In Duke case, a bid to tilt public opinion

In rape case against three lacrosse players, lawyers seek to sway views of potential jurors.

The court of public opinion heard its first real witness in the Duke sexual assault case this week: lacrosse team captain Dave Evans, the latest of three players to be charged in the episode.

In speaking before TV cameras and a bank of microphones on Monday, he not only declared his innocence and called the allegations against him "fantastic lies," but he also showed the public and potential jurors a clean-cut, freshly minted graduate of one of America's top universities, rather than a day-of-arrest mugshot.

Deliberate strategy? Legal analysts who have watched this investigation unfold since mid-March say the temptation to try rape cases in public can be hard for lawyers to resist, but that both sides in the Duke case - with its overtones of class disparity and racial tension - are going to new heights in playing to the public.

"This is all about poisoning the jury pool," says Christine Goodman, a Pepperdine University law professor.

Going public is a strategy that has succeeded in the past, especially for defense teams who want the accuser's sexual history to be part of the trial, but who have been impeded in that aim by state shield laws intended to protect rape victims. Such was the case for NBA star Kobe Bryant two years ago, after his accuser decided not to testify amid public scrutiny of her previous sexual liaisons.

Three Duke lacrosse players - Mr. Evans, Reade Seligmann, and Colin Finnerty - have been charged with first-degree forcible rape, kidnapping, and sexual assault of a 27-year-old woman at an off-campus party on March 13. If there's no plea agreement, they are likely to stand trial, probably together, next year. Mr. Seligmann is scheduled back in court Thursday for a hearing to lower his $400,000 bail.

Some evidence in the case has already become public. Defense lawyers, for instance, revealed that DNA tests found no link between the woman and the team players. News media aired police tapes in which an officer who found the woman later that night declared she was intoxicated. She identified Evans with 90 percent certainty in a police lineup, the Charlotte Observer reported, citing a transcript of the lineup. Her uncertainty centered on his lack of a moustache, which she said he had on the night of the party.

The defense countered that Evans never had a moustache and that he passed a polygraph test.

Durham County District Attorney Mike Nifong, however, has insisted that a sexual assault took place at the hands of the three team members. He said he plans to try the case himself to show the community he is taking the charges seriously.

But the court of public opinion works two ways, and unflattering things have come out about the behavior of the lacrosse team in general and some of the defendants in particular.

Nearly a third of the 47 members of Duke's lacrosse team had been previously charged of misdemeanors, including underage alcohol possession and noise violations, according to the News & Observer. Evans was cited last summer for having an open alcohol container in a vehicle and in January for violating a noise ordinance. Mr. Finnerty was ordered to perform community service in connection with assault charges in Washington in November.

Because the accuser is black and the players are white, because she works as an exotic dancer and they are star athletes at an exclusive university, the case touches on closely held beliefs about race, class, and sex. As a result, legal analysts say, jurors may have difficulty distancing themselves from their emotions to focus on the facts of the case.

"These assumptions are going into an assessment of the class differential between the players and the women who were hired to come to [dance] at the house," says Michelle Anderson, a law professor at Villanova University in Pennsylvania.

A trial would also be likely to test how North Carolina's rape shield law will apply in this case. Such laws prevent a jury from hearing a rape victim's sexual history. But the defense will be looking for ways around this, and may find some. For one, the accuser worked as a stripper. Also, tests found semen that did not belong to any of the lacrosse players, which could be a factor in admitting her sexual history into court, says Ms. Anderson.

Some people "don't feel it's possible, since rape is a crime of taking away dignity, chastity and purity, that someone who is not pure to begin with can be the victim or survivor of rape," says Ms. Goodman.

But in the college community, many students and staff are sensitive to the victimization of minorities, says Mike Adams, a criminologist at the University of North Carolina, Wilmington. "This is one of these things in the court of public opinion for which there is no variance: Everyone's against [sexual assault]," says Mr. Adams.

And however case is resolved, it may help Americans confront their beliefs, some say.

"I think these are predictable circuses," says Jeff Fagan, a law professor at Columbia University in New York. "And maybe it's good because it reminds Americans of the difficulties of race in this country."

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