DA, police to be 'tried,' too

Two Duke lacrosse players face charges after allegations of a rape at 610 N. Buchanan Blvd. If a trial proceeds, the case's evolution will be scrutinized

DURHAM -- If and when the Duke lacrosse case gets to a courtroom, more than the defendants will be on trial.

So will the Durham police and the prosecutor leading the case.

Durham officials and defense lawyers expect withering scrutiny of the most publicized criminal investigation in city history.

A woman hired to dance at a lacrosse team party March 13 said three men pushed her into a bathroom and raped, sodomized, beat and strangled her. Two players have been charged, and District Attorney Mike Nifong has said more charges are possible.

Although the detectives are still investigating and most evidence is not yet public, the investigation has raised questions about the handling of the case.

The accuser picked out her alleged attackers in a process that violated the Durham Police Department's own policy on identification lineups. After the lineup, the police did not search the suspects' dorm rooms for two weeks.

The spotlight will also fall on Nifong, the district attorney, who took charge of the investigation early on. Critics charge that Nifong shut his door to evidence that challenged his case while he was proclaiming the guilt of lacrosse players in the national media.

Nifong and the police will face the fight of their careers against some of the state's most experienced defense lawyers. Those lawyers will have ample money to hire investigators, forensic scientists and other experts to attack the state's case.

"The state of North Carolina has more money than the defendants," said James P. Cooney III, a Charlotte defense lawyer not involved in this case. "But the state won't have more money in this case than the defendants."

Durham City Manager Patrick Baker said he expects police investigators' every step to be second-guessed.

"They have my full confidence," Baker said. "I am satisfied with the direction of this case."

Defense lawyers are taking aim at the police lineup procedure requested by Nifong.

On April 4, lead investigator Sgt. Mark Gottlieb sat the accuser down in front of a large computer screen to view a series of photographs, according to Gottlieb's report on the procedure.

Gottlieb wrote that he told her that she was going to sit at a table and "look at people we have reasons to believe attended the party."

He then displayed each head shot on the screen for one minute, followed by a blank screen, followed by another head shot, and so on.

This identification process led to the indictment two weeks later of two players, Reade Seligmann and Collin Finnerty.

The lineup procedure ran contrary in two fundamental ways to the police department's General Order 4077 on Eyewitness Identification issued in February.

* Policy calls for an independent administrator to run the lineup, not the primary investigator. This avoids any unintentional influence from the investigator.

* The lineup should include five "fillers" -- people who have no connection to the case -- for every suspect, to protect against faulty identification. If an accuser picks a filler photograph, the defense is certain to challenge that witness's reliability.

Defense attorneys complain that by showing only lacrosse players, and telling the accuser that she would look only at people at the party, police sent the message to pick three of the 46 players.

"The entire process has tainted the identification," said Joseph B. Cheshire V, who represents a team captain who has not been charged. "The identification procedures are constitutionally infirm and would not stand up to legal attack."

Police aren't answering questions about the investigation. Baker, the city manager, said such complaints will be settled in the courtroom and declined to say whether any policies were violated.