says men groped her but did not force her to have sex. She says she ended up in the bathroom with five men who forced her to have intercourse and perform sexual acts. She says three men raped her anally, vaginally and orally.
March 15: The woman tells doctors at UNC Hospitals she was raped by three men.
March 16: The two lead investigators -- Sgt. Mark Gottlieb and Investigator Benjamin Himan -- interview the accuser in her living room. The woman tells the officers she was raped vaginally, anally and orally by three men in a bathroom at the house.
April 4: In a lineup ordered by Nifong, the accuser looks at photos of 46 lacrosse players and identifies four as her assailants. Three are ultimately charged.
April 6: The accuser says in a handwritten statement that three men assaulted her in the bathroom. Two men vaginally raped her, she said.
Dec. 22: Nifong drops rape charges against three men, saying that the accuser cannot "testify with certainty" that she was raped, a charge defined as forced vaginal intercourse.
NEXT SCHEDULED HEARING
The next hearing is scheduled the week of Feb. 5. During that proceeding, the investigators and the accuser are expected to testify. The lawyers will have their own witnesses as well, and the judge will consider whether to throw out the accuser's identification of the lacrosse players.
Hear attorney Joseph Cheshire explain that the remaining charges are still serious.
Hear attorney Wade Smith call on Mike Nifong to drop all charges against the players.
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"The victim in this case indicated that, while she initially believed that she had been vaginally penetrated by a male sex organ ... she cannot at this time testify with certainty" that it occurred, according to the explanation. The state must prove that penetration occurred to win a first-degree forcible rape conviction, and "the State is unable to meet its burden of proof with respect to this offense," the explanation continued.
Hours after Nifong filed the dismissal, defense lawyers called a news conference in Raleigh. Wade Smith, an attorney for Finnerty, said there is "not a spider web of evidence" to support Nifong's case.
"Mr. Nifong, if you are listening," Smith said, "do the honorable thing. End this case."
Nifong would not emerge from his office Friday to speak to reporters camped outside on the sixth floor of the courthouse. The door to the prosecutor's outer office was locked, and an assistant taped white paper over the thin window. "NO MEDIA...............PLEASE!!!!!!!!!!!!!" the sign read.
Reporters waited anyway. After a few hours, members of the district attorney's staff offered slices of strawberry cake left over from the office's holiday party.
When news of the investigation broke in March, Nifong granted scores of interviews about the case in which he assured the public a sexual assault had occurred and denounced the lacrosse team as "hooligans." After a week in which he said he spent 40 hours handling interview requests from Triangle, state and national media outlets, Nifong stopped talking about the specifics of the case.
Duke law professor James E. Coleman said Nifong should not have retreated to his office.
'Sad mess'
"This is no way for a prosecutor who has accused three students of rape to dismiss the charges, especially the way he handled this case early on. It would have been appropriate for him to personally announce he was dismissing those charges for lack of evidence. This is a really sad mess this guy has created, and I think the quicker he gets out of the case the better it will be for all involved," Coleman said. "It looks like they're trying to salvage a case that's falling apart on them."
The dismissal of the rape charge against each of the three men came one week after a bruising court hearing for Nifong, when a scientist from a private laboratory testified that he and Nifong agreed not to report evidence favorable to the indicted players.
Brian Meehan of DNA Security of Burlington said he found genetic material from unidentified men in evidence taken from the woman's panties and body. He testified that he and Nifong agreed not to report the results as required by state law and his lab's protocol.
Joseph B. Cheshire V, an attorney for Evans, said Friday he was troubled by the dismissal's timing.
Staff writer Benjamin Niolet can be reached at 956-2404 or bniolet@newsobserver.com.
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