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Press Conference On Dropped Duke Rape Charges; Two-Day Shutdown Of Denver's Airport Ends; Space Shuttle Discovery In Holding Pattern

Aired December 22, 2006 - 15:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

KYRA PHILLIPS, CNN ANCHOR: Hello, everyone. I'm Kyra Phillips at CNN world headquarters in Atlanta.
T.J. HOLMES, CNN ANCHOR: And I'm T.J. Holmes sitting in today for Don Lemon. A rape case too hard to prove but three Duke University lacrosse players still face other charges. We expect to hear from their defense lawyer shortly and we will also talk with our legal analyst, Jeffrey Toobin.

PHILLIPS: Fogged in, snowed in, rained out. Anybody out there is still saying getting there is half the fun. Well we have got the travel prognosis for your area.

HOLMES: And if you think you were worried about getting home for the holidays. Try being aboard the space shuttle Discovery. Weather closes the first return window. When can the crew try again?

We're on this in the CNN NEWSROOM.

We begin this hour with our big breaking story. A defense attorney tells CNN that prosecutors have dropped rape charges against three Duke University lacrosse players. Presser is expected to begin any minute in Raleigh, North Carolina. We're keeping an eye on that picture now but we do want to bring in CNN's Jason Carroll who has been on this story. He joins us now live from New York. Jason?

JASON CARROLL, CNN CORRESPONDENT: Well, this latest development is the result of a new interview that Durham's district attorney office conducted with the alleged victim yesterday. Apparently she has changed her story. She now says she cannot say with certainty that she was raped as rape is defined in North Carolina law.

Durham D.A. Michael Nifong dropped the rape charges against the three Duke lacrosse players against as a result of that interview. Dave Evans, Reade Seligmann and Collin Finnerty now no longer charged with forcible rape. This afternoon he filed a dismissal form.

It reads, "The victim initially believed that she had been vaginally penetrated by a male sex organ. She cannot at this time testify with certainty that organ was the body part that penetrated her. It goes on to say since there is no scientific or other evidence independent of the victim's testimony that would corroborate specifically penetration by a male sex organ, the state is unable to meet its burden of proof with respect to this offense."

However, the three players are still charged with first-degree sexual offense and first-degree kidnapping. There are the three young men you see there. This is a very troublesome for the D.A.'s case which has had previous setbacks. You will remember two DNA test results came back showing no match between the alleged victims, any of these three players that you see there or the other 43 Duke lacrosse players.

Also, the defenses argues there is a problem in the timeline of the alleged events and they will argue two of the players were not at the house when the alleged crime took place.

But, once again, at this point, we are awaiting this press conference from some of the defense attorneys. From what they've been telling us earlier today, they are trying to get their ducks lined up and trying to determine at this point what their next legal move will be.

HOLMES: We are awaiting that press conference. We were just told -- We got word maybe it is about 10 minutes away. Jason, so, thank you. We'll go to that press conference when it happens.

PHILLIPS: Let's bring in B.J. Bernstein. She is a defense attorney specializing in sex crimes and a former prosecutor right here in Atlanta. So if this stripper is changing her story, two options, right, either she was lying or, number two, drugs, alcohol possibly involved, possibly passed out in some way and just doesn't remember?

B.J. BERNSTEIN, DEFENSE ATTORNEY: Precisely. Depending on what side of the fence you are, Nifong is going to probably be saying she was under the influence of alcohol or she was traumatized by the incident and therefore she can't precisely tell you. The defense is going to keep saying.

Look at this. From the time she was at the hospital and time she was found by the police, every single statement she has given has been inconsistent even up until December, you know, this week, saying something different again. So it depends which side you're on is how you're going to look at this.

PHILLIPS: And the rape charges are being dropped but not the charges of kidnapping and sexual offense. So what could kidnapping mean?

BERNSTEIN: Well, kidnapping isn't necessarily what you normally think of, for instance, the famous kidnapping of Patty Hearst, where you're taken away and you are held for ransom. Rather, here, all it has to be is moving you from one place to another against your will. So here perhaps coaxing her into or taking her into the bathroom where the alleged assault occurred that is what the D.A. is going to say is kidnapping.

PHILLIPS: And when we talk about sexual offense, not necessarily intercourse like in the rape charges, but any kind of touching?

BERNSTEIN: Exactly. Anything that is dealing with the sexual area of her just short of penetration, as Jason Carroll just told us, that's the reason why Mike Nifong has dismissed this charge because there has been no penetration and that is what is required under the law for rape.

PHILLIPS: So what could we hear in this news conference? What could happen next?

BERNSTEIN: Well, I think the defense attorneys are going to obviously be happy the rape charge is gone but they are going to make it clear that they are not done fighting. Remember in February coming up, and we've got a taste of it already, there's going to be an attack on the identification process in this case.

