Expert: DNA tests doom Duke rape case

CBS:

Defense lawyers claim the results of DNA tests on samples taken from most Duke University men's lacrosse team members are negative.

If that's true, it will prevent prosecutors from bringing charges in the alleged rape by three of the players of an exotic dancer at an off-campus party almost a month ago, predicts defense attorney and CBS News legal consultant Mickey Sherman.

Asked on The Early Show Tuesday by co-anchor Hannah Storm whether the case can go forward without any DNA matches, Sherman simply said, "No."

The results, if defense lawyers are reporting them accurately, would leave the players "pretty close to being exonerated," Sherman told Storm. "You know, this is the 'CSI' generation. Generally, a consent rape case is 'He said, she said.' But no longer. Now, we expect there's gonna be blood splattered, there's gonna be gunshot residue, and in rape cases, that there's gonna be DNA. And don't forget, it was the D.A., the district attorney (Durham County D.A. Mike Nifong) who came out swinging on this thing and said, 'She was raped. We believe her, and when the DNA tests are back, you're going see that we have a good case.' So, the egg is on his face right now."

Even if the players were wearing condoms during the alleged incident, that wouldn't explain the absence of any DNA from any of the supposed rapists, Sherman pointed out.

"First of all, we're talking about 46 different people (who were tested). … Most experts will say (condoms aren't) 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. And, if that was the case, there would be some DNA present."

Nifong told CBS News correspondent Trish Regan that he intends to proceed with the case, saying he won't be relying exclusively on DNA evidence, that there are a number of different things he'll be looking at in the case, and that if he files charges, he'll probably do it this week.

But, Storm asked Sherman, is there a case without DNA evidence?

"Generally," Sherman replied, "(there would be), because it's a 'He said, she said.' But this case is now so burdened with the baggage that the D.A. himself brought onto it. Plus, they've got that picture, if that exists, that allegedly shows (the accuser) was injured or inebriated before the alleged incident. That's gonna weigh heavily.

"And the public has, I think, shifted. I think everybody, all of us thought these kids must be guilty. But now, with the shift, the DNA, this picture, and everything else, I think the sentiment in the local community as well has probably shifted for the players."

Accounts of medical personnel who treated the alleged victim wouldn't necessarily make much difference, Sherman explained: "I'm not trying to damn every rape victim, by any means. But, generally, the (doctors and nurses) will say the conclusions are consistent with someone who's been forcibly raped, but you'll get other doctors saying it's consistent with people who've had consensual sex. That by itself is not gonna make this case."

As for numerous outspoken early comments from lawyers on both sides, Sherman observed: "As a defense person, we've got to get out there and say. 'Our client didn't do it,' or, 'Our client did it, but it was consensual.' That's what I expected to happen here. … They came out and said, 'We never had sex with the person.' And, obviously, they knew the DNA was going to come back. The D.A. should never have come out with anything. He should have said, 'Let's wait and see what happens.'"

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