The explosive allegations stem from an e-mail message sent in the last few days to several players from the e-mail address of another player, stating he was going to tell the police a crime occurred and implicate key players. The player denies he sent it. This comes after the recent revelations of the now infamous email sent by a Duke player hours after the alleged crime, in which he joked he was going to have more strippers over and "kill the bitches'; defense lawyers do not dispute that message's authenticity, though they insist it has no bearing on their clients' culpability. "The police said [the new e-mail] came from a confidential informant, but we have reason to believe it came from the police, hoping it would make all the players nervous," says one defense lawyer. "That didn't work." A spokesperson at the Durham Police Department would not comment on the allegations of a setup, and said she would not forward TIME's inquiries to any of her superiors over the holiday weekend. No one at the Durham County District Attorney's Office could be reached for comment Friday.
The lawyers' unsubstantiated accusations came on a busy Good Friday in Durham, when it became known that Durham police investigators had attempted the night before to interview some players on campus about the case. Meanwhile, defense lawyers tell TIME they spent part of Friday trying unsuccessfully to talk the Durham County district attorney Michael Nifong out of taking the rape case before a grand jury after the Easter weekend. "What I wished and hoped he would do is conclude there is not enough evidence to proceed," says one defense attorney.
Despite the highly publicized lack of initial DNA evidence linking any player to a crime, grand jurors will be presented with the accuser's statement, her visual identification of the players from photos and a police report from a hospital examination stating "injuries consistent with being sexually assaulted vaginally and anally." Nifong is also still awaiting results of DNA analysis from a private lab in North Carolina to compare with those already received from the state's own crime lab. Blood was taken from the three captains of the team. Saliva cheek swabs were used to gather DNA from 43 players; the lone black player on the team was not tested, as the African-American accuser has said her attackers were white. So far none of the Duke players have been subpoenaed to appear before the grand jury as witnesses, nor has a second woman also hired as an exotic dancer at the team's Spring Break party at an off-campus house on the night of March 13.
On Thursday, Durham police released the audio tape of a dispatch call made by a responding officer from a Kroger parking lot about four miles from the house where the team party took place. The officer, responding to a 911 call, noted that the accuser was in a drunken state. "She's just passed out drunk," the officer says. Defense lawyers also point to the officer's statement that he has a "24-hour hold" situation meaning possibly a night in jail on a drunk and disorderly charge. Defense lawyers tell TIME they will argue that it was expressly to avoid that possibility that the accuser fabricated the rape charge. "I know which I'd choose," says one defense attorney.
Harder to explain away is the hospital examination report. Defense lawyers will try to poke holes at it by searching for a lag time between the 911 call and the accuser's arrival at the hospital. The district attorney's office has not made public the police report stating time of arrival, and neither has the hospital.
Lawyers say a photo taken of the accuser at 12:40 a.m. shows her being helped into the car by some of the Duke players. The 911 call was made at 1:30 a.m., and she reportedly left the hospital at approximately 11 a.m. later that morning after spending five or six hours there.
Defense lawyers tell TIME they also have pictures, not yet turned over to the DA's office, of the main room at the party showing the players sitting in a semi-circle "watching the show." "They are bored, they're practically yawning. This is not a group of rowdy, dangerous people," says one of the attorneys.
No one should be surprised that District Attorney Nifong is proceeding with the case despite the lack of initial DNA evidence. Nifong made his intentions clear on April 11, the day after the initial DNA results went public, at a forum at North Carolina Central University, where the accuser is a student. "Anytime you have a victim who can identify her assailant, then what you have is a case a judge must let go to the jury," he said.