It is very suspect when the only photograph shown to this alleged victim were the people on this lacrosse team and the way that was done is going to be under attack. So I think they are going to say, listen, this shows that there is a problem with the district attorney's case, stay tuned, we're still going to go after the D.A.

PHILLIPS: All right. And that news conference should be happening in less than 10 minutes. We're going to have you stick around. When that happens, we'll take a listen and talk more and see what is said.

BERNSTEIN: You never know in this case what else we're going to hear.

PHILLIPS: That's true. Because it's gone back and forth so many times.

BERNSTEIN: Exactly.

PHILLIPS: All right, B.J., thanks.

HOLMES: Slow going in Denver. Hey, at least they're going. A two-day shutdown of Denver's airport ended about an hour ago and the first plane, not carrying passengers, actually. Belonged to FedEx and it was filled with, of course, Christmas packages. They could reach their destination actually sooner than some of the passengers who have been stranded in Denver since Wednesday.

The airlines say it could take until Tuesday to find flights for everybody. That's Tuesday. December 26th. The day after Christmas. That's no good. And no surprise now that some folks are taking to the highways which also are newly open for business.

PHILLIPS: Back at the airport. What a backlog. CNN's Rob Marciano is right there in the thick of it and he joins us live from Denver. And I understand, Rob, you and your producer, Michael Carey (ph), did it take you 12 hours to get to that airport via Hummer through the snow?

MARCIANO: That's what we did. We were in Salt Lake City trying to get into Denver. Obviously, couldn't, because the airport was closed so we tried to rent a car, couldn't do that because a lot of people had the same idea. Michael called up some sort of rugged truck company and we paid a ridiculous amount of money to get a Hummer to get here. And we did it 12 hours. While we drove through the mountains to get here, not quite a direct route because three of the four ways to get into Denver were closed. We passed at least five or six huge FedEx trucks. So FedEx not only the first plane to take off the tarmac here today but they're on the ground as well trying to get packages to the people that need them.

But you would understand if that package got delayed a day after Christmas, but if you're waiting for somebody or trying to get to somebody, you want to get there before Christmas and like you said, some people may not get there because of this.

I mean, I've never seen this many people in an airport. It's really -- it blows your mind. This line you're looking at is just United and this is just people whose flights were cancelled and they need to be rebooked on something. Probably won't get rebooked today. Maybe if they're lucky. If they're lucky, they get rebooked tomorrow. Christmas wouldn't be a bad deal either but some of these people standing in this line may not be leaving this airport via airplane until the day after Christmas.

Some are very frustrated but, for the most part, the mood isn't all that bad. You just can't really deal with what Mother Nature throws at you.

This the only line like this. Frontier has another big hub here and another line similar to this one of people who, theoretically have a seat on an aircraft, need to check in, get their luggage and get on an airplane. People who have been going down these escalators and haven't been that many are on their way to security so they are the happy people at this hour.

Two of six runways open and a third expected in the next hour or two and they hope to get a fourth one they hope by tonight. The weather is cooperating. It is sunny. Temperatures will eventually get above freezing but in this really dry climate the sun will actually just soak up the snow before even melting it.

So they're really getting a handle on the snow that fell. Two feet in some spots. They had nine and 10-foot drifts in other spots and you're talking about a 52-square mile area most of which is covered by concrete needs to be cleared so a huge task they had to deal with and this airport was closed for almost 48 hours.

The last time it was shut down was in March 2003 when they had another big blizzard, a bigger one come through but airport officials telling me that this one was worse because of the volume. Every flight this week was either booked or overbooked so you had thousands of people that got stuck here because of the timing of this winter storm right before Christmas.

Kyra, T.J., back to you?

PHILLIPS: And these fliers, they don't get a free ticket down the road or anything like that because it's a weather issue, right? If they overbook, then they get perks here and there but basically people have to be patient and wait it out?

MARCIANO: Yes. If it's mechanical, if the plane breaks down, the airlines usually will compensate you some way, at least give you a free hotel room but if it's weather, they just go, it's kind of out of our hands, so you're right. They're just hoping to get to where they need to go before it's too late.

PHILLIPS: All right, Rob, we'll stay in touch. Rob Marciano at Denver Airport, thanks.

HOLMES: And again, we're keeping an eye on Raleigh, North Carolina. We're expecting a short time the defense attorneys for the three Duke lacrosse players who were charged with rape, those rape charges have been dropped even though the three players still face sexual offense charges and also kidnapping charges, waiting to hear from their attorneys on today's dramatic developments.

