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Nancy Grace

Rape Charges Dropped Against Duke Lacrosse Players

Aired December 22, 2006 - 20:00   ET

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

JANE VELEZ-MITCHELL, HOST: Tonight, breaking news in the Duke rape case. Rape charges have just been dropped against those three players on the elite lacrosse team.
The players were accused of attacking a student turned stripper at a team party last March. The accuser now admits she cannot testify with certainty that she was raped, but the players are not off the hook yet. They are still facing kidnapping and sexual offense charges.

We must warn you, some of the material you are about to hear is sexually graphic, as we bring you the very latest. Again, breaking news, rape charges dropped in the Duke case.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Earlier today, Mr. Nifong filed a dismissal of the rape charges against these three young men, leaving in place the first degree forcible sex defense charges and the kidnapping charges.

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.

UNIDENTIFIED MALE: It`s nine months now into this case. There`s not a spider web of evidence supporting the allegations of Mr. Nifong. We`ve waited and there isn`t anything.

UNIDENTIFIED MALE: 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 a b-1 felony carrying the presumptive range from 240 to 297 months.

UNIDENTIFIED MALE: Mr. Nifong, if you are listening, end this case, because there isn`t a case to bring.

(END VIDEO CLIP)

VELEZ-MITCHELL: I`m Jane Velez-Mitchell, sitting in tonight for Nancy Grace.

Bombshell developments in the Duke lacrosse case, which can no longer be called a rape case, because the rape charges have been dropped. That stunning announcement today from embattled district attorney Mike Nifong.

Hours later, attorneys for the young men accused in the case held an emotionally charged news conference where they demanded that all, all the charges be dropped.

We have to warn you, sexually, very sexually graphic comments were made, which you may not want your children to hear, but which are crucial to this case.

For the very latest, let`s go straight out to investigative reporter Kevin Miller, who has been covering this story from the very start.

Kevin, what is the latest?

KEVIN MILLER, INVESTIGATIVE REPORTER: Jane, you look at the press conference today. A little earlier today as you all have said, Mike Nifong notified the attorneys for Collin Finnerty, Reade Seligmann and David Evans that the charge of first degree rape would be dropped.

You had attorney Smoking Joe Cheshire (ph) and others make statements calling on Nifong to drop the case, saying, quote, "This case first was about DNA, then about corroborating evidence, then it was about the credibility of the accuser."

Now it comes down to the credibility of the prosecutor, which apparently he doesn`t have any. This could be the beginning and the end of this case.

VELEZ-MITCHELL: Defense attorney Alan Ripka, watching that news conference, a lot of people actually gasped because one of the defense attorneys was very, very explicit, repeating over and over again in very sexually graphic terms exactly what this accuser said originally after the alleged incident in March in order to dramatically offer a contrast with what she`s saying now, which is I don`t think I can say with certainty that I was penetrated by a penis vaginally.

I feel embarrassed to even use those phrases, but he said them over and over again. Did he cross the line or was he making a brilliant point?

ALAN RIPKA, DEFENSE ATTORNEY: No, he made a brilliant point. He wanted to emphasize that there was no case against his client that this accuser has no credibility and the prosecutor had no credibility at all. And he was setting it up because he knows it`s going to come out that he withheld evidence. And he did a brilliant job of showing passion in his representation of his client.

VELEZ-MITCHELL: I have to ask psychologist Lillian Glass how is it possible that a woman could change her story so dramatically without lying? Is there a possibility? I mean, this is not an incident -- apparently also, according to her allegations, that happened in a flash. It went on for several minute, up to 20 minutes by some accounts.

So how can she offer this very detailed explanation and now say she cannot remember with certainty that she was, in fact, raped? Do you lose your ability to remember over time? Or do you become unable to maintain a falsehood with such scrutiny?

LILLIAN GLASS, PSYCHOLOGIST: Maybe it didn`t happen at all. And that`s why she can`t make the statement or statements about what happened and what didn`t happen, because maybe this was made up in her own mind. So it sounds like that.

VELEZ-MITCHELL: Well, I have to ask Gloria Allred, a very noted attorney for victims` rights, Gloria, do you think that this entire case has hurt al women, especially rape victims? Because isn`t there a possibility now that a rape victim, when she goes in to report a rape, is more likely to be disbelieved or people are more likely to say, are you absolutely sure you remember correctly what happened?

GLORIA ALLRED, ATTORNEY FOR VICTIMS` RIGHTS: Well, I think, Jane, that it certainly hurts rape victims when the handling of the case -- when it is done in the way that this particular district attorney has done it.

In other words, if in fact it`s true that he withheld exculpatory evidence from the defense; if in fact it`s true that he didn`t interview the alleged rape victim earlier on in the process; if in fact it`s true that he only had lacrosse players at the lineup and not anyone else, thereby allowing the defense to challenge the lineup and the identification, then, you know -- then that hurts his case.

And hurting a high profile rape case or what was alleged to be a rape case is certainly not good for rape victims.

And I`m not ready to conclude, by the way, that this alleged victim lied. It may be that she was under the influence of drugs or alcohol or both at the time of the alleged incident. It may be that she`s emotionally shell-shocked since then by all of the attacks on her.

