Duke rape case unravels

Although rape charges were dropped, three lacrosse players are still facing serious charges that carry equal jail time.

Fueled by stereotypes of race and class, as well as a zealous prosecutor, the criminal case against three Duke lacrosse players emerged as a test of the ability of the justice system to sift evidence through a prism of prejudices. Now, after the key charges of rape were dropped Friday, the case is also being seen as a cautionary tale for prosecutors and pundits alike, emblematic of how cultural stereotypes and perceptions don't always add up to hard facts on the ground.

The fuse was lit last March in Durham, N.C., at an off-campus party for lacrosse players – many of whom were Northerners enjoying an exclusive Southern university. Add to the scene two black exotic dancers, who grew up in the predominantly black city walled off from the school. Soon after, three of the white players were charged with kidnapping, assaulting, and raping one of the exotic dancers, allegedly amid a litany of racial slurs.

Yet since then, it's hardly been an open-and-shut case.

"As you look at the facts in the case and look at the testimony, everybody agrees that the case has many significant weaknesses, any one of which may be sufficient basis for either a judge to dismiss or a jury to find the defendants not guilty," says Bennett Gershman, a civil rights law professor at Pace University in White Plains, N.Y.

Charges of kidnapping and first-degree sexual offense (which includes acts similar to rape) are still lodged against Collin Finnerty of Garden City, N.Y.; David Evans of Bethesda, Md.; and Reade Seligmann of Essex Fells, N.J. But the rape charges were dropped because the alleged victim "could no longer testify with certainty that it occurred," according to court documents.

The move came a week after a Dec. 15 court hearing in which a judge ordered a paternity test for the now-pregnant accuser. In addition, facts showed that District Attorney Mike Nifong asked a DNA lab director to withhold potentially exculpatory information from defense attorneys for "the Duke Three," as supporters call them.

Problems for the prosecution

Mr. Nifong still believes "hooligans" committed criminal acts that night, people close to the case say. And the two remaining charges, under North Carolina law, are just as serious as rape and carry equal jail time. But the accuser's changing story, lack of hard evidence of rape, mismatched witness testimony, and possibly exculpatory evidence presented by the defense remain problems for the prosecution. Dropping the rape charge makes the case more manageable, though still difficult to prove in front of a jury, lawyers say.

Nifong has "eliminated the most difficult charge he had to prove," says Woody Vann, a Durham defense attorney who's familiar with the case. "Does this make his case better? No, it just makes it easier."

Either way, the case had already divided a city, a university, and beyond. The perception of rich white college athletes violating a young black mother trying to make a living in an unsavory profession touched sensitivities about race, class, and status in America.

Early on, the "group of 88," a consortium of Duke faculty, condemned the culture of hilarity and immunity allegedly enjoyed by athletes at Duke. As time has worn on, though, supporters of the lacrosse players have pointed to emerging weaknesses in the case as reasons for Nifong to dismiss all the charges.

"Black people used this case as an opportunity to lash out at the privileged people at the university and to air some of their racial grievances," says La Shawn Barber, a conservative black blogger who has focused on the case for the past eight months. "But in the end, those issues have nothing to do with whether this woman was raped or not."

At the very least, experts say Nifong made several moves that may have hurt his case. He apparently changed police policy on lineups, which are used to identify alleged perpetrators, when he included only lacrosse players. Last week it was revealed he did not release information that showed the lab found DNA from five men, none of them lacrosse players, on the woman or her clothing. Moreover, Nifong's early fiery rhetoric and attendance at community events at North Carolina Central University, the historically black school, raised questions about his political motives, which he repeatedly denied as he ran for and won the DA's seat in November as a Democrat.

"Yes, local prosecutors are elected, but you can't play party, you can't play politics, you can't play race, you can't play anything," says Professor Gershman.

Indeed, criticism of the case has led to some calls for Nifong's disbarment. A North Carolina legislator has asked the US Department of Justice to investigate the case. And legal experts say that while prosecutors enjoy absolute immunity inside the courtroom, Nifong's actions as a lead investigator outside the courtroom for this case may have left him exposed to a potential civil lawsuit from the Duke Three.

"The irony is that although this involved a bunch of white, privileged young defendants, [a potential civil lawsuit against Nifong] might wind up setting a precedent which will help hundreds of other defendants who are black and lack their financial and other resources, because prosecutors around the country will be a little bit more worried about violating civil rights," says John Banzhaf III, a law professor at George Washington University.

Next hearing

The next hearing in the case is scheduled for Feb. 5, when the court is to hear motions to suppress evidence. Some say Nifong may be looking for a face-saving way to back out of the case. Others say the prosecution is as hardened as ever, determined to bring the Duke Three to trial.

"If this case goes to trial, this is going to get much worse, because what you would have is a case with no evidence, where its only chance in trial would be [for Nifong] to stoke these tensions as much as he can," says KC Johnson, a constitutional history professor at Brooklyn College in New York, who runs a blog on the Duke case.

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