Other dancer contradicted rape account, defense says

But 2nd woman has also recently said she's unsure what happened

June 09, 2006|By NEW YORK TIMES NEWS SERVICE

DURHAM, N.C. -- A dancer at a Duke University lacrosse team party contradicted statements by another woman who says she was raped and by the detective who described the matter to a judge, defense lawyers said in a court filing yesterday.

The lawyers also said medical evidence did not support a charge of rape by the woman, a 27-year-old student and mother of two who worked for an escort service.

Three Duke students have been charged with rape, kidnapping and assault in the case. They pleaded not guilty. A preliminary hearing is set for June 22.

Benjamin W. Himan, the lead detective on the case for Durham police, filed a sworn statement on March 23 with Ronald L. Stephens, a Durham County judge, saying the woman had been raped and assaulted for about 30 minutes. The affidavit led the judge to order 46 lacrosse team members to submit to photographs and DNA testing.

But newly disclosed documents in the court filing show that the second dancer, Kim M. Pittman, 32, of Durham, told the police on March 20 and March 22 that she had been with the other woman for all but five minutes of the night of the party, March 13, and that any accusation of sexual assault was "a crock."

Pittman has more recently said in media interviews that she is not sure what happened.

The defense lawyers, J. Kirk Osborn and Ernest L. Conner Jr., wrote that the judge had been misled because he was not told that Pittman had contradicted the timeline, that the alleged victim had given different accounts to police and medical personnel and that she had appeared intoxicated.

The judge would not have found probable cause that a crime had occurred if he had been told everything the detectives knew, the lawyers argued in the filing. They are seeking to suppress all evidence gathered after the player photos and DNA tests, including the woman's identification of three suspects and DNA findings that may link one suspect to genetic material found on the woman's fingernail.

The woman's father said in an interview yesterday that she was seeing a psychiatrist and was in no condition to testify. "I don't know how long it'll be before she gets back in her right frame of mind," he said. "It could be years."

Her father, whose name is being withheld because of a policy of not identifying possible rape victims, said that he still believed her account of the matter and hoped the district attorney would move ahead with the case. The woman, who does not live with her parents, could not be contacted.

Michael B. Nifong, the Durham County district attorney, did not return calls yesterday seeking comment. Mark Simeon, the lawyer for Pittman, did not return calls or respond to a note left at his house. Pittman could not be found.

Joseph B. Cheshire, another defense lawyer, called on Nifong to dismiss all charges. He said there was no medical evidence to show the woman had been raped or injured. "All the things that Mr. Nifong said in his press conferences, the vast majority of those things, except his opinions, have proven to be untrue," Cheshire said in a telephone interview.

The filing by defense lawyers yesterday also quoted details from the medical examination of the woman by Duke Hospital doctors and a sexual assault specialist. Twenty-three pages of medical records were attached to the motion in a sealed envelope.

The lawyers said a trainee working as a sexual assault nurse examiner at the hospital had reported the woman had "diffuse edema of the vaginal walls," or swelling, but had made no conclusion whether it was consistent with a rape or sexual assault. They also said the detective had not told the judge that the nurse was a trainee.

The lawyers said the medical report showed no other injuries, except for the woman complaining of "tenderness" over her body and a scratch on her knee and laceration on her heel, neither of which was bleeding.

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