As defense attorneys pore over hundreds of pages of new material turned over by the prosecution Thursday, the case of the white college athletes at Duke and the black dancer who accuses them of raping her has come to symbolize many things to many people.
But NBC’s chief legal correspondent Dan Abrams—the reporter to get the most complete look at the documents that led to criminal charges being filed—says what he read makes him wonder if the case should have ever reached the courtroom.
Dan Abrams, NBC Chief Legal Correspondent: There are so many inconsistencies in the documents that were handed over that I was really surprised that this case has gotten this far.Edie Magnus, Dateline correspondent: Meaning there was no rape? That the accuser in this case is lying?
Abrams: I can’t say that. What I can say is that there are enough inconsistencies in her story from the documents that I saw that should have led a prosecutor to say, “We need more than this.”
The story began last March, with a party thrown by members of the Duke lacrosse team, at a house just on the edge of campus. They hired two women to perform exotic dances. By all accounts, the party began well enough, but quickly turned ugly.
One dancer later gave a handwritten statement to police that racial slurs were yelled at them, and that one of the players brandished a broomstick—frightening the women into a bathroom -- and eventually into leaving the party altogether. But the accuser went back into the house and would later tell police she’d been raped in that bathroom by three white players for 30 minutes. The woman was later treated at a local hospital. And within days, district attorney Mike Nifong announced he would be pressing charges.
Mike Nifong, March 27, on “The Abrams Report”: The information I have does lead me to conclude a rape did in fact occur
Nifong called team members “hooligans”, and in an appearance on MSNBC said the woman had been subjected to a violent assault.
Nifong: She was grabbed from behind. Somebody had an arm around her like this, which she then had to struggle with in order to be able to breathe.
All but the lone black player on the 47-man team were ordered to submit DNA samples—which they did. None were a match for the semen found in the stripper’s body the night she said she was attacked. The players' lawyers jumped on the news.
Joseph Cheshire, defense attorney, April 10, 2006: Rape or sexual assault happened in that house and this DNA report shows it loud and clear.
Nevertheless, three players, Reade Seligman, Colin Finnerty, and David Evans were arrested and indicted for first degree rape, sexual offense, and kidnapping. They entered not guilty pleas in court, and Evans, on behalf of all three players, appealed immediately to the court of public opinion.
Evans, April 15, 2006:These allegations are lies. Fabricated. And they will be proven wrong.
The university cancelled the remainder of the season for the lacrosse team, the coach resigned under pressure, and Duke launched an internal investigation which found that the team had a history of bad behavior.
Over the course of the school year, police charged 18 members of the team with a variety of misdemeanors, including underage possession of alcohol, destruction of property, and public urination. Seyward Darby, former editor of the student newspaper, says the team’s reputation was well-known.
Seyward Darby, former editor of school paper: They were known as rowdy partiers—known as big drinkers—but at the same time, well-liked on the social scene by students.
The previous cases were either pled down, dismissed, or the players found not guilty. But even with the firestorm of publicity about bad behavior in the past—many wondered—could the players possibly have done this?
Abrams: The DA said there was a rape. He said he had evidence of it. And then as time passed, saw more of the evidence. Kept waiting. When is he going to have something more?
Dan Abrams, who is also a duke alum, put the story of his alma mater front and center on his MSNBC show. Having watched the defense slowly leak information favorable to their clients, Abrams says he kept wondering if they might be holding something back.
Abrams: And I convinced this source close to the defense that it’s important that all of the documents be seen.
So the defense gave Abrams a one-time viewing of what it said were all the documents District Attorney Nifong used when the grand jury indicted the three players, including victims’ statements and hospital and police reports. He was not allowed to copy them, but took extensive notes. Based on what he read, Abrams says the prosecution’s case just didn’t add up for him—beginning with conflicting statements made by the accuser herself.
Abrams: I saw at least four versions of what happened.Magnus: And these are dramatically different versions or just different on the margins?Abrams: There are at least a few which are dramatically different accounts of what happened. That goes beyond just faulty recollection or difficulty—remembering details.
For example, in a police search warrant, which has already been released publicly, the accuser is quoted as saying her attackers hit and kicked her.
