New York Times has a long article up on the lacrosse investigation with
several important points, some of which will be challenging for the defense.
At the heart of the article are the case notes by Sgt. Mark Gottlieb of the
Durham police. The defense argues that the notes, a late addition to discovery,
are a desperation tactic:
"Joseph B. Cheshire, a lawyer for David Evans, one of the defendants,
called Sergeant Gottliebâs report a 'make-up document.' He said Sergeant
Gottlieb had told defense lawyers that he took few handwritten notes, relying
instead on his memory and other officersâ notes to write entries in his
chronological report of the investigation.
"Mr. Cheshire said the sergeantâs report was 'transparently written to
try to make up for holes in the prosecutionâs case.' He added, 'It smacks of
almost desperation.'â (NYT)
If Cheshire's suggestion that the notes were written after the fact is
proven, the case is done. But what if they weren't?
Consider what is reported:
- From Sgt. Gottlieb's March 16th interview with the AV: âThe victim was
at home alone with her two young children,â the sergeant wrote, noting she
walked slowly and in obvious pain. âHer facial expressions conveyed her
pain as she ambulated.â She sat so neither hip touched the sofa.
âAnytime her bottom touched the sofa cushion while repositioning during
our interview, she groaned and had a facial expression consistent with
- During that interview, the woman, who is dark skinned, said bruises were
beginning to show from the attack. A female officer took photographs and
confirmed that âshe had the onset of new bruises present,â Sergeant
Gottlieb wrote. (The female officerâs report does not mention bruises.) (NYT)
- The police recovered semen from beside the toilet â about the same spot
where the woman said she had spat out semen from someone who orally raped
her. It matched the DNA of Matt Zash, a team captain who lived in the house
and has not been charged. His lawyer said the semen had come from other,
innocent sexual activity. (NYT)
- Investigators also found a towel in the hallway near Mr. Evansâs bedroom
with semen matching his DNA. The woman had told the sexual assault nurse
that someone had wiped her vagina with a rag. Mr. Evansâs lawyer said that
this towel had nothing to do with her accusation, and that the semen came
from other activity. (NYT)
- The accounts of the rape test at DUMC are more detailed as
Of these things, the most difficult to us are the more detailed hospital
report, the bathroom DNA, and the rag, which corresponds to the AV's
The DNA in the bathroom though comes from Matt Zash, who was not charged and
who says it came from other sexual activity. If you believe the Rolling
Stone story from earlier this summer, lacrosse players were getting their ya-yas
out whenever they felt like it, so it's no great surprise. The rag is
going to be a major feature of any trial.
One question on the bathroom semen: if it were spat out, as the AV
says, wouldn't her DNA be there as well?
The article also revives the suggestion that the AV was date-raped. We
think this is highly unlikely, and we'll tell you why.
First, she admits to having taken Flexeril and then drinking. Depending
on what account you read, she had as much as two .22 ounce beers and a mixed
drink. Put that on top of a powerful muscle relaxant and you're lucky to
be walking. Add a date rape drug to that, and you might sleep for 24
Secondly, if you were drugged in this manner, having consumed two depressants
voluntarily and a third unsuspectingly, and the third being designed to render
you unconscious, you wouldn't remember anything from an assault or
anything else. It would be difficult to orally assault someone who is
unconscious though, perhaps, not impossible. Someone with more sinister
expertise will have to answer that question.
And third, almost 50 ounces of beer and a mixed drink - again, take your
choice of accounts of drinking - and a Flexeril - would be hard enough to
overcome by the time you got to Kroger's at around 1 a.m. Toss a date rape
drug on top of that and you're out cold.
So we're not buying the date rape suggestion.
There are still several other significant issues to overcome:
- Kim Roberts' initial statement about the alleged rape: "It's a crock
-" and her origina assertion that she was never far from the victim.
- Seligmann's alibi and his early departure from the party seem difficult to
disprove, since it's backed up by witnesses and digital data. And
certainly he wasn't' calling his girlfriend while participating in a
- The lack of DNA. If the lacrosse players didn't use condoms, it
seems very difficult to sexually assault someone and leave no DNA behind
except for someone who wasn't even in on it.
- The lack of bruising seen at Duke. Bruising did show up later, but
after the fact. The Duke exam showed no evidence of the sort of
beating that Nifong and the AV allege took place.
- 12:05 and 12:13, Mr. Seligmann made eight brief calls, of 36 seconds or
less, six of them to his girlfriendâs number, and then phoned a taxi at
12:14 a.m. and left the party shortly after.
- Dr. Manly, the sexual-assault specialist, found the womanâs head, back,
neck, chest, nose, throat, mouth, abdomen, arms and legs all normal. The
only âsigns of physical trauma,â she reported, were three small,
nonbleeding scratches to the knee and ankle.(NYT).
The details are very interesting, not least of all the rag, but the pattern
of behavior exhibited by the D.A. and Durham Police, from the irregular lineup
procedures to the DNA cull, to the difference in treatment of the witnesses for
the prosecution and defense, and to the blatant ignoring of exculpatory evidence
are certainly equally troubling, to say the least, and to say the worst, makes
it very difficult to believe what they say about anything.