A front-page story Sunday misspelled the first name of a Durham police investigator. Her name is Michele Soucie.
This report on the Durham lacrosse case Sunday contained an error involving the timing of a discussion between District Attorney Mike Nifong and Investigator Michelle Soucie.
On April 4, Nifong instructed Soucie to nail down what the accuser in the case had done on the day prior to the alleged rape. That was nearly two weeks before the first two indictments in the case.
This error changes the implication of the first five paragraphs of the story: that the conversation between Nifong and Soucie was an example of the words and actions of police and prosecutors outpacing the facts in the file.
The error does not affect the accuracy of the remainder of the story, which reported gaps between the prosecution's words and its evidence.
We regret this error.
DURHAM -- Investigator Michelle Soucie of the Durham Police Department was working the phones the afternoon of April 17, trying to set up DNA tests on evidence in the Duke lacrosse case. A private laboratory in Burlington gave a price, and Soucie immediately contacted District Attorney Mike Nifong.
It had been an eventful day for Durham's lead law-enforcement official: A few hours earlier, a gaggle of television cameras and reporters had trailed Nifong around the sixth floor of the courthouse. A grand jury had charged two Duke University lacrosse players with gang-raping an escort service dancer. The players would be arrested at dawn the next day.
Nifong took the quotes on the DNA-test prices from Soucie and gave the officer further marching orders.
"Mike Nifong stated that: Also need documentation on escort service and how they do business," she wrote in her notes. "Need to nail down what victim did on the day before arriving at 610 N. Buchanan so we can show that she did not receive trauma prior to the incident -- with witnesses."
Nifong had brought charges in the most publicized case in Durham County history. He had said repeatedly on national television that he was certain the dancer had been raped. Yet the prosecutor was still trying to rule out other explanations for the vaginal swelling a hospital noted in its examination of the accuser.
The words and actions of police and prosecutors had outpaced the facts in the file, and not for the first time. The case, which began at a college team party on a warm March evening, quickly drew national attention to Duke, Durham and to North Carolina's justice system -- even as the prosecutor's version started to unravel.
In examining the files Nifong has produced in the case, The News & Observer found that the accuser gave at least five different versions of the alleged assault to different police and medical interviewers and made shaky identifications of suspects. To get warrants, police made statements that weren't supported by information in their files.
The district attorney commented publicly about the strength of the medical evidence before he had seen it. He promised DNA evidence that has not materialized. He suggested that police conduct lineups in a way that conflicted with department policy.
Nifong and other parties involved in the case declined to comment because of an order from Superior Court Judge Kenneth C. Titus. The News & Observer does not identify people who file complaints of sexual assault, and the accuser could not be reached for comment.
Much of the district attorney's evidence is contained in more than 1,800 pages of documents he has made available to the defense under a recent state law requiring prosecutors to open their files before trial. Those documents are only part of the evidence that could be introduced in a criminal trial. They do not include information still being gathered or testimony that might occur under oath.
But they offer the most complete picture thus far of evidence in the case that has put Durham and Duke in the national spotlight. The documents -- police notes, court orders, DNA tests, interviews and handwritten statements -- show what the prosecution has learned and how it conducted itself in State of North Carolina vs. Collin Finnerty, Reade W. Seligmann and David Forker Evans, who could face decades in prison if convicted.
The accuser's stories
At 1:22 a.m. March 14, Sgt. John Shelton of the Durham Police Department was called to the Kroger supermarket on Hillsborough Road. A scantily clad woman was passed out in a Honda Accord and wouldn't get out of the car. Shelton got no response when he talked loudly to her, his notes on the encounter say.
As Shelton pressured her wrist to goad her out of the car, the woman grabbed the parking brake, struggling to stay inside. Once out, she collapsed on the parking lot. Shelton ordered his officers to take her to a 24-hour mental health facility where intoxicated people can be held.
"Since she would not speak with us, we did not know her name or where she lived,'' Shelton wrote in his notes. "Taking her home was not an option."
Eventually the silent woman, a student at N.C. Central University, began talking to doctors, nurses and police officers. Her accounts diverged widely on details of sexual contact, physical assault, alcohol consumption and the behavior of Kim Roberts, the second dancer, whom the accuser called "Nikki." The accuser danced under the name "Precious."
Police drove the accuser from Kroger to Durham Access, the mental health facility, where she was checked out by the supervisor, a staff nurse and a security guard.
"During the check-in process, the victim was asked if something had happened to her and she said yes," Officer Joseph Stewart wrote in his report. "She was then asked if she had been raped and she stated yes."
