Dec. 15, 2006 — -- The alleged victim in the Duke rape case is expected to give birth in the first week of February, Durham County District Attorney Mike Nifong said in court today, adding that "the child was not the product of any activities'' from the night of the infamous Duke lacrosse team's party.
Nevertheless, attorneys for accused players Reade Seligmann, Collin Finnerty and David Evans, who took issue with the coincidental pregnancy's effect on their defense, sought and were granted permission from a judge to get a paternity test.
It has been more than nine months and three weeks since the March 14 party at which the woman said the three men raped her.
Meanwhile, the director of a private DNA lab testified that he and the district attorney agreed not to report information helpful to the defense team. He cited several different reasons, and acknowledged under cross-examination that he violated his own lab's standards.
Lab director Brian Meehan found genetic material from several men -- though none of them were Duke lacrosse players -- in samples taken from the body of the accuser the night she said she was allegedly gang-raped.
Meehan said he did not report the information out of concern for the lacrosse players' privacy, and later said he did not report the findings because he did not know the identity of the men whose DNA was found.
The pregnancy admission capped a week that saw defense attorneys file a series of damning motions in which they accused the prosecution's DNA lab of withholding vital information, argued that the photo line-up in which their clients were identified was fatally flawed, and insisted that Durham, N.C., has been so "torn apart'' by the case that the three defendants cannot get a fair trial.
The alleged victim's pregnancy came to light today as the three defendants and their parents went to court for a hearing on defense charges that the lab that tested DNA for the district attorney's office withheld information that could be favorable to the defense.
The full report revealed that there was DNA from unidentified men inside the woman's body and on her underwear but none from any of the 46 players originally under suspicion. The information is significant to the case because the alleged victim said her attackers ejaculated but did not use condoms.
The woman claimed that she was brutally raped and beaten by three men during a lacrosse team party March 14 at an off-campus house near the Duke University campus. The accuser and another woman were hired as exotic dancers and paid to strip at the party.
Defense attorneys argued this week in a key motion that the photo line-up in which the accuser identified the three men who were later indicted "violated due process, was inherently suggestive, was inherently misleading and resulted in ... identifications that have been tainted and are unreliable."
The motion to throw out the photo line-up cites a variety of flaws, including the claim that it violates Durham Police Department procedures on two counts.
Under police guidelines, the line-up should have been conducted by an officer who was not part of the investigation; instead it was conducted by Sgt. Mark Gottlieb, the lead investigator in the case.
The guidelines also call for five non-suspect individuals to be included for each suspect shown. Instead the police showed the accuser a PowerPoint presentation of all 46 white members of the lacrosse team.
The April 4 photo line-up in which the defendants were identified followed a March line-up in which the woman could not identify anyone as her attacker.
"This procedure was designed to permit [the accuser] to pick any person she desired and identify him as the attacker," the motion said. "That person would then be charged with rape."
Some independent experts agree. Gary Wells, president of the American Psychology-Law Society, has described the Duke lacrosse line-up procedure as a "multiple-choice test without any wrong answers."
If the motion -- which recounts in great detail the contradictory statements the accuser had made to police, doctors and nurses -- is successful, it could severely undermine Nifong's case, and pave the way for defense attorneys to ask that the charges be dismissed.
Presiding Judge Osmond Smith III set the hearing date for arguments on the admissibility of the photo line-up for Feb. 5. Nifong said he intended to call three police officers and the accuser to testify in the hearing -- though it was unclear how the woman could testify if she was set to give birth that week.
Attorneys for the three accused players said that public statements made by Nifong have irreversibly tainted any potential jury pool in Durham.
"The defendants do not seek to change venue in these cases merely because there has been publicity, nor do they seek trial in a location in which no publicity has occurred," the lawyers said in their motion.
"Rather, what the defendants seek, and what they are entitled to under the Constitution, is a trial in a community which has not been polarized by pre-trial publicity or torn apart by the circumstances of these cases," the motion said. "Regrettably, Durham is not that community."
One local and one national news organization reported on Thursday that the alleged victim's child had been born, leading to some confusion inside the courtroom today.
"I've heard the child has been born. I've heard the child has not been born ... of course, there's no proof here today," presiding Judge Osmond Smith III said.
Nifong told him that the child was due in February. While he acknowledged that the child could not have been a "product" of the alleged attacks at the lacrosse party, he did not address the issue of who the father might be.
The alleged victim's own father watched from the gallery but did not comment on the day's proceedings.
Finnerty's father, Kevin, expressed deep frustration with the case against his son -- particularly the fact that other men's DNA turned up in testing, while none of the players' genetic material did, and Nifong indicted them anyway.
"Where is the justice?" he said outside court. "Why the rush to indict?"
Sally Fogarty, the mother of another Duke lacrosse player, was among a group of students and parents who showed up in court to support the defendants and their families.
"It's just been horrible," she said. "The one thing I've been so naïve about was that a district attorney and a police department could do this kind of thing. We believed in the justice system. Three kids' lives are being completely ruined. Three family's lives are being completely ruined."
Evans, who was the captain of the lacrosse team, graduated from Duke last spring. Finnerty and Seligmann have been suspended from the school pending the outcome of the charges.
Fogarty, who is part of the close-knit community of Duke lacrosse families that includes the defendants, said the defense has cost "roughly $80,000 a month per family."
"Every single day I think of Colin and Dave and Reade. David, whom we love, has got a job and he's moving on. But I think about them because they had just begun."