We don`t know why she`s saying now what she is alleged to have said, that is, that she can`t testify with certainty that, in fact, there was a penis that -- that penetrated her vagina on that day.

VELEZ-MITCHELL: You`re saying you`re not willing to say she`s lying just yet. But I want to go to a man that I think might disagree with that. Steven Miller, executive director of the Duke conservative union, you have been outspoken on this case from the start.

Do you still give her the benefit of the doubt? I don`t think you ever did, did you?

STEPHEN MILLER, EXECUTIVE DIRECTOR, DUKE CONSERVATIVE UNION: Well, I never gave her the benefit of the doubt. If you looked at the evidence in its totality, it was clear from very early on in this case that this was, indeed, a bogus case.

And Jane, I think both you and I can agree that all the charges should be dropped. This is absolutely unbelievable.

On the night in question, just that night alone, she had several different versions of events. In one version of events that night she claimed she was only groped and not even raped. She changed the number of attackers. In the photo lineup, she identified different people.

She identified one as having a mustache who didn`t even have a mustache. This whole case has been wrought with irregularity and nonsense and deceptions. Mike Nifong keeping exculpatory evidence away from the defense. You`re talking about a guy who did so many press interviews to get re-elected.

There was never really any evidence against these players. The DNA didn`t match on any count in any way in any capacity this entire time. You have absolutely no reason to believe these players committed this crime. One of the players have is a solid alibi during the time the crime was supposed to have occurred. You`ve got all this stuff.

I cannot think of one case, one case, of equivalent or near profile in the United States of America where there has been so little reason for three people or one person or anybody to be brought to trial. This is insanity.

VELEZ-MITCHELL: All right. Eleanor Dixon, you`re hearing people come down very hard now on this accuser, yet Gloria Allred says, hey, we can`t totally discount her story yet. So we have two polar opposites. Some people saying all the charges should be dropped. There are people that think that Nifong should be prosecuted. And others saying hold off, let`s hear all the evidence.

ELEANOR DIXON, PROSECUTOR: Well, you`ve got to remember as a prosecutor, he can`t go out and discuss the evidence in public like the defense can throw out whatever they want.

Trauma affects people in different ways. And this victim may have been very traumatized. That could have been the reason for not remembering certain things. I think it`s admirable...

VELEZ-MITCHELL: Could it be the reason for changing your story so many times? I think that`s what`s getting to people.

DIXON: And yes, but she`s been attacked so much by the public. The only people who really know what happened are her and the people in the house that night.

And you`ve got to remember only one charge was dropped. I think it`s admirable that the D.A. dropped the charge when she said, "I can`t say for certainty if I was penetrated, what I was penetrated by." However, there`s still the charge of kidnapping and the sexual misconduct charge, as well.

VELEZ-MITCHELL: And Kevin Miller, investigative reporter, the defense attorneys were claiming that the D.A.`s office was interviewing this woman just this week for the very first time, which I find incomprehensible? I mean, obviously, she made statements right after the alleged incident. So what did they mean by that?

MILLER: Well, it`s based on the motion to dismiss. Investigator for the district attorney Linwood Wilson interviewed the accuser yesterday. And it`s noted in the dismissal that she could not, again, say that a penis penetrated her vagina.

Mike Nifong has said in court -- he`s had contradicting statements himself, Jane. One minute he says this case is on her credibility. We`re going to have her. She`s going to make her case, and she`s going to look her people that did this to her in the eyes, and she`s going to stare them down.

And then on the other hand, he admits in court that he`s never talked to her because he`s afraid that he could be cross-examined. He also said that`s the reason why he never talked to the attorneys for the accused -- the defendants here.

So again Mike Nifong has got a credibility problem that continues to mount.

VELEZ-MITCHELL: Yes, this is -- a lot of people are calling fiasco. And I think that might be a good word. Let`s listen to the attorney for one of the suspects, Dave Evans. And I have to warn you, what he`s saying is graphic.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: 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.

(END VIDEO CLIP)

VELEZ-MITCHELL: All right. This latest bombshell of dropping of the charges and the defense attorney`s reactions comes on the heels of another shocking development just last week, where a key witness for the state, a guy who operates a lab that tests DNA, admitted in testimony that he and Nifong agreed not to release exculpatory evidence regarding the DNA evidence that came out back in May.

In other words, they did a test on the DNA, and it came back negative, not just for the three suspects but for all the lacrosse team. And that was not turned over to the defense.

Stephen Miller, executive director of the Duke Conservative Union, when you heard that, what did you want to happen to Nifong?

S. MILLER: Well, let`s put it this way: the only person in this whole case that has any real significant evidence of wrong-doing against them is one district attorney by the name of Mike Nifong. And he should not be practicing law any more.

Honestly, if I were these players, I would have a very strong and sincere desire to see that he pay a price for an entirely unethical, dishonest prosecution that from the beginning had been marred by professional misconduct. And this is just the latest in a long litany of procedural abuses.

