Duke Rape Suspect May Have Alibi

One of the two Duke University lacrosse players arrested on charges of raping and kidnapping a 27-year-old woman at an off-campus party had been arrested in the fall for assaulting a man in Washington, D.C., and the other was not present when the alleged crime occurred, sources told ABC News.

Multiple sources told ABC News that Reade Seligmann, 20, was not present in the house at the time the alleged victim says the crime occurred. Sources say this is established through different witness accounts, as well as cell phone and credit-card records.

The other man arrested, Collin Finnerty, 20, was charged with simple assault, along with two others, in November for allegedly punching a man in the face and body because he told them to "stop calling him gay and other derogatory names," according to the police report and court records.

Finnerty's North Carolina arrest could have an impact on the outcome of the D.C. case at an April 25 hearing, a source in the U.S. attorney's office prosecuting the case told ABC News Radio.

"The judge was going to iron out the community service that the three defendants ... were going to do in the District of Columbia," the source said. "And now, obviously, this is going to create some issues there."

The source said the hearing will still take place "but now we will be discussing other issues."

Steven McCool, Finnerty's attorney in the D.C. case, told ABC News Finnerty had been charged with "simple assault," a misdemeanor. McCool reached an agreement with the U.S. attorney to have Finnerty placed in a "diversion program," he said, and the charge would be expunged if Finnerty completed 25 hours of community service and did not get arrested again.

McCool said the U.S. attorney would now have to decide whether or not to go to trial in this case. Legal sources unrelated to the case cautioned, however, that the outcome of the D.C. case will probably depend on what happens with the charges in North Carolina.

McCool said he has not received official notice of the April 25 hearing, but he was aware it could happen.

Whether the D.C. incident would be admissible in the North Carolina court remains to be seen. The judge must always weigh the probative value of evidence concerning a previous conviction -- if Finnerty does get convicted for the misdemeanor assault -- versus the way it would prejudice the jury.

Indictments against Finnerty and Seligmann were unsealed Tuesday. Durham District Attorney Mike Nifong would not discuss details, but did reveal he was pursuing charges against a third man.

"It had been my hope to charge all three of the assailants at the same time, but the evidence available to me at this moment does not permit that," Nifong said. "Investigation into the identity of the third assailant will continue in the hope that he can also be identified with certainty."

ABC News has obtained the district attorney's motion from April 12 to seal indictments that claims, for both Finnerty and Seligmann, that "the severity of the punishment he faces create a substantial risk that he would attempt to flee the jurisdiction ... if he learned that an indictment had been returned against him.''

ABC News also has obtained Durham County Superior Court receipts showing both men were freed after posting $400,000 cash bonds.

Seligmann posted bond shortly after his arrest, and his attorney waived his court appearance. Finnerty also posted bond and made a brief appearance in Superior Court shortly before 11 a.m. wearing a jacket and tie. The next court appearance for both players was set for May 15.

Attorney: 'Absolutely Innocent'

Both Seligmann, a 6-foot-1 sophomore from Essex Fells, N.J., and Finnerty, a 6-foot-3 sophomore from Garden City, N.Y., were in handcuffs when they stepped out of a police cruiser before dawn.

Seligmann is "absolutely innocent," said his attorney, Kirk Osborn. "He's doing great. That's all I have to say."

Asked what led to the indictments, Osborn said: "Apparently it was a photographic identification. And we all know how reliable that is."

A message left at the Seligmann home by The Associated Press was not returned Tuesday nor was a message left on the answering machine at the Finnerty home in Garden City, N.Y. No one answered the door at the house, which sits in a cul-de-sac of million-dollar homes. A lacrosse net and equipment could be seen on the yard, which abuts a golf course.

"The next jury will hear the entire story, which includes our evidence, and we're confident that these young men will be found to be innocent," said Finnerty's attorney, Bill Cotter. "We're surprised that anybody got indicted, quite frankly."

Criminal defense attorney Michael Bachner told ABC News Now that attorneys on the case are sure to question the photo identification of the suspects, and it will be important to determine if the accuser chose Finnerty and Seligmann from a random line-up or a pool of all Duke lacrosse players. "[There are] serious constitutional issues here," Bachner said.

The alleged victim, who is black, is the mother of two children and was hired to dance at the party. She told police she was attacked March 13 by three white men in a bathroom at the party held by the lacrosse team. The racially charged allegations have led to near daily protest rallies.

The school canceled the highly ranked team's season and accepted the resignation of coach Mike Pressler after the release of a vulgar and graphic e-mail that was sent by an uncharged team member shortly after the alleged assault.

Defense attorneys have urged Nifong to drop the case, saying DNA tests failed to connect any of the 46 team members tested to the alleged victim.

Nifong has said 75 percent to 80 percent of rape prosecutions lack DNA evidence. According to court records, a medical examination of the woman found injuries consistent with rape.

Defense attorneys have said time-stamped photos taken the night of the party show that the alleged victim was injured and impaired before she arrived.

The charges come two weeks before Nifong, appointed to the job last year after nearly three decades as a lawyer in the district attorney's office, is up for election. On Monday, he repeatedly declined to comment on the case.

Disciplinary Findings

Seligmann is one of five lacrosse players at Duke from the Delbarton School, an all-boys Catholic prep school in Morristown, N.J. Delbarton won three state lacrosse titles while Seligmann was at the school, but he saw limited time on the field after arriving at Duke. He didn't start any games this season, playing in six and scoring one goal.

"Knowing Reade Seligmann as well as we do here at Delbarton, I believe him innocent of the charges included in the indictment issued yesterday in North Carolina," the Rev. Luke L. Travers, headmaster at Delbarton, said in a statement.

Finnerty, who attended Chaminade High School, also did not start any games this season. He played in five, scoring two goals with an assist. His brother is a senior at Duke. Finnerty and Seligmann lived in the same residence hall at Duke, but they are not roommates.

Duke, which played in the national title game last season and was considered a favorite for the NCAA title this year, was 6-2 before the school canceled the team's season.

School officials said Monday that the lacrosse coach was warned last year that his players had too many violations of the campus judicial code and he needed to "get them in line."

Duke athletic director Joe Alleva said the university's executive vice president reviewed the lacrosse team's disciplinary record last year, then discussed his findings with Alleva.

"He said there were too many incidents, but there's not enough incidents to make a drastic change in the program at this point in time," Alleva told The Herald-Sun of Durham. Alleva told the coach "his team was under the microscope, and he had to do everything he could to get them in line and to not have any more behavior problems."

The review by Tallman Trask III, Duke's executive vice president, was spurred by reports of "boorish behavior" by the lacrosse team, Alleva said.

Sue Wasiolek, Duke's dean of students and assistant vice president for student affairs, said the review showed the lacrosse team had a "disproportionate" number of violations of the campus judicial code. None was particularly serious, but administrators were concerned about the cumulative record and the fact that some players had several violations, she said.

The Associated Press contributed to this report.