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Public Spin Stops in Duke Rape Case

Lawyers on both sides end comments as they struggle to handle the case and as the prosecutor faces a reelection challenge.

April 30, 2006|Richard Fausset | Times Staff Writer

DURHAM, N.C. — For weeks, lawyers for Duke University lacrosse players mounted an aggressive public campaign to discredit a stripper's accusation that she was raped at a team party.

They released time-stamped photos to counter the dancer's story, produced a detailed alibi for one of the players, and raised questions about the motivations of a second stripper at the party who said she thought a rape might have occurred.

But last week the spin abruptly stopped. At a meeting Tuesday, the dozen or so attorneys representing most of the players agreed they would not comment further until instructed to do so by lawyers representing the two players charged with rape, said Kerry Sutton, an attorney for one of the other players.

The shift in strategy is similar to that of Durham Dist. Atty. Mike Nifong, who talked early and often about the investigation, but in recent weeks has made few comments.

The new silence suggests that both sides are struggling to handle a case that has captured national attention -- the kind that demands a talent for public relations long before any trial date.

For Nifong, who faces two challengers in an election Tuesday, his public discussion of the case could cost him his job. Early on, he called the suspects "hooligans" and faulted other team members for failing to come forward with information about the March 13 party.

He made the comments before the players had been indicted, and before DNA samples from the accuser's body had been analyzed. Those tests later revealed no matches with DNA from the 46 players. The results of further DNA tests are expected on or after May 15.

Defense attorneys said the prosecutor's statements were unfair to Duke players. Nifong's opponents in the election, Freda Black and Keith Bishop, have echoed those concerns.

Because the accuser is black and the suspects are white, the criticism could resonate with residents who wonder whether Nifong took a strong public stand against the players to score political points in a county that is 38% black.

"I would be livid if what happened to those young men happened to my daughter," Bishop said at an election forum Tuesday.

The issue adds a layer of complexity to an election that was already seen as a referendum on experience and race. Nifong, who is white, has worked for more than a quarter-century in the district attorney's office. Bishop, who is black, has no experience as a prosecutor.

Freda Black, a white candidate, is a former assistant district attorney who successfully prosecuted Durham novelist Michael Peterson in a high-profile 2003 murder case. At the forum, she noted that she had made no public comments about the Peterson trial until it was over.

Some experts say defense attorneys' decision to disclose key elements of their argument to the press could backfire.

"Once your client has been charged or has been indicted, then at some point it's potentially risky to release that favorable information to the prosecutor or to the media, because it might allow the prosecution time to explore the evidence more," said Margaret Lawton, a former federal prosecutor and an associate professor at the Charleston School of Law in South Carolina.

At the same time, the attorneys were responsible for defending their clients' reputation.

The clients "don't want all their classmates thinking they're rapists," said Craig Lerner, a professor at George Mason University School of Law in Virginia.

Both sides learned Thursday that the accuser filed a 1996 police report in the nearby city of Creedmoor, N.C., saying she had been raped by three men three years earlier, when she was 14. Creedmoor Police Chief Ted Pollard said Friday that none of the men named in the 1996 case was charged. Pollard said it was unclear why the case was not pursued further.

The investigation could have been dropped because the woman recanted her testimony or because police did not find enough evidence to support her allegations, he said.

Nifong, in a statement Friday, said North Carolina's rape shield law might prevent the earlier police report from being introduced in court.

If it is introduced, the defense could possibly draw damaging conclusions from it, said Brian Aus, an experienced Durham defense attorney who has no connections to the Duke case. Then again, he said, the prosecution might be able to explain why the case was dropped.

"It may make the state's case harder," he said. But barring any further information, he said, "it doesn't make the case go away."

Some potential bombshells were revealed when the two sides were talking openly to the media. According to Newsweek magazine, Nifong has "hinted" that the accuser was given a date-rape drug.

The defense's statements have disclosed other topics that could dominate a trial, including questions about timelines, the credibility of witnesses and the prosecution's method of identifying suspects.

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