We're going to bring back in our Jason Carroll who has had an eye on this story and who has been reading through some of the court documents as well. And Jason, remind us, even though there were doubts maybe out there about the accuser's story, the prosecutor, he never expressed any doubt throughout. He always stood by her, didn't he?

CARROLL: Absolutely, without question. And, in fact, I remember having a conversation with Michael Nifong, the Durham district attorney, during his -- right before his reelection campaign. And I asked him, I said how he was feeling about the case and I remember one thing that he said to me. He said, you know, I went with this case, I went with the best evidence that was presented to me at the time.

I don't know if that was such an aggressive ringing endorsement but he certainly didn't back down from what the original charge was. But as you now know with the most recent development, he can only go with what the accuser is telling him. That's all he basically has to rely on his case, is the accuser's testimony, because he doesn't have the scientific evidence to back up her claims.

HOLMES: Remind us again about the questions about if these three or if she could really identify who may have possibly assaulted her that night? A lot of people were at that party, not all lacrosse players as well. And there were some questions about whether or not she was just shown pictures of lacrosse players and if that was fair and if she could even identify the guys.

CARROLL: Well, the defense is going to argue they have major problems with the identification process. As you know, what had happened was she was only shown and was told she would only be shown pictures of Duke lacrosse players.

And typically when you have lineups, what you do is throw in phonies or blanks. You throw in people who are obviously not associated with what a particular case is, so that way you have a true -- more of a solid identification process going on. That didn't happen here. What happened in this particular situation is the alleged victim in this case was only shown pictures of Duke lacrosse players and in the way that she described at least one of the men who attacked her, she said that he had facial hair, a mustache. You can clearly see from some of the pictures we've shown you there, that none of the three accused had any facial hair at the time and none of them have it at this time as well. So there were some problems with the identification process, problems with the DNA.

Many problems that seem to plague the district attorney's case and now we have this most recent development as well.

HOLMES: And Jason, remind us what her story was or at least what we understood her story to be before versus the court documents you've seen now and what her story is now.

CARROLL: Basically, what she claimed is she was hired along with another young woman, to perform at this Duke lacrosse party that was being held at an off-campus house. She said that the boys got drunk. She said initially she was separated from the other dancer and that she was dragged into a bathroom where these three young men assaulted her in many graphic ways that we can't get into here, but suffice it to say, she initially claimed that she was raped by these three young men.

After that, certainly, the defense attorneys came out with evidence that seemed to suggest that at least two of the young men may not have been there at the exact time period that this woman claims that she was sexually assaulted, so you had a problem there. The D.A.. asked for DNA tests to be run. You had a DNA test from the state first. That came back showing no match between any of the three players, as well as any of the 43 other duke lacrosse players.

Then a second DNA test was done by a private lab. Once again, those DNA test results came back showing no match between the alleged victim and any of the players. So you had somewhat of a problem there. We've already discussed what defense attorneys are saying was the problem with the identification process.

And now, fast forward to what has just happened yesterday. Yesterday, you had one of the members of the D.A.'s office who re- interviewed this young woman and during this interview process, this young woman said she could not say for sure she was raped as rape is defined by North Carolina law, meaning that you've got, you know, a sexual organ that is used to penetrate in the course of that sexual assault.

So, once again, just another setback, seemingly setback for the D.A.'s office. We did reach out to the D.A. to find what Michael Nifong who has come under heavy criticism throughout this case, what his thoughts were about the recent development. He simply said that the form -- what was written on the dismissal form simply speaks for itself.

Now we're waiting to hear what the defense attorneys are going to say about all this. I believe this is Joe Cheshire's office. He represents Dave Evans, one of the young men accused. So at this point, just waiting to hear what the defense is going to say.

HOLMES: We're going to keep an eye on that picture. But please stand by for us. Jason Carroll from New York. Jason, thank you so much.

PHILLIPS: Let's talk to defense attorney B.J. Bernstein, still with us here on the set. She specializes in sex crimes. With all these discrepancies, whether it's the DNA, the identification process, the things that Jason has been talking about, what could you still have that could talk about charges of kidnapping and sexual offense?

BERNSTEIN: It gets down to he said/she said and that is what Nifong is trying to craft. Because you have to remember here, there's no DNA evidence tied to any of these boys. In fact, we learned last week that there is DNA tied to these unknown people.

So one of the questions I have now is, is the dropping of this rape charge game playing by Nifong to strengthen his case and avoid the discussion of the foreign DNA in that woman. Because if there is no allegation of penetration, you could argue that the DNA doesn't matter at all in this case and, therefore, we're back to a classic he said/she said case. That could be the danger.

PHILLIPS: Attorneys have just started. Let's listen in.

JOSEPH CHESHIRE, DAVID EVANS' ATTORNEY: That we couldn't share our thoughts with you individually and we apologize to you for that, but we did want to share our thoughts about this new development.

