"You have to take that story, prove it occurred, and prove that it's these men who did it," she said.
Building a case, said Fairstein, means considering the accuser's story in light of the evidence at hand. That, she said, did not happen here.
"It seems to me that she was embraced by the prosecutor and his team immediately. They coddled her and took her side in this," Fairstein said.
Fairstein also criticized Nifong for his apparent unwillingness to meet with defense attorneys early on in the case. Lawyers for Seligmann said that Nifong refused their offers to discuss evidence of an alibi — materials including ATM photos, phone records and testimonial evidence.
"You don't turn anybody away who's offering you information," Fairstein stressed.
Fairstein was also surprised that Nifong was not alarmed by the lack of physical evidence, given the graphic nature of the accuser's charges. She describes being violently raped, sodomized and forced to perform oral sex. She told investigators that her alleged assailants did not wear condoms.
While having DNA evidence is a luxury, no such evidence was found linking lacrosse players to the accuser's body or clothing. "It's a contact crime -- not a stabbing or a drive-by shooting. You'd expect something to be left by the contact between two bodies," said Fairstein.
Rape kit samples did, however, show traces of DNA from five to nine unidentified men — facts that were not revealed to the defense when they were first discovered and that Fairstein said should have slowed down the case.
With no known physical or scientific evidence of a crime, the accuser's testimony becomes even more critical.
"Her credibility is this case … this system believed in her and went full-speed ahead when I would have said to slow down the train," said Fairstein.
Whatever the outcome, Fairstein worries about the impact of the Duke lacrosse case on rape prosecutions around the country. Her concern is that the high-profile investigation will inhibit aggressive prosecution of sexual assault cases.
"If there is a dismissal there will be many more people who encounter rape in the future with greater skepticism. It will reinforce the stereotype that many of these rapes are false reports."
As a prosecutor, Fairstein said, "you have to acknowledge that false accusations do happen — though they are less than 10 percent of reported rapes.
That, said Fairstein, is why you need to figure out the true story early on, asking tough questions and figuring out what reasons, if any, explain the missing or inconsistent evidence.
"You're looking to do justice before you go to court -- and certainly before you get an indictment."
The next hearing in the case is scheduled for May 7 in Durham.