Duke attack story shifts

The accuser in the sexual assault case gives a new take; lawyers are incredulous

Staff WriterJanuary 12, 2007 

  • A white towel made its debut in the accuser's statement of Dec. 21.

    "Someone opened the door and handed them towels and they started wiping me off, Dave Evans off and wiping up the floor ... a white towel and left it on the floor," the accuser told investigator Linwood Wilson.

    This is the woman's first mention of a towel. Police found a white towel in Dave Evans' bedroom when they searched the house March 16. DNA tests revealed Evans' semen and DNA of another person. Tests showed the other DNA could not have come from the accuser or any other lacrosse player.

    Defense lawyers ridiculed the notion that the towel could have been used in the attack. No DNA from any of the players was found in or on the accuser, only DNA from unidentified men.

    This "would require the belief that this towel could wipe away all DNA from her attackers on the accuser's body, but leave the DNA of other, unknown males," according to the defense motion filed Thursday. "It further requires the belief that the accuser's face and vagina could be wiped with this towel, but leave no trace of her DNA on the towel."

In her latest statement to investigators, the accuser in the Duke lacrosse case again changed her account of when she says she was sexually assaulted, who attacked her and how.

In a December interview with Nifong's chief investigator, the woman touches on problems with the case that have surfaced in news reports and court filings: flawed identification procedures, no DNA evidence, and conflicting descriptions of her attackers and what they did to her at a March 13 team party. The new account, however, contradicts the woman's cell phone records, time-stamped photographs of the party, 911 records and all her previous statements.

The woman adjusted the timing of the assault to earlier in the evening, a period before the well-documented alibi of one accused player, Reade Seligmann. The defense, however, introduced more alibi evidence: Seligmann was speaking on a cell phone with his girlfriend during part of the time the accuser now says an attack occurred.

Defense lawyers attached the new statement to a court filing Thursday arguing that the woman is an unreliable witness. The three players, Seligmann, David Evans and Collin Finnerty, are charged with sexual offense and kidnapping. They have called the accusations lies and said they are innocent.

It is the policy of The News & Observer not to identify complainants in sexual assault cases. A judge is to hear several motions filed in the case Feb. 5.

Critics, such as Duke law professor James Coleman, said the new document was a blatant attempt to fix a flawed case and called for a criminal investigation of Durham District Attorney Mike Nifong and his staff.

"Who would believe that a witness, nine months later, suddenly recalls facts that coincidentally negate evidence produced by the defense?" said Coleman, who led a Duke committee that investigated the lacrosse team's culture and has criticized Nifong's handling of the case for months.

"These people are almost criminal. It's making a mockery of the system. It's like Nifong is mooning the system. It's contemptuous."

Nifong's assistant said he would not be available for comment Thursday.

The new account comes from a Dec. 21 interview by Linwood Wilson, Nifong's chief investigator. It was the first time anyone from the District Attorney's Office discussed the case with the woman since charges were filed in April. The interview came less than a week after a private laboratory director testified that he and Nifong agreed not to report DNA evidence favorable to the three accused players.

The woman said in the interview that she was no longer certain the players had vaginally assaulted her with their penises -- North Carolina's legal definition of rape. That prompted Nifong to drop the rape charges.

Multiple names

In previous accounts, the accuser said she was assaulted by three men: "Adam," "Brett" and "Matt."

In the Dec. 21 interview, she said for the first time that the players used multiple names: Evans and Seligmann, she said, used a total of four names, while Finnerty did not use a name.

"Inv. Wilson asked [the accuser] to tell him whose names the guys were using on March 13 2006 since she now knows their real names," Wilson wrote in his typed notes. "This is her answers: Dan, Adam and Brett was used by Dave Evans. Adam and Matt was also used by Reade Seligmann. She does not remember a name being used for Collin Finnerty or if he was called by a name."

The investigator added a handwritten note that "Matt = Finnerty."

The defense lawyers said the aliases were preposterous.

" 'Adam' could be either Reade Seligmann or Dave Evans, while apparently 'Dan' and 'Brett' are both Dave Evans, and it now appears that 'Matt' can only be Reade Seligmann (when he is not 'Adam')," the motion stated. "The handwritten notes -- as opposed to what appears in the typewritten version -- appear to indicate that the accuser may have claimed that Dave Evans had four names, Reade Seligmann had two names (one of which was shared with Dave Evans) and Collin Finnerty had one name (that may have also been shared with Dave Evans)."

Characters change

The confusion extends to who did what during the alleged assault.

In April, the woman looked at a picture of Reade Seligmann and said she was 100 percent certain that he forced her to perform oral sex. On Dec. 21, she said it was Evans who forced the oral sex.

She said Seligmann helped pull her into a bathroom for the assault but had cold feet about taking part "because he was getting married." Seligmann is neither engaged nor married.

In the latest statement, the woman says she arrived at the party at 11:10 p.m. on March 13, that she had a drink and danced for several minutes, and that the rape began at 11:40 p.m. and ended at midnight.

Her cell phone records included in court filings show that she was on the phone much of this time.

If her latest account is true, she made a seven-minute call to someone at her father's house while she was performing an erotic dance at the party, and was on the phone up to one minute before she says the assault started.

In all previous accounts, the woman said the attack ended shortly before she left in the car driven by Kim Roberts, the second dancer. Roberts called 911, reporting that she was the target of racial epithets as they left at 12:53 a.m., police records show.

The new account leaves 50 minutes unaccounted for between the end of the attack and the departure from the party.

The accuser's assertion that the assault ended at midnight contradicts time-stamped photos showing the two women dancing between midnight and 12:04 a.m.

A mustache or stubble?

Another problem in the case was the woman's identification of Evans.

On April 4, she viewed a photograph of Evans and said it looked like one of her assailants, except that the assailant had a mustache. On Dec. 21, Wilson asked her to describe Evans' mustache.

"It wasn't a real mustache, like yours," she told Wilson, who has a full mustache. "It was like stubble or a shadow."

"Like a 5 o'clock shadow?" Wilson asked.

"Yes, like that," the woman said.

Evans has a visible 5 o'clock shadow in the photograph.

(Staff writer Michael Biesecker contributed to this report.)

Staff writer Joseph Neff can be reached at 829-4516 or jneff@newsobserver.com.

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