There are lawyers here for all three of the players. Jim Cooney, who is Reade Seligmann's lead lawyer, his office is in Charlotte and he could not be here, but Kirk Osborn (ph) is here for Reade and Wade Smith and Bill Cotter and Doug Kingsbury are here for Collin and Brad Bannon and myself, Joe Cheshire, are here for Dave Evans.

I have a few things I'd like to say to you all as a result of the dismissal today of the rape cases against Dave Evans and Collin Finnerty and Reade Seligmann and Wade Smith has a few brief comments to make and then we will accept questions from you all.

We don't intend to be here all afternoon answering your questions, but we'll try to answer the questions that you have. You all know that earlier today, Mr. Nifong filed a dismissal of the rape charges against these three young men, leaving in place the first- degree forcible sex offense charges and the kidnapping charges.

Those charges still carry significant active prison time were these defendants to be convicted. The first-degree forcible sex offense still is what we call in North Carolina B-1 felony carrying in the presumptive range from 240 to 297 months.

So some people have said, well, is the case over? The case is quite clearly not over.

When this case began, the accuser in this case, to numerous medical personnel, stated that she had been penetrated by the penis of these young men in her anus, vagina and her mouth.

In March -- on March 16th, she told the investigator, Mr. Hyman in his notes, he relates that Brett and Matt -- and you will remember, she referred to the three people that assaulted her as Brett, Matt and Adam -- that Brett and Matt put their penis in her anus and her vagina. And that Adam put his penis in her mouth.

In her handwritten statement, her statement, handwritten on April 6th, she said that "Matt had sex with me in my vagina and then placed his penis in my anus for about three minutes. Brett had sex with me in my vagina for about five minutes and then put his penis in my anus for about two minutes. And Adam ejaculated in my mouth and I spit it on the floor."

At the time she made her identifications, of the young men, she said, on tape, which you can get referenced on the motion to suppress, about one of these young men, quote, "He put his penis is in my anus and in my vagina."

About one of the other young men, she said, "He was the one standing in front of me and made me commit oral sex."

Almost the only consistent thing that the accuser has said, throughout the many varied different statements that she has made, was that a penis was used in the assault that she describes and that it was used in her vagina.

Last week, it was clearly demonstrated that significant exculpatory evidence had been purposefully withheld from the defense in this particular case. It should not be lost on you all, who have covered this case, that that significant exculpatory evidence proved that there was no sexual contact between these young men and this woman.

Apparently, for the first time, yesterday, the first time, representatives of the district attorney's office talked to the accuser. This certainly begs the question, ladies and gentlemen, which I hope you all will ask, why, after all of these months, and all of what these young men have been through, did the district attorney's office first talk to this accuser, which leads to the dismissal of one of these charges? Why are they investigating the case now, after they've brought it for months?

And when they did, ladies and gentlemen, it should be noted clearly by you that her story has now, yet again changed. And she now cannot remember the use of a penis in the vaginal rape that she described and which was used to indict these young men.

And let me say to you that the transparent coincidence between the proving of the failure of the state to give exculpatory evidence which shows that there was no sexual assault and this conversation leading to this young woman saying that she cannot now remember a penis being used is palpable and certainly is something that should give you all great in covering this case and asking questions of the prosecutor about the coincidence of last Friday to this Thursday and the dismissal this Friday. Questions could be asked such as is this some way to try to explain why there was no DNA of any of these three individuals?

At the beginning of this case, the prosecutor in this case referred to these young men and other young men on the Durham -- the Duke lacrosse team as rapists. He now dismisses the charge of rape. When the DNA results came back from the state DNA lab which found no DNA of these young men in or on the accuser, the prosecutor in this case supposed that they must have been using condoms, although the accuser had said they were not using condoms.

Then, when it was shown that Reade Seligmann had an absolute alibi for the timeframe in which the accuser said she was raped, the prosecutor supposed that if he had to guess, he would guess that the rape really took place for five or 10 minutes, instead of the 30 minutes that the accuser said it took place. Of course, remember, he had never talked to the accuser.

Now last Friday when it was proved no penal penetration because no DNA was found on or about the accuser, although DNA of multiple other males was found, all of a sudden, we have a dismissal and a statement that I can't remember if a penis was used.

That, again, is a troubling, transparent coincidence. But let me also point out to you that if it's now going to be the shifting sands again, the shifting factual theory to meet whatever we understand the truth is by the prosecution, that if this woman had been penetrated with a finger, a penis, a mouth, or any other body part, there would have been DNA left in and on her of these young men and there was none left in and on her.

You heard Dr. Meehan say his own DNA was found from a single dander, could be found from one cell. There is still no DNA.

