Lacrosse Defense: Accuser's Story Changes Again

DURHAM, N.C. — Defense attorneys in the Duke lacrosse case Thursday cited mounting evidence for their argument that the judge handling the case should throw out the accuser's identification of the suspects.

The lawyers filed a new motion in which they say that what allegedly happened inside the house at 610 N. Buchanan Blvd. keeps changing.

The defense claims the woman told an investigator for the prosecution on Dec. 21 that the reported attack happened between 11:35 p.m. and midnight on March 13.

The defense goes on to say the claim contradicts the accuser's own cellular phone records, which show an incoming call at 11:36 p.m. and that someone stayed on the line for three minutes.

Records also show that Reade Seligmann received a call on his cell phone during that period, the defense said.

Time-stamped photos and records of a 911 call made by the second dancer also indicate the women did not leave the party until shortly before 1 a.m., nearly an hour after the most recent account has the alleged attack ending.

In an April written statement, the accuser said she and the second dancer left the party immediately after the alleged assault.

In her latest statement, according to the defense, the accuser says Seligmann did not commit any sex act on her. Although he was repeatedly urged to take part in the alleged attack, she recalled, he said he could not participate because he was getting married.

Lawyers have said Seligmann has a girlfriend, but there has been no indication that he was engaged or married.

The documents point out that in an April interview with police, the woman cited Seligmann as the attacker who she says stood in front of her and forced her to perform a sexual act.

"The accuser's most recent recollection of events demonstrates clearly that she cannot accurately recall and describe her attackers and that any identification made by her is necessarily unreliable," the defense filing said.

The defense also claims the woman now says the attacker she identified as David Evans did not have a mustache after all. In an April photo lineup, she told detectives he did.

On Dec. 21, according to the motion, the accuser said she did not mean a "real mustache" but something more like a "5-o'clock shadow."

The motion includes Evans' lineup photo of him with a "5-o'clock shadow."

"Thus, since Dave Evans had a '5-o'clock shadow' in the picture the accuser was shown on April 4, and since her response was that he 'looks like him without the mustache,' her claim now that a 'mustache' is not a 'mustache' indicates that her statement … is not longer reliable," attorneys say.

In that same interview, the accuser also said she was no longer certain she had been penetrated vaginally by a penis, a necessary element of rape charges in North Carolina.

That led Durham County District Attorney Mike Nifong to dismiss rape charges against Seligmann, Evans and Collin Finnerty.

The three defendants, who have maintained their innocence in the case, remain charged with sexual offense and kidnapping.

An assistant for Nifong told WRAL Thursday that the district attorney was not taking phone calls.

Former prosecutor Dan Boyce said Thursday's motion hurts the prosecution's case and the accuser's credibility. Her credibility would be challenged significantly if the case goes to trial, he said.

"It seems like we have had thing after thing pop up in this, and this latest is certainly a big issue because you have a prior statement — a statement that will be used — that may be inconsistent with earlier statements."

Thursday's filing was a supplement to a previous defense motion asking a judge to toss out the photo lineup in which the accuser identified the three suspects.

A hearing on the request is scheduled for Feb. 5, and experts have said that without the photo lineup, Nifong would probably have to drop the case.

Boyce said he would not be surprised if the case never goes to trial.

"As I look at it right now, because of changes in description of the identification, changes in the time line and changes in the events — what did or did not occur — the prosecution has some weighty decisions to make about whether to go forward with the case," he said.