May 15, 2006 -- A third indictment in the Duke University lacrosse team rape case is likely and it will involve the player identified with "90 percent certainty" by the alleged victim during a photo lineup, ABC News has learned.
A grand jury is scheduled to meet today in the Durham County Judicial Building in North Carolina, and could hand down an indictment at any time. If an indictment is returned, the player's surrender to police has already been negotiated, ABC News has learned.
According to multiple sources, the defense attorney representing the player got a courtesy call from Durham County District Attorney Mike Nifong alerting him of a possible indictment. Although defense attorneys are expecting an indictment and have been told that one is likely, prosecutors could change their minds and plans at any time.
However, tension seems to be rising between the prosecution and the defense. In a hallway confrontation today at the Durham County courthouse, Nifong laced into defense lawyer Kerry Sutton in an expletive-laden tirade where he complained angrily about last Friday's defense news conference. At that briefing, defense attorney Joe Cheshire and five other lawyers -- including Sutton -- criticized Nifong for releasing the second DNA report at 5 p.m. ET on a Friday and accused him of leaking selective portions of the report to the media.
No Semen on Swabs, No Blood on Plastic Nail
ABC News' Law & Justice Unit was given exclusive details about the latest DNA report in the Duke lacrosse rape investigation and was shown and reviewed parts of the 10-page document.
According to the DNA report, tests specifically designed to look for semen found none on swabs of the alleged victim's mouth or genital areas. This is noteworthy, defense lawyers said, because in at least one affidavit and in the transcript of the photo identification lineup, the alleged victim said she was raped orally, vaginally and anally by three members of the Duke men's lacrosse team.
However, numerous prosecutors have told ABC News that a rape could have occurred and that convictions were possible even if there was no semen found on the accuser. The alleged victim does not say in any affidavit whether any of her attackers ejaculated during the alleged assault.
The report also says that tests looking specifically for blood on the fake fingernail found in a bathroom trash can were negative. This could be significant because the accuser has said that she broke her fingernails while defending herself against the alleged attackers, and scratching them. It is unclear, however, whether her scratches drew blood.
Three Nonlacrosse Players in Report
Three men -- none of them Duke lacrosse players and all of whose identities are known by ABC News -- were listed in the report as providing DNA swabs to be tested against the samples found on the alleged victim.
One of the three men has told ABC News that he spoke to the alleged victim the night of the March 13 party. Another man is the alleged victim's boyfriend, and defense attorneys identified him in a news conference as the "single source" of DNA found to date in vaginal swabs of the accuser.
It is unclear why the three nonlacrosse players were included in the sampling.
Defense attorneys have complained that the report does not say whether DNA was found from people other than those who provided samples -- the lacrosse players, the boyfriend, and the two other men. There is no way of knowing whether there was DNA from other people found on the alleged victim, the defense argues.
DNA Found Was a 'Mixture,' No Clear-Cut Link
According to the report, the DNA found under the false fingernail was a mixture, containing more than one person's genetic material. The report suggests that one of the possible people in that genetic mixture was the alleged victim.
The report says that genetic material with the same characteristics of two lacrosse players was found underneath a plastic fingernail in a trash can in the bathroom where the accuser says she was attacked. This may have been the link prosecution sources referred to when they told ABC News that test results could be "helpful" to the prosecution.
Neither of the two men linked to the sample were Reade Seligmann or Collin Finnerty, the two Duke lacrosse players indicted in the case. However, the third Duke player who may be indicted soon was in the mixture.
A DNA link is not clear cut with the type of test used in this case, DNA experts told ABC News. ABC News spoke with DNA analysts, including Brian Meehan, head of DNA Security, the Burlington, N.C. laboratory that conducted the set of tests used in the case. All of the analysts agreed that the most one could say about a specific person -- the alleged third attacker in the Duke rape investigation -- was that he could not be ruled out, but also could not be definitively ruled in.
"It's not what [prosecutors] were hoping for," said David Rudolf, a North Carolina defense attorney. "It's obviously somewhat helpful, but not nearly as much as if it was a match. Instead it's simply consistent with one of the players at the party."
The fact that the DNA sample found on the nail was a mixture makes it more difficult to be certain that it can be linked to any given person, experts said. Because many people in the general population share the same genitive traits, said Dr. Elizabeth Johnson, a California-based DNA expert, "there would be many people who could have the same traits as what shows up in the mixture."
Defense attorneys are already trying to use the lack of a clear-cut link to bolster their case.
"This report shows no conclusive match between any genetic material taken on, about, in, or from the false accuser and the genetic material of any Duke lacrosse player," said attorney Joe Cheshire in a news conference.
Enough Evidence to Indict?
In a transcript of the photo lineup used to identify alleged attackers, the alleged victim says the third player, "looks like one of the guys who assaulted me sort of." She identified him with 90 percent certainty after Police Sgt. Mark Gottlieb asked, "What is the likelihood this is one of the gentlemen who assaulted you?"
Is a positive identification and possible linkage of DNA enough for a third indictment? Nifong proceeded with the first two indictments against Finnerty and Seligmann with no DNA match. In his case against the player defense sources say may be indicted today, Nifong has both an identification and a possible DNA link with the fake fingernail.
Nifong has said that even in the absence of any DNA match, he can still take this case to trial the "old-fashioned way" of putting a victim on the stand. He has cited a statistic that 75 percent to 80 percent of rape prosecutions proceed without DNA evidence.
As a general rule, Meehan -- whose lab produced the DNA report -- agrees the absence of DNA does not kill a prosecutor's case.
"It's not necessarily true that no DNA means no crime," Meehan said. Lawyers and DNA experts told ABC News that there needs to be additional evidence.
Although much of the possible evidence made public to date may favor the defense, the strength of key elements for the prosecution remains unknown. Details of the alleged victim's medical report and of a toxicology report from that night could be crucial. The prosecution could also have witnesses, photographs or videos of that night that might bolster its case.
Perhaps most critically, Nifong has one piece of evidence that no one in the public or on the defense can even approach: the opportunity to speak with the alleged victim.
ABC News' Gerry Wagschal contributed to this report.