In his dismissal, the prosecutor says, since there is no scientific or other evidence independent of the victim's testimony that would corroborate specifically penetration by a penis, the state is unable to meet its burden.

Well, ladies and gentlemen, 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.

So that, again, begs another question, ladies and gentlemen. It is the ethical duty of a district attorney not to win a case, not to prosecute all cases, but to see that justice is done.

This prosecutor by dismissing this one charge and saying what he has said has said to you that his entire case rises and falls on the statement of the accuser, that there is no other evidence, and, yet, just yesterday, he gets, yet again, a different story from her which disputes and is against the other stories that she has told, which all dispute and run against each other.

So what we have now, ladies and gentlemen, is a prosecutor who has said his case rises and falls on the statement of the victim and is the accuser, excuse me, and is going forward with the case when he knows he has multiple different contradictory statements from that person.

Is that seeing that justice is done, or is that simply trying to fit facts into a prosecution to prosecute it at all costs?

This is -- this week has been an interesting week. The failure to give exculpatory evidence that shows that no sexual assault took place, the dismissal of a rape because the accuser can no longer remember whether a penis was used, the statement there is no other scientific evidence corroborating any of these charges, and the desire to continue to prosecute.

It is the duty of this prosecutor to dismiss these charges. And we hope that you all will look at the things that have happened over this past week objectively, draw your own conclusion. Because we believe that anyone that does so will draw the same conclusion. That's my statement and I know Mr. Smith would like to say something to you all. Thank you.

WADE SMITH, COLLIN FINNERTY'S ATTORNEY: Well, let me just speak briefly. My name is Wade Smith, and along with Bill Cotter and Doug Kingsbury, I represent Collin Finnerty, but of course, I am speaking for Reade Seligman and Dave Evans and Collin.

I haven't a lot in this case. I've listened mostly, but I've been on this nine-month journey with all of us, as have waited and watched for this case to unfold that Mr. Nifong has brought.

I started my professional life as a prosecutor and one of the things that we know, as prosecutors, we're taught as prosecutors, is that the state of North Carolina wins its case when people are treated fairly. That is, when litigants who come into the courtroom are treated fairly, the state wins its case. So, in effect, the state cannot lose a case, if people are treated fairly.

It's nine months now into this case. One of the only other statements I've made in a press conference in this case was months ago when the DNA testing first came back and I said to you, you know, there's not a spider web of connection between any of these boys and any DNA.

And now what I want to do is add something to that and say there's not a spider web of evidence supporting the allegations of Mr. Nifong. We've waited and there isn't anything. There is a bare -- there is a bare assertion by a woman that an event occurred.

But, you know, as criminal lawyers, we understand that the very walls will speak and tell the truth about an event that happens. And the walls haven't said anything here and nothing has said anything, and the DNA has said nothing. And so we have this bare assertion and nothing else.

And we come three-fourths of a year down the road with the suffering of these people and the sadness and the grief of these families, and what I want to do today, on behalf of all the lawyers here and all of these families, is call Mr. Nifong to end this case, end this suffering.

You know, you could say this is a step in the right direction. He has done something. Do the rest of it. Mr. Nifong, if you are listening, do the rest of this. Do the honorable thing. End this case because there isn't a case to bring. And those are my thoughts.

CHESHIRE: If you all have any questions, we will entertain a few.

QUESTION: (INAUDIBLE).

SMITH: No. We have not contacted him today. Perhaps that's a good idea. Maybe he would -- maybe he would relent. It is -- it is a wonderful season of the year. It would be a great day for him to do it.

QUESTION: Joe, have you talked to any of the -- talked to your clients yet about this dismissal?

CHESHIRE: I certainly have and I know some of the others have and I think it would be fair to say that at least Dave Evans shares the statements that I have made.

He is heartened by the admissions of the prosecutor that there is no evidence, other than what the accuser says. But he is still a charged defendant in some very serious crimes that he is innocent of. So he has no joy in what has happened today.

QUESTION: Joe, you talked about this charge. Just how serious are the remaining charges and how concerned are you that the burden of proof of the D.A. to prove those charges (INAUDIBLE) easier than it is in a rape charge?

CHESHIRE: Well, the charges are basically the same. I mean, the penalties for the first-degree sex offense is the same as the penalty for the rape, so there is no difference in that regard.

And I think all of the charges basically merge together. I mean, I don't think it's a situation where a jury is going to convict on one charge and not the others. I mean, I don't think there is any difference.

QUESTION: Joe, you said that several times that he should of talked to the accuser and you said that it's not the duty of a prosecutor to win a case at all costs. Do you think he has acted ethically or that he should be looked at for misconduct?

CHESHIRE: You know, that's up to the North Carolina state bar to decide. I certainly think there is some significant questions here that are worth addressing.