A registered nurse at Durham Access said the woman was incoherent and her responses appeared "as if she were psychologically hurt," Stewart wrote. The nurse said the accuser's answers to the questions were "more of a traumatic response rather than a drunk response, because her thoughts were broken, but logical due to her trying to hold on to reality."
Officer Willie Barfield took the woman to the Duke Hospital emergency room, Barfield wrote in his notes. The woman told Barfield that "Nikki" had taken all her belongings, including $2,000 in cash obtained by dancing at the party, her cell phone and her identification.
At the Duke emergency room, Sgt. Shelton met again with the woman, who had become cooperative. According to Shelton's notes, she told him that she and Nikki had left the party and gotten into Nikki's car. Someone from the party wanted the women to return. Nikki wanted to go back inside, but the accuser said she didn't want to go in. The woman said the men groped her, but no one forced to her to have sex.
The woman also spoke with Officer Gwendolyn Sutton. She told Sutton that she had danced at the party with three other women. She said that Nikki wanted to have sex with one of the men and tried to talk her into it. "She did not want to," Sutton wrote. "Nikki wanted her to come into the bathroom with her and the guys. She ended up in the bathroom with five guys who forced her to have intercourse and perform sexual acts."
A registered nurse examined the woman for injuries, swabbed her for DNA evidence and wrote an account of the woman's story.
The accuser told the nurse that Nikki had urged her to have sex with her and one of the men, "Brett." The woman said something didn't feel right and she stormed out of the house. She said she argued with Nikki in the car. Brett and Nikki then carried her back into the house, the nurse wrote.
"I kept telling them no," the nurse's narrative said. "Nikki said, 'Girl, you want some more to drink, we got to make some money.' ... I said no, I want to get back in the car."
The woman said she was taken into a bathroom where three men -- Adam, Brett and Matt -- raped her anally, vaginally and orally, using racial and sexual slurs while they assaulted her. One of the men, Matt, said he was getting married the next day. They did not use condoms and threatened to kill her if she didn't comply, the woman said, according to the nurse's notes.
"Someone was knocking on the door letting them know it was time to go. ... Nikki was on the other side of the door and we started arguing."
The woman said she begged Nikki to take her home. She told the nurse that Nikki pushed her out of her car and took her money.
The nurse's report noted diffuse swelling of the vaginal walls. It made no mention of bruises, tears or abrasion to either the vagina or the anus. The nurse noted a non-bleeding scratch on the woman's right knee and a cut on her right heel. A doctor at Duke noted a scratched heel, and no other signs of physical assault.
The next day, March 15, the woman saw two doctors at UNC Hospitals, where she had gone for health care before. Her primary complaint was neck pain. She told doctors she was dancing at a bachelor party and wanted to leave, but the other girls wanted her to stay. She said she was pushed into a bathroom and raped by three men.
"She was knocked to the floor multiple times and hit her head on the sink during one of these episodes," the UNC records said. "She states she was drunk and had a lot of alcohol that night. She denied any pain in the emergency room because she was 'drunk and did not feel pain.' "
About noon on March 16, 2 1/2 days after the alleged rape, the two lead investigators went to the accuser's home. Sgt. Mark Gottlieb and Investigator Benjamin Himan interviewed her in her living room, Himan's notes say.
The woman told the officers she was raped vaginally, anally and orally by three men -- "Adam," "Brett" and "Matt" -- in a bathroom at the house. Two of the men ejaculated, she said.
The woman described each of the men, according to Himan's handwritten notes.
Adam: "white male, short, red cheeks fluffy hair chubby face, brn"
Matt: "Heavy set short haircut 260-270"
That evening, two officers -- Michelle Soucie and Richard Clayton -- showed the accuser photos of lacrosse players taken from the goduke.com Web site, according to notes taken by both officers.
The police had organized 24 photos into four sets of six photos each. The sets were labeled A, B, C and D. The police had put one named suspect in each group: Matt in A, Adam in B, Bret in C and a second Matt in D.
After each photo, the police asked: Is this the person who sexually assaulted you?
She did not identify any assailants. She did not recognize any of the players named Adam, Matt or Brett. She picked out four men with 100 percent certainty as being at the party, and one player, Seligmann, with 70 percent certainty as being at the party. She could not remember exactly where she saw each person at the party.
"This is harder than I thought," she said, according to Soucie's notes.
Five days later, the accuser showed up at the police station with her driver, Jarriel Johnson of Raleigh. She met with Himan and Clayton.
"I asked her questions trying to follow up on a better description of the suspects," Himan wrote in his notes. "She was unable to remember anything further about the suspects."
