The Magazine

Duke's Tenured Vigilantes

The scandalous rush to judgment in the lacrosse "rape" case.

Jan 29, 2007, Vol. 12, No. 19 • By CHARLOTTE ALLEN
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The Duke University "lacrosse rape case" is all but over. On Friday, January 12, the prosecutor, Durham County District Attorney Mike Nifong, petitioned the North Carolina attorney general's office to be recused from the case, and the office complied, appointing a pair of special prosecutors to take over. Nifong's recusal, it is widely assumed, paves the way for the dismissal of all remaining charges against the three defendants--suspended (but recently reinstated) Duke sophomores and lacrosse team members Reade Seligmann and Collin Finnerty, and a team co-captain, David Evans, who graduated last year--owing to a complete lack of physical, forensic, and credible testimonial evidence linking the three to any sexual or other violent crimes.

Nifong's resignation from the case followed on the heels of two other events. One was an extended interview with the alleged victim conducted by one of Nifong's investigators on December 21--the first time anyone from the district attorney's office had talked to the accuser since Nifong announced he was personally taking over the case from the Durham police on Monday, March 27, 2006. That was exactly two weeks after the accuser, an African-American woman then 27, first said she had been sexually attacked by white members of the Duke men's lacrosse team at around midnight, the night of March 13-14.

During her December 21 interview with prosecutors, the accuser offered either the seventh or the twelfth (depending on how you count) significantly different version of the story she had been telling medical personnel, police officers, and news reporters about what happened after she, an employee of a Durham escort service, showed up at about 11:30 P.M. on March 13 to do some stripping and exotic dancing for a party at a Durham house rented by Evans and two other Duke lacrosse captains. This time around, the accuser, contradicting all her earlier accounts, said she could not remember whether she had actually been penetrated vaginally by the penis of any of the three lacrosse players whom she had identified as her assailants, which prompted Nifong to drop the rape charges the following day (charges of sexual assault, an equally grave felony, and kidnapping still stand against all three as of this writing). The accuser also altered her story about who had attacked her and when, now maintaining that Seligmann, then age 20, had merely held her leg and looked on while the other two, 19-year-old Finnerty and 23-year-old Evans, attacked her orally, anally, and vaginally in one of the house bathrooms. Earlier she had insisted that all three--or perhaps as many as four, five, or even 20 lacrosse players--had participated in the sexual assault as well as kicking, beating, and attempting to strangle her.

Her descriptions of her assailants' appearances also changed on December 21, apparently so as to accommodate the lanky, six-foot-three Finnerty; she had earlier described all three as chubby or heavyset and of medium height. Finally, she moved the time of the alleged assault a half-hour backwards, to around 11:30 on the night of March 13, which could get around Seligmann's airtight alibi of cell-phone, taxicab, and ATM records indicating he had left the house before the midnight hour at which she had previously maintained that the gang rape occurred.

The other event that undoubtedly inspired Nifong to withdraw from the case was a mid-December revelation under oath by Brian Meehan, head of a private testing laboratory under contract with the Durham district attorney's office. Meehan revealed that DNA samples from at least five different unidentified men had been collected from the underwear, pubic hair, and private parts of the accuser during a medical examination at Duke University's hospital shortly after the alleged gang assault, and that none of that DNA matched Seligmann, Finnerty, Evans, or any other previously tested member of the lacrosse team. Meehan testified--and also told 60 Minutes for their January 14 broadcast--that he, with some input from Nifong, had deliberately left these results out of a lab report issued on May 12, three and a half weeks after the April 17 indictment of Seligmann and Finnerty (Evans was indicted on May 15, the day after he graduated). A prosecutor's deliberate withholding of exculpatory evidence from a criminal defendant (in this case, evidence that would account for the mild swelling around her vagina that a nurse at the Duke hospital had reported, and would also impeach her statement that she had not had sexual relations for at least a week before the alleged assault) violates Durham and North Carolina procedural rules and possibly the Fifth Amendment's guarantee of due process in criminal cases.