Duke Lacrosse defense: Stories changed ("No one forced me to have sex")

DURHAM -- Two weeks before identifying lacrosse player David Evans with "90 percent" certainty in a police photo lineup as one of her attackers, the accuser in the Duke rape case failed to pick him out in an earlier photo lineup, according to a defense motion filed Friday.

The motion hammered yet again at the prosecution, saying among other things that the accuser changed her story at least twice during the initial investigation, that the nurse who examined her in the emergency room was in training, and that police investigators failed to document their activities as required by law.

Many details in the motion, based largely on nearly 1,300 pages of documentation compiled by District Attorney Mike Nifong, were not previously made public, including a copy of police Sgt. J.C. Shelton's report detailing his dealings with the accuser in the hours immediately after the alleged assault.

Nifong said Friday he was "not going to comment on anything at all about this." A spokeswoman also said the Durham Police Department would have no comment, referring a series of questions to Nifong.

According to the motion, filed by Evans' lawyers Joe Cheshire and Brad Bannon, the exotic dancer viewed a police photo lineup on April 4 -- over three weeks after the alleged rape in mid-March -- and said Evans "looks like one of the guys who assaulted me sort of." Asked to elaborate, the woman said she was 90-percent sure but that the person who assaulted her had a mustache.

Defense lawyers have previously said Evans had no mustache on the night of the alleged crime, if he ever had one.

But when the dancer was shown a photo array containing Evans' picture on March 21, much closer to the time of the alleged assault, she failed to identify him in any way, the new motion says.

The motion includes a copy of the photo of Evans shown to the accuser, along with a written instruction form used in the lineup. Apparently affixed to the form is a Post-It note, in what appears to be the investigator's writing, saying, "Did not pick any."

"Thus, eight days after the alleged assault, and two weeks before the April 4 identification procedures in which she selected the Defendant with 90% certainty if he had a mustache, the complainant viewed a picture of the Defendant in this case and did not identify him as one of her alleged assailants," the motion states.

According to the motion, during the March 21 lineup and another one on March 16, the photos were divided into groups. It couldn't be determined from the filing whether either of the two other defendants, Reade Seligmann and Collin Finnerty, were in the group in which the accuser failed to identify any assailants.

Seligmann's and Finnerty's defense attorneys could not be contacted Friday afternoon to determine whether the accuser had identified either of the men in any earlier lineup.

Friday's defense motion also said there was no report about the earlier photo lineups included in the documents Nifong gave defense lawyers. But the April 4 session in which she identified the three suspects was videotaped, and both the video and a written transcript of the session were included in the material given to the defense teams.

The motion uses the apparent discrepancy in record-keeping as one example to suggest the defense hasn't yet been given all police records related to the case, even though Nifong said in a court filing May 18 that the state's "entire file" had been handed over.

"Multiple law enforcement officers who participated in investigative activities in this case did not record their activities as required by law, or they did not turn those records over to the Durham County District Attorney's Office as required by law, or the District Attorney's Office did not turn them over to the Defendant as required by law," the motion argues. It goes on to ask a judge to issue a series of orders ensuring that all records of the investigation are given to the defense.

Included with the motion, the handwritten report by Shelton, the Durham police sergeant, provides far greater detail than anything previously in the public record about the accuser's demeanor and statements on the night in question. Shelton was the first officer to arrive at the house where the lacrosse party took place at 610 N. Buchanan Blvd. the night of March 13.

Police went to the home after an unidentified woman told a 911 operator that she was driving by when men began calling her racial slurs.

In fact, the woman, Kim Roberts, was an exotic dancer hired to perform with the accuser at the party. Roberts has since acknowledged contacting a New York publicity firm trying to capitalize on her involvement in the case.

-- Shelton left 610 N. Buchanan after finding no one home. A neighbor told him a "rowdy" party had recently broken up.

-- A few minutes later, police were called to the Kroger on Hillsborough Road because a woman wouldn't get out of another woman's car. Again, Shelton was nearby and was first on the scene.

-- The owner of the car told Shelton that she had been driving down Buchanan Boulevard and saw the other woman -- now in her passenger seat -- walking along the street and that a group of white men at 610 N. Buchanan Blvd. were yelling racial slurs at her, so she offered her a ride to safety. (In fact, though, the car owner was Roberts, the second dancer.)

-- The woman in the passenger seat was "wearing a see-through red outfit, with no undergarments and one white high-heel shoe." She appeared unconscious, so Shelton got an ammonia capsule from his car. In response to the capsule, the woman began "mouth breathing, which is a sign that she was not really unconscious," Shelton wrote.

-- Shelton said he tried to pull the woman from the car, but that she grabbed the emergency brake handle to keep from being pulled out. He finally got her out and she collapsed on the ground.

-- Because the woman wouldn't tell officers her name or where she lived, they decided to take her to the Durham Access Center, a mental health and substance abuse facility. There, the woman said she had been raped at 610 N. Buchanan. So Shelton directed that she be transferred to Duke University Hospital's emergency room.

-- At Duke, the accuser told Shelton she was a stripper and had been hired to dance at 610 N. Buchanan Blvd. After their show, she said, she and the other dancer got in a car to leave, but that some of the men wanted them to go back inside. "She said at the point some of the guys from the party pulled her from the vehicle and groped her. She told me that no one forced her to have sex," Shelton wrote.

-- Shelton went outside to call his watch commander to tell him the woman had recanted her rape allegation. But then someone told him the woman told a doctor that she had been raped. Shelton called the watch commander back to tell him "she had changed her story back to being raped."

