'Go Ahead, Put Marks on Me' (GMA Interview w/Kim

Second Dancer Claims Alleged Duke Lacrosse Rape Victim Said to Bruise Her By CHRIS FRANCESCANI and EAMON McNIFF ABC News Law & Justice Unit

Oct. 30, 2006 — - The second dancer in the Duke rape case has said for the first time that the accuser told her to "go ahead, put marks on me'' after the alleged attack.

Dancer Kim Roberts made the new allegation -- which she has not shared with authorities -- in an interview with Chris Cuomo that will air today on "Good Morning America."

Roberts' allegation comes in the wake of Durham District Attorney Mike Nifong's admission in court last week that he has not yet interviewed the accuser "about the facts of that night."

As she drove the accuser from the March 2006 Duke lacrosse party, Roberts told ABC News the woman was clearly impaired and "talking crazy." Roberts said she tried several different times to get the accuser out of her car.

"The trip in that car from the house … went from happy to crazy,'' Roberts told Cuomo. "I tried all different ways to get through to her.

"I tried to be funny and nice," she continued. "Then I tried to, you know, be stern with her. … We're kind of circling around, and as we're doing that, my last-ditch attempt to get her out of the car, I start to kind of, you know, push and prod her, you know."

"I … push on her leg. I kind of push on her arm," Roberts said. "And clear as a bell, it's the only thing I heard clear as a bell out of her was, she said -- she pretty much had her head down, but she said plain as day -- 'Go ahead put marks on me. That's what I want, go ahead.' ''

Roberts said the comments "chilled me to the bone, and I decided right then and there to go to the authorities."

Roberts was not aware at the time of any rape allegations, which were first made by the accuser after police had arrived and taken the woman to a crisis center.

"It is something that has been weighing on my heart, and I worry that maybe I won't be called to trial,'' Roberts told Cuomo, as she reached for a tissue. "Because all of, so many of her, so much of [the accuser's] statement differs from mine and I, I might not help the prosecution at all as a witness.''

Roberts became visibly upset as she described the accuser's comments for the first time, at one point stopping the interview.

"Because I think it's gonna make people rush to judgment,'' she replied. "It's gonna make them stop listening. … And I don't like this at all. It's gonna make-- It's gonna make people not listen and I, I'm sure you're probably not even going to play this. It's gonna make people not listen to any other part of the story. It's gonna make people so judgmental, it's gonna solidify their opinions so much, that they're not gonna want to hear the other aspects of the case, which I think are just as important.''

Roberts' attorney, Mark Simeon, said she never shared what she says were the accuser's final comments with police, not realizing their significance at the time. He said she would be willing to take a lie detector test about the new information.

Three Duke lacrosse players -- Dave Evans, Colin Finnerty and Reade Seligmann -- were charged last spring with rape and kidnapping for the alleged attack on the exotic dancer, who had been hired by the men to perform at the off-campus party. All three men have vigorously declared their innocence, inside and outside of court.

Durham County District Attorney Mike Nifong did not return a call over the weekend for comment.

One legal expert who has followed the case closely from the start said the new information is a clear blow to an already embattled prosecution team.

"To have witnesses appear on a media program revealing information that the prosecutor doesn't know is stunningly inappropriate,'' said Linda Fairstein, who headed the Manhattan District Attorney's Sex Crimes Unit for more than two decades.

Roberts has proven to be a somewhat unpredictable character in a case with a seemingly bottomless supply of surprises.

She has said consistently that she doesn't know whether or not a rape occurred. But she has characterized the evening's events differently to different people.

On March 20, when police first contacted her a week after the alleged attack, she called the rape allegation a "crock'' and said that she was with the woman for all but "less than five minutes.''

A month later, in an Associated Press interview, she indicated that she believed there had been an attack.

"I was not in the bathroom when it happened, so I can't say a rape occurred -- and I never will. … In all honesty, I think they're guilty. … Somebody did something besides underage drinking. That's my honest-to-God impression."

