As state's witness wavers, defense solidifies

Staff WritersDecember 24, 2006 

— Pretrial hearings, court filings and documents show that District Attorney Mike Nifong has meager evidence to prove the remaining charges against David Evans, Collin Finnerty and Reade Seligmann, and the defense has much evidence to bolster the claim that the allegations against them are untrue.

On Friday, Nifong dropped the rape charge against the three former members of the lacrosse team. They remain charged with first-degree sexual offense and first-degree kidnapping.

Here is a summary of where the case stands.

WHAT DOES NIFONG HAVE?

His case relies on the words of the accuser, an escort service dancer who has told her story on at least 10 occasions to nurses, doctors and investigators. Her accounts have changed with every telling. At a hearing scheduled in February, the defense will seek to have her identification of the three defendants thrown out of court. The accuser will testify, and the fate of the case rests on what she says, Nifong told The New York Times last week.

"If she came in and said she could not identify her assailants, then we don't have a case," Nifong told the newspaper. "If she says, yes, it's them, or one or two of them, I have an obligation to put that to a jury." Nifong did not respond to requests from The News & Observer for an interview.

The accuser identified her attackers in a photographic lineup, ordered by Nifong, that violated the Durham Police Department's guidelines. The woman was told she would be looking only at photographs of everyone at the party. The lineup was conducted by an officer investigating the case. The guidelines call for an independent administrator and for five photographs of non-suspects for every suspect in the lineup.

Defense lawyers have disparaged the procedure as a multiple-choice test with no wrong answers.

The accuser picked the three defendants plus another lacrosse player as her assailants. She had previously looked at photographs of Seligmann and Evans and had not identified them. Finnerty's photograph was not included in those first lineups because his physical appearance did not fit the description the woman gave of the men she said attacked her.

Despite the contradictions in her statements, the consistent point in most of the accuser's accounts has been that she was vaginally raped.

Nifong dropped the rape allegation a day after the accuser told an investigator in Nifong's office that she didn't know whether she had been penetrated with a penis -- a defining element of the crime. Nifong's terse dismissal of the rape charges -- "she cannot at this time testify with certainty" that it occurred -- did not explain her repeated accusations of rape.

The dismissal of that charge because of her uncertainty underlines the weakness of the medical evidence in the case. The only evidence of sexual assault in her hospital exam was diffuse swelling of the vaginal walls.

Nifong is likely to call police officers or nurses who can testify that they observed the woman looking tearful and traumatized.

SCIENTIFIC EVIDENCE

Nifong has very little scientific evidence to present.

The DNA tests showed not a single cell from any of the accused players or anyone else at the party. A DNA expert hired by the state, Brian Meehan, testified Dec. 15 that the lack of DNA doesn't mean an attack didn't occur: "A person can rob a bank and never leave a fingerprint. It doesn't mean they didn't rob the bank."

Arthur Caplan, chairman of the Department of Medical Ethics at the University of Pennsylvania, disagreed. Given the accuser's account of what happened, Caplan said, it is "next to impossible" that the attackers left no physical evidence on the woman.

"The odds are tiny to zero that you're not going to find any sample from anybody," Caplan said. "It gets hard to imagine that some kind of forced or unwanted activity took place."

THE DEFENSE

As Nifong's case has deteriorated, the defense case has grown stronger. DNA tests conducted by Meehan's lab found DNA from unknown men in samples taken from the accuser's body and underwear. Time-stamped photos show the accuser on the back porch of the house during the time when she said she was being raped inside. Seligmann has produced surveillance photos showing him withdrawing cash from a bank machine one mile away at the time the woman said she was raped. His cell-phone records and digital records of him entering his dorm back up his alibi.

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

News & Observer is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service