Abrams: The problem is that I saw a medical report from the doctor who examined her the day after this incident. And it says, quote, “The person denies other physical assault. No evidence of physical assault”—meaning in addition to the rape. Magnus: Is there evidence of rape when they examine her?Abrams: There is no definitive evidence that she was raped. That doesn’t mean there wasn’t a rape.
But what about the claim that the accuser had been strangled?
Abrams: There was no indication from the medical records that there was evidence that she was choked.
And about the DNA—which showed no match between semen found in the stripper’s body and the players she was accusing of rape. DA Nifong said that didn’t prove anything because the young men may have used condoms.
Abrams: And yet according to one of the medical reports the accuser said no condom was used. The DA has hinted that maybe there was a date rape drug used. The problem is there’s nothing in the accuser’s account that suggests she was blurry that night, that she lost memory for any point in the evening, that she was out of it at all.Magnus: This can’t possibly be the first case where the accuser changes her story.Abrams: No. And I don’t think that the big problem with this case is the fact that she initially said nothing about being raped, then she said she was raped, then she said she wasn’t. That happens in rape cases. What’s troubling is her statements later. Numerous statements that are inconsistent with the story of the second stripper. And, most importantly, are inconsistent with her own account that she gave in a written statement to the police.
According to police reports, the second dancer, Kim Roberts initially said that night that the accuser’s claim of rape was a “crock.” Later, in a TV interview, Roberts changed that—leaving open the possibility that it could have happened.
Kim Roberts (TV interview): The only thing I did not see was the rape, because I was not in the bathroom at that particular moment. Everything leading up to it I was there, everything leaving from it I was there.Abrams: There’s no question that if everything the second stripper is saying is true that there is a window of opportunity for something horrible to have happened in that house. The problem is that the accuser’s account is entirely inconsistent with the second stripper’s.
Abrams says he saw more than 1200 pages of documents in all—made sure they were numbered consecutively—and believes nothing was left out.
Magnus: You are an alumnus of Duke. Is it possible that you are looking for a reason to be giving a break to the team and by extension to the university?Abrams: If I want to do what’s best for my alma mater, I ought to shut up and make the case go away.
It’s not surprising that the accuser’s story about what happened that night doesn’t square with what the lacrosse players say. But what is surprising, says Abrams, is their response to the charges:
Abrams: They didn’t say, “Yeah, we had sex. She agreed to it.” They said nothing happened. That’s different then most cases like this.
And one of the accused players, Reade Seligmann, has an alibi—complete with photos and time stamps showing he took a taxi from the party and withdrew money from an ATM at the very time the accuser said the rape was occurring.
Magnus: Was the district attorney aware of the alibi?Abrams: I am convinced the DA did not know about Reed’s alibi at the time of the indictment. They hadn’t questioned the taxi driver. They didn’t know about the photos. I think that that all came as a surprise to the district attorney.
Perhaps, but another seasoned prosecutor who has followed the case closely, says Nifong may have very good reasons for moving forward with the case.
Pam Bondi, Asst. State Attorney, Hillsborough city, Florida: I believe Mr. Nifong firmly believes this victim, he’s been doing this a long time, he believes her credibility, and ultimately it’s going to be up to a jury to determine whether they believe her when she’s on the witness stand.
DA Nifong is no longer commenting outside of court about the case, though his critics say he was more than willing to talk to reporters in the early going, when he was running for re-election as DA.
Nifong says he talked to reporters only until charges were filed and told Newsweek Nifong denies politics was behind his pursuit of the Duke players—saying he only talked publicly until defendants were named.
And he told Newsweek magazine this week by e-mail, “None of the evidence I have seen from any source, has changed the opinion that i expressed initially,” as for the accuser herself, she has not been heard from publicly since she reported the rape.
Magnus: And why doesn’t she deserve her day in court?Abrams: Whether she deserves her day in court is really a judgment initially the prosecutor has to make. And I think the prosecutor should have taken a lot more time in evaluating all of the records, all of the evidence before moving forward.
Abrams says the prosecution might yet turn over something that would convince him there’s a credible case. FBI statistics show only 9 percent of the time are rape claims are false.
Abrams: If he has statements from other players who were there who come forward and said, “My conscience doesn’t allow me to keep silent anymore.” And they say that something happened in that house, even if they say, “I saw three of the men pulling her into the bathroom,” that would change my opinion of this case significantly.Magnus: That seems unlikely though don’t you think?Abrams: I think it’s unlikely.