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A More Careful Perusal Of The N&O Article

The story the
News & Observer ran on Sunday about the lacrosse situation
is important
and demands some more careful reading. So here's what we got out of
it. If we missed critical stuff, please let us know.

We'll get to the contradictions in the account(s) of the evening by the AV
shortly. First, let's consider what is now known about the actions of the
District Attorney and the investigators.

  • District Attorney Mike Nifong suggested that the alleged attackers may
    have used condoms when his own records clearly showed the AV said they did
    not. Either he lied or he's incompetent (or both).
  • "On March 31, Nifong sat with Gottlieb and Himan, the two
    investigators, to discuss another lineup procedure. According to Gottlieb's
    notes, Nifong suggested that, instead of a lineup or photographic array,
    they simply have the accuser look at each picture and recall if she saw the
    person at the party...The lineup Nifong suggested violated the Durham Police
    Department guidelines, which call for photographic arrays to include at
    least five nonsuspects for every suspect in the lineup. Police and
    prosecutors had named all 46 players as suspects. The guidelines also called
    for an independent administrator to conduct the lineup, not an investigator
    in the case."
  • Nifong has refused to consider exulpatory evidence in the case, which is
    simply disgraceful.
  • "Before
    presenting the case to a grand jury, Nifong met on April 11 with the
    accuser, Gottlieb, Himan and another officer, according to Himan's notes.
    Neither police nor prosecutors have produced any account of this meeting."
  • On April 17, Nifong "personally downgraded" Kim Roberts' bond status.
  • On April 18, her story changed.
  • Also on April 17, Nifong was still trying to determine if AV had done
    anything which might have resulted in trauma to her vagina and had clearly
    not ruled out other sources of vaginal swelling (for instance, the couple
    for whom she masturbated with a vibrator). He was also still trying to
    arrange secondary DNA tests with a lab in Burlington.
  • At dawn on April 18, he indicted Reade Seligmann and Colin Finnerty.

Here are some critical quotes from the article:

  • "Nifong
    had brought charges in the most publicized case in Durham County history. He
    had said repeatedly on national television that he was certain the dancer
    had been raped. Yet the prosecutor was still trying to rule out other
    explanations for the vaginal swelling a hospital noted in its examination of
    the accuser."
  • "The
    words and actions of police and prosecutors had outpaced the facts in the
    file, and not for the first time. The case, which began at a college team
    party on a warm March evening, quickly drew national attention to Duke,
    Durham and to North Carolina's justice system — even as the prosecutor's
    version started to unravel.
  • "In
    examining the files Nifong has produced in the case, The News & Observer
    found that the accuser gave at least five different versions of the alleged
    assault to different police and medical interviewers and made shaky
    identifications of suspects. To get warrants, police made statements that
    weren't supported by information in their files.
  • "The
    district attorney commented publicly about the strength of the medical
    evidence before he had seen it. He promised DNA evidence that has not
    materialized. He suggested that police conduct lineups in a way that
    conflicted with department policy."

Kim Roberts has been all over the map, but her original comments are worth

  • Where AV had said the players lied about what team they were on, Roberts
    looked at a drivers license and police notes suggest she knew they were the
    lacrosse team.
  • After the notorious broomstick remark, Roberts and AV went to the
    bathroom. Roberts said she wanted to leave and went out to her car.
    According to Roberts, some of the lacrosse players came out and said AV had
    passed out on the back steps.
  • When first advised that AV was alleging rape, Roberts said, "that's a

The AV told at least five different stories about the evening.
Depending on the version, the following may or may not have happened:

  • Kim Roberts stole everything from her.
  • The men groped her but didn't rape her.
  • Roberts tried to get her into the bathroom with five guys who raped her.
  • The alleged rapists "[s]eparated us at the master bedroom door while
    we tried to hold on to each other."
  • Roberts said she wanted to leave, while the accuser wanted to stay and
    make more money.
  • Roberts wanted AV to have sex with "Brett." Roberts and
    "Brett" carried her back into the house where she was raped by the
    three guys.
  • Roberts tried to get her to drink more so they could make more
  • The AV claimed to have had one drink and a Flexeril.
  • AT UNC Hospitals, she said she had had a lot to drink the night of the
  • She had two 22-ounce Icehouse beers before arriving at the party.
  • There were four dancers instead of two.
  • She wasn't hit and wasn't choked and wasn't restrained or held down.
  • She was knocked to the floor multiple times.
  • The nurse's report noted diffuse swelling of the vaginal walls. It made no
    mention of bruises, tears or abrasion to either the vagina or the anus. The
    nurse noted a non-bleeding scratch on the woman's right knee and a cut on
    her right heel. A doctor at Duke noted a scratched heel, and no other signs
    of physical assault.
  • Two of the alleged rapists ejaculated.
  • The alleged rapists did not use condoms

What is indisputable is that the medical exam showed no signs of choking or
being beaten. Later tests could not tie DNA to any lacrosse player.

As has been suggested several times, if the AV was raped, a certain amount of
confusion would be entirely understandable. But there are some other
things which you'd think would be easier to remember and explain, particularly
things which may have happened before the alleged rape.

Some basic things, like how many dancers were there: was it two? Or
four? How much did she have to drink? Did she or did she not take
Flexeril? If she did, how much alcohol did she consume after that?

And then there are the other issues which may have been clouded by
trauma: what did happen to her possessions? Who took her money, if
it was taken?

It's also worth noting that although the attack took place on March 13 or
14th (depending on whether before or after midnight, or both), the police didn't
record a statement until April 6th! Why in the world would they not have a
statement for three weeks?

And it's also worth mentioning that both Joe Cheshire and Kirk Osborne have
first-hand experience with prosecutorial misconduct, in the cases of Alan Gell
and Dawn Wilson respectively. Gell's experience was so thoroughly
disgusting that the state changed the laws on discovery and now require
prosecutors to turn everything over. Wilson was convicted in the notorious
Little Rascals case and has lived with the trauma ever since, despite
significant legal victories.