Then, on June 14, in an interview with National Public Radio, she said she was "unsure'' of how much time passed when the alleged victim got out of her car and went back into the house to get her purse.

"I can never say a rape did or did not occur. That's for the courts to decide. I didn't see it happen, you know? But what I can say is that there was opportunity and it could have happened.''

Simeon told ABC News that she has never shared this new information with authorities simply because she was never asked.

"She hasn't spoken to authorities beyond that very first [March 20] interview that police conducted,'' Simeon said. "She's never met with the DA and has never been called back for a follow-up interview.''

Simeon said she told him she felt her complete story was damaging to both the prosecution and the defense's cases, and as such she believes she may not be called to the witness stand at all.

Nifong, who is seeking reelection next month, stunned defense attorneys in court last week when he said that he has yet to interview the accuser "about the facts of that night.''

"I've had conversations with [the accuser] about how she's doing,'' Nifong said. "I've had conversations with her about seeing her kids. I haven't talked with her about the facts of that night. … We're not at that stage yet.''

The prosecutor made the comment in response to a request from defense attorneys for any statements the accuser has made about the case.

Nifong said that only police have interviewed the accuser, and that none of his assistants have discussed the case with the woman either.

The highly-charged case has sparked an intense, bitter rivalry between Nifong and defense attorneys.

In September, he similarly surprised defense attorneys when he said in court that the attack, which the accuser told police took about 30 minutes, had in fact been only "five to 10 minutes.''

"When something happens to you that is really awful, it can seem like it takes place longer than it actually takes.''

Fairstein, widely considered a pioneer in the field of sex crimes prosecution, said Roberts' allegations do not bode well for either her own credibility or for the district attorney's office.

"In terms of any prosecution, it's troubling when a witness who has been interviewed many times comes up with a completely new statement,'' Fairstein told ABC News. "At some point in a prosecutorial interview, she would have been asked to give them anything she knew, any scrap of information that she had.''

Fairstein told ABC News she was shocked to learn last week that Nifong has yet to interview the accuser.

"That is just against the progress that's been made in this very specialized field,'' she said. "It belies anything a prosecutor would do before making charges. There was no need to rush to the charging judgment in this case. … This whole train should have been slowed down and everybody interviewed before charging decisions. To have witnesses appear on a media program revealing information that the prosecutor doesn't know is stunningly inappropriate.''

http://abcnews.go.com/Politics/LegalCenter/story?id=2618327&page=1
Duke Students Campaign Against Rape Case Prosecutor
University Group Encourages Student Vote Against Durham District Attorney
By HANNA SIEGEL

DURHAM, N.C., Oct. 31, 2006 — - Just days after filing charges against three Duke University lacrosse players for rape, Mike Nifong won the Democratic primary for district attorney of Durham County.

No one could say for sure how much the controversial case had contributed to Nifong's victory, but in a community long plagued by tensions between the haves -- particularly privileged Duke students -- and the have-nots, the candidate's willingness to take on the elite university did not hurt.

In the months since the primary, defense attorneys have presented evidence that appears to cast doubt on the strength of Nifong's claims against the Duke players. And some Duke students have developed a clever strategy to fight back.

They have formed Duke Students for an Ethical Durham to encourage students to fulfill their civic obligations, to register and vote in Durham County.

Founded in August, the group launched a voter registration drive, and by the first day of school, group members were campaigning all over campus.

They set up tables where people could register, took out ads in Duke's daily newspaper, the Chronicle, and enlisted liaisons from Duke athletic teams to advocate their cause in the locker rooms. Duke Students for an Ethical Durham is also trying to get nonvoters registered. As one of DSED's leaders, Charlotte native Christiane Regelbrugge, explained, "There are so many students who contribute so much to this community but don't vote here, and I think there is a big disconnect there."

