By Peter Whoriskey and Sylvia Adcock
Washington Post Staff Writers
Saturday, December 23, 2006
Prosecutors dropped rape charges yesterday against three Duke University lacrosse players accused of assaulting an exotic dancer at a team party, saying in court documents that although the accuser "initially believed" she had been raped, she can no longer testify with certainty about crucial aspects of the alleged assault.
The dismissal of the rape charges eliminates a serious accusation facing the players but leaves the trio facing kidnapping and sexual-offense counts, which carry significant prison terms.
With no DNA linking any members of the lacrosse team to the victim, defense lawyers said District Attorney Michael B. Nifong should go further and dismiss the case.
"End this suffering . . . end this case -- because there is no case to bring," said Wade Smith, an attorney for Collin Finnerty, one of the three Duke students charged.
In a statement, Duke University President Richard H. Brodhead joined in the growing criticism of Nifong and called for the prosecutor to recuse himself from the case. He said Nifong's decision "must call into question the validity of the remaining charges."
The incident at the lacrosse team's party on March 13 touched off an emotional debate about race and class in Durham, N.C., a city evenly divided between blacks and whites, and around the nation. It pitted a black woman who attended a small, largely black school and worked part time as an exotic dancer against the largely white lacrosse team at one of the nation's most prestigious and expensive private universities.
Nifong heightened racial tensions with some of his early comments about the players, labeling them "rapists" and "racists," but as the months have passed, increasing attention has fallen on the district attorney's reliance on the accuser's statements. Nifong did not return calls seeking comment yesterday.
The woman recanted in an interview with a prosecutor's investigator Thursday, saying she was no longer sure that "a penis was the body part that penetrated her vagina," according to Nifong's filing. That statement contradicts others she had repeatedly made, defense attorneys said.
Under state law, penetration with anything other than a penis is not rape. It is not clear from the filing what constitutes the sexual-offense charge.
The dismissal of the rape charges against the three defendants -- Reade Seligmann, 20, of Essex Fells, N.J.; co-captain David Evans, 23, of Bethesda; and Finnerty, 19, of Garden City, N.Y. -- underscores a dramatic shift in the perception of the highly publicized case.
A lack of DNA evidence, mistakes in the way a photo lineup was used to identify team members and the accuser's shifting story have led to a chorus of people calling for all charges to be dropped -- or for Nifong to explain why they should be pursued.
Defense attorneys said they were "enormously frustrated" that some charges remain, suggesting that if the accuser cannot remember with any certainty whether she was raped, her memory cannot support the remaining charges.
"At first when the dismissals started coming across the fax, we went, 'Thank you, Lord -- we finally have justice,' " said Evans's attorney, Joseph Cheshire. "And then we realized it was the dismissal of only one charge."
Asked whether Nifong is guilty of misconduct, Cheshire said: "That's for the North Carolina state bar to decide. I certainly think there are some significant questions here that are worth addressing."
At the behest of Finnerty's family, Rep. Walter B. Jones Jr. (R-N.C.) has asked Attorney General Alberto R. Gonzales to open an investigation into the prosecution. "There are people in Durham who are either unwilling or unable to rein in this district attorney," Kevin Finnerty, Collin's father, said yesterday.
His son is "happy that one charge is dropped," he said. "But we're not celebrating. We have two charges outstanding and a lot of work to do."
Evans's father, David C. Evans, declined to comment when reached at work yesterday at a Washington law firm; he referred a reporter to his son's attorney in Durham. The younger Evans was one of nine players from the D.C. area on Duke's lacrosse team, whose season was canceled after the incident.
The accuser was hired for $400 to perform for two hours at the party. She left early as some students shouted racial taunts, witnesses have said.
Problems with the prosecution's case first arose this spring, when a state lab report found no DNA matches for any of the lacrosse players from the rape kit performed on the accuser.
In May, Seligmann's attorneys filed court papers showing that he was withdrawing money from an ATM when the attack is alleged to have occurred.
The lineup procedure used by Durham police also fell under criticism. The detectives used a PowerPoint presentation that included pictures of 46 members of the team and asked the accuser to identify her attackers. But there were no "fillers," or mug shots of men unrelated to the case, used to help verify her identification. The defense team called it "a multiple choice test for which there were no wrong answers."
Last week, the director of a private DNA-testing laboratory said it had omitted from its report that DNA from multiple men -- none a match to the defendants -- was found on vaginal and rectal swabs, on the accuser's body and on her underwear.
Brian Meehan, the lab director, said he and Nifong had agreed to leave out that information because the case was so "explosive." But defense lawyers said it showed that the prosecution had failed to reveal exculpatory evidence.
Dropping the rape charge means the prosecutor no longer needs to rely on DNA evidence, said Joseph E. Kennedy, a law professor at the University of North Carolina at Chapel Hill who specializes in criminal law. Under North Carolina law, first-degree sexual offense can involve penetration with an object.
The dismissal was welcomed by officials at Duke University, which has seen applications for early admission drop by nearly 20 percent this fall, the Raleigh News & Observer has reported. The university has launched an expensive campaign to restore its image.
A study conducted at Brodhead's direction raised questions about an overzealous party culture on campus. Others criticized the university for fostering a sense of privilege and racial insensitivity.
Meanwhile, a group of Duke alumni and supporters castigated university officials for not defending the lacrosse players more fervently. Evans has graduated from Duke, but Finnerty and Seligmann are still underclassmen, though they have been placed on "administrative leave" and are allowed to take courses at other schools.
Brodhead called on Nifong to clear up the remaining questions in the case.
"Given the certainty with which the district attorney made his many public statements regarding the rape allegation, his decision today to drop that charge must call into question the validity of the remaining charges," Brodhead said in a statement. "Mr. Nifong has an obligation to explain to all of us his conduct in this matter."
The case is due back in court Feb. 5.
Whoriskey reported from Miami, Adcock from Raleigh, N.C. Staff writers Liz Clarke in Pendleton, N.C., and Lori Aratani and William Wan in Washington and staff researcher Meg Smith in Washington contributed to this report.