Duke Defense Wants Lineup Thrown Out
June 8, 2006 — -- Defense attorneys in the Duke rape investigation are aiming to cut the heart out of the prosecution's case -- they want the alleged victim's photo lineup identification of three lacrosse players thrown out of court.
In motions filed Thursday, defense lawyer Kirk Osborn argued that Durham police withheld key facts contradicting the alleged victim's account when they obtained a court order to photograph and take DNA samples from the Duke lacrosse team members.
Among those facts was the second dancer's initial statement to police that her partner's rape allegations are a "crock'' and that she was with the woman for all but "less than five minutes'' of the time the pair spent at the lacrosse party.
They also charged for the first time Thursday that during an examination by a sexual assault nurse following the party, the alleged victim implicated her dance partner, Kim Roberts, in the attack on her.
Defense attorneys say that despite complaints of being kicked, strangled and raped, the nurse found no serious injuries that would be expected to result from such a brutal attack.
Finally, they claim that the alleged victim told police early in the investigation that she had "perform[ed]'' for a couple in a hotel room using a sexual device known as a vibrator prior to arriving at the lacrosse party. They believe that the mild vaginal bruising the nurse discovered could have resulted from that performance, not an alleged rape by lacrosse players.
The defense claims that entire process, and hence the lineup evidence, is tainted because the investigator did not provide complete information in his affidavit.
Neither District Attorney Mike Nifong nor a spokesman for the Durham Police Department returned calls from ABC News' Law & Justice Unit for comment.
Both dancers, according to defense attorneys, have given different accounts of what happened that night.
The alleged victim initially told a Durham police sergeant that she was raped, then quickly recanted, and then -- in the presence of the sexual assault nurse -- contended again that she'd be raped, according to an April 9 police report.
"I ... asked her if she had or had not been raped,'' Durham Police Sgt. J.C. Shelton said in the report. "She told me she did not want to talk to me anymore and then started crying and saying something about them dragging her into the bathroom.''
Contrary to her initial assertion to police on March 20 that the rape allegations were a "crock,'' Roberts suggested in a subsequent interview that an attack occurred at the lacrosse party.
"In all honesty, I think they're guilty ... and I can't say which ones are guilty ... but somebody did something besides underage drinking,'' Roberts told an Associated Press television crew in April. "That's my honest-to-God impression.''
Defense attorneys are also seeking to have the alleged victim's medical records unsealed. While the lawyers have access to the records as part of the discovery process, the records have not been made public.
In an affidavit used to obtain a search warrant early in the case, police and prosecutors contended that a hospital examination of the alleged victim found "signs, symptoms and injuries consistent with being raped vaginally, anally and orally.''
Law enforcement officials have also said the alleged victim was kicked and choked, but the nurse's report -- according to defense attorneys -- notes that the alleged victim's arms, legs head, neck, nose, throat, mouth, chest, breasts and abdomen were all normal.
Defense lawyers now contend that the mild vaginal bruising was the result of the alleged victim's use of a vibrator earlier that day.
In separate motions filed Thursday, defense attorneys are also seeking to quash two recent subpoenas issued by Nifong's office, seeking a home address for one player and university key card swipe records for all 47 team members from 8 a.m. March 13, the day of the party, through 8 a.m. March 14.
Nifong has yet to respond in writing to the motion.