Nifong's move

Dropping of the rape charges against three former Duke athletes doesn't help the credibility of the remaining case

Durham District Attorney Mike Nifong's sex offense case against three former Duke University lacrosse players took a major hit yesterday when Nifong quietly dropped the charge of rape against the three. He acted after the woman who has accused the men of sexual assault and other crimes told an investigator, in effect, that she was uncertain whether what had happened to her during the alleged attack in March amounted to rape according to the legal definition.

At that point, the D.A. didn't have much choice. David Evans of Maryland, Colin Finnerty of New York and Reade Seligmann of New Jersey still face trial next year on the remaining charges of kidnapping the accuser, who had been hired to dance at a team spring-break party, and sexual assault, which carries the same potential sentence as rape.

Those charges may be easier for Nifong to prove, in his view. But the woman's revised account of the alleged rape inevitably casts more doubt on her version of the entire episode, especially since she has changed her story a number of times in interviews with police and medical workers. The men maintain their innocence on all the charges.

The accuser's new uncertainty also continues to point up problems with how Nifong has pursued this case. His first statements, made to television reporters with national audiences, included iron-clad assurances that a rape had occurred and that the defendants were guilty. Those statements about the men seemed to cross the line of prosecutorial propriety.

Then it turned out, as The News & Observer reported, that the D.A. had never interviewed the dancer about the events of that March evening, a puzzling fact given the certainty with which Nifong seemed to vouch for her truthfulness. The photo lineup in which the woman identified her alleged attackers included photographs only of lacrosse team members, a violation of Durham's photo ID policy and clearly skewed against the players.

Results of two separate DNA tests showed genetic material from several males found on the accuser's undergarments and body but none from the former players. It didn't help the district attorney's public case when the director of a company, hired by Nifong to do the second DNA tests, this week testified that with Nifong's knowledge, he hadn't included results showing that none of the players' DNA was detected.

Only later were those results released to the men's lawyers, which does little for Nifong's credibility as a justice-seeker -- not just a prosecutor trying to win -- regardless of the circumstances surrounding a criminal case.

The accuser, if she can offer a coherent account and stand by it, deserves to have her allegations heard in court, but she too may have been ill-served by a D.A. who seems to have built his case on a shaky foundation. For example, problems with the lineup procedure could mean that key evidence, or what the prosecution regards as evidence, could not be introduced.

From here on out, Nifong needs to be fair and cold-eyed in evaluating evidence as it continues to come to light and in assessing the strength of his case. He properly is being watched, and his conduct will need to be examined by the N.C. State Bar if the case continues to break apart.