Reasonable Doubt at Duke

By Ruth Marcus
Wednesday, June 28, 2006

At the start, I presumed they were guilty. The rape charges against three members of the Duke lacrosse team sounded like a plausible case of Jocks Gone Wild. It wasn't hard to imagine that a bunch of rowdy, hard-drinking players could have crossed the line from watching a paid dancer to sexually assaulting her.

After all, these were students who had plunked down $800 for a pair of strippers and were angry that their cash had bought only a few minutes of bare flesh. The show was called off when one player asked about sex toys and "said he would use the broomstick on us," according to the second dancer.

As the two women drove off, a neighbor reported hearing one of the partygoers yell a racial insult at the African American dancers: "Hey . . . thank your grandpa for my nice cotton shirt." Later that night, another teammate wrote a disgusting e-mail about plans to kill and skin "some strippers." One of the accused, Collin Finnerty, is to stand trial here next month in an incident in which he and two high school lacrosse buddies allegedly taunted a man, saying he was gay, and then beat him.

These don't sound like young men you'd want your daughter to date.

But the more evidence that has emerged in the case, the more it appears that there is way more than reasonable doubt that the three accused committed rape.

The paucity of physical evidence; the accuser's prior unsubstantiated rape charge; her changing stories that night; sloppy and unreliable identification procedures -- any of these alone, and certainly all of them together, make it hard to understand why the prosecution is going forward and impossible to imagine that it could win a conviction.

True, much of the evidence that's emerged so far has been selectively released by defense lawyers. But after a review of court filings and other material, here's what makes me doubtful:

? There's almost no physical evidence. Two rounds of DNA testing failed to produce any evidence of semen from Duke players -- as might have been expected, given the accusation that the woman was orally, vaginally and anally penetrated, along with being choked, beaten and kicked. (DNA from one of the students, David Evans, may match material taken from the accuser's fake fingernail.) Indeed, although the prosecutor claimed the medical report found injuries consistent with sexual assault, the nurse-in-training who examined the woman found only swelling of the vaginal walls -- something that might be explained by the fact that the woman reported using a vibrator as she performed for a couple hours earlier.

? The second dancer told police that the rape charges were a "crock" and that she and the accuser had been apart for only five minutes at the party.

? The accuser made an earlier, seemingly unsubstantiated allegation of being the victim of a gang rape. She said she was attacked by three men in 1993, when she was 14, but didn't file a police report until three years later. The matter was dropped after she failed to provide a statement to the investigating officer.

? She gave six different accounts of what happened the night of the incident: She did not originally mention rape to the police when they found her in a car outside a grocery store; raised the rape allegation after being taken to a substance abuse facility; later said that "no one forced her to have sex"; and gave accounts of the alleged incident that differed in various ways, including the number of attackers and the type of assault.

? It's true, and totally understandable, that rape victims often provide inconsistent accounts. But even if a sexual assault did occur in this case, there's ample reason to question whether the right students were charged. The accuser said her attackers were named "Bret, Adam and Matt"; the indicted students are Reade, Collin and David.

Reade Seligmann's lawyer has presented evidence that during the post-midnight time frame in which the attack allegedly occurred, Seligmann called his girlfriend six times and another person twice (12:05 to 12:14); was picked up by a cab (12:19); used an ATM (12:24) and returned to his dorm (12:45). The lawyer tried to present this evidence to the prosecutor before the indictment but was rebuffed.

? In contravention of accepted practice, the photographs shown to the accuser included only members of the lacrosse team, no similar-looking "fillers." According to papers filed by David Evans's lawyer, the accuser failed to identify him in a photo lineup eight days after the party. In another test, three weeks after the incident, she selected his photo, telling investigators, "He looks like one of the guys who assaulted me, sort of." She said that she was "about 90 percent" certain but that the attacker had a mustache; Evans's lawyer says he's never had a mustache.

Perhaps there are facts yet to emerge to support Durham County District Attorney Mike Nifong's continuing certitude that a rape occurred -- though the confluence of Nifong's political interests and the prosecution is itself another reason for discomfort. He brought the first charges just before a primary in which the black vote played a key role.

In an odd way, I hope Nifong's proved right, because the alternative -- that he began with a dubious case and stuck with it as it became shakier -- is so troubling. As it stands now, the case isn't expected to go to trial until spring 2007. That seems like an awfully long time to wait to find out.

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