Police showed the accuser two more sets of photos, 12 players in all.
"She could not identify any of the pictures in the photo array," Clayton wrote in his notes. "She again stated the photos looked the same."
Police had shown the accuser photos of 36 of the 46 white lacrosse players. She had not identified anyone as her assailant.
Two days later, the district attorney's office asked a judge to order all 46 white players to sit for mug shots (for current hair styles and complexion), upper torso photographs (for evidence of scratches from the accuser) and mouth swabbings (for DNA testing).
The request -- searching a pool of 46 people for 3 suspects -- was unusual. To obtain the DNA and photos, the law requires reasonable grounds to suspect that the person named had committed the crime. By definition, 43 of the named people had not.
2nd dancer disagrees
To justify the request, prosecutors argued that players used deception. Himan wrote that they used one another's names to disguise their identities and confuse the situation. Kim Roberts, the second dancer, "stated the men at the party told her they were members of the Duke Baseball and Track Team to hide the true identity of their sports affiliation -- Duke Lacrosse Team Members," Himan wrote in the request to the judge.
But there are contradictions in Himan's accounts. He had interviewed Roberts the day before, on March 22. Roberts told Himan that she knew the identity of at least one of the players, because she inspected the driver's license of the player who requested the dancers from the escort service. According to Himan's handwritten notes of the interview with Roberts: "Every on Spring Break, on Lacrosse Team." There is no mention of baseball or track or any other sports team.
At the end of the March 22 interview, Roberts hand-wrote an account of the evening that differed greatly from that given by the accuser. Roberts said the dancing was going well until a player made a rude comment about a broomstick. The accuser seemed intoxicated, and became irate when they stopped dancing. The two women went into the bathroom; Roberts said she wanted to leave, while the accuser wanted to stay and make more money.
"She was uncontrollable at this point," Roberts wrote, "and was yelling at the boys who were knocking on the door to leave us alone."
Roberts said she grabbed her clothes, went to her car and changed her clothes. Some of the men came to her car and complained that the accuser was passed out on the back porch: "It seemed that the fellas may have been ready for the evening to be over. I told them if they could get her to my car, I would get her out of their hair."
The accuser was helped to Roberts' car. "She then told me that we should go back to the house because there was more money to be made there," Roberts wrote. Roberts locked the other dancer in her car and looked in vain for the accuser's bag. As the two dancers left, some of the players began yelling "nigger," and Roberts called the police to report racial slurs, she wrote. Roberts made no mention of racial slurs being used inside the house.
On March 23, 46 lacrosse players filed into the police station while a News & Observer reporter and photographer watched from a sidewalk. The story of an entire team being investigated for a gang rape broke the next day, and the national media descended on Durham. Nifong, by his own estimate, gave 50 to 70 interviews in one week.
He called the players hooligans and said he abhorred the gang-like rape accompanied by racial slurs. He disparaged rich Duke students whose daddies could hire expensive lawyers to get them out of trouble. He told reporters that DNA tests would tell precisely who was involved in the attack.
And Nifong made a series of factual assertions that contradicted his own files: He suggested the players used condoms; he accused the players of erecting a wall of silence to thwart investigators; and he said the woman had been hit, kicked and strangled.
The medical and police records show that the victim had said no condom was used, that police had interviewed three players at length and taken their DNA samples and that the accuser showed no significant bruises or injuries.
On March 31, Nifong sat with Gottlieb and Himan, the two investigators, to discuss another lineup procedure. According to Gottlieb's notes, Nifong suggested that, instead of a lineup or photographic array, they simply have the accuser look at each picture and recall if she saw the person at the party.
The lineup Nifong suggested violated the Durham Police Department guidelines, which call for photographic arrays to include at least five nonsuspects for every suspect in the lineup. Police and prosecutors had named all 46 players as suspects. The guidelines also called for an independent administrator to conduct the lineup, not an investigator in the case.
The accuser viewed the photos at the police substation at Northgate Mall on April 4. Gottlieb told her that she was going to "look at people we had reason to believe attended the party," according to his notes. This differed from the March 16 and 21 lineups, where police gave her specific instructions that the suspect might not be in the lineup: "The person who committed the crime may or may not be included."
The woman identified four players as her assailants. Nifong brought indictments against three.
On April 6, two days after the final lineup, the accuser gave a handwritten statement to police on what she said happened at the lacrosse party. In this version, she portrayed a more violent attack, and painted Roberts, or "Nikki," as a fellow victim rather than a thief and enabler of a rape.
She wrote that she had two 22-ounce Icehouse beers before arriving at the party at 11:20 p.m. When the two women began their dance, one man made a crude remark involving a broomstick. The 30 men at the party started yelling crude racial and sexual comments.
