DURHAM, N.C. – Attorneys for three Duke lacrosse players charged with attacking a stripper say dismissing only the rape counts after their accuser again changed her story does not go far enough.
District Attorney Mike Nifong dropped rape charges Friday against Dave Evans, Collin Finnerty and Reade Seligmann after the accuser told an investigator she no longer is certain she was penetrated vaginally with the men's penises, as she had claimed earlier.
But the three men still face charges of kidnapping and sexual offense, punishable by more than 30 years in prison.
"You could say this is a step in the right direction," defense attorney Wade Smith said of Nifong's decision. "He has done something. Do the rest of it.
"Do the honorable thing. End this case, because there isn't a case to bring."
Nifong had previously said he would rely on the woman's account of what happened because of a lack of DNA evidence against the players.
But on Friday, Nifong filed court papers saying that without "scientific or other evidence independent of the victim's testimony" to corroborate that aspect of the case, "the state is unable to meet its burden of proof with respect to this offense."
The decision caught Smith and his fellow defense attorneys by surprise. They reacted by bitterly denouncing Nifong for hanging onto a case they insist never should have been brought.
"There is no scientific or other evidence independent of the victim's testimony that would corroborate any physical assault of any kind — sexual or otherwise — occurring to this woman," said defense attorney Joseph Cheshire.
He added: "It is the duty of this prosecutor to dismiss these charges."
Nifong did not return several messages seeking comment Friday and a sign posted on his office door read, "No media, please!"
As he left his office for the day, he said, "All the documents have been filed and they speak for themselves."
But in an interview with The New York Times published late Friday night on the newspaper's Web site, Nifong said the "case will go away" if the accuser ever says one of the players she identified did not attack her.
"I've said I'm not interested in prosecuting somebody that's innocent," he told the newspaper. "But until she tells me that, until she tells me these are not the right guys, we're prosecuting this case."
The accuser, a 28-year-old student at North Carolina Central University, has said three men raped her — vaginally, anally and orally — while holding her against her will in a bathroom at a March team party where she was hired to perform as a stripper.
The indicted players all have said they are innocent, and their attorneys have consistently said no sex occurred at the party.
The men are still charged with kidnapping for allegedly holding the woman against her will and with sexual offense. Under state law, a rape charge requires vaginal intercourse, while sexual offense covers any sexual act.
In dropping the rape charges, Nifong did not specify what sex acts prosecutors now believe happened.
"It's hard to figure out what's going on down there," said Finnerty's father, Kevin, outside his home in Garden City, N.Y. "It's hard to figure out how this D.A. is playing this. It's pretty obvious to us that from the outset this man has been using this case for his own personal and political gain."
The defense has complained that the accuser has given authorities at least a dozen different versions of her story.
Among other things, she has given conflicting accounts of the number of attackers — anywhere from three to 20 — and the ways in which she was supposedly assaulted. At least one time after the party, she told police she had not been assaulted.
Last week, it was learned that a private DNA laboratory, in concert with Nifong, initially withheld from the defense test results that found genetic material from several men on the stripper's underwear and body, but that none of it came from the players.
Evans graduated in May, the day before he was indicted. Sophomores Finnerty and Seligmann were suspended following their April indictments.
"We still believe in the truth and we believe the other charges are false," said Duke lacrosse coach John Danowski.