Can the Durham Prosecutor Make the Case?

This is a partial transcript of "Special Report With Brit Hume" from April 18, 2006, that has been edited for clarity.

(BEGIN VIDEO CLIP)

BILL COTTER, DEFENSE ATTORNEY: The grand jury, as you know, has indicted them, they hear one side of the story, they almost always indict. The next jury will hear the entire story, which includes our evidence and we’re confident that these young men will be found to be innocent.

(END VIDEO CLIP)

BRIT HUME, HOST: Two Duke University students turned themselves in to police in Durham, North Carolina today after being charged with kidnapping and raping a hired stripper. Collin Finnerty and Reade Seligmann, both 20 years old are members of the university’s lacrosse team. There are new questions tonight though about whether the prosecutor can make this case. FOX News correspondent Megyn Kendall joins me with more on the story. Hi Megyn.

MEGYN KENDALL, FOX NEWS CORRESPONDENT: Hi Brit. So now we have the names of at least two players who are under arrest, there could be a third, the district attorney has suggested that’s still a possibility. And we know the charges — first degree rape, first degree sexual assault and first degree kidnapping, all felonies. Both of them are out on bond, $400,000 was the bail that they had to post. That’s not unusual, totally consistent with the guidelines for those types of charges. So the judge neither went hard nor soft on these players. Now it’s going to come down to the evidence that the prosecution has and we’re learning just a bit more about both sides of the case.

HUME: First of all, what do we know new about the prosecution’s case if anything and what do we know new about the possible defense case?

KENDALL: We know very little new about the DA’s case. He hasn’t said much publicly about his actual proof, but we have heard bits and pieces from the defense lawyers. Having said that, now that there have been two arrests, the DA is going to have to start turning evidence over to the defense. And so we should start to learn more hard cold facts about what, if anything, he has on these guys.

What we’ve heard so far about the DA’s evidence basically spells out like this, he’s obviously got the alleged victim’s testimony. She claims it happened and will presumably take a witness stand and tell a jury that it happened and describe how it happened. Are there any other witnesses, not that we know of at this point.

HUME: At least not for her side.

KENDALL: Not for her side. Medical reports and a forensic nurse who specializes in sexual assault cases examined this woman on the night in question, a couple hours after the alleged assault, and concluded that she had injuries consistent with a sexual assault. So they will obviously introduce that. We’ve got no DNA whatsoever, no match. But, but —

HUME: We have DNA, we just don’t have a match?

KENDALL: No match whatsoever. But the DA is supposedly — my sources tell me — running tests, not a second round on the DNA that they took from the cheek swabs, but a hair test. Some of the players were forced to turn over hair, normal hair and pubic hair and those are going to be tested against what was found on the victim.

HUME: When will expect to hear about that?

KENDALL: I’ve just been told that it could happen as early as Wednesday.

HUME: What about evidence on the other side, if any?

KENDALL: Well today we got a potential bombshell revelation from defense attorneys who suggested they may have alibi evidence for the two guys who were charged, for one and/or both of the two guys who were charged. In other words, taxi cab receipts, credit card receipts and or ATM receipts that show one or both of these guys was not at the house where the attack took place at the time of the alleged attack. Now, if that’s true, that could be a potential bombshell for the defense.

HUME: Now do we know anything more about the sequence of events on the night in question involving this woman, the story she’s told, where she went or any of that that would inform us on how to judge this case?

KENDALL: Well we know that allegedly the attack took place around 12:40 a.m. or after midnight. The two women arrived there around 11:30. Then we know that by two hours later she was at a medical facility being examined for the rape test. Prosecutors that I know, not on this case but prosecutors tell me that is bad for the prosecution.

HUME: Why?

KENDALL: Because it’s two hours after the alleged rape. She hasn’t showered, she hasn’t done anything to clean up in between the alleged attack and the time she’s examined, and still no DNA. Notwithstanding the allegations that it was a 30 minute rape by three guys in a small area, a bathroom, that was brutal and had her allegedly clawing at and scratching the attackers. And so prosecutors who have nothing to do with this case, no dog in a fight — are telling me that’s a serious problem, they wouldn’t want to prosecute that case.

HUME: Now the suggestion is that these may have been people who weren’t there. Is there any idea how they might have been chosen? Do we have any insights as to what could have been the motive for choosing these two? It has been a little unclear as to whether she really knew which if any of these attackers did this.

KENDALL: Right.

HUME: What do we know about these particular people?

KENDALL: We know originally the police said that the alleged victim gave three names as her attackers, Matt, Adam and Brett.

HUME: None of these are named that?

KENDALL: No. Now we have —

HUME: At least two of them —

KENDALL: The two charged are Collin and Reade, so what happened to Matt, Adam and Brett, well we don’t know. But, one of the theories that is being spun at this point suggests that the two guys who have now been arrested are the two most affluent players on the team and their families’ names and addresses and phone numbers were listed on a Web site called justice for her, a blogspot.com Web site that supports the alleged victim in this case.

HUME: So the theory being that somebody could have looked up on the Web site, found out where they lived, had somebody check it out, find out who had money, it seems a little bit of a stretch but interesting.

KENDALL: It is.

HUME: All right Megyn, thanks very much.

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