Keeping Score in the Duke Lacrosse Rape Scandal: Why, Despite Indictments, The Defense Remains Way Ahead Of The Game

By JONNA SPILBOR

Friday, Apr. 28, 2006

On April 17, more than a month after a 27-year-old stripper from North Carolina Central University alleged she had been brutally raped, beaten, and choked by three Duke lacrosse players at an off-campus party, a Durham grand jury handed up indictments against two players.

Reade Seligmann, 20, and Collin Finnerty, 19, were formally charged with first-degree rape, sexual offense and kidnapping, and were released on $400,000 bail each. Durham's District Attorney, Mike Nifong, said a third indictment may be in the offing when and if the additional suspect is positively identified.

The indictments come despite an impressive set of strong evidence in favor of the defense -- evidence that is being rightly touted by the young men's attorneys as proof of innocence. Significantly, the evidence both provides an alibi for one of the defendants, and also suggests that the accuser's story, standing on its own, cannot be entirely accurate - thus raising reasonable doubt from two different angles. Moreover, the process by which the accuser was asked to identify her assailants was irrevocably tainted - with a lineup so suggestive, it was absurd.

Currently, this case is in the "discovery" phase - which is scheduled to wrap up on May 15, when this case is next in court. The District Attorney then, or anytime between now and trial, has the power to dismiss the charges against these boys. But will he?

In a prior column, I argued that this case should be dropped - highlighting the lack of any DNA evidence on the accuser's person, from any of the players on the team. In this column, I will explain why further developments have only made the defense case stronger.

The Evidence of Innocence: Strong and Clear

Let's start with the time-stamped digital camera photos. There was speculation that the time-stamps might have been altered - but defense attorneys pointed out that the time stamps matched the time shown on watches in the photos themselves, disproving that theory quite conclusively.

The key photos place the accuser on the back steps of the house where the party took place at 12:30:47 a.m. - and there again (this time with a cut on her foot) at 12:37:58 a.m. - leaving only about seven minutes for the alleged rape to have occurred. Meanwhile, other photos make clear that there was no other time frame during which the rape could have occurred.

Additionally, taxi logs and ATM receipts place one of the defendants, Reade Seligmann, miles away from the home at a time when, according to the accuser, he was violating her inside the home's bathroom.

At 12:24 a.m., according to an ATM receipt, Seligmann's ATM card was used at a nearby Wachovia bank. Was this a clever ploy by Seligmann to create an alibi by having someone else use his card while he was raping the accuser? Hardly. A cabdriver confirms Seligmann's trip, with a friend, to the bank, and it appears phone records will show him calling an out-of-state girlfriend just after the ATM trip. The driver's account is confirmed by his log of stops. And presumably, Seligmann's friend can confirm all this, too.

After the ATM trip, the cabdriver says, Seligmann and his friend headed to get fast food, and the driver dropped them off at the dorm. And indeed, Seligmann's student ID card was used to check in at 12:46 a.m.

The bottom line: Extremely persuasive evidence - much of it the result of machine records, not human testimony - shows that Seligmann was gone during the entire period of time when the attack could have occurred.

The Suggestive Line-Up: How Seligmann and Finnerty Were Fingered

Let's take a look at how these two players, Seligmann and Finnerty, were fingered in the first place.

Although the District Attorney is keeping mum on the precise identification procedure, the defense contends that the identification occurred when the accuser reviewed an array of photos of the forty-six white members of the Duke lacrosse team (the accuser said all three of her attackers were white). The defense argues that because the photo array did not include anyone other than Duke lacrosse players, it was unduly suggestive, and thus, a due process violation.

Surely, that argument is correct: The accuser had no choice but to identify a Duke lacrosse player if she were to identify any one at all; conversely, even if she picked utterly randomly, with her eyes closed, she had an excellent chance of picking an innocent person who attended the party at more or less the relevant time.

A fairer procedure would have mixed in photos of unrelated white men of the same age and physical size as the athletes. The sheer number of photos here should not mask the unfairness: Imagine if, instead, this had been a small party, and the problem becomes clear: The very point of a line-up is to mix in similar-looking strangers to get a valid identification, one we can be confident of because the accuser was able to "pick out" her assailant. But no "picking out" was needed here - only picking.

If the judge agrees that this lineup is unfair, what will the consequences be? First, the accuser will not be able to

testify as to the fact of identification - depriving the prosecution of the crucial moment in a trial, where she would point to the men she claims attacked her.