QUESTION: In a crime case like this, we hear about defendants and we always talk about what the defendant may be thinking. Put this on Mr. Nifong -- the fact he is not dropping everything. Do you have any idea what potential motive could be from his standpoint?

CHESHIRE: Yes, we had lots of ideas. I don't think we'll necessarily share them with you, but we have all kinds of ideas. We think we probably know fairly well, but you particularly Colin are a very smart man. You probably know what we know, but I don't think we'll talk about that in particular.

QUESTION: (INAUDIBLE).

CHESHIRE: You're bragging now.

QUESTION: Is it accurate to say that the case goes from being about forcible sexual intercourse versus forcible sexual contact? Is that an accurate assessment?

CHESHIRE: I don't know whether you could say that is an accurate assessment. When you read his dismissal, it's still fairly vague. It's vague as to whether or not he's saying in there that she can't remember whether a penis was used at all or whether it was just used in vaginal penetration, which is what rape requires.

So we don't know, we don't know that. We don't know whether he is continuing along the theory that it is an actual physical sexual assault that penetrated the mouth or the anus, for example. We don't know that.

You'd have to ask him that. We've asked for a bill of particulars to find out specifics like that and we will probably ask for another one in light of this.

QUESTION: Hypothetically speaking, is it going in the direction of sexual contact, which is so broad, which could mean a number of things. How confident are you in your case?

CHESHIRE: We're enormously confident. First of all, let me just say to you and look right in your eyes and the eyes of every camera in here to say these boys are absolutely innocent. They never touched her. They were never alone with her together in any place. So it's not possible that they kidnapped her, touched her, raped her, assaulted her or did anything else to her.

QUESTION: You said that very thing months and months ago (INAUDIBLE) still sitting here today.

CHESHIRE: Enormously frustrated, would that be a way to classify it?

QUESTION: You tell me.

CHESHIRE: Yes, enormously frustrated. We have all said here that all of us, as criminal lawyers, it's almost you could say not a unique experience, but an interesting experience to absolutely know your clients are innocent.

We fear nothing about this case because we know they're innocent. When people say, oh they took DNA, the DNA results are coming back, are you afraid of them? No, we're not afraid of them.

Oh, somebody is going to say something. Are you afraid of that? No, we're not afraid that of because we know these boys are absolutely innocent.

Are we frustrated that this case continues on? Yes, with are enormously frustrated. I think the state of North Carolina is looking poorly. I think our justice system looks poorly, and our clients are suffering more than you can imagine.

There is not much worse that I have discovered in 34 years of practicing criminal law than to be an innocent person subjected to prosecution in the criminal justice system.

SMITH: You know, it's the only case I've ever been in where people on the street stop me and say isn't there something that can be done? Isn't there something? What can be done? So, yes, it's extraordinarily frustrating for all of us.

QUESTION: When did you find out officially that these charges had been dropped? And did you expect something like this to happen or were you surprised at all?

CHESHIRE: Well, my law firm had its Christmas party set for 12:30 today and we didn't get to go. We were fairly surprised. Wade's had his at 1:00. They didn't get to go. They were fairly surprised. Yes, we found out this morning.

QUESTION: Did you see this coming at all?

CHESHIRE: No, I don't think so. I mean, first, when the dismissal started coming across the fax, we went, thank you, Lord, we finally have justice. Then we realized it was a dismissal of only one charge.

QUESTION: Joe, you said that there's a troubling coincidence between the events of today (INAUDIBLE) and what transpired at the hearing on Friday. Can you connect the dots more for us?

CHESHIRE: Well, I'll try to a little bit. Last Friday, it was -- it was proven definitively that the state of North Carolina, in conjunction with DNA Securities, violated the law, the statutes of the state of North Carolina in two different ways in failing to give exculpatory evidence.

That exculpatory evidence was DNA that showed, without question, 100 certainty, that there was no DNA of any of the charged defendants on or about the person of the accuser. What that means is there was no sexual assault on this accuser by these three men. There was no sperm, no semen, no cells, no dander, no anything, no skin, no anything on her.

PHILLIPS: Rape charges dropped in the Duke case. You've listen listening to a live news conference. The various attorneys representing the three students, Collin Finnerty, Reade Seligmann and also David Evans. Bottom line, is this stripper telling the truth? All of the lawyers coming forward naming all of the discrepancies in what she has told authorities, in light of the rape charges being dropped. B.J. Bernstein, a defense attorney, specializes in sex crimes.

What did you pay attention to? I guess the first thing -- I want to know what you paid attention to but why all of the graphic details for 35 minutes?

