04/11/2006

DURHAM, N.C. (CBS/AP)- Hours after defense attorneys said DNA tests found no link to their clients, the prosecutor investigating an allegation of rape at a Duke University lacrosse team party told CBS News correspondent Trish Regan that he is not closing the case.

"No, I'm not going to drop it," said District Attorney Mike Nifong, who refused to comment on the details of the investigation, including the results of DNA tests done on members of the lacrosse team.

Nifong tells The Associated Press that lawyers for team members will be "sadly disappointed" if they think the investigation is over.

The district attorney is expected to participate in a forum this morning at North Carolina Central University, where the alleged victim is a student.

"What you've seen is the defense," says Durham Mayor Bill Bell. "What we need to do is hear from the district attorney."

The D.A. says he will not be relying exclusively on this DNA evidence, that there are a number of different things he'll be looking at in this case, and that if he files charges, he will do so likely within the week, Regan reports.

Monday, defense attorney Wade Smith was adamant in insisting that the test results back up the team members' claim that the woman who filed the rape complaint — who was working the March 13 party as an exotic dancer — is not telling the truth.

"No DNA material from any young man tested was present on the body of this complaining woman," Smith told reporters in Durham, N.C. "Not present within her body, not present on the surface of her body, and not present on any of her belongings. There was no sexual assault in this case."

Nifong stopped speaking with reporters last week after initially talking openly about the case, including at one point stating publicly that he was confident a crime occurred. He also said he would have other evidence to make his case if the DNA analysis is inconclusive or fails to match a member of the team.

Smith says Nifong now has the evidence needed to change his mind.

"He doesn't have to do it (file charges)," said Smith. "He is a man with discretion. He doesn't have to do it, and we hope that he won't."

The alleged victim has told police that she and another woman were hired to dance at the party. The woman told police that three men at the party dragged her into a bathroom, choked her, raped her and sodomized her.

"I believe her to be a credible person. I would like to believe her story — to try to make up something like that is hard for me to imagine," says attorney Woody Van, who represented the alleged victim four years ago, when she was accused of stealing a taxi and trying to run over a police officer.

Van says he spoke with his former client after the alleged incident. How did she seem? "She was concerned but composed, she wanted to know how to address this process — but, overall, subdued."

The allegations led to days of protests on and off the Duke campus, and some players have moved for safety reasons.

Authorities ordered 46 of the 47 players on Duke's lacrosse team to submit DNA samples to investigators. Because the woman said her attackers were white, the team's only black player was not tested.

Defense attorney Joe Cheshire, who represents one of the team's captains, said the report indicates authorities took DNA samples from all over the alleged victim's body, including under her fingernails, and from her possessions, such as her cell phone and her clothes.

"They swabbed about every place they could possibly swab from her, in which there could be any DNA," he said.

"I would not be surprised if condoms were used," Nifong said in an interview with the Charlotte Observer last month. "Probably an exotic dancer would not be your first choice for unprotected sex."

But Cheshire argues that even if the alleged attackers used a condom, it is likely there would have been some DNA evidence found suggesting that an assault took place. He said in this case, the report states there was no DNA to indicate that she had sex of any type recently.

"The experts will tell you that if there was a condom used, they would still be able to pick up DNA, latex, lubricant and all other types of things to show that — and that's not here," Cheshire said.

Legal analyst Mickey Sherman agrees. Sherman told The Early Show co-anchor Hannah Storm that "most experts will say that's not going to prevent an exchange of DNA."

"And, also, the nature of the alleged rape was more than just simple sex. There was violence involved, there was touching. If that was the case, there would be some DNA present," Sherman added.

However, Peter Neufeld, co-founder of The Innocence Project, which focuses on DNA as a way to clear wrongly convicted defendants, says a condom could have been used. And he said that in rape cases, "there is an expectation of DNA but, like many expectations, often it is misplaced."

"The truth is," said Neufeld, "if you speak to crime lab directors, they will tell you that in only a relatively small number of cases is there any DNA evidence."

Stan Goldman, who teaches criminal law, evidence and criminal procedure at Loyola Law School in Los Angeles, agrees that negative DNA results would not mean that Nifong can't go forward with the case. But they would make the job of the prosecution much harder.

"Isn't the absence of DNA evidence, given the way the victim has described the crime, in and of itself, almost enough to raise a reasonable doubt?" he said. "That's all the defense has to do."

Over the weekend, two defense attorneys came up with other evidence they say backs up the team's versions of events: time-stamped photos of the woman arriving at the party, already bruised, and e-mails written in the hours immediately after the time the attack allegedly happened, the contents of which are said to be consistent with a rape not having happened.

Sherman told The Early Show that if they have these photos, they will "weigh heavily" in the case.

"Everybody wants immediate answers, and I just don't think that's how the real world works," said James Coleman, Duke University law school professor and advisor to the North Carolina Center on Actual Innocence, which re-examines criminal cases to try to clear wrongly convicted defendants.

Coleman, speaking to CBS News before the defense said it had the DNA results, said he believes this case has become too public, too soon. "You look at what's happened with the criminal investigation, for example. You've had a prosecutor who's been out there, basically developing his case in the media."

Opinion on both Duke's and Central North Carolina's campuses remain divided, Regan reports.

"People don't just come out and say they've been raped for no reason," Anthony Solomon, a freshman at Central North Carolina University, told Regan. "I think something had to happen."

Dawn Sherwood, the mother of Duke's lacrosse team's only black player, 18-year-old goalie Devon Sherwood, said she's not worried about what experts think about the evidence.

"You can find an expert to say whatever it is you want to say," she said. "It's a victory for the young men. I know they're not out of the woods, but I see it as a victory."

Robert Archer, whose son, Breck, is a member of the lacrosse team, said the test results confirm for parents what they already knew.

"I know the kids on the team and I know they're innocent," said Archer, of East Quogue, N.Y.

Eric Bishop, a junior at Duke from Arlington Heights, Ill., said he doesn't think the DNA test results will end the controversy.

"It's going to be interesting to see where this puts the debate, whether people are going to look at this and say, 'They still did it,' " he said. "I still think people are going to be upset. People are going to be talking about this a long time."

That is true whether or not charges are brought as a result of the rape allegation, which aggravated racial tensions — the alleged victim is black and the alleged attackers — at both campuses and in Durham. The rape allegation has also fixed a spotlight on what's been called the "culture" of the team, whose members have in the past several years had 15 criminal charges brought against them, none of which stuck.

The team's coach resigned in the weeks following the rape allegation, the lacrosse team had the rest of the season called off, and several blue ribbon panels have been set up to investigate the situation on campus and make any recommendations they deem necessary.

The Charlotte Observer reports that a grand jury was set to meet Monday. Durham defense lawyer Kerry Sutton, representing one of the players, said she and other defense lawyers plan to try to meet with Nifong as well, the newspaper notes.