Second, the defense will be able to use the identification to raise reasonable doubt, by suggesting prosecutors and police were careless because they wanted to pin this on particular players quickly. And they may be able to use it in another way, too: Suppose charges against Seligmann are dropped, or dismissed by the judge on the basis of insufficient evidence - a real possibility here, in my view. In the ensuing trial of Finnerty alone, Seligmann could take the stand to give emotional testimony about how he was wrongly fingered by the accuser.

Proving a Negative: An Unusually Strong Defense Case

With no forensic evidence to corroborate the accuser's identification, the case is reduced to a true "she said, he said" prosecution. But the "she said" part is getting weaker and weaker, and the "he said" part, stronger and stronger.

Defense lawyers are often called upon to "prove a negative." Of course, it is not the defendant's responsibility to prove anything; the D.A. has the burden of proof beyond a reasonable doubt. But as a practical matter, acquittals, more often than not, require the defense attorney to demonstrate to a jury either that the crime never happened, or that her client was not the one who committed it.

And proving a negative can be very hard to do: If you had to provide evidence for where you were last Saturday afternoon, for instance, are you sure you could do so? Would the evidence only be the testimony of a close friend or spouse - vulnerable on cross-examination? Would you have to hope that strangers or salespeople had good memories?

Would you be lucky enough to happen to have used a credit card or ATM card, or to have passed through the scope of a store's security camera? What if you were hiking alone - and ran across no other living soul? Were you fortunate enough to get a tourist to take a picture of you on top of the mountain - and to have a camera whose time-stamp can't be monkeyed with? If you stopped to get gas, would the cashier remember you - among the literally hundreds of people he may see daily?

Issues like these underscore why the prosecution does bear the burden of proof, and why it must be proof beyond a reasonable doubt. It is a rare day when a defense lawyer has the kind of alibi evidence that exists here. And here, there's also photographic and forensic evidence directly challenging the accuser's story.

In addition to the photographs described above, which narrow the possible time frame for any attack, there's a shot of the accuser during her striptease that depicts what appear to be pre-existing bruises and lacerations on her legs. Did she tell the police these came from the attack? Might she have actually been attacked earlier in the evening, before the party?

Another photograph depicts the accuser smiling as she's walking out the house's back door, with her clothing fully intact (though with a shoe missing).

Then there's the forensic evidence - which so far, all cuts against the accuser. Evidence of wet red nail polish on a banister suggest that the accuser - who claims she lost four fake fingernails in the attack - might actually have been giving herself a manicure during the time period of the alleged rape, while actually waiting for her ride home.

In my prior column, I noted the lack of any DNA evidence - even under the accuser's fingernails, a typically site for tiny skin fragments to lodge when an accuser is fighting back. The D.A. has suggested that this could be because there was no skin-to-skin contact. But the photos that depict Seligmann at the party -- prior to the time the accuser claims she was attacked -- show him and others wearing short-sleeve shirts. Surely a rape victim fighting back would be likely to scratch at her accuser's hands and arms - and the accuser has suggested that she did exactly this, by saying she broke four fake fingernails during the attack.

Finally, 911 tapes describe the accuser as "passed out drunk" and in no distress. They do not report a rape. If the accuser was indeed drunk, that is yet more evidence undermining her identification not only of Seligmann, but also of Finnerty. And the photos are consistent with drunkenness, as is the situation: It seems quite credible that a stripper might have a few drinks to gain courage before walking into a house party containing dozens of rowdy college athletes.

It's High Time for This Case to Be Dropped

In light of all the facts, my question is this: At what point will Durham's District Attorney decide it's all right to spare his constituents, the court, and the defendants the time and expense of a public trial?

In this or any "he said, she said" type of case, it is factually impossible for both sides to be telling the truth. This case is no different. If the events happened as the accuser claims, it means the defendants are lying. And, if the defendants' assertions prove true, it means the alleged victim has falsely accused them of a horrendous crime.

The fact of the matter is, the defendants have extensive evidence corroborating their claims. But for the results of the standard rape examination (which are inherently somewhat subjective) the accuser does not. And the bruises on her legs raise the real possibility that she was either attacked, or engaged in "rough" sex, earlier in the day.

In a case that seems to have reasonable doubt written all over it, do we really need a jury to tell us that?


Jonna M. Spilbor an attorney and legal analyst on "Kendall's Court", airing Sundays on Fox News Channel's Weekend Live with Brian Wilson. She is also a frequent guest commentator on Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.

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