B.J. BERNSTEIN, CRIMINAL DEFENSE ATTORNEY: The graphic detail is important here for the defense attorneys to show how different this woman's statement is. It isn't just the allegation of rape, but multiple types of sexual acts that she supposedly had committed on her and the drastic change.

And so, you know, truthfully, in court, when you hear a case like this, we use all of the words that we may not say around children or other people, but in court, you have to go into graphic detail and that is why he did it here.

PHILLIPS: Because he's trying to say there is no way that someone can come forward and give these type of details and then, all of a sudden, say, well, maybe that didn't happen, OK, no, it didn't happen and still have a case for rape?

BERNSTEIN: Precisely. What they're trying to say is, you know, for her now, the reason for Mike Nifong to dismiss these charges, according to what he filed, is that this woman does not remember being penetrated.

And, yet, what Joe Cheshire, one of the elite attorneys in the case, has said today in the press conference is, listen, she said multiple times different boys had intercourse with her, committed various acts of sodomy, different sexual acts.

How is it that you can go from many times saying that over and over, back when the offense occurred, and then just last week, she sits down with Nifong -- which by the way, we all were a little shocked that he had gone months without meeting with her -- and then apparently he finally does and she says, well, I'm not sure if I was penetrated.

And so the defense is really trying to hit home that, yes, we're happy the rape is over, but why isn't the rest of the case been dismissed?

PHILLIPS: Right, and it's not over. It's still -- there is still going to be -- there is a long way to go because you have got kidnapping and charges of sexual offense still.

BERNSTEIN: Exactly. And he mentioned today that these charges carry 240 to 290 months, over 20 years in prison these boys still face. So although the headline seems -- you know, even when I heard it at first I thought, oh, the rape charges are dropped.

PHILLIPS: Sure, they're cleared, all good. BERNSTEIN: No, it's not the whole over and there is some very serious charges left.

PHILLIPS: All right, we will follow it. B.J. Bernstein, thanks so much.

BERNSTEIN: Thanks.

HOLMES: We're going to turn now to folks trying to get home for the holidays. These are astronauts we're talking about here. Seven possible time slots, three possible landing strips, new video of NASA testing some of their options. Stay tuned. You are in the NEWSROOM.

(BEGIN VIDEOTAPE)

ALI VELSHI, CNN CORRESPONDENT (voice-over): It's Christmas time in Compton, California, and Martha Childs is giving in her unique style.

UNIDENTIFIED MALE: He make it so easy! Hello, somebody!

VELSHI: In this community known for gang violence, Martha is a soldier, but her gang is The Salvation Army.

UNIDENTIFIED FEMALE: I did train to be a junior soldier. I've been the Girl Scout leader here, and just another of this church. I want to reach out to the public. Tell me what you need and if I can help you, then I can help you. You need people to help you do it. It ain't what you do, it's how you do it.

VELSHI: And Childs has been doing it in Compton for more than 40 years. Before retiring, she worked in a lab at USC Hospital. Now, she devotes all her time to outreach, volunteering and to The Salvation Army.

Martha is a deeply religious woman. She comes from a family of ministers. It's a tradition that's evident as she leads her Salvation Army Sunday school program.

UNIDENTIFIED FEMALE: My job is to help -- if I can teach Sunday school or give to somebody, I think my living will be in vain.

VELSHI: Martha has lost her husband and both her sons to illness. She channels that loss into giving back to the her extended family, the people of Compton.

UNIDENTIFIED FEMALE: I stand here in the name of Jesus. I just want to say thank you. I don't know no other life, and I want to live a long time. Maybe there is another life, but I'm not looking for much.

VELSHI: Ali Velshi, CNN.

(END VIDEOTAPE)

(COMMERCIAL BREAK) HOLMES: Space Shuttle Discovery in a holding pattern. An hour or so ago, NASA told the shuttle to keep on circling earth in hopes of better weather at the preferred landing sites.

With the latest for us now, CNN's John Zarrella at Kennedy Space Center which was one of the preferred landing sights, but no, it ain't going to happen.

Hey, John.

JOHN ZARRELLA, CNN CORRESPONDENT: Well, I don't know, T.J.

Things are so fluid here right now that anything can still happen. We got about 4:19 Eastern time is when they have to do the deorbit burn to come down on this next revolution. And we can take a look at the live pictures and what we're seeing at NASA select right now are the photos from Edwards Air Force Base in California as some of the vehicles get into position to go out there and meet the shuttle, should they come back to Edwards.

Now, of course, there's three sites today that are up and running. You have Edwards Air Force base and you've also got the Kennedy Space Center and you have White Sands in New Mexico.

Now, at Edwards Air Force Base right now, can you see the shuttle training aircraft is flying over there. That mimics the performance of the Shuttle, that's an STA trainer they call it -- mimics the performance of the shuttle so that they'll know exactly how it's going to come perform coming down in the crosswinds that they've been experiencing there.

