Alibi Witness in the Duke Lacrosse Case Under Arrest!

This is a partial transcript from "Hannity & Colmes," May 11, 2006, that has been edited for clarity.

ALAN COLMES, CO-HOST: There's breaking news in the Duke lacrosse rape case tonight. An alibi witness for one of the players indicted for rape was arrested by Durham police on a 2 1/2-year-old misdemeanor warrant issued after a passenger in his cab was accused of shoplifting.

The taxi driver who says he picked up Reade Seligmann at the party says the arresting officers asked him whether he had anything new to tell them about the rape case before driving him to the Durham County jail.

And in another development, tissue found under the fingernail of a stripper who says she was raped at the Duke — at the lacrosse party — may match a player who was at the house that night. If accurate, the tissue match would offer the first DNA evidence that could potentially link the accuser with an alleged attacker.

SEAN HANNITY, CO-HOST: All right, joining us now is Megyn Kendall, who has been reporting on this story. Also joining us, criminal defense attorney Jill David and FOX News legal analyst Lis Wiehl is with us.

Megyn, let's start with you. I analyzed this taxicab driver. We've got a very important component for the alibi of Reade Seligmann here. And now it appears — he is now claiming that, while he is being brought up on a charge from 2 1/2 years ago, where all he did was drive somebody to a store, they shoplifted — he told the police the truth — now they're going after him, and he's saying, while they were driving him to jail, they were asking him, "Oh, do you have anything new to say about this case?" What's your take on it?

MEGYN KENDALL, FOX NEWS CORRESPONDENT: Yes, and I spoke with the Durham police today about that, and I have in my hands a copy of the warrant for that cab driver's arrest.

Here's the deal: They did contact this cab driver, and the police department declined to deny that they asked him, "Do you have anything more to tell us about Duke?" They said: We didn't ask him anything specific about the Duke case, but they didn't deny that they did get into the Duke matter.

It appears that they were simply exercising a warrant for his arrest that was passed or actually signed by a magistrate 2 1/2 years ago. They say, the police say, the reason they just got around to it now was because they were running the typical background check on any witness who's expected to testify at trial, and that would include this cab driver, and they saw, hey, there's a warrant out for this guy's arrest. We've got to go arrest him.

Having said that, Sean, it's a very precarious road for Nifong and the police department to take, to go ahead and effect an arrest like this, on a case that seems very tenuous at best, of a key witness in this case.

HANNITY: Yes, and let me go to you, Lis Wiehl. And when you look at the facts in this particular case. Here's a cab driver; he picked up a mother and daughter; he took them to the store. There's an allegation that they stole from the store, got back in his cab, and he took them home.

He didn't steal anything, 2 1/2 years old. It would appear on the surface that the person who plays a very key and vital role in the alibi of Reade Seligmann is being intimidated here.

LIS WIEHL, FOX NEWS LEGAL ANALYST: That's one way to look at it. The other way to look at is you've got a misdemeanor warrant that's been out for 2 1/2 years. That means this man should have been arrested for 2 1/2 years.

HANNITY: Was it appropriate — for this minor charge, is it appropriate for the police to then say, "Do you have anything else to tell us?"

WIEHL: Oh, Sean, and you're the one to say it's a minor charge? It's a misdemeanor charge, which means he could go to prison for up to a year, and it's been outstanding for 2 1/2...

HANNITY: You are stretching.

WIEHL: No, I am not. It's an outstanding...


HANNITY: Do you want to live in a world where this is the — isn't this more evidence that this...


WIEHL: ... and for them to ask them something — let me answer you. For them to ask him something about the rape, the alleged rape, while they're driving him is totally appropriate. He's not a defendant. He's not a criminal defendant.

HANNITY: Jill, that was not why he was arrested. It would appear on the surface that this is a case of intimidation of a witness who is playing a key role in this case. Do you view it that way?

JILL DAVID, DEFENSE ATTORNEY: I agree with that, absolutely.

COLMES: All right, Jill, it's Alan.

DAVID: I believe that also the D.A. missed an opportunity to portray himself with some kind of fairness. I think he missed that opportunity to — if for a minute no one is going to think that he didn't do it for the purpose of intimidation.

All he had to do was explain to the public that he wanted to appear fair. And how about picking up the phone, and having the guy come in, and do a walk-through? They didn't have to go out there and arrest him. They know where he is.

HANNITY: Exactly.


COLMES: Let me go to Lis on this. Jill, welcome to our show, your first appearance on "Hannity & Colmes."

DAVID: Thank you.

COLMES: Not yours. But, look, let me — you know, I've been pretty much supportive of the prosecution here...

WIEHL: Right.

COLMES: ... but I do question this cab driver, because — when we get to the DNA, which I think is much more serious...