Despite widespread skepticism that DSED is biased against the lacrosse team, group representatives say they just want due process and fair treatment for both the players and all Durham residents.

The group has endorsed one of Nifong's opponents, Lewis Cheek, an attorney and Durham's county commissioner, who is not campaigning and will not accept the job if elected but who wants to put an alternative candidate on the ballot.

Although Cheek has said publicly he doesn't want the DA job, he has criticized Nifong's handling of the Duke lacrosse case. His name on the ballot will give voters a chance to potentially deny Nifong a majority vote, thereby allowing North Carolina governor Mike Easley to appoint a district attorney himself. This is, coincidentally, how Nifong initially earned his position last year.

The other choice is Durham's Republican county chairman and write-in candidate, Steve Monks. A poll released Oct. 25, in the Raleigh News & Observer indicated Nifong currently has 46 percent of potential votes against Cheek's 28 percent and Monks' 2 percent.

While DSED doesn't oppose Monks, it believes Cheek has the better chance of denying Nifong a majority vote.

This past May, Nifong defeated his main opponent, Freda Black, with 45.2 percent of the vote, eradicating the need for a second primary.

DSED has turned in approximately 1,250 Duke student registration forms to Durham County's voter registration office, bringing the number of registered Duke students, according to DSED, to about 2,500.

Considering the 143,457 registered voters at the Durham County voter registration office for the Nov. 7 elections, Duke's 2,500 participants could potentially make a difference, depending on how tight the election is.

DSED promises no protests or action of any kind if Nifong wins; all it wants is to raise awareness and increase voter participation in Durham.

According to Regelbrugge, "Our goal is not for Duke students to receive special treatment but for all Durham residents to be treated fairly."

When contacted, Nifong's office said it "does not know anything about [DSED]" and "cannot comment on any kind of politics."

