Prosecutor says he will not abandon Duke case

Tim Whitmire

DURHAM, N.C. — Durham County’s chief prosecutor said Tuesday he will not abandon his investigation of allegations that an exotic dancer was raped and beaten at a party thrown by members of Duke University’s lacrosse team.

“A lot has been said in the press, particularly by some attorneys yesterday, that this case should go away,” District Attorney Mike Nifong said at a community forum. “My presence here means that this case is not going away.”

On Monday, attorneys representing members of the lacrosse team said DNA from the 46 players tested did not match evidence collected from the woman who says she was raped.

“No DNA from any young man tested was found anywhere on or about this woman,” defense attorney Wade Smith said Monday.

He said he hoped Nifong would drop the investigation.

No charges have been filed in the case, but Nifong has said he believes a crime occurred at the March 13 party, which according to court records was attended only by lacrosse players. The woman said her attackers were white, so DNA testing was done on every white member of the team.

Nifong, who has said he doesn’t necessarily need DNA evidence to prosecute, was calmly defiant at Tuesday’s forum, attended by about 700 people on the campus of North Carolina Central University, the historically black university a few miles from Duke where the alleged victim is a student.

“The fact is that this case is proceeding the way a case should proceed,” Nifong said to applause from the crowd.

Butch Williams, attorney for accused Duke University Lacrosse players, says the evidence is on his side.

The 27-year-old woman told police she and another woman were hired to dance at the party and that three men there dragged her into a bathroom, choked her, raped her and sodomized her. The allegations led to days of protests on and off the Duke campus.

Robert Archer, whose son Breck is a junior on the lacrosse team, said that while it is Nifong’s prerogative to pursue the case if he so chooses, it would be a waste of time.

“I know the kids on the team, and I know they’re innocent. We knew it from the start,” Archer said by phone from his home in East Quogue, N.Y.

Court experts not connected with the Duke case cautioned that the DNA results could make prosecution difficult, but not impossible.

“There's an old saying that the absence of evidence is not necessarily evidence of absence,” said Peter Neufeld, co-founder and co-director of the Innocence Project, a nonprofit legal clinic.

A doctor and forensic sexual assault nurse examined the woman and found evidence consistent with a rape having occurred, police documents show.

Nifong said Tuesday that in 75 to 80 percent of all sexual assault cases, there is no DNA evidence.

“DNA results can often be helpful, but you know, I’ve been doing this a long time, and for most of the years I’ve been doing this we didn’t have DNA,” he said. “We had to deal with sexual assault cases the good old fashioned way. Witnesses got on the stand and told what happened to them.”

Loyola Law School professor Stan Goldman agreed that DNA evidence is not necessary to win a conviction but said Nifong would have a lot to overcome without it.

“In this day and age, it’s the ‘CSI’ effect,” he said, referring to the popular “CSI: Crime Scene Investigation” series on TV. “If you don’t find the evidence, then maybe it’s not the guy. In ‘CSI,’ they always find the evidence.”

Defense attorney Bill Thomas said authorities found none of the alleged victim’s DNA in the bathroom where she told police she was attacked.

“Our experts tell us that being gang-raped by three men would leave DNA material to be examined,” Thomas said.

Goldman said the failure to find any matching DNA evidence, is “not the end of the case, but it’s kind of damning to the prosecution case.”

“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?” Goldman asked. “That’s all the defense has to do.”

(AP National Writer Allen G. Breed contributed to this report)