WIEHL: Exactly. Why aren't we starting with that?

COLMES: ... in a moment. But before we get to that, I just want to state: I don't know why they went after this cab driver, because all he seems to be guilty of is driving a car that somebody in that car committed a crime.

WIEHL: But, again, Alan, that's something for that jury in that trial to decide, not for us to decide. The fact is there is a 2 1/2-year warrant out for him. He never turned himself in.

COLMES: But is this intimidating a witness?

WIEHL: I don't think so, certainly not as Sean says on the surface of it. It looks like he's...


COLMES: Let me go to Megyn Kendall on the DNA, because I think this is much more serious, the fact they found this stuck-on fingernail, something she said — that indicates, also, that she may have left in a hurry, left her press-on nails or whatever you call them there, and that they may have found some DNA compatible with one of the people in that house. How serious is this, Megyn?

KENDALL: Well, if, in fact, this is a match to one of the Duke lacrosse players, it's a bad development for the defense, and there's no two ways about it. That doesn't mean they don't have some wiggle room, but, no, that is absolutely a good development for Nifong.

And what we're hearing is that it's DNA relating not to Reade Seligmann, not to Collin Finnerty, but to a third defendant, to a third Duke lacrosse player. As we reported on your show last week, that's what we expected it would relate to.

And we're hearing that it will be the Duke lacrosse player whom the alleged victim already identified, saying she was 90 percent sure that he was one of the ones who attacked her. So if that's true, Nifong has now got two things against this potential defendant, a 90 percent certain identification and some sort of DNA, maybe.

COLMES: And, Jill, by the way, you don't even need DNA. In 85 percent of cases, they say you don't even have any DNA. But if they have some kind of a match here, that really is good for the prosecution and kind of puts a big hole in what the defense has been claiming.

DAVID: I don't think so at all...

COLMES: Why not? DNA?

DAVID: ... even if there is DNA. All right, if the dancer was there, and she's giving a lap dance, and snuggling up to some of these players, and she rubs her hands through their hair, or, you know, puts it on their back, I mean, it could have been contact, and that's how the DNA got there. I don't think it's conclusive...


COLMES: Well, doesn't it depend upon the nature of the DNA, Lis, where the DNA was found and what kind of DNA they have?

WIEHL: Right. Exactly. It was found underneath this peel-off fingernail...

COLMES: On her fingernail. She says that she might have been fighting back.


WIEHL: And you do not get DNA under your fingers by just patting somebody. It's got to be a scratch to get that kind of DNA, so it is consistent with what she said.


COLMES: Hold on. Megyn, she also said that she left in a hurry, she left money there. They found a whole bunch of twentys that she said. That's also consistent with the fact that this woman got out of there in a hurry, for whatever reason, and that would be consistent with her leaving under less-than-favorable circumstances, perhaps because something terrible was happening to her.

KENDALL: That's certainly how Nifong is going to spin it, and the defense is going to say, no, she left money there because she was, you know, drunk off of her mind and she didn't know what she was doing.

COLMES: Well, that could be spin, too.

KENDALL: You know, one point about the DNA — one point about the DNA, Alan, the reports are that it was tissue found under the nails. That's why it's significant.

What Dr. Michael Baden told me is that it's not true, you can get DNA underneath your fingernails by shaking hands with somebody. It's meaningless. He's saying if, in fact, it is tissue under the nails, that's what would make this significant.

HANNITY: All right. We've got to take a break. We're going to get back to the DNA issue, because it is not a perfect match. We haven't discussed that yet. There's another aspect to this.


COLMES: Welcome back to "Hannity & Colmes."

We now continue with FOX's Megyn Kendall, defense attorney Jill David, and FOX News legal analyst Lis Wiehl.

Jill, a bunch of what she has said checks out. As I mentioned, $400 in $20 bills taken from her purse. They found $160 in 20s inside the house. The fingernails under which we think there now will be some relevant DNA, cell phone and purse found in the house.

DAVID: Maybe.

COLMES: She clearly made a quick escape for some reason. I guess the defense will spin it and say, ah, she was drunk and didn't know what she was doing, but that is consistent with the story that she has told police, right?

DAVID: But it's also — we have to remember how many times we have Ms. Roberts, who has said that she was drunk. Even according to both sides, the defense...

COLMES: Does that mean she wasn't raped?

DAVID: ... and the state, they weren't there long. She wasn't there long enough to become intoxicated.


COLMES: You don't know that, because you're depending upon the defense's timeline. You don't know that the...

DAVID: Either side. Either side. The state also said that, according to the girl's statements, that they performed for a few minutes, they didn't like what they heard, and they left.

COLMES: But you're listening to what the defense is saying. That is the defense.

The prosecution, by the way, Lis, although I believe that Nifong spoke too much early on...