-- Shelton went back inside and asked the woman "if she had or had not been raped. She told me she did not want to talk to me anymore and then started crying and saying something about them dragging her into the bathroom."

Shelton says he left the hospital after the watch commander told him the Police Department's Criminal Investigations Division had been notified.

About 36 hours later, the woman told investigators she had been raped, sodomized, beaten and strangled by three men in the bathroom at the lacrosse party house, according to police affidavits.

The defense motion filed Friday says that, "incredibly," the information provided by Nifong contains no record about the woman's time at Durham Access Center. Nor does it contain reports by two other police officers who were involved in the situation that night, the motion complains.

In addition, Nifong provided documentation pertaining to only five of 17 sections of a Sexual Assault Exam Report, the motion adds, indicating that the exam was performed by an in-training forensic nurse.

Nifong has said he hopes to try the suspects together, possibly beginning in the spring of next year.

I just wanted to clarify one point, none of them used a bail bondsmen, they all posted the full 400,000. I agree, they would never take that kind of a deal. I have a feeling that these boy's reputations are worth more then anything else to them and their parents. Personally, I won't be satisfied till the AV is convicted. (and hopefully in jail)

"Unless there is an OJII jury, this entire stinking mess will get tossed out..."

A jury of peers should consist of 12 upper-income white lacrosse players. Find those in Durham...

"A jury of peers should consist of 12 upper-income white lacrosse players. Find those in Durham..."

No way will this case be tried in Durham.

Now, all he has to do is secretly convince her to drop the case and he's golden. He can then shrug his shoulders and say he tried.

You and I have butted heads before, but I'd like to ask you something. Do you recall Kim and the "victim's" rap sheets? Notice the "punishment" each received? Does it occur to you that perhaps they know someone? Someone who needs for them to not say anything? I have seen horrifying examples of prosecutor misconduct, but Nifong takes the cake.

Can he convince the woman to drop the charges? Nope. It's gone too far at this point. Imo. Any thoughts?

84 posted on 05/27/2006 7:54:09 AM PDT by TheSpottedOwl (If you don't understand the word "Illegal", then the public school system has failed you.)

"Does it occur to you that perhaps they know someone?"

There is no doubt whatsoever that someone in Durham County government and/or law enforcement is involved in corruption.

"No way will this case be tried in Durham."

Actually, that was my point. There is no way a fair trial could be held in this case, especially in Durham County.

You might be right Joe, I hope you're not. It's just that I hope that ultimately it may be ruled that the conduct of the officials in this investigation has been so egregious that a reasonable person in a similar situation would not have acted in such a manner.

You are, sadly, quite correct. There will always be the cloud of doubt that hangs over these boys.

I don't think I would call them "boys", or feel that sorry for them. Just like the alledged victim was in the wrong place, at the wrong time, doing the wrong thing, so were these men.

If they had more character they wouldn't be partying this hard and getting into trouble. There's a reason why one should not behave in that fashion.

I'm afraid they have earned the cloud that surrounds them. Perhaps they will have learned that now. Then again, perhaps not.

Also delaying the case a year, which is allowed in NC, will give the Nifong Clymer the oppo to fade and drop the case, without too much loss of face, and likely let him skate w'o judicial censure or bar discipline.

Given the demographic he's playing with, he now has the job for life, which is what this was about.

"A career change for Nifong." I would like to see him prosecuted for filing false charges and slandering these young men, for his own selfish interests. DAs are really running amok these days, and there seem to be very few checks on them.

"...he now has the job for life, which is what this was about."

I had a chemical reaction to Nifong, Instant dislike! This jerk needs a lot of stern correction at the hands of a howling mob. This law ape will pander where he can to feather his nest.

Gone way to far for this, the defendants will never sign and will go to trial first. The boys have had to go home and lose a year of college. Somebody is going to pay, and it will be the taxpayers of Durham.

I'm with you. The defense has said no deals, and I take them at their word. My guess is that this is coming from wherever O'Reilly and Geraldo got their information that the defense would accept a deal. I call BS on this.

Throw this b*tch in jail along with her defense lawyer.....

She needs to go to jail... but the defense lawyer works for [her] the accused -- not the accuser....

I would indeed second a motion to bring charges and ethics and electoral complaints against the prosecutor who is running amok with this case as he also runs for re-election!

Have a great day

94 posted on 05/27/2006 8:24:35 AM PDT by Wings-n-Wind (All fo the answers remain available; Wisdom is gained by asking the right questions)

I think she had sex and didn't want to pay her pimp, probbly the guy who drives her to these things. Once she cried rape, the ball just started rolling and she couldn't stop it. And once she was portrayed as a victim, she didn't want it to stop.

95 posted on 05/27/2006 8:32:25 AM PDT by Hildy ("Whenever someone smiles at me all I see is a chimpanzee begging for its life." - Dwight Schrute)

After Jesse Jackson got there, I suspect someone in the community pulled him aside and said, "Brother Jessee, here's what really happened and who you're dealing with." (Whisper, whisper, whisper.) Brother Jesse said "D D D D Dayum." And thus, as it sayeth in the good book, "he saddled his ass and departed."

97 posted on 05/27/2006 8:47:40 AM PDT by Sue Perkick (...heavy strings, tune low, play hard and floor it. Floor it. That's technical talk....)

Must be frustrating for the FR vice squad how little traction they're getting in this case.

Fortunately, the vast majority here have their priorities straight, and choose not to join in with the screeching feminists and race baiters in condemning these young men.

NIFONG milked the stripper...

Milking a stripper is a misdemeanor in North Carolina but only regulated and taxed in the EU.

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