http://writ.news.findlaw.com/commentary/20061031_spilbor.html The D.A.'s Admitted Failure To Personally Question The Accuser In The Duke Rape Scandal: Why, At Trial, It May Be A Boon To The Defense By JONNA SPILBOR Tuesday, Oct. 31, 2006 Last April, notoriously, three former Duke University lacrosse players were indicted. The indictment charged them with brutally raping a stripper during an off-campus team party. I've covered developments in the case in a series of columns for this site - on April 14, April 28, May 19, and June 30. In these columns, I've argued that the publicly-available evidence relating to the case not only fails to support the prosecution's case, but severely undermines it. I've concluded, accordingly, that Durham D.A. Mike Nifong should drop the case. In this column, I'll briefly recap that evidence, and consider the most recent development in the case: The October 27 revelation, during a court hearing, that D.A. Nifong has yet even to interview the accuser herself about the facts of the case! Voters assessing Nifong on November 7 - when he is up for re-election - should surely consider this important new information carefully. Questions had already been raised about Nifong's judgment in going forward with this case; now, questions about his basic competence are also arising. Importantly, you don't have to be pro-defense here to be troubled about Nifong. Far from it. Even supposing the accuser is somehow telling the truth (a supposition the publicly-available evidence makes very unlikely), the D.A. has done her a disservice - for, as I will explain, his failure to interview her about the facts will provide powerful fodder for the defense at trial. The Evidence So Far: Serious Discrepancies with the Accuser's Claims From the very start, the procedure by which the defendants were identified by the accuser was unconstitutional: The photos displayed to the accuser were only of Duke lacrosse players. Instead, the photos of players plainly should have been mixed with many photos of same-age, same-race males who were strangers to the accuser. Column continues below ↓ After the tainted identification, things got even dicier: DNA evidence failed to inculpate the two defendants the faulty identification process had initially yielded, or the third defendant added later. Digital photos taken at a party established a timeline inconsistent with the accuser's story. And two of the three defendants offered objectively-verifiable alibi evidence. Meanwhile, even the accuser's fellow stripper proclaimed the accusations a "crock." And as I detailed in my May 19 column, further DNA evidence also proved unconvincing. So where was the prosecution's case? It had to lie with the accuser and her testimony. Maybe she could resolve the seeming discrepancies in the evidence? Or, maybe not - for it turned out that her own various statements suffered from serious discrepancies, too. She had made a series of conflicting statements to police and medical personnel. And a police report indicated the accuser was "passed out drunk" and in "no distress" in the minutes following the time she said the attack had occurred. The New Revelation: No Statements By the Accuser to the D.A. Finally, just when it appeared the case against these three young men could not possibly get any weaker, it did. As noted above, the D.A. admitted - in the face of yet another defense request to obtain all statements made by the accuser to the D.A. - that no such statements exist. According to the D.A, the only case-related conversation he's had with the accuser was a quick telephone conversation regarding her use of the drug "Ecstasy" on the night of the alleged rape. According to Nifong, "She said, 'I've never taken Ecstasy.' That was the extent of the conversation because that's all I had to know." Nifong continued, "I understand the answer may not be the answer they want but it's the true answer. That's all I can give [the defense]." Indeed, Nifong told the Associated Press, "I've had conversations with [the accuser] about how she's doing. I've had conversations with [the accuser] about her seeing her kids, [but] I haven't talked with her about the facts of that night. We're not at that stage yet." Why the Failure to Interview the Accuser Is Very Troubling As an experienced criminal defense attorney, I can tell you that this failure to interview the accuser is rare, striking, and disturbing. It means that the D.A. failed to personally assess the accuser's credibility before filing charges against the defendant, or presenting evidence to the grand jury to obtain the indictments in the case. A District Attorney has a duty to justice. The saying is that "the government wins when justice is done," not when it gets a "Guilty" verdict. But this D.A. failed to make sure he was, in fact, serving justice by looking his accuser in the eye, listening to her story, and assessing her credibility for himself, just as he knew a jury someday would do. That story is extremely important here. The accuser, in her statements to police, maintains that, besides the defendants themselves, she herself was the only direct witness to the rape - which she says took place in a small bathroom, away from the rest of the party. That means witness testimony - her testimony - will be crucial here - all the more so, because the forensic evidence seems, thus far, to be utterly lacking. The DNA evidence, as noted above, simply hasn't held up. The Accuser's Trauma Provides No Grounds For a Six-Month Delay of the Interview Nifong has said that the accuser was traumatized at the time he first tried to interview her. But that's no excuse for this conduct. Nifong has said that, even in innocuous conversations, the accuser couldn't look him in the eye, and appeared on the verge of tears. And he's said that in a meeting on April 11 -- - about a week before he gave the case to the grand jury -- he and an investigator avoided discussing details of the case with the accuser because she was "too traumatized." (Attorneys bring investigators along to such meetings in part so that, if disputes arise as to what was said, the investigator - not the attorney - can become a witness in the case.) (This raises the issue of whether the unprepared accuser appeared before the grand jury. If she didn't, and it turns out she's fabricating, it may be hard to punish her, since she hasn't yet testified under oath. And it is possible she didn't: In North Carolina, as in the federal system, a grand jury can indict on hearsay.) But over six months have passed since April 11. Why didn't the D.A. and his investigator interview the accuser in the interim between then and now? Let's suppose she's still too traumatized even to talk to two sympathetic people about the rape. (Remember, we're not necessarily talking about her being along with two men: The D.A. could always opt for a female investigator to accompany him, and, if necessary, could opt to delegate the interview to a female Assistant District Attorney as well.) Then the hard truth is that she may have even more difficulty in ever getting on the stand in front of a whole courtroom and jury - and that's a fact the D.A. ought to take into consideration as he decides whether, and how, to go forward in the case. In sum, the D.A. needs to know, about the accuser, what an attorney must know about any potential witness: how she will hold up under the stress of in-court examination. Suppose that after talking to her, he still believes her story but sees that she can't bear to take the stand, or won't do well if she does. He may decide, then, that a plea may serve her interests better than the "Not Guilty" verdict that would inevitably result from her failure to testify. How the Defense May Use the Prosecution's Delay to Its Advantage For justice to be done, recollections must be given when the accuser's memory is fresh - and jurors know this. For this reason, the D.A.'s six-months-and-counting delay in interviewing the accuser will provide strong ammunition for the defense. What's really going on here? One can only speculate, but it's no secret Mike Nifong is up for re-election in a week, nor is it a secret that he's made this case a platform for him to speak to the press. And one thing his failure to interview the accuser has accomplished - even as it has hurt the prosecution's case - is that it has kept that platform alive for this long. Jonna M. Spilbor is an attorney and legal analyst on "Kendall's Court", airing Sundays on Fox News Channel's Weekend Live with Brian Wilson. She is also a frequent guest commentator on MSNBC, Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.