WIEHL: Oh, absolutely.

COLMES: ... but he has not come forward and with a lot of information he probably has. And the time line we keep hearing about is the leakage put out by the defense to try to poison the jury pool.

WIEHL: And Nifong has said to that: You — to the defense — you're not talking about my timeline. I've got a different timeline.

And as we've talked about before, even though the alleged victim came out and said it was 30 minutes, in a terrible, terrible circumstance like that, the worse thing that can happen to a woman, forgive her, she's not going to know whether it's five or 30 minutes.

COLMES: Megyn Kendall, there have got to be some questions here about this timeline and whether or not she was accurate about the time that she left or whether the time stamps on the camera was accurate. We don't know that that time line, as presented by the defense, is totally accurate, correct?

KENDALL: Well, there's no way of knowing that for sure right now. But, keep in mind, this is not all based on the defense evidence. The neighbor who doesn't have a dog in this fight...

HANNITY: Thank you.

KENDALL: ... said she showed up at ten of twelve. If she showed up at ten of twelve, and by her story, she went there, she did some dancing, she left, she was coaxed back in, did some more dancing, and then the alleged rape takes place, I don't see how Seligmann could have committed this crime, when he's calling for a cab at 12:14. I could be wrong. I don't know all of the evidence. I'm just saying that that timeline — that's what the independent neighbor says.

HANNITY: That's an independently corroborated, which is a great point.


HANNITY: Hang on a second. And let me go to Lis Wiehl. It's independently corroborated. Nifong can have his own timeline fantasy, but when you have a witness neighbor with no dog in the hunt here, that's a problem.

Wait a minute. The phone calls are documented. That is pretty secure at this point. The cap driver that they're pressuring, he's on record, chronicled the call, 12:14, picked him up, 12:19, ATM, 12:24.

This woman is claiming — apparently, we have a report she first says 20 men. Now it's three men. It was 30 minutes. Now you're saying — what is the time frame, going to go down to five minutes?

WIEHL: It could.

HANNITY: It could?

WIEHL: I mean, bad things happen, terrible things happen in five minutes.

HANNITY: So she can first claim 20 men raped her, and it becomes three. And it took 30 minutes, and it can become five. And that's credible to you?

WIEHL: Let me go back on both of those points, the 20 versus the three. The 20 men attacking her was at the time at the scene when, in their own report, their own...

HANNITY: Would you listen to yourself? Will you listen to yourself?


WIEHL: ... the own Duke University report...

HANNITY: You have made up your mind here.

WIEHL: ... says that they were not listening to her being credible.

HANNITY: You are not — wait a minute.

WIEHL: I have not made up my mind. That's to you to open your mind.

HANNITY: You're saying that it's possible in your world that a woman can claim she was raped by 20 men and then decide, no, it was only three, that she can claim it was 30 minutes, and then say it's only five, and that she can still be believable before a jury?

WIEHL: Yes, at the time and circumstances...

HANNITY: That is spectacular.

DAVID: No, no.


WIEHL: Now, listen, Sean, you are talking — you have seen this Duke report. In its own report of its own handling of this case, they said, "We bungled it from the very beginning."

HANNITY: All right. Let me go to Jill. Jill, I think the 20-30 issue here is...

DAVID: No, I think when you start — that's huge. I think that's huge. And I can't believe — in this case, I've said it a hundred times. I don't know why all of these conflicting stories keep coming out from both sides. I don't know why either side chooses to release, you know, what they think are the facts...

HANNITY: Nifong is releasing this DNA evidence.

DAVID: ... so early.

HANNITY: All right, let me go last question to Megyn, because we're running out of time.

DAVID: I don't know why he's showing his hand.

HANNITY: If I'm right, if the witness, the neighbor's timeline, is corroborated, the ATM records, the phone records, the arrival at Duke, all of this corroborates, Seligmann is off. If he has that lock-solid alibi as we currently see it, how does this impact the others that are going to be accused by this woman, Megyn?

KENDALL: Obviously, it's bad. Anything that impacts her credibility is bad because, as it looks right now, the large part of Nifong's case is going to be based on this witness's credibility, Sean.

And, with respect to this third defendant who may or may not be indicted next week, she's also got some potential problems on her hands. Her original I.D. of the guy only said he's 90 percent sure and that he kind of looks like one of the guys, but...


HANNITY: And the DNA is not conclusive.

KENDALL: ... doesn't have a mustache. And now the DNA may not be conclusive. And who knows what the DNA is...


COLMES: ... expect someone who might have been just raped to be totally on top of her game, and know everything that went on, and know time, and people, and faces. We will, I'm sure, talk about this again.

DAVID: And the photo lineup, also.

COLMES: We thank you all very, very much, Jill, and Lis, Megyn.

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