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Rape charges dropped; other charges remain

DURHAM, N.C. -- The district attorney dropped rape charges Friday against three former Duke University lacrosse players after the stripper who accused them changed her story again. But the men still face kidnapping and sex charges that could bring more than 30 years in prison.


A lawyer for one of the athletes bitterly demanded that District Attorney Mike Nifong drop the remaining counts, accusing him of offering shifting theories of the crime in an attempt to win the case at any cost.

"It's now the shifting sands again, the shifting factual theory," defense attorney Joseph Cheshire said. He added: "It is the ethical duty of a district attorney not to win a case, not to prosecute all cases, but to see that justice is done."

In dropping the rape charges, Nifong filed court papers that said the accuser told an investigator Thursday that she is no longer certain whether she was penetrated vaginally with the men's penises, as she had claimed earlier. Without any "scientific or
other evidence independent of the victim's testimony" to corroborate that aspect of the case, he said, there is "insufficient evidence to warrant prosecution" for rape. "The state is unable to meet its burden of proof with respect to this offense," he wrote.

Nifong previously said he would rely on the woman's account because of a lack of DNA evidence against the players.

The remaining charges carry a possible punishment of more than 30 years in prison.

Nifong, a nearly three-decade veteran of the county prosecutor's
office, had a sign posted on his office door reading, "No media, please!" But as he left, he said, "All the documents have been filed, and they speak for themselves."

In an interview Thursday with The New York Times, published late
Friday on the newspaper's Web site, Nifong said the "case will go
away" if the accuser ever says one of the players she identifed
did not attack her.

"I've said I'm not interested in prosecuting somebody that's
innocent," Nifong told The Times. "But until she tells me that, until she tells me these are not the right guys, we're prosecuting this case."

The accuser, a 28-year-old student at North Carolina Central
University, has said three men raped her -- vaginally, anally and
orally -- while holding her against her will in a bathroom at a team
party where she was hired to perform as a stripper.

The indicted players all say they are innocent. Their attorneys
have consistently said no sex occurred at the party and cited the
lack of DNA evidence as proof of their clients' innocence.

The men are still charged with kidnapping, on suspicion of
holding her against her will, and with sexual offense. Under state
law, a rape charge requires vaginal intercourse, while sexual
offense covers any sexual act.

A defendant's prior criminal record affects the length of their
prison sentence in North Carolina. In the case of the three
indicted players, Cheshire said, the rape and sexual offense carry
the same possible sentence of up to 24 years in prison, while
kidnapping is punishable by up to seven years.

The defense has complained that the stripper has given
authorities at least a dozen versions of her story. Among other
things, she has given conflicting accounts of the number of
attackers -- anywhere from three to 20 -- and the ways in which she
was supposedly assaulted. At least once, she told police she had
not been assaulted.

Last week, it was learned that DNA testing arranged by the
prosecution at a private lab found that there was genetic material
from several men on the stripper's underwear and body, but that
none of it came from the players.

"The reality is, what else could the DA do?" said Stan
Goldman, who teaches criminal law at Loyola Law School in Los
Angeles. "Once the DNA evidence came out last week, I can't
imagine how they could sustain a rape charge."

But Wendy Murphy, a former prosecutor who teaches at the New
England School of Law, said the decision could help Nifong by
keeping any discussion of the results of the DNA testing away from
the jury.

"It may be that this is a strategic move to insulate the trial
itself from a sideshow that certainly would have overwhelmed all
the other evidence," Murphy said. "A sideshow about her sex
life."
Even so, the changing story hurts Nifong's case on the other
charges, Goldman said. "It strikes me that a case based on this
particular complaining witnesses' credibility appears to be in
jeopardy," he said.

Evans graduated in May, the day before he was indicted.
Sophomores Finnerty and Seligmann were suspended following their
April indictments.

"I am greatly relieved for the students and their families that
the most serious of the charges has been dropped," said Duke
President Richard Brodhead in a statement. "Given the certainty
with which the district attorney made his many public statements
regarding the rape allegation, his decision today to drop that
charge must call into question the validity of the remaining
charges."