The woman who said she was raped by three men at a party attended by Duke lacrosse players picked four photos out of 46 she was shown by Durham police, according to a transcript posted on WRAL-TV's Web site.
It provides a remarkable view of the process that led to the indictments of Collin Finnerty and Reade Seligmann and leaves two other unnamed suspects in jeopardy.
The first noteworthy aspect of the document is its statement that District Attorney Mike Nifong suggested the unusual process employed. The victim was not asked to look at a "lineup or photographic array." Instead, she was shown a Power Point presentation consisting of mug shots, one after another, of 46 Duke lacrosse players. She was asked to state whether she recognized them and, if so, in what context. Defense attorneys have pointed out this violates the Durham PD's own guidelines and allowed the victim to choose assailants with no possible wrong answers.
Many of the players she did not recognize as being at the party at all. Some she did, in fact with quite a bit of clarity about where they were and what they were doing. She picked out four as the men who assaulted her -- but she was only 100 percent sure about two: Finnerty and Seligmann.
Wait. She said three men assaulted her. How could she pick out four? That's a good question. So is this: Which one of the other two will Nifong seek to indict?
Both unnamed, the other two were images four and five in the Power Point presentation.
No. Four
Sgt: Did you recognize that person?
Victim: He looked like ... but I'm not sure.
Sgt: Who is ...?
Victim: One of the guys that assaulted me.
Sgt. One of the guys that assaulted you? OK.
Victim: Um hum.
No. Five
Victim: He looks like one of the guys who assaulted me sort.
Sgt: OK. How, um, sure of it are you in this image?
Victim: He looks just like him without the mustache.
Sgt: OK, so the person had a mustache?
Victim: Yes.
Sgt: Percentage wise, what is the likelihood this is one of the gentlemen who assaulted you?
Victim: About 90 percent.
Just two images later, No. Seven, Seligmann's face appeared.
Victim: He looks like one of the guys who assaulted me.
Sgt: How sure are you?
Victim: 100 percent.
Then the sergeant asked what Seligmann did to her, and she responded. I found it curious that he did not ask her for those details in regard to Nos. four and five.
At this point, only seven pictures in and with 39 more to see, she already had picked out three assailants.
Then Finnerty's face came up at No. 40.
Victim: He is the guy who assaulted me.
The sergeant asked for details. The transcript notes the victim's eyes welled up with tears.
Sgt: Was he the first or second one to do that?
Victim: The second one.
Sgt: Is he the one that strangled you?
Victim: No.
The identification of Finnerty is powerful, with the victim becoming emotional.
But the transcript exposes problems, which defense attorneys will exploit.
She says Finnerty was not the one who strangled her, nor the first to do what she said Finnerty did to her. Nor did she identify Seligmann as doing those things. So, who did?
I understand that, if everything occurred the way she said it did, it still could be very hard for her to make positive identifications. That could be a problem in any case of this type. But, absent any other evidence, it's probably not good enough to win a conviction in court to be sort of sure or even 90 percent sure of an identification.
Then there's Seligmann, who has a good alibi. (Although Durham police seem to be trying to intimidate one of his alibi witnesses.) If she's 100 percent sure of his identification, but he could not have done it, that poses a credibility problem.
The DA says more DNA test results are due soon. The Durham Herald-Sun reports that tissue found under the victim's fingernail matches a Duke lacrosse player. The question is, which one? If it matches someone she did NOT identify as an assailant, then it's useless for the prosecution. If it does match one of those four, it helps the DA's case -- but only against that one unless a strong case against one can be used to pressure him into testifying against others. But then, the defense could argue that she scratched him as he was helping her to her car. And something like that could well account for tissue under her fingernail.
What needs to be done very soon is for the 42 players whom she did not identify as assailants to be publicly cleared. All this time, the cloud of suspicion has been hanging over all 46, even though the DA has known for many weeks that there is no possible case against 42 of them. That's highly unfair to them and their families.