"Nikki and I started crying," she wrote. "We ran out to the car screaming and crying."
Two of the players followed them to the car and apologized. "Nikki told me that they were sorry and that they were going to give us $1200 if we stay. Nikki and I got out of the car and went back into the house. As soon as we got back into the house, they were more excited and angry." The men screamed sexual and racist threats at the two women, she said.
"Nikki and I started to leave again, and three guys grabbed Nikki," the woman wrote. She said men named Brett, Adam and Matt grabbed her. "They separated us at the master bedroom door," she wrote, "while we tried to hold on to each other."
Three men dragged her into the bathroom and raped her, she wrote. They kicked her in the behind and back, hit her in the face, choked her and screamed racial obscenities.
"I heard Nikki on the other side of the door, and when Adam opened the door she rushed in and helped Adam to get me dressed. They dragged me out to the car because my legs couldn't move. Nikki said, "What happened girl, did they hurt you," I said yes, and she said that she would get help for me."
Prosecutors will almost certainly argue that the trauma of a sexual assault affected the accuser's memory. "Inconsistencies are a part of every single criminal case," said Teresa Scalzo, director of the National Center for Prosecution of Violence against Women. "If you talk to anyone multiple times, you get different accounts."
Before presenting the case to a grand jury, Nifong met on April 11 with the accuser, Gottlieb, Himan and another officer, according to Himan's notes. Neither police nor prosecutors have produced any account of this meeting.
In April, Nifong refused to discuss with defense lawyers evidence that might clear the players.
Seligmann boasts an electronic alibi backed by records his lawyers have filed in court. His cell phone records show he made several calls to a friend and to his girlfriend when the dancing stopped. He called a taxi service and was picked up a block away, and a few minutes later he was photographed withdrawing cash from a Wachovia ATM a mile away.
The accuser identified David Evans as an assailant, but said he had a moustache; Evans' lawyers said he has never had a moustache.
And she identified Collin Finnerty. The 19-year-old did not match any of the descriptions she gave Himan on March 16 of the three assailants, all of whom she said were heavy.
Finnerty is tall and skinny: 6-foot-3, 175 pounds and boyish.
Roberts, the second dancer, looked at the same set of photos in May and recalled Finnerty sitting in the living room: "I remember him because of the freckles on his face, he looked like such a young guy and he reminded me of Opie."
A new twist
On April 17, the day Seligmann and Finnerty were indicted, Nifong personally requested a change in bond status for Roberts.
Police had arrested Roberts on a probation violation on March 22 after she gave police a handwritten statement on what happened at the lacrosse party. A bail bondsman put up the $25,000 secured bond on the condition she pay a 15 percent nonrefundable fee. Roberts paid half, $1,875, and promised to pay the rest later. On April 17, Nifong personally downgraded her bond status to unsecured, releasing her from having to pay the bondsman more.
Nifong denied giving Roberts special treatment, saying it was routine. Roberts' lawyer said she has not paid the second installment to the bondsman.
On April 18, Roberts gave the first of several interviews that differed in tone from what she told investigators.
"I was not in the bathroom when it happened, so I can't say a rape occurred -- and I never will,'' Roberts told The Associated Press April 20. "In all honesty, I think they're guilty.''
On the day of the indictments, Nifong had ordered police to investigate the accuser's whereabouts in the days leading up to the lacrosse party. But some information about her activities was already in the hands of police.
On April 6, the accuser's driver, Johnson, gave police a handwritten, sworn statement: In the two days before the party, he drove the woman to a strip club in Hillsborough, where she worked from 11 p.m. to 4:30 a.m., and to three different appointments at hotels in Raleigh and Durham.
On May 12, Nifong released the second round of DNA test results to defense lawyers. There was no DNA connected with any player found in or on the accuser. The tests showed the woman had recently had sex with her boyfriend. None of the woman's DNA was found on the floor, rugs or towels in the bathroom where the rape allegedly occurred.
David Evans' semen was found on a towel in a hallway outside another bathroom along with the DNA of an unidentified person. A false fingernail retrieved from a trash can in the bathroom where the rape allegedly occurred had a mixture of DNA that didn't exclude Evans. Another fingernail had a mixture that didn't exclude another player, who was not charged.
The semen of yet another player who lives at the house was found on the floor of the bathroom where the rape allegedly occurred.
Three days later, a grand jury indicted Evans, and Nifong issued a statement clearing the other 43 players.
Staff writer Joseph Neff can be reached at 829-4516 or email@example.com.