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.

Very interesting post. I have a few questions:

1. This sounds to me like the outline of an "ideal" global settlement. I wonder why Mangum takes it? Nifong is in too deep to ever prosecute her. She has an opportunity to make some cash from Duke or someone in this. The players get the charges dropped. Duke gets no law suits against it. Nifong gets out of the hole he dug for himself. Durham avoids huge liability costs. Mangum gets nothing.

2. While you say Duke does not participate, they gain as if you can not talk about a case you can not sue anyone. So no one can sue Duke.

3. This settlement would require all the lacrosse players to sign on. Every single one on that poster or who had their DNA taken have a cause of action against Durham County. Now at one time this group was a team. But some guys have graduated now. Some may have lost job offers they previously had. I wonder if all of them are willing to give up a potential 7 figure judgement against Durham?

4. What about ethics complaints? Has everyone on FreeRepublic signed on to this deal too? Apparently anyone in the world can file a ethics complaint about Nifong with the NC bar or the state AG.

So I called it an ideal global settlement. You suggested maybe it involved some wishful thinking on some parts. I think you are right. I doubt that such a global deal could be done, but lots of things about this case have surprised me.

Ken,I agree. I bet Joe Cheshire is drooling over the opportunity to get the false accuser on the witness stand. And just think, there are two other attorney teams also waiting for the opportunity. She better hurry up and finish her Police Psychology/Criminal Justice education because she will need every bit of it and more when they get her on the witness stand. And I think one way or the other she will be there. If not at a criminal trial then a civil trial.

She thinks she is having nightmares and PTSD now, she ain't seen nothing yet.

JLS writes
-1. This sounds to me like the outline of an "ideal" global settlement. I wonder why Mangum takes it? Nifong is in too deep to ever prosecute her. She has an opportunity to make some cash from Duke or someone in this. The players get the charges dropped. Duke gets no law suits against it. Nifong gets out of the hole he dug for himself. Durham avoids huge liability costs. Mangum gets nothing,-

What does Mangum get? She get's not going to jail. She get's not being sued for everything she has and ever will have. She gets to slink away without having to say "I knowingly lied over and over, this whole time I have been telling lies."

But that is besides the point, because that settlmentwould never happen.

What does Mangum get? She get's not going to jail.

As I said in my original post Nifong is in too deep to every prosecute her. If he tried to, he would be the star witness for the defense. He has said over and over he believed her even after all this information came out. She would not even take the stand in her own defense in such a case.

She get's not being sued for everything she has and ever will have.

She is judgement proof. She would just default on any judgement against her and go on living as before. Now if she were getting some cash out of the deal, then she would care about stopping the lawsuits.

She gets to slink away without having to say "I knowingly lied over and over, this whole time I have been telling lies."

1. She can do that now.

2. After you have been exposed as a stripper/hooker, one generally is not greatly concerned about people thinking you are also a liar.

How many line-ups does a person get? According to this there were 3.

As someone put on the prior thread, at least the second one also appears to have been another pop quiz with no wrong answers photo array, but somehow she failed. [I have had a few students like that.] This is the kind of information that could get Nifong in trouble.

If the first photo array followed department policy and she did not pick out the suspects and then Nifong ordered them to break the photo array rules and then sought a indictments with ID evidence he knew was false, he is getting closer to having real legal issues.

Here is how it works:

1. Say your child is in an auto accident.

2. They are seriously injured.

It is unseemly for the aunt to come to the hospital and say that is what you get for speeding. It is ok a year or two down the road if the child recovers to discuss whether or not they were speeding that night and to caution them against speeding.

Right now these young men appear to be falsely accused. Right now the issue is what can and should be done about that. Despite what the feminazis think, most people view it as unseemly to blame the victims or crimes and in this case the victims are the lacrosse team members.

I'm no Vice Squad member and these "boys" aren't saints, either.

Their vice apparently bugs you enough to make it your main focus, rather than the RAT lynch mob.

Is that too difficult to accept and still believe that no rape occured in this case? It's not for me.

If you believe that no rape occured, then you must also believe there is a gross miscarriage of justice in progress. Why anyone would join the RATs in sneering at the victims of such an injustice is beyond me.

In California, they have a procedure called a "Finding of Factual Innocence". If you have been charged with a crime, and it has been dismissed, or you have been found "Not Guilty", you can apply to the court and get a finding that not only are you "Not Guilty" in a criminal sense (i.e., that the crime has not been proven beyond a reasonable doubt) but that as a matter of fact, you did not commit the crime, there was no probable cause to believe you ever did, and it is beyond dispute that you are in fact innocent.

If they have something like this in NC, they ought to utilize it. Then they ought to jail Nifong and the hooker, one for false arrest, abuse of process and violation of civil rights; the other for creating a false police report that resulted in false arrest. It is beyond a reasonable doubt that Nifong and the hooker are guilty of those crimes, and that the boys are innocent.

One other problem with the rumored "deal" is that Finnerty still has another case over his head, in DC. The requirements for that are that he not get into trouble anywhere else, and not even get arrested.

The Washington court--which made a special effort to call him back for a warning (I wonder how many times in a year it does that. . .)--may feel a need to satisfy "the community" by sentencing him to up to 6 months (the max) for violation of his agreement.

Finnerty was in a diversion program. He was not called back to be warned. He was called back and the program for him was terminated. He was not on probation. He now has a trial date. It would take DC convicting him to sentence him to anything. I suspect that he will win his case as a recent Duke lacrosse team member did when Nifong terminated his diversion agreement and end up with a cleaner record because of this.

Now you are right that Finnerty would have to take his DC situation into consideration before agreeing to such a global solution to the Durham case. I suspect that his DC case will not be a huge concern of his. Still like you, I don't see that solution as very viable.

"I don't think I would call them "boys", or feel that sorry for them."

2 of the accused were 19 at the time of the accusation.
Would you prefer I call them teenagers as opposed to boys?

These boys have been accused of a serious crime and one of the main contentions of the defense is that at least 2 have strong alibi's that state they were not at the party!

Yet, you offer no sympathy for these 3 who have been slandered and whose reputations have been damaged based on the say-so of an accuser who is truth challenged.

Yet, you offer no sympathy for these 3 who have been slandered and whose reputations have been damaged based on the say-so of an accuser who is truth challenged.

I would not want to be in their shoes, no doubt about it. And yes, shock of shockers, the real world isn't "fair". who'd a thought?

But these were not innocents playing Canasta. These guys were an accident waiting to happen. and crime or not, it blew up on them.

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