(The issue of assumed racism among conservatives and southerners has cropped up again. Thought I'd bring in this article about the Duke rape case, which also spurred charges of assumed racism when it first came up.)The prosecutor insists his rape case is strong. One big problem: the facts thus far.
By Evan Thomas and Susannah Meadows
Newsweek
June 29, 2006 issue - The order had come, signed by a judge, requiring that the Duke lacrosse team give DNA samples. The prosecutor was trying to identify the three players who had allegedly raped an exotic dancer at the house rented by three of the team's co-captains on the night of March 13-14. All 47 players had gathered in a classroom near the lacrosse field to hear their lawyer, Bob Ekstrand, tell them what they needed to do. Ekstrand was about to tell the players that they could appeal the order as "overbroad," too sweeping in its scope, when the players got up and started heading for their cars to drive downtown to the police station. (The team's one black player was not required to go; the accuser, who is black, claimed her attackers were white.)
Ekstrand was struck to see how little hesitation the players showed. After all, if the DNA of any one of those men matched DNA found on the accuser's body, it could ruin his life: disgrace followed by many years in prison. But there was no talk of hiring individual lawyers or stalling for time; the players seemed to want to get on with it. "I was watching to see if anyone hung back," Ekstrand told NEWSWEEK. No one did.
It is possible, almost three months later, that the players are maintaining a conspiracy of silence. But it seems highly unlikely. Rather, court documents in the case increasingly suggest that Durham County District Attorney Mike Nifong had very little evidence upon which to indict three players for rape. Indeed, the available evidence is so thin or contradictory that it seems fair to ask what Nifong could have been thinking when he confidently told reporters that there was "no doubt" in his mind that the woman had been raped at the party held by the lacrosse team.
The media coverage of the case has been enormous. NEWSWEEK put the mug shots of two of the players—Reade Seligmann, 20, and Collin Finnerty, 19—on its cover the week after they were indicted. Some early accounts raised doubts about the guilt of the players, but the story more typically played as a morality tale of pampered jocks gone wild. Lately, as more evidence from police or medical reports have been filed or cited in court documents by defense lawyers, the national and local media have been raising questions about Nifong's conduct of the case and his motivations.
Asked for an interview last week by NEWSWEEK, Nifong declined, but sent an angry e-mail accusing the national media of getting spun by defense lawyers and sticking to his earlier comments to the press. "None of the 'facts' I know at this time, indeed, none of the evidence I have seen from any source, has changed the opinion that I expressed initially," he wrote. He lashed out at "media speculation" (adding, "and it is even worse on the blogs"). He said that he was bound by ethics rules against commenting any more about the case or evidence.
After the alleged rape, Nifong estimated to the Raleigh News & Observer, he gave 50 to 70 interviews to local and national media. "I am convinced that there was a rape, yes sir," Nifong said on "The Abrams Report" on MSNBC on March 28. The next day he told a local TV station, WRAL, "My reading of the report of the emergency-room nurse would indicate that some type of sexual assault did in fact take place." Before the DNA tests failed to match any of the Duke players, Nifong told The Charlotte Observer, "I would not be surprised if condoms were used. Probably an exotic dancer would not be your first choice for unprotected sex."
Nifong called the lacrosse players "hooligans" who were stonewalling. In fact, when police asked the three co-captains who rented the house to come down to the station for questioning two days after the incident, all of them readily agreed. None tried to get a lawyer and all volunteered to take lie-detector tests (the police declined their offer).
The description of the rape in a police affidavit was horrendous. The alleged victim, who has not been publicly identified, was said to have been choked, beaten and kicked, to have been penetrated orally, anally and vaginally over a 30-minute ordeal. But the woman's own statements to police and to medical personnel were contradictory, and the physical evidence does not appear to support her claims or the police affidavit. As required by North Carolina law, Nifong says he has turned over all the evidence in his possession, almost 1,300 pages, to the defense, and this week he is expected to turn over another batch of documents.
The following account is based on documents publicly available in court filings, and the defense, of course, is putting its own spin on the case. It is conceivable that Nifong is holding back some kind of smoking gun, but, given the rules and the publicity about the case, that does not seem likely.
When police called to the scene first found her in a parked car near a Kroger grocery store at about 1:30 a.m., the woman appeared to be passed-out drunk, though a police officer suspected that she was only pretending to be unconscious. She didn't say she had been raped until she was taken to a mental-health and substance-abuse facility, where she was to be involuntarily committed. But then, after being released and taken to the hospital, she recanted to a police officer—saying that she had not been raped but rather "groped" by some of the players. She later changed her story and told nurses and doctors that she had been raped after all, though in one account she had been raped by 20 men, in another by two men, in another by three. Her tests showed some semen in her vagina—but none belonging to any of the Duke players, according to uncontradicted assertions by defense attorneys. It is difficult to imagine that if she had indeed been orally, anally and vaginally raped by the players, there wouldn't be some trace of semen from at least one of them.
According to the medical reports quoted in court filings by defense lawyers, she told doctors that she had been raped, but did not say that she had been hit or choked. She claimed tenderness over her body, but the examining nurse-in-training found her head, neck, nose, throat, mouth, chest, breasts, abdomen and upper and lower extremities to be normal. She denied that her assailants had used condoms. The nurse-in-training found only that she had "diffuse edema of the vaginal walls" (swelling), which can be caused by normal sexual activity. She had had sexual intercourse with at least two men in the past week and told of "performing" for a couple by using a small vibrator.
