March 21, 2007 — -- With the Duke lacrosse investigation in its final weeks, Linda Fairstein, the former head of the Manhattan District Attorney's Sex Crimes Unit and one of the nation's leading experts on sex crimes, told ABC News that she would be shocked if the case went forward.
Having investigated and prosecuted thousands of rape cases, Fairstein has a special ability to evaluate the strength of the case. A pioneer in the field and an advocate of victims' rights, Fairstein points to serious flaws in the investigation and in the evidence that has surfaced to date.
"If a prosecutor were to take this to court, given all the changes in the accuser's story, I don't think there is a crime for which these young men could be convicted," said Fairstein.
Once the investigation concludes, the North Carolina Attorney General's office is expected to announce whether it will take the case to trial or drop charges currently pending against three indicted lacrosse players, David Evans, Collin Finnerty and Reade Seligmann. Rape charges against the three men were dropped in December, but they still stand accused of kidnapping and sexual offense.
In the accuser's retelling of the incident, recorded by investigators and hospital personnel in the weeks after the party, she revised substantive details of the alleged incident, including the number of assailants and what they did during the attack.
Given her 30 years as a prosecutor, Fairstein finds it unusual for an accuser's story to change as much as far into the process as it did in this case.
Some changes in a victim's story are not uncommon "within a day or two of the attack," said Fairstein. "Six to eight months later is not when the story begins to shake out. It's in the days that follow."
As of March 16, she had not yet told that story to special prosecutors investigating the case. Law enforcement sources told ABC News that in at least two initial meetings with those officials, the accuser was not forthcoming and hesitated to answer investigators' questions.
Multiple sources close to the investigation confirmed that she was reluctant to answer questions in those interviews, though further meetings were scheduled in which she might become more forthcoming. The attorney general's office said in a statement that she had in fact been "cooperative" in their discussions.
Fairstein believes her reticence was another sign of a weak case.
"Her reluctance at this stage isn't a sign that she's not sure what happened -- it's a red flag that there are things wrong with the story."
For Fairstein, Durham County District Attorney Mike Nifong's biggest mistake in his handling of the case was a lack of tough questions — and a lack of effort to ask them. Nifong's first known meeting with the accuser was at least nine months after her initial accusations.
"There's no excuse for the way this prosecution has proceeded," she said.
"The shocking aspect of that to me is that Nifong only met with her once or twice. He himself had not done a sit down interview once he learned that the initial allegations seemed to be inconsistent."
Fairstein said a prosecutor should take the accuser's story seriously but view it with a critical eye.
"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.