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Published: May 27, 2006 12:30 AM
Modified: May 27, 2006 06:31 AM
 

Rape case lineup facts are sought

The accuser in the Duke University lacrosse case viewed a photo lineup of players one week after the alleged attack and did not pick out a team captain who has since been charged with rape, according to court papers filed Friday.

The March 21 photo lineup was made public in a motion by lawyers for team captain David Evans. The motion asks for more evidence from the files of police and prosecutors about the lineup and other records.

It is unclear whether the accuser identified any players in the March 21 lineup. Defense attorneys said they did not get a report on the procedure.

Evans, 23, of Bethesda, Md., is one of three players charged with first-degree rape, sexual offense and kidnapping in the case. The others are Collin Finnerty, 19, of Garden City, N.Y., and Reade Seligmann, 20, of Essex Fells, N.J.

The accuser, an escort service dancer, told police she was raped during a Duke lacrosse team party at 610 N. Buchanan Blvd. in the early hours of March 14.

In a second lineup April 4, the woman picked out four players as possible attackers with varying levels of certainty, a police report on the lineup says. She said then that she was "about 90 percent sure" Evans was one assailant but said he had a moustache that night. Evans' attorneys say Evans has never had a moustache.

For the March 21 lineup, Durham police used official photos of the lacrosse players identical to those posted on GoDuke.com, the official Web site of Duke athletics. The police arranged the photos in groups labeled A through F, according to the motion filed Friday.

Evans' photo was labeled F-5. A Post-It note referring to group F said, "Did not pick any."

"Eight days after the alleged assault, and two weeks before the April 4 identification procedures in which she selected [Evans] with 90 percent certainty if he had a moustache, the complainant viewed a picture of [Evans] in this case and did not identify him as one of her alleged assailants," wrote Evans' attorneys, Joseph B. Cheshire V and Brad Bannon of Raleigh. "Incredibly, though, there is no narrative report ... about these photo identification procedures."

The March 21 lineup, as described in the motion, might have violated the Durham Police Department's policy on photographic lineups in two ways:

* The policy calls for "filler" photographs of people who are not suspects in the case. The March 21 lineup apparently included only Duke lacrosse players.

* The officer running the lineup is supposed to document the procedures, results and number of photos viewed. Evans' attorneys said they received no such report.

'Experienced' officers

On Thursday, attorneys for Finnerty made a related request to learn how the accuser described her assailants.

"The law enforcement officers who worked this case are well-trained, experienced officers," Finnerty's attorneys wrote. "At some point in their interviews and investigations, one or more of these officers asked [the accuser] to describe the men who she claims sexually assaulted her, and [she] provided some answer to the question."

The lawyers said the only mention they had received was a March 21 note by Investigator B.W. Himan: "I asked her questions trying to follow up on a better description of the suspects, she was unable to remember anything further about the suspects."

On May 18, District Attorney Mike Nifong gave defense attorneys 1,278 pages of documents, two videotapes and digital files on a compact disc.

Nifong said Friday that he has handed over everything in his file to the defense and will make more material available as he receives it. He has declined to discuss the case since early April, after a barrage of interviews with the national news media.

Evans' attorneys also requested other evidence in the case: parts of the rape examination, cell phone records, notes of a meeting Nifong had with the accuser and notes about the accuser making her initial allegations of rape.

Officer's account

In making their argument for more police records, the lawyers attached a narrative of when police met the accuser, written April 9 by Sgt. J.C. Shelton.

Shelton arrived at the Kroger store on Hillsborough Road at 1:25 a.m. March 14, according to the narrative. The accuser was unconscious in the passenger seat of the car driven by the second dancer at the party.

"She was wearing a see-through red outfit, with no undergarments and one white high heel shoe," Shelton wrote.

Shelton tried using smelling salts when the woman didn't respond to him, the report says. When he tried to pull her from the car, she held onto the emergency brake. Shelton said he had to pressure her arm to get her out of the car, and she collapsed on the parking lot.

Not knowing her name or address, Shelton had two officers take the woman to Durham Access, a county-run facility for detoxification. Shelton wrote that a colleague called him later, saying that the woman had reported being raped at the party. Shelton told the officer to take her to Duke Hospital.

The accuser was cooperative at the hospital, Shelton wrote. She said she worked as a stripper and put on a show at 610 N. Buchanan with "Nikki," another dancer. The accuser said that when the two left and got in the other dancer's car, someone from the party came out and asked them to return, Shelton wrote. Nikki wanted to go back into the house, Shelton wrote, but the accuser didn't, and the two argued.

"She said at that point some of the guys from the party pulled her from the vehicle and groped her," Shelton wrote. "She told me no one forced her to have sex."

Shelton called his watch commander to report the woman had retracted her rape allegation. A few minutes later, Shelton wrote, he learned that she had told the examining doctor that she had been raped.

"I returned to the room where she was and asked her if she had or had not been raped," Shelton wrote. "She told me she did not want to talk to me anymore and then started crying and saying something about them dragging her into the bathroom."

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

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