Duke case follows no ordinary game plan

Evans' claims of `fantastic lies' just latest odd turn in a rape investigation full of them

May 17, 2006|By JEFF BARKER | JEFF BARKER,SUN REPORTER

A district attorney says, weeks before anybody is charged, that he is convinced a woman was raped.

A just-indicted defendant bypasses his attorney and proclaims his innocence directly to the media.

Legal experts say they've never seen anything like the rape investigation involving three members of the Duke lacrosse team, a case where participants are defying convention about when to speak and to whom.

There is the unusually high volume of public pronouncements, which means there is plenty for the public to digest. And, there is plenty to misunderstand as well.

Among the things experts say need interpretation are the grand jury indictment process and the case's DNA evidence, which appears to be more complicated than many people imagine.

"I think the public is very confused at this point," says Lawrence Kobilinsky, a DNA expert at John Jay College of Criminal Justice in New York City.

DNA evidence might be critical in the case of David F. Evans, who on Monday became the third Duke lacrosse player to be indicted in the alleged rape of a 27-year-old woman at an off-campus house in March. Evans, a 23-year-old senior captain who attended the Landon School in Bethesda, took the unusual step of addressing the public on the day he was charged, accusing the prosecution of "fantastic lies."

His attorney, Joseph Cheshire, said the possibility could not be ruled out that an artificial fingernail found in a trash can at the house might have contained Evans' DNA. The accuser had told police she clawed at her attackers during a party on March 13 at which the rape allegedly occurred. Cheshire called the DNA link too weak to be conclusive.

But Kobilinsky said there are too many variables for the public to dismiss such evidence based on so little information.

If the DNA evidence on Evans is a partial match, "there are good partials and bad partials," Kobilinsky said. "You can get the whole gamut of possibilities. It could be a very poor partial or an extremely powerful partial."

Since the full DNA report has not been released, Kobilinsky said he has "not heard anything to indicate if it was skin or blood or semen. Who knows what it is? If she scratched a guy, we would expect to find skin and blood."

Lacrosse team members had long said that DNA test results would prove their innocence. An initial set of test results found no matches between the accuser and the players, leading defense attorneys to call on District Attorney Michael Nifong to drop the case last month.

Nifong was talking publicly about the case before charges were filed, but has since been declining interview requests and was unavailable for comment yesterday.

New York attorney David Feige, author of a recent book on the criminal justice system, said the prosecution's claims and the accuser's story have seemed to shift to account for an absence of DNA and other evidence.

"First she says [according to a Duke-released report] that she was raped by 20 people, then she says it was three. Then maybe the players wore condoms. What I find is the speculation conforms itself to the lack of evidence," Feige said.

But Wendy Murphy, a New England School of Law professor who teaches a seminar on sexual violence, said there is a possibility of the existence of DNA evidence of a different sort.

"Perhaps her DNA showed up on an object," Murphy said. "If there is any evidence of her body fluids on an object, then this case is over for the defense."

The father of the accuser, a student at North Carolina Central University who was hired to strip and dance at the party, has told MSNBC that his daughter may have been raped with an object such as a broomstick.

One piece of already-established DNA evidence could work against the accuser. A vaginal swab taken from the woman contained DNA matching an unidentified man who is not a lacrosse player, according to Cheshire.

"She clearly had sex with somebody, and any genital trauma could be consistent with that," Kobilinsky said. That evidence could undercut claims made by authorities that she had injuries after the party that suggested she was raped and sexually assaulted.

Feige said he felt badly for the indicted Duke players, including sophomores Collin Finnerty, of Garden City, N.Y., and Reade Seligmann of Essex Fells, N.J., who, whether found innocent or guilty, will forever be tainted. "You never get your reputation back, and that is the monstrousness and tragedy of the criminal system," he said.

Feige said many people believe grand juries function like trial juries. In fact, he said rules of evidence are significantly relaxed, and the defense doesn't present a case to the jurors.

But Murphy said: "There is a vetting process. And if you go in there and your evidence doesn't stand up, they are not idiots. They are not just rubber stamps."

After being indicted, Evans wanted to publicly show his face to avoid being branded by the prosecution, experts say.

His father, Washington attorney David C. Evans, was asked about that strategy yesterday by The Sun. He replied in an e-mail message: "Our son's statement says it all. We are very proud of Dave and all the Duke lacrosse players."

jeff.barker@baltsun.com

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