ABC News Exclusive: Possible Indictment of Third Duke Lacrosse Player and DNA Details

ByABC News
May 15, 2006, 6:38 AM

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.

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.