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Rape charges dropped in Duke case

Lacrosse players still face counts of kidnapping and sexual offense after their accuser's story changes.

December 23, 2006|David Zucchino | Times Staff Writer

DURHAM, N.C. — This city's beleaguered district attorney abruptly dropped rape charges against three Duke University lacrosse players Friday, but the athletes still face kidnapping and sexual offense charges.

Dist. Atty. Mike Nifong, who has publicly accused the white players of assaulting a black woman "based on her race," said in a dismissal notice that the woman was no longer certain that she had been penetrated by a penis. Under state law, a rape charge requires vaginal intercourse.

The woman recanted during an interview Thursday with a district attorney investigator, the notice said.

"While she initially believed that she had been vaginally penetrated ... she cannot at this time testify with certainty that a penis was the body part that penetrated her vagina," Nifong's notice said.

It continued: "Since there is no scientific or other evidence independent of the victim's testimony ... the state is unable to meet its burden of proof."

The six-page dismissal notice did not explain why the woman waited more than nine months to amend her account. Nor did it say why she was interviewed again after having given numerous statements to prosecutors earlier in the case.

Sexual offense -- which covers any sexual act -- carries a sentence of up to 24 years; kidnapping is punishable by up to seven years.

At a news conference in nearby Raleigh, defense attorney Joseph Cheshire asked Nifong to drop the remaining charges. He said there was no evidence of sexual or physical assault.

"It's now the shifting sands again, the shifting factual theory," Cheshire said. "It is the ethical duty of a district attorney not to win a case, not to prosecute all cases, but to see that justice is done."

The dismissal of the rape charges came a week after a lab director admitted that he and Nifong had withheld test results showing that DNA on the woman's body and underwear did not match the defendants'.

They also withheld evidence that DNA from several unidentified males was found on the woman.

Prosecutors are required to hand over all evidence collected in a case, particularly exculpatory evidence.

Even before the lab director's testimony, Rep. Walter B. Jones (R-N.C.) had asked the Justice Department to investigate whether Nifong committed "prosecutorial misconduct" and violated the defendants' civil rights.

Nifong previously said that even with a lack of DNA evidence, he could rely on the woman's account.

The woman, a 28-year-old student at North Carolina Central University, said the players raped her March 14 in the bathroom of an off-campus house after she was hired to strip at a lacrosse team party.

Her accusations inflamed race and class tensions in Durham, a midsize Southern city with a large black population. They prompted unflattering portrayals of Duke, a prestigious institution already burdened by what the school's backers consider an unjustified aura of elitism.

Nifong, who was running for reelection, joined black community leaders and some Duke professors in branding the players as spoiled and privileged. Nifong said the alleged rape indicated a "deep racial motivation" by the players.

Over the months, defense lawyers have chipped away at the woman's version of events. They said she gave different accounts to different investigators, and also to medical personnel who examined her at a hospital hours after the alleged assault.

The defense also has asked a judge to invalidate the woman's identification of the three players -- David Evans, 21; Collin Finnerty, 20; and Reade Seligmann, 20 -- during a police photo lineup.

The lawyers have said the woman failed to identify two of the players during an earlier photo lineup.

At the second lineup, they said, she identified the three after she was shown only photos of lacrosse team players and a few other men who attended the party.

"She was, in effect, given a multiple-choice test in which there were no wrong answers," a defense motion said.

Durham police rules require lineups to include photos of people not considered suspects.

Nifong did not respond to calls requesting comment Friday, or to a throng of reporters camped outside his office at the Durham County courthouse. The office windows were covered with paper.

A sign on the door read: "No Media -- Please!"

The next hearing in the case is scheduled for Feb. 5.

david.zucchino@

latimes.com

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