DA gets to wait on his theory

Lacrosse case is focus of hearing

DURHAM -- District Attorney Mike Nifong will wait until the Duke University lacrosse rape case goes to trial before telling the defense exactly what the state thinks happened on the night in March that an escort service dancer accused three players of rape.

In a lengthy court hearing Friday, defense lawyers lost their effort to force Nifong to spell out in detail what investigators and the accuser say took place.

"What we're wanting is the exact time that this occurred," defense lawyer Kirk Osborn told the judge. "Her statements are inconsistent about which bathroom it occurred in. ... Her statements are inconsistent about who did what to her."

Superior Court Judge W. Osmond Smith III agreed with Nifong. The state will present its theory of the case -- including what each player is specifically accused of doing -- at trial. Nifong told the lawyers that they can ask questions about the timeline of the accuser, who will "most certainly" testify.

In addition to a new stack of written evidence, Nifong gave the lawyers some new details about the case. He said in court that the woman says she was assaulted vaginally and orally and that someone assaulted her rectum with either objects or body parts. The woman told police that the attack took 30 minutes, but Nifong said it may not have lasted that long.

"If I had to speculate, I'd say this whole event took five minutes, maybe 10 minutes at the outside," Nifong said. "I would ask the court to take judicial notice that when something happens to you that is really awful, it seems to take longer than it actually takes."

The hearing was the first since Smith was appointed to handle the case until its end. The next is scheduled for Oct. 27.

Dave Evans, Collin Finnerty and Reade Seligmann are each charged with first-degree rape, first-degree kidnapping and first-degree sex offense. The players did not attend Friday's hearing. Finnerty's father, Kevin Finnerty, was present.

Nifong handed over 615 pages of evidence as well as a cassette tape and compact disc to the defense lawyers. The new batch brings the amount of pages of evidence collected for the case to 2,465.

At the hearing, Nifong and the lawyers discussed evidence yet to come, a defense poll of Durham residents and a judge's order that prevented potential witnesses from speaking to the news media. And as they do every time the lacrosse case goes to court, Nifong and the lawyers carped at each other throughout the morning and afternoon. When defense lawyers spoke, Nifong occasionally sighed, rolled his eyes, laughed quietly or rubbed his temples.

"I have to note the irony," Nifong told the judge when a defense lawyer asked for more information about DNA testing. Nifong told the judge that the lawyers held news conferences after both rounds of DNA testing were complete to announce that the tests showed no rape occurred. Yet now, the prosecutor said, the lawyers wanted the type of information defense lawyers often use to attack the reliability of DNA tests.

"It's interesting now that they are trying to get information that would help dispute those tests," Nifong said, noting that the information the defense wanted copied from a private lab would cost $4,000.

Defense lawyer Bradley Bannon raised his voice saying that the district attorney obtained indictments despite the first DNA tests, which were negative. "The state chose to pursue this evidence. We are entitled to this information that we're asking for no matter how much it costs."

The judge ordered the state court system to pay the costs of the lab employees' time and resources.