But those have come down. So Edwards is looking better and better all the time. It's a great runway out there. The big high desert out there with the concrete runway. So that's a preferable spot as well.

Now, of course, it does not look so good here in Florida. They still have rain showers here in the area in Florida so this may be the least option.

They can also go, of course, to White Sands. They don't want to do that if they can avoid it. It's not a safety issue, landing at White Sands is terrific as far as safety. It's a wide open -- in fact, the astronauts can actually see it from space as they're coming in, it's such a terrific spot to land out there.

But they've only landed there once before, that was STS-3 in 1982, Columbia one of the very early test flights in the shuttle program. And they just don't have the support equipment out there.

We saw that support equipment a minute ago out at Edwards Air Force Base. Well, they just don't have that at White Sands. So it makes it a lot more difficult to turn the shuttle around.

Now, no matter where they come back to, any of the three sites today, they're going to have to perform a series of what are called S maneuvers to burn off all of that energy and all that speed as they re-entering the Earth's atmosphere going through that time of maximum aerodynamic heating.

So they will be doing that coming up shortly if they get the order to do the deorbit burn.

Again 4:19 Eastern time deorbit burn, if they go to Edwards, 5:27 Eastern time landing. 5:32 Eastern time landing if they come to the Kennedy Space Center.

And we're still not sure where they're going, T.J.

HOLMES: All right. It's a mystery, still.

Thank you so much, John. We'll see you.

ZARRELLA: You got it.

HOLMES: Reynolds Wolf has weather outlook for that Shuttle landing.

REYNOLDS WOLF, CNN METEOROLOGIST: Well it's hop, skip and jump between the three sites. One of those of course be near Orlando, Florida -- we're talking about at Kennedy Space Center where we're seeing some scattered showers forming out to the west. I would venture to say that it is not going to happen in Florida.

Right now the conditions are not really looking all that good. Overcast conditions, temperatures in the 77 degrees.

As we head farther out to the west, as John mentioned, things are looking very good at Edwards Air Force Base. The dry, thin air looks pretty nice. We've got 45 miles visibility, which is just perfect for the landing. And the winds at this time, really not that bad. So this may be the best option.

Wind at this time, though, out of the north/northwest at 7 miles per hour, temperatures at 54 degrees.

Now, if that doesn't pan out, you still have option number three. Option number three takes you past the four corners and into New Mexico. White Sands, New Mexico -- called White Sands because of its white sand.

And conditions there are really not that bad. We're looking at temperature around 43 degrees, wind direction variable with speeds at 3 miles per hour.

But as John mentioned that's the option they don't want to take. So it's just a little bit of a wait and see. But now you have an idea of what you can expect. But right now, if I was a gambling guy, which I'm not, I would go for Southern California. Back to you.

PHILLIPS: You're a gambling guy.

WOLF: There you go. PHILLIPS: Every now and then.

WOLF: Yahtzee!

PHILLIPS: Exactly! Yahtzee!

We will be right back. You're watching CNN NEWSROOM. We will be right back.

(COMMERCIAL BREAK)

HOLMES: It's now time for us to check in with a guy that Kyra affectionately calls Wolfy.

PHILLIPS: OK. You're not supposed to go on the air with that. Yes, thanks a lot.

Wolfy, I'm sorry. Tell us what is coming up in THE SITUATION ROOM.

WOLF BLITZER, CNN ANCHOR: You don't have to be sorry, Kyra. Thank you very much.

Space Shuttle Discovery coming in for a landing. The question right now is where: California, Florida, New Mexico? We're expecting touchdown the next few hours. Wherever it happens, we're going to show it to you live right here in THE SITUATION ROOM.

Also, winter weather possibly preventing thousands of people from making it home for Christmas. We're going to take you live to the Denver Airport where officials now say it could take days to get back to normal.

And Defense Secretary Robert Gates on his way back from Iraq. What did he learn? And what will he tell President Bush when they meet at Camp David tomorrow. All that coming up.

And the draft: we'll show you what the government is now doing and that is making some people wonder. All that coming up, guy, right in a few minutes here in THE SITUATION ROOM.

PHILLIPS: All right, Wolf. Thanks so much.

Well, the closing bell and a wrap of action on Wall Street.

HOLMES: That's straight ahead. See you.

(COMMERCIAL BREAK)

PHILLIPS: Closing bell about to ring on Wall Street.

HOLMES: Susan Lisovicz standing by with a final look at the trading day -- Susan.

(MARKET REPORT)

SUSAN LISOVICZ, CNN CORRESPONDENT: Now it's time for THE SITUATION ROOM and Wolf Blitzer.

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