Policeman's notes support accuser in Duke rape case

Material is last to be turned over to lawyers for 3 lacrosse players

August 25, 2006|By New York Times News Service

DURHAM, N.C. --On March 21, a week after a black woman charged that she had been raped by three white Duke University lacrosse players, the police sergeant supervising the investigation met with the sexual-assault nurse who had examined the woman. The sergeant, Mark D. Gottlieb, reviewed the medical report, which said little: some swelling, no visible bruises.

But Gottlieb's case notes also recount what the nurse told him in response to his questions: that the woman appeared to be in so much pain that it took "an extended period of time" to examine her and that the "blunt force trauma" seen in the examination "was consistent with the sexual assault that was alleged by the victim."

About a week later, Gottlieb met with Durham County District Attorney Michael B. Nifong to review the case. Nifong had been beseeching Duke lacrosse players to break their silence about what had happened at a team party March 13. Now, he turned up the pressure, telling Fox News that there was "no doubt in my mind that she was raped."

Whether the woman was in fact raped is the question at the center of the case.

Defense lawyers, amplified by Duke alumni and a group of bloggers who have closely followed the case, have portrayed it as a national scandal: that there is only the flimsiest physical evidence of rape, that the accuser is an unstable fabricator and that Nifong, in the middle of a re-election campaign, was summoning racial ghosts for political gain.

By disclosing pieces of evidence favorable to their clients, the defense has created an image of a case heading for the rocks. But an examination of the 1,850 pages of evidence gathered by the prosecution yields a more ambiguous picture. It shows that while there are weaknesses in Nifong's case, there is also evidence to support his decision to take it to a jury.

Crucial to that portrait of the case are Gottlieb's 33 pages of typed notes and three pages of handwritten notes, which have not previously been revealed. His file was delivered to the defense July 17, making it the last of three batches of investigators' notes, medical reports, statements and other evidence shared with the defense.

In several important areas, the full files, reviewed by The New York Times, contain evidence stronger than that highlighted by the defense:

Defense lawyers have argued that the written medical reports do not support the charge of rape. But in addition to the nurse's description of injuries consistent with the allegation, Gottlieb writes that the accuser appeared to be in extreme pain when he interviewed her 2 1/2 days after the incident and that signs of bruises emerged then as well.

The defense has argued that the accuser, who had been hired to perform as an exotic dancer, gave many divergent versions of what happened, and she did give differing accounts of who did what at the party. But the files show that aside from two brief early conversations with police, she gave largely consistent accounts of being raped by three men in a bathroom.

As recounted in one investigator's notes, one of the indicted players does not match the accuser's initial physical descriptions of her attackers: She said all three were chubby or heavyset, but one is tall and skinny. In Gottlieb's version of the same conversation, however, her descriptions closely correspond.

At the same time, the files underscore the major problems with the district attorney's case:

There is no DNA evidence directly linking the suspects to the accuser.

The array of photographs used to identify the suspects violated generally accepted guidelines for lineups because it only included lacrosse team members. Defense lawyers have challenged it in court, arguing that all evidence that followed from the identifications should be thrown out.

One suspect, Reade Seligmann, has what appears to be a powerful alibi, based on a cell phone log and other records that show he left the party early.

Finally, no one has corroborated the rape charge made by the woman, whose troubled personal history is sure to be an issue at trial.

Gottlieb's notes are drawing scrutiny from the defense both because they appear to strengthen Nifong's case and because they were turned over only recently - after the defense had made much of the weaknesses in the earlier evidence.

Joseph B. Cheshire, a lawyer for David Evans, one of the defendants, called Gottlieb's report a "make-up document" that was "transparently written to try to make up for holes in the prosecution's case."

He said Gottlieb had told defense lawyers that he took few handwritten notes, relying instead on his memory and other officers' notes to write his report. He said Gottlieb's report was contradicted on one central issue - the initial description of the suspects - by contemporaneous notes written by another officer.

The files cannot settle any arguments about the case but can help answer some important questions and raise others. They add rich detail to the narrative of what happened that night.

At a news conference last month, Nifong admitted that he had not gotten some hoped-for evidence, such as DNA matches.

But, he said, "I have not backed down from my initial assessments."

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