Another stripper had accompanied the woman to the lacrosse party that night. The alleged victim told the nurse that the other dancer, Kim Roberts, had stolen her money and "assisted the players in their alleged sexual assault," according to a defense lawyer's affidavit. Interviewed by police, Roberts initially said her partner's account of being raped was "a crock" and that the two women had been separated less than five minutes at the lacrosse players' house. Later, Roberts changed her story and said that a rape might possibly have taken place. But that was after Nifong had helped her get favorable bail treatment for violating probation (she had pleaded guilty to embezzlement charges in another case). Roberts later contacted rap star Lil' Kim's publicist "for any advice as to how to spin this to my advantage."
In an interview with NEWSWEEK in March, Nifong had hinted that the victim had been slipped a date-rape drug. Also interviewed by NEWSWEEK, Roberts seemed to support that suggestion. She said that the other dancer had been sober when she arrived at the lacrosse players' house, but then drank a mixed drink given her by the players and was soon staggering. In her first detailed statement to police, Roberts said the woman spilled her drink after a few sips but didn't mention, as she had to NEWSWEEK, that the accuser imbibed most of Roberts's. The accuser told different stories to nurses and doctors at the hospital—in one account, that she had not been drinking that night, in another that she had consumed one alcoholic beverage and was taking a muscle relaxant. There was no toxicology report in her medical records handed over to the defense lawyers, though some sections of the medical report were missing.
It appears that Nifong had not actually seen the medical reports when he talked to reporters on March 29 about "my reading of the report of the emergency-room nurse." The medical report was not turned over to the police for another week, on April 5. Rather, Nifong may have relied on what a police investigator had told him. The detective's notes claim that the sexual-assault nurse told him that "there were signs consistent with a sexual assault during her test."
Nifong rebuffed efforts by three defense lawyers to present him with exculpatory evidence before he went to the grand jury to get the players indicted. On the day of the indictment, he refused to see Kirk Osborn, the lawyer for Reade Seligmann. Osborn has since made public evidence that almost surely proves that his client could not have raped the alleged victim. Seligmann made six calls to his girlfriend during the time the alleged assault would have been taking place. Within 15 minutes of the end of the strip show, he was out of the house and in a cab to get takeout food before he returned to his dormitory.
Nifong is described by some lawyers as an adversary who gets dug in—and won't budge. But Nifong's motives may have been political as well. He was six weeks away from an election when the Duke case came up. Durham voters are almost evenly divided between black and white. One of Nifong's opponents was black and the other was white, but the white lawyer was much better known in the community, thanks to winning a high-profile murder case. (That opponent, former assistant D.A. Freda Black, became a bitter enemy of Nifong's after, she claims, Nifong fired her.) Nifong promised black voters that he would not let the Duke case drop. He indicted two of the players two weeks before the election. He won narrowly, taking a larger share of the black vote than the other white candidate.
There may not be a whole lot the defense can do to derail the case before it gets to trial, possibly not until next spring. If a prosecutor has a victim willing to testify, that's normally all a judge requires to allow a case to go before a jury once indictments have been handed up. Still, the defense is challenging Nifong's highly irregular method of getting the victim to identify her alleged assailants. Under normal police procedures in Durham and elsewhere, victims pick their assailants out of a line-up that includes outsiders with no connection to the case. But the accuser chose from photos of the 46 white lacrosse players on the team—a multiple-choice test, as it were, with no wrong answers. She said that she was "100 percent" sure of Finnerty and Seligmann, but would have been sure of the third indicted player, David Evans, if he were wearing a mustache. Evans has never grown a mustache, says his lawyer, Joe Cheshire. In the material turned over by the prosecutor, defense lawyers found a note that the accuser had been unable to pick Evans out of an earlier photo display composed of Evans and several "fillers," or strangers. Whether she was able to identify Seligmann or Finnerty out of other photo displays is unclear.
It is not certain that the accuser will go forward with the case. Ten years ago she claimed she had been raped three years earlier by three men, but her father told reporters that the rape never happened, and she never followed through with the authorities. The father has been supportive of her this time around, but he told yet another version of what happened—that the Duke players used a broom handle. Recently, he has said that his daughter is struggling with her "nerves" and may not be up to testifying in a trial. According to their lawyer, Mark Simeon, the accuser's parents have not heard from their daughter for weeks and are very concerned.
A prominent Duke law professor, James Coleman, last week called on Nifong to remove himself from the case and appoint a special prosecutor. "Either he knew what the facts were and misstated them, or he was making them up," Coleman told reporters. "Whether he acted knowing they were false, or if he was reckless, it doesn't matter in the long run. This is the kind of stuff that causes the public to lose confidence in the justice system."
Coleman recently gave the Duke lacrosse program a measure of redemption when he authored a report showing that Duke lacrosse players were not as loutish as they had been depicted in the press. The report, commissioned by Duke president Richard Brodhead after the alleged rape, found that the Duke players were prodigious and sometimes unruly drinkers, but no different from the many Duke students who abuse alcohol. They had better grades than other athletes and had not been the subjects of any complaints of sexual or racial harassment on campus. Earlier this month Brodhead reinstated the lacrosse program for next year, though with a lot of strict and probably unenforceable rules against underage drinking
Meanwhile, the players and their families are lying low, trying to figure out how they can get their reputations back. Finnerty and Seligmann are underclassmen and may be able to transfer to another college and still play lacrosse if the charges are dropped. Evans has already started to pay a price in the real world. He was supposed to begin a good job after graduation, but the job offer was withdrawn.
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