Duke Lacrosse Player Calls Rape Charges 'Lies'

ByABC News

May 15, 2006 — -- David Evans, a captain of last season's Duke University lacrosse team who was indicted today in the ongoing investigation of rape allegations involving an exotic dancer at an off-campus party, denounced the charges against him as "fantastic lies."

Evans made the statement at a news conference less than two hours after the announcement that he had been indicted on charges of first degree forcible rape, kidnapping and sexual offense. Evans was joined at the news conference by some teammates and family members, as well as his lawyer, Joe Cheshire.

"I am absolutely innocent of all charges brought against me," Evans said. "You have all been told some fantastic lies. I look forward to seeing them unravel."

The indictment was issued by a grand jury that met today in the Durham County Judicial Building in North Carolina. Evans is the third Duke lacrosse player indicted in the case, following the indictment last month of Reade Seligmann and Collin Finnerty. Evans also said both of them were innocent.

Cheshire said there was evidence to show where Evans was at every moment of the evening the rape allegedly occurred. "It not only did not happen," he said. "It could not have happened."

The accuser told police that she was "90 percent" certain when she identified Evans in a lineup, and she told police she would have been 100 percent certain if he'd had the mustache then that he had at the time of the alleged assault, Cheshire said. Evans has never worn a mustache, Cheshire said.

Evans was a senior and team captain until his graduation from Duke on Sunday morning. He was a resident and lessee of 610 N. Buchanan Blvd., the house where the alleged sexual assault occurred.

The indictment came following a hallway confrontation today at the Durham County courthouse, in which District Attorney Mike Nifong laced into defense lawyer Kerry Sutton in an expletive-laden tirade in which he complained angrily about last Friday's defense team news conference.

At that briefing, Cheshire and five other defense attorneys -- including Sutton -- criticized Nifong for releasing the second DNA report on a Friday afternoon 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.

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.

According to the report, the DNA from 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 on 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 Seligmann or Finnerty, the first two Duke lacrosse players indicted in the case. However, Evans' DNA 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 the analysts agreed that the most one could say about Evans 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.

In a transcript of the photo lineup used to identify alleged attackers, the alleged victim says the third player -- Evans -- "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?"

Nifong proceeded with the first two indictments against Finnerty and Seligmann with no DNA match. In his case against Evans, 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 against Finnerty and Seligmann, 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' By Chris Cuomo, Lara Setrakian, Chris Francescani and ABC News' Law & Justice Unit and Gerry Wagschal contributed to this report.

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