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Attorneys debate potential implications of DNA results

With the release of negative DNA results Monday, many members of the Duke community are wondering what comes next-for the case, for the lacrosse players and for the alleged victim.

Although lawyers and experts have differing opinions on exactly what the DNA results mean for the legal case, most are in agreement that the proceedings are far from finished.

While defense attorney Wade Smith claims the DNA results prove no rape occurred, some criminal lawyers, like Ed Shohat from the Miami firm Bierman, Shohat, Loewy & Klein PA, disagree.

"The fact that no DNA was found doesn't end the inquiry-especially if there is an assertion that the rape involved the use of a prophylactic," said Shohat, whose daughter currently attends Duke. "There are basic biological functions that occur during intercourse that-depending on how the victim described the account-may [account for the lack of DNA evidence]."

Defense lawyers, however, noted Monday that the question of condom use was not present in search warrants or the alleged victim's account of the incident. Joe Cheshire, attorney for senior lacrosse captain Dave Evans, noted that there was no evidence of lubricant or latex found on or in the victim.

Lawrence Campbell, the acting public defender for Durham County, Trinity '76 and a North Carolina Central University law school graduate, called the new DNA evidence "very compelling."

Although he stressed that the results do not prove the allegations are false, Shohat said the DNA results are significant because they were made so by District Attorney Mike Nifong. The DA has repeatedly insisted that a rape occurred and called for DNA samples to be taken from 46 members of the lacrosse team.

"The DNA tests is a major blow to the prosecution," Shohat said. "The prosecutor took his investigation public with the DNA tests, and now in essence he has to eat the results."

If the prosecution decides not to pursue the rape allegations, Shohat said some lacrosse players could still be charged with a hate crime, aggravated assault, or even kidnapping.

Campbell, however, said it is much too late for the prosecution to issue additional charges or offer up more evidence for existing allegations.

"If there were eyewitness identifications that had been made, then arrests and charges should have already been lodged," Campbell said. "If some eyewitness identification is made now, that would be very suspect and very questionable."

The alleged victim could be facing some charges of her own if the players are found innocent in light of the new evidence. Charges against her could include making a false police report, issuing a false statement or committing perjury-for which she could face up to five years imprisonment.

Shohat said the incongruencies between the DNA results and the alleged victim's accusations, however, would not be enough to warrant perjury charges. "In my opinion, you need a lot more to go after a witness," he said. "The only way to go after it is if they had gotten a sworn statement from her."

He added that charging an alleged sexual assault victim of perjury is unlikely because of the implications it carries for future reports of sexual assault. Victims may be less likely to report crimes if they fear prosecution, he said.

James Coleman, a professor of the practice of law at Duke, explained that he is worried about the effects the incident has had on the community as well.

"What the DA did was regrettable and so unprofessional," Coleman said. "The public was left so confused.... He got way ahead of himself."

Coleman accused Nifong of treating the whole episode as "a photo opportunity."

Nifong did not respond to requests for comment, but he said at a candidates' forum Monday that he will proceed with the investigation regardless of the DNA test results.

Joe McCulloch, a criminal lawyer and the head of the Innocence Project of South Carolina-a program that works to free wrongly accused inmates with DNA evidence-emphasized the importance of the DNA results, saying that without them, the case would just be one person's word against another's.

"DNA testing is going to be recognized and a more reliable form of evidence if sampling is done appropriately," McCulloch said, adding he believes that testing of this magnitude would have been done carefully.

Another more recent accusation on the part of the defense is that the procedure for taking DNA from 46 of the 47 lacrosse players was unconstitutional, but McCulloch disagreed, saying this is not an unusual request. "There was an entire village in England where the men of the town were subjected to DNA testing because of an alleged rape," he explained.

McCulloch, who has been involved with several NCAA court cases including ones concerning steroid allegations at Michigan State University and the University of South Carolina, said a case involving athletes adds a higher degree of both local and national public interest.

"It has been my experience that players get treated differently," McCulloch said. "Sometimes they get beneficial treatment, but sometimes they get beaten up for receiving beneficial treatment."

Whether or not the players are cleared of the rape allegations, the racial implications that surfaced from the case have become a point of interest and concern for the community.

"I've been following this very closely," Shohat said. "My daughter loves the school and is personally very upset by the allegations of racial slurs, which she has not found previously at her time at Duke. This is very disappointing for a University like Duke."

Jared Mueller contributed to this story.

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