Vigorous Defense or Trashing the Alleged Victim? Duke Rape Defendant Files Motions

April 25, 2006 — -- Accused Duke lacrosse player Reade Seligmann's lawyers have said he's innocent of the rape allegations made by an exotic dancer. They say he has an alibi.

On Monday, those statements were put into writing at the Durham County Courthouse.

On Monday, J. Kirk Osborn, Seligmann's attorney, filed three new motions on his behalf -- all strongly worded and all with big implications for the indicted sophomore's part in the Duke lacrosse rape investigation. After submitting the documents, Osborn declined media requests for comment.

In two of those motions, Seligmann's lawyers asked for detailed personal information about the alleged victim. They requested, among other things, personal, medical and educational records of the accuser, and criminal records or "bad acts" committed by any witnesses the prosecution planned to call to the stand.

"This request is based on the fact that the complaining witness has a history of criminal activity and behavior, which includes alcohol abuse, drug abuse and dishonesty, all conduct which indicate mental, emotional and/or physical problems, which affect her credibility as a witness," the defense said in court papers.

Requests for Accuser's Personal Information

The two longer motions by Seligmann's lawyer -- they take up 23 of the 25 pages he filed in court Monday -- requested the accuser's detailed personal information. Among the items requested were her medical, mental health, and substance abuse treatment records.

The motions also requested information about any contact she had with the Department of Social Services Agencies, Probation and Parole, Child Protective Services Agencies, and other government branches. The motions also cite her prior arrest record, a possible history of mental problems, and the fact that there's more than one version of her rape story.

In addition, Seligmann's defense team requested her educational records from North Carolina Central University and Hillside High School, including any disciplinary action.

Why so much personal information? The defense said her accusations were only as strong as her word.

Alleged Victim on Trial

Legal scholars, rape specialists, and victims' rights advocates think the requests for personal information are unfair and unacceptable.

"It sounds like the strategy is to put the victim on trial and to stop questioning whether the defendants are guilty and instead to question whether the victim is guilty," said former Westchester County, N.Y., District Attorney Jeanine Pirro.

Compared to other criminal investigations, there is a double standard in rape cases, Pirro said.

"You never see [this kind of request] with any other victim but a sex crimes victim in the criminal justice system. … The victim ends up being the one on trial," she said.

Other lawyers, including North Carolina defense lawyer and former law professor David Rudolf, believe information about one's personal history should be part of what a jury takes into account.

Past Is Fair Game?

"I don't think it takes a rocket scientist to figure out that if you have evidence that indicates that a person is not stable for whatever reason -- whether they are an alcoholic, they're a drug addict, they have mental problems -- that's information that a jury should probably hear and take into account in judging their credibility," he said.

How significant will all that information be in court? It depends largely on two factors: How much physical evidence emerges before the start of the trial and how much of the personal information is deemed admissible in court.

As long as there's a lack of physical evidence, the he said-she said interchange is the only evidence the jury will have to decide the case. If that situation transpires, each person's credibility will become a critical factor, Rudolf said.

"It's going to be a credibility contest," he said. "Evidence about the credibility of everybody -- of the defendants and of the accuser -- is going to be very, very relevant to the jury in this case."

"A judge is going to have to determine what is relevant or not relevant for the jury to hear," Rudolph added.

Review the Evidence

The third motion filed Monday consisted of a single sentence, stating that Seligmann -- who is accused of rape, assault and kidnapping -- "intends to present an alibi defense." Seligmann's camp thinks its evidence strongly shows there's no way he could have committed the alleged crime.

Seligmann's alibi: On the night of March 13, he left the lacrosse party so early that he didn't have time to commit rape. In private meetings, ABC News has examined the evidence that defense sources say supports that alibi.

Seligmann's phone bill shows that a call was received at 11:50 p.m. and that a call was made at 12:07 a.m. There's a blank space of time between the two calls during which, according to defense photos, the two dancers were performing.

Again, there's a pause in phone activity between 12:07 a.m. and 12:14 a.m. At 12:14, Seligmann calls cabdriver Moez Al-Mostafa. By 12:19 a.m., Al-Mostafa says he picked up Seligmann on an intersection behind the party house. The driver says the two male students he picked up -- Seligmann and a friend who also attended the party, but not the other accused student -- were waiting on the street when he arrived.

From the taxi, Seligmann made two phone calls, one at 12:21 a.m. and the next at 12:22 a.m. It took roughly five minutes for the taxi to arrive at a Wachovia Bank location and for Seligmann to withdraw money from the ATM. A receipt shows Reade's credit card being used at 12:24 a.m. At 12:46 a.m., Duke University records show Seligmann's card being used to enter his dorm building.

With a second set of DNA results and a toxicology report that could be released any day, hard proof that Seligmann and Collin Finnerty raped the 27-year-old accuser could make all personal attacks irrelevant. Until then, it looks like the investigation into the alleged crime may get even more personal.

Pirro believes such a strategy could have serious and negative consequences for subsequent rape investigations.

"What we're seeing here is guerrilla warfare," she said. "The tactics that are intended to intimidate this victim -- and any other potential victim -- from coming forward in the future."