http://writ.news.findlaw.com/commentary/20061031_spilbor.html

The D.A.'s Admitted Failure To Personally Question The Accuser In The Duke Rape Scandal: Why, At Trial, It May Be A Boon To The Defense
By JONNA SPILBOR
----
Tuesday, Oct. 31, 2006

Last April, notoriously, three former Duke University lacrosse players were indicted. The indictment charged them with brutally raping a stripper during an off-campus team party. I've covered developments in the case in a series of columns for this site - on April 14, April 28, May 19, and June 30.

In these columns, I've argued that the publicly-available evidence relating to the case not only fails to support the prosecution's case, but severely undermines it. I've concluded, accordingly, that Durham D.A. Mike Nifong should drop the case.

In this column, I'll briefly recap that evidence, and consider the most recent development in the case: The October 27 revelation, during a court hearing, that D.A. Nifong has yet even to interview the accuser herself about the facts of the case!

Voters assessing Nifong on November 7 - when he is up for re-election - should surely consider this important new information carefully. Questions had already been raised about Nifong's judgment in going forward with this case; now, questions about his basic competence are also arising.

Importantly, you don't have to be pro-defense here to be troubled about Nifong. Far from it. Even supposing the accuser is somehow telling the truth (a supposition the publicly-available evidence makes very unlikely), the D.A. has done her a disservice - for, as I will explain, his failure to interview her about the facts will provide powerful fodder for the defense at trial.

The Evidence So Far: Serious Discrepancies with the Accuser's Claims

From the very start, the procedure by which the defendants were identified by the accuser was unconstitutional: The photos displayed to the accuser were only of Duke lacrosse players. Instead, the photos of players plainly should have been mixed with many photos of same-age, same-race males who were strangers to the accuser.

After the tainted identification, things got even dicier: DNA evidence failed to inculpate the two defendants the faulty identification process had initially yielded, or the third defendant added later. Digital photos taken at a party established a timeline inconsistent with the accuser's story. And two of the three defendants offered objectively-verifiable alibi evidence. Meanwhile, even the accuser's fellow stripper proclaimed the accusations a "crock." And as I detailed in my May 19 column, further DNA evidence also proved unconvincing.

So where was the prosecution's case? It had to lie with the accuser and her testimony. Maybe she could resolve the seeming discrepancies in the evidence?

Or, maybe not - for it turned out that her own various statements suffered from serious discrepancies, too. She had made a series of conflicting statements to police and medical personnel. And a police report indicated the accuser was "passed out drunk" and in "no distress" in the minutes following the time she said the attack had occurred.

The New Revelation: No Statements By the Accuser to the D.A.

Finally, just when it appeared the case against these three young men could not possibly get any weaker, it did. As noted above, the D.A. admitted - in the face of yet another defense request to obtain all statements made by the accuser to the D.A. - that no such statements exist.

