By Peter Whoriskey and Sylvia Adcock
Washington Post Staff Writers
Thursday, April 12, 2007
RALEIGH, N.C., April 11 -- Rather than simply drop the remaining charges against three former Duke University lacrosse players, North Carolina Attorney General Roy Cooper turned the tables on the prosecutor Wednesday and, after castigating him as a "rogue" who acted out of "bravado," said he could face a criminal investigation for his pursuit of the sexual assault case.
"We believe that these cases were the result of a tragic rush to accuse and a failure to verify serious allegations," Cooper said. "There were many points in this case where caution would have served justice better than bravado."
A criminal investigation of Durham District Attorney Michael B. Nifong is a "possibility," he said, noting that the North Carolina bar is already investigating an ethics complaint against him. Nifong did not return calls to his office, but his lawyer, David Freedman, told ABC News that "he pushed the case as long as he did because at that point he believed in this case."
The attorney general's announcement draws to a close a racially charged legal drama that opened with the three white players being vilified as privileged "hooligans" -- Nifong's word -- who had gang-raped a black stripper at an off-campus team party on March 13, 2006.
But after reviewing the case for 12 weeks and interviewing witnesses and the accuser, Cooper's team completely recast the scenario.
There was no credible evidence of an attack -- there was no DNA evidence and no witnesses at the party who could corroborate the accuser's account, Cooper said. The accusation also was not consistent with time-stamped photographs and phone records, he said.
A written summary of the factual findings that investigators relied on to conclude that no attack occurred will be released next week. Cooper added that perjury charges against the accuser were considered but rejected, because she appears to believe in her uncorroborated and sometimes contradictory accounts of a sexual assault.
Hours after the announcement, David Evans, Collin Finnerty and Reade Seligmann, along with their families and many of their former teammates, gathered at a Raleigh hotel ballroom. Amid hugs, praise for the lawyers and declarations of relief that the more than year-long "nightmare" was over, the players and their attorneys excoriated members of the news media who had jumped to conclusions early on.
They also wondered aloud what must happen to those who are falsely accused but lack the means to hire a phalanx of lawyers and experts.
"It's been 395 days since this nightmare began, and finally the day has come for closure," said Evans, who attended Landon School in Bethesda. "It's painful to remember what we went through in those first days. Its just a testament to all of our character that we never lashed out. . . . To have people in the media relating you to Hitler and other terrible people from history when you have done nothing wrong -- that is character to sit there and take that."
He added: "I hope these allegations don't come to define me. I hope that the way I could be remembered is for sticking up for my name, my family and my team against impossible odds -- the entire country against us."
Asked about whether the players would consider a legal action against Nifong, Evans attorney Joseph Cheshire said all options are on the table.
Legal experts say prosecutors cannot be sued for actions within the scope of their job but can be held liable for actions outside that scope.
At the hotel gathering, eventually a reporter asked about strippers being present at the party.
"We've lost a sense of proportionality here," said James P. Cooney III, a lawyer for Seligmann. "No one's proud of that party, and they've expressed regret for it." But to suggest that the party justifies these charges is ridiculous, he said.
Evans has graduated. Seligmann and Finnerty plan to return to college in the fall but not to Duke, their families said. The father of one of the two still in college said he would never let his son return to Durham County as long as Nifong is the district attorney.
Finnerty was convicted last year of a 2005 assault charge stemming from a street altercation in Georgetown. He was placed on six months' probation.
While the players, teammates and families bathed in a sense of relief, others in the community said they still harbor doubts about whether justice was done.
Irving Joyner, a law professor at North Carolina Central University who has been monitoring the case for the NAACP, said the black community will want to be satisfied with the reasons for the dismissal -- especially since early days in the case, black leaders were concerned that a low-income black woman's word would not be taken against that of privileged white men.
Joyner added that he is "troubled and concerned by the carnival atmosphere being created here -- that these three men are somehow coming home for a victory party."
As for the accuser, Cooper said, she still wants to proceed with the prosecution.
The accuser was originally depicted as a victim of race and class antagonisms, and candlelight vigils were held for her. But her lack of credibility helped sink the case.
DNA tests did not turn up matches with the players, and material from several other males were found in the accuser's vagina and on her underwear. Her accounts were marked by significant discrepancies, Cooper said, though he added that in some sense she may not have been lying.
"Our investigators who talked with her and the attorneys who talked with her over a period of time think that she may actually believe the many different stories that she has been telling," Cooper said. "In reviewing the whole history there are records under seal that I'm not going to talk about, but we believe it is in the best interests of justice not to bring charges."
Nifong's handling of the case began to come under increasing fire last fall, when defense attorneys complained that he had not turned over to them all the evidence required by law. At a Dec. 15 hearing, it was revealed that Nifong had withheld some of the exculpatory DNA evidence.
The prosecutor dropped rape charges against the three men Dec. 22, but charges of kidnapping and sexual offense remained.
The state bar first accused Nifong of making improper pretrial public statements, citing scores of media interviews just after the case broke, then levied more serious charges of withholding evidence from defense attorneys and making false statements to the judge, the lawyers and the bar. The allegations could lead to the loss of his license to practice law. Nifong is to appear before a three-member administrative panel on Friday to argue that the charges should be dismissed.
In making the announcement, Cooper talked about the damage an overreaching prosecutor can do to the justice system. He proposed a law that would enable the state Supreme Court to step in under certain circumstances to remove a district attorney from a case.
"In the rush to condemn, a community and the state lost the ability to see clearly," he said. "Today we need to learn from this and keep it from happening again to anybody."