- The Washington Times - Tuesday, April 11, 2006

DURHAM, N.C. — DNA testing failed to connect any members of the Duke University lacrosse team to the reported rape of a stripper, attorneys for the athletes said yesterday.

Citing DNA test results delivered by the state crime lab to police and prosecutors a few hours earlier, the attorneys said the test results prove their clients did not sexually assault and beat a stripper hired to perform at a March 13 team party.

No charges have been filed in the case.

“There is no DNA evidence that shows she was touched by any of these boys,” said attorney Joe Cheshire, who represents one of the team’s captains.

The accuser, a 27-year-old student at a nearby college, told police she and another woman were hired to dance at the party. The woman told police that three men at the party dragged her into a bathroom, choked her, raped her and sodomized her.

The reports have led to the resignation of coach Mike Pressler, the cancellation of the lacrosse season and the suspension of one player from school.

The case also led to days of protests on and off the Duke campus, and some of the players have moved for safety reasons.

According to court documents, only lacrosse team members were at the party. Authorities ordered 46 of the 47 players on Duke’s lacrosse team to submit DNA samples to investigators, who compared them with evidence collected from the woman. Because the woman said her attackers were white, the team’s sole black player was not tested.

It was not known whether investigators tested for DNA other than the players.

Cheshire said the report indicated authorities took DNA samples from all over the accuser’s body, including under her fingernails, and from her possessions, such as her cell phone and her clothes.

“They swabbed about every place they could possibly swab from her in which there could be any DNA,” he said.

District Attorney Mike Nifong has said he would have other evidence to make his case should the DNA analysis prove inconclusive or fail to match a member of the team.

While Nifong’s assistant told the AP the prosecutor would not comment on the findings, Nifong told the News & Observer of Raleigh he believes a sexual assault took place.

“I’m not saying it’s over,” he told the newspaper. “If that’s what they expect, they will be sadly disappointed.”

N.C. Central, where the accuser is a student, said after the results were released that the prosecutor would appear at a campus forum today to discuss the case.

“The truth is if you speak to crime lab directors, they will tell you that in only a relatively small number of cases is there any DNA evidence,” said Peter Neufeld, co-founder of the Innocence Project.

Cheshire said even if the reported attackers used a condom, it’s likely there would have been some DNA evidence found suggesting an assault took place. He said in this case, the report states there was no DNA on her to indicate that she had sex of any type recently.

“The experts will tell you that if there was a condom used they would still be able to pick up DNA, latex, lubricant and all other types of things to show that — and that’s not here,” Cheshire said.

Stan Goldman, who teaches criminal law, evidence and criminal procedure at Loyola Law School in Los Angeles, said the DNA results don’t mean that Nifong can’t go forward with the case — but the test results make a successful prosecution much harder.

“Isn’t the absence of DNA evidence, given the way the victim has described the crime, in and of itself almost enough to raise a reasonable doubt?” he said. “That’s all the defense has to do.”

Meanwhile, the defense already had tried other tactics to bolster its case before yesterday’s news. By releasing embarrassing details about the accuser, the players’ attorneys are employing the same strategy used successfully to defend NBA star Kobe Bryant against rape charges: publicly attack the accuser’s credibility.

“This is what the defense does is try to smear the victim in the public and make it impossible to get a jury,” said Eagle County, Colo., District Attorney Mark Hurlbert, who charged Bryant.

While awaiting the DNA results, which the players and their lawyers previously said would show there was no rape or sex at the party, defense attorneys tried to portray the accuser as a liar whose story doesn’t add up.

Over the weekend, they told reporters that photos taken at the party show the woman was injured even before she arrived and impaired, too. And while answering questions about their clients’ legal troubles — about a third of the current team has been charged in recent years with public urination, underage possession of alcohol and disorderly conduct — they have suggested that the woman’s own criminal past undermines her credibility.

They pointed to a June 2002 incident in which the accuser stole the taxi of a man to whom she was giving a lap dance at a Durham strip club. Court records say she led a sheriff’s deputy on a winding chase at up to 70 mph and tried to run him down as he approached the cab.

She pleaded guilty to misdemeanor counts of larceny, speeding to elude arrest, assault on a government official and driving while impaired and spent some weekends in jail.

The players’ attorneys also have attacked the woman’s statement to police that she and another dancer left the party in fear after the crowd became “excited and aggressive,” returning only after one of the players apologized.

They say photos, which they have not made public, show the woman smiling broadly as she sought to re-enter the house.

Legal experts disagree over the ethics and the effect of releasing embarrassing details about the woman, especially since no charges have been filed.

“These are all facts that are going to come out anyway,” said Larry Pozner, a former president of the National Association of Criminal Defense Lawyers. “And the case has enormous public visibility.”

But Hurlbert called the strategy “a disservice to justice.” He dropped charges in 2004 against Bryant after months of embarrassing reports about the accuser’s personal life led her to stop cooperating with the prosecution.

Hurlbert is just as critical of Nifong, saying he should have waited for more evidence before declaring his confidence that a rape had occurred.

“I’d love them to just keep their mouths shut,” Hurlbert said. “It would be nice to be able to play fair on both sides.”

But the latest results at Duke only have bolstered the defense’s case.

Robert Archer, whose son, Breck, is a member of the lacrosse team, said the test results only confirmed for parents what they already knew.

“I know the kids on the team, and I know they’re innocent,” said Archer, of East Quogue, N.Y.

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