According to the D.A, the only case-related conversation he's had with the accuser was a quick telephone conversation regarding her use of the drug "Ecstasy" on the night of the alleged rape. According to Nifong, "She said, 'I've never taken Ecstasy.' That was the extent of the conversation because that's all I had to know." Nifong continued, "I understand the answer may not be the answer they want but it's the true answer. That's all I can give [the defense]."

Indeed, Nifong told the Associated Press, "I've had conversations with [the accuser] about how she's doing. I've had conversations with [the accuser] about her seeing her kids, [but] I haven't talked with her about the facts of that night. We're not at that stage yet."

Why the Failure to Interview the Accuser Is Very Troubling

As an experienced criminal defense attorney, I can tell you that this failure to interview the accuser is rare, striking, and disturbing. It means that the D.A. failed to personally assess the accuser's credibility before filing charges against the defendant, or presenting evidence to the grand jury to obtain the indictments in the case.

A District Attorney has a duty to justice. The saying is that "the government wins when justice is done," not when it gets a "Guilty" verdict. But this D.A. failed to make sure he was, in fact, serving justice by looking his accuser in the eye, listening to her story, and assessing her credibility for himself, just as he knew a jury someday would do.

That story is extremely important here. The accuser, in her statements to police, maintains that, besides the defendants themselves, she herself was the only direct witness to the rape - which she says took place in a small bathroom, away from the rest of the party.

That means witness testimony - her testimony - will be crucial here - all the more so, because the forensic evidence seems, thus far, to be utterly lacking. The DNA evidence, as noted above, simply hasn't held up.

The Accuser's Trauma Provides No Grounds For a Six-Month Delay of the Interview

Nifong has said that the accuser was traumatized at the time he first tried to interview her. But that's no excuse for this conduct.

Nifong has said that, even in innocuous conversations, the accuser couldn't look him in the eye, and appeared on the verge of tears. And he's said that in a meeting on April 11 -- - about a week before he gave the case to the grand jury -- he and an investigator avoided discussing details of the case with the accuser because she was "too traumatized." (Attorneys bring investigators along to such meetings in part so that, if disputes arise as to what was said, the investigator - not the attorney - can become a witness in the case.)

(This raises the issue of whether the unprepared accuser appeared before the grand jury. If she didn't, and it turns out she's fabricating, it may be hard to punish her, since she hasn't yet testified under oath. And it is possible she didn't: In North Carolina, as in the federal system, a grand jury can indict on hearsay.)

But over six months have passed since April 11. Why didn't the D.A. and his investigator interview the accuser in the interim between then and now?

Let's suppose she's still too traumatized even to talk to two sympathetic people about the rape. (Remember, we're not necessarily talking about her being along with two men: The D.A. could always opt for a female investigator to accompany him, and, if necessary, could opt to delegate the interview to a female Assistant District Attorney as well.) Then the hard truth is that she may have even more difficulty in ever getting on the stand in front of a whole courtroom and jury - and that's a fact the D.A. ought to take into consideration as he decides whether, and how, to go forward in the case.

In sum, the D.A. needs to know, about the accuser, what an attorney must know about any potential witness: how she will hold up under the stress of in-court examination. Suppose that after talking to her, he still believes her story but sees that she can't bear to take the stand, or won't do well if she does. He may decide, then, that a plea may serve her interests better than the "Not Guilty" verdict that would inevitably result from her failure to testify.

How the Defense May Use the Prosecution's Delay to Its Advantage

For justice to be done, recollections must be given when the accuser's memory is fresh - and jurors know this. For this reason, the D.A.'s six-months-and-counting delay in interviewing the accuser will provide strong ammunition for the defense.

What's really going on here? One can only speculate, but it's no secret Mike Nifong is up for re-election in a week, nor is it a secret that he's made this case a platform for him to speak to the press. And one thing his failure to interview the accuser has accomplished - even as it has hurt the prosecution's case - is that it has kept that platform alive for this long.

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