Sources: Two Duke Lacrosse Players Indicted
DURHAM, N.C. – The grand jury hearing the rape claim against the Duke University men's lacrosse team handed up "at least one" sealed indictment against the players, sources confirmed to FOX News on Monday.
Courthouse sources told Durham FOX affiliate WRAL that the grand jury agreed to charges for two players, but it was unclear if they would be indicted separately or together.
Eighty-one indictments were returned by the secret jury but none of the cases presented were rejected by the court. The indictments are under seal, so it's not yet known whether there are more charges in the Duke case or if that specific case was among the 24 that were "carried forward" to be heard at a later date.
"We are aware that the district attorney made a presentation to the grand jury today, but we have no knowledge about the contents of his presentation, and no information about the grand jury's deliberations has been released," Duke University said in a statement Monday. "At this point we remain unclear about the precise status of this case and we must simply wait for news of today's proceedings. Until we have greater clarity it would be inappropriate to comment further."
A 27-year-old black female told police she was attacked March 13 by three white men in a bathroom at a party held by the lacrosse team. Jurors will have to decide not only if a crime has been committed but who, if anyone, was responsible; 12 out of the 18 jurors need to agree on both points.
"The way I like to describe it is, 'more likely than not' is the standard the jury must use when determining if a crime has in fact been committed," said criminal defense attorney Kathleen Mullin.
Bill Thomas, an attorney for one of the lacrosse team's captains, said he met with prosecutors at the courthouse and it was his understanding that the panel did consider the Duke case Monday.
Officers investigating the case were also among those at the courthouse but it's not known whether they testified.
Although Durham District Attorney Mike Nifong himself has not come out and publicly said he would seek indictments, it was expected that the jury would hear from him on Monday, especially considering there won't be another grand jury session for two weeks. Defense attorneys say Nifong has made it clear that the players will not be given a chance to turn themselves in voluntarily once they are named in the indictments.
Nifong was expected to turn over to the jury the police report detailing the incident, the alleged victim's statement and a medical report.
There were numerous conferences involving defense lawyers and members of the district attorney's office in the courthouse Monday morning, but no one would comment about what they were discussing. Nifong also declined to comment when asked about the case.
"It would be nice to figure out a way to give me back my anonymity," he quipped to a large group of reporters who crowded around him as he left a bathroom near his office.
Despite a lack of DNA evidence proving that any of the 46 white members of the men's lacrosse team raped the woman making the claims, Nifong has vowed to forge ahead, saying he can make a case for rape without the DNA.
The team's only black member wasn't tested because the alleged victim told police her attackers were white.
Tests also failed to find any DNA on the alleged victim's clothing or belongings, or beneath her fingernails. The woman told police that she scratched her attackers to fend them off on the night of the alleged incident.
Nifong — who placed DNA at the center of the case when he promised early on that the tests would identify "precisely who was involved" — has argued that 75 percent to 80 percent of rape prosecutions occur without DNA evidence. Legal experts say a lack of DNA proof of a crime could make Nifong's job harder.
"DNA is very familiar to jurors now, with all the television shows and how they've educated jurors, they know forensics can get even the tiny bit of evidence," said former prosecutor Michael Cardoza. "Having said that, the accuser's word alone could be enough to convict a person if the jury is convinced beyond a reasonable doubt ... it just puts the prosecutor in a much tougher position."
Without such forensic findings, fingering the attackers could come down to an identification made by the victim. It's not clear if that identification has occurred.
At a forum last week at North Carolina Central University, where the alleged victim is a student, Nifong told an angry questioner who asserted the woman had identified her three attackers that the information was wrong. But at the same event, Nifong said, "The fact is that anytime you have a victim who can identify her assailant, then you have a case that a judge must let go to a jury."
In a letter to defense attorneys, Nifong refused to say whether the victim had made an identification, telling the lawyers he had yet to receive a written report from Durham police.
"It's my understanding that allegedly she identified somebody," defense lawyer Butch Williams said. "But when was the identification, and what were the circumstances?"
The alleged victim was joined at the party by a second exotic dancer. The second dancer, who authorities said in court documents was "separated" from the alleged victim before the rape occurred, told WNCN-TV in Raleigh in an interview airing late Sunday that the alleged victim was "definitely under some sort of substance" when she left the party.
"She was, um, definitely a totally different woman than she was when I first met her," she said.
However, in a segment of an MSNBC interview, the second dancer said she believed her friend's allegations.
"I can't imagine that a woman would do that to herself if she didn't feel like it was worth doing it," said the woman. "And the only reason it would be worth doing it is if she was raped. So, I have no reason to believe she was lying."
The lacrosse players told police they were the only ones at the party. Nifong has hammered the team for standing together and refusing to talk with investigators, warning he may bring aiding-and-abetting charges against some.
But the prosecutor has been more subdued in recent weeks, leading some to wonder if a member of the team who was at the party may be cooperating with investigators.
"There is an old saying among defense lawyers: Where there's multiple defendants, it's a race to the D.A.'s office," said John Bourlan, a defense attorney who said he's worked with Nifong on thousands of cases.
The players' attorneys, however, are adamant that none of the players have cut a deal.
"Everyone has said from day one, 'There's nothing that happened,"' Williams said. "So far, the findings have been exactly what the boys said — that it did not happen."
Defense lawyers say they have time-stamped photos showing that the woman was physically impaired when she arrived at the party and point out that she didn't tell anyone about any assault in the immediate aftermath of the alleged incident. A police dispatch recording released last week also indicates that the first police officer to see the woman after she claims the assault took place was "just passed out drunk" in someone else's car in a convenience store parking lot.
Nifong has come under fire from both sides of the case — those who say he hasn't done enough to bring charges against the white students they feel are being coddled, and others who say he's beating a dead horse and looking for an issue that will assure a win in this year's district attorney race. The primary is May 2.
"When he does charge here, it's going to affect those young men's lives for the rest of their lives, so he'd better be unbiased," said Cardoza. "That's his charge as a district attorney, not to be political."
The racially charged allegations led to near daily protests and rallies in Durham and at Duke, a highly selective university regarded as a "Southern Ivy." The school also canceled the highly ranked team's season and accepted the resignation of coach Mike Pressler after the release of a vulgar and graphic e-mail sent by a team member shortly after the alleged assault.
FOX News' Sarah Prior, Marianne Silber and The Associated Press contributed to this report.