Of course, one of the most significant of those was the fact that they gave an accuser who had already changed their story several times a photo array that only has suspects in it. And in that photo array, she didn`t even identify the three people on trial now the very first time she did it. So it wasn`t even done right. And it was a fraudulent photo lineup.

This whole thing`s been a mess. And one man ultimately bears responsibility for that, and that`s Mike Nifong.

VELEZ-MITCHELL: Well, I have to agree with you, prosecutor Eleanor Dixon, you may want to give this woman the benefit of the doubt, but the behavior of the D.A. is highly suspect. It`s mistake after mistake after mistake. And at a certain point you have to wonder if there`s a sinister motive for all of this?

DIXON: Well, you wonder if there is a motive of one kind. I mean, you are supposed to give up in discovery to defense attorneys the evidence that you have, or lack thereof. And that is highly suspect, I would say, in this case. I don`t know what he was thinking, if he was going to give it to them later? Who knows?

But again, remember, the D.A. can`t publicly talk about the evidence in this case until it goes to trial. We can`t make statements about it publicly at all.

VELEZ-MITCHELL: All right. The phones are lighting up. Let`s hear what they have to say. Larry in Indiana, your question?

CALLER: I was wondering what did the men do to get a rape -- a kidnapping charge?

VELEZ-MITCHELL: Well, you raise a very valid point. And let`s go back to Kevin Miller, investigative reporter. Do we even know what the claim is now that the rape charge has been dropped but these other remaining charges remain? What is it that they say happened?

K. MILLER: Well, Jane, if you go back to again, the original allegations here that she was put in a bathroom, she was held there against her will. And under North Carolina statute that does qualify for kidnapping.

The statute for sexual assault is the same as first degree rape. So the penalties are 24 years in prison second only to first degree murder in North Carolina. Seven -- you`ll get 7 years for kidnapping. So the charges are still significant. Holding somebody against their will in North Carolina, according to a statute, is in fact a kidnapping. So that`s what we`re talking about.

VELEZ-MITCHELL: We have got a lot more on this case. So stay right there.

To tonight`s "Case Alert". An Ohio couple who claimed they were just protecting their adopted children by putting them in cages, convicted of child abuse and endangerment.

Michael and Sharon Gravelle found guilty of forcing their 11 -- 11 special needs children to sleep in wood and chicken wire cages, which are awful. I can tell you that. The Gravelles face up to five years in prison.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Whether 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.

(END VIDEO CLIP)

VELEZ-MITCHELL: I`m Jane Velez-Mitchell, sitting in tonight for Nancy Grace. Explosive developments in a case that has torn a community asunder and heightened racial tensions in the Durham, North Carolina, area, home to prestigious and historic Duke University. The school became embroiled in a scandal with sexual, racial and political overtones.

And again, we have to warn you, sexually graphic language was used by attorneys defending the three young men who were accused of raping an exotic dancer who performed at a lacrosse party. But now those rape charges have been dropped.

I want to go back to the whole DNA test that was allegedly suppressed and talk to a toxicologist and deputy medical examiner, Dr. William Marrone. Because not only did it, according to what we`ve heard from the testimony, clear any of the players because they found no DNA of them on her, it also turned up DNA from several other unidentified men. Is that your understanding?

WILLIAM MORRONE, DEPUTY MEDICAL EXAMINER: Yes, it is. Based on what`s been released in the press, there was multiple samples. And DNA is different from other samples when it comes down to sperm analysis. When sperm is mixed between multiple donors, if it`s processed correctly in a sexual assault kit, they can tell you how many different sperms there are. There were multiple.

VELEZ-MITCHELL: Now, let me ask you this question. The defense attorneys in the news conference today were saying that because the DNA from none of the lacrosse players turned up, that in effect exonerates them.

In other words, what he was saying if there was any contact, not just talking about rape but other sexual offense or kidnapping, interaction, physical interaction, some DNA would turn up from these three boys on this woman and it did not. Do you buy that?

MORRONE: Because of the sexual orientation of the case and the sampling and the strict techniques that are used after a sexual assault, you`re not just looking for sperm, you`re looking for skin cells, you`re looking for pubic hair and you`re looking for bodily fluids. All of them would generate the genetic profile in the men that were accused. None of that was found.

VELEZ-MITCHELL: So in plain English, are you agreeing with the defense attorneys or not? Are you saying, yes, this would tend to completely exculpate them?

MORRONE: I have to agree with them at this time.

VELEZ-MITCHELL: So Stephen Miller, executive director, Duke Conservative Union, do you feel the charges should have been dropped back in May? I know you think they should never have been filed. But given that report, should they have been dropped back in May?

S. MILLER: They should have been dropped. Let me add this thought. If this had not been a situation where you had three apparently well-to-do white lacrosse players accused of raping a poor black stripper single mother in Durham, if you hadn`t had that racial element, there`s no way this case could have continued for this long.

But because of the incredibly toxic racial environment you have in America and specifically in Durham, where 96 percent it`s estimated of the black population voted for Nifong`s re-election, you have a situation where people are afraid to intervene, because they`ll be perceived as doing it for the wrong motivation. The only thing that matters here is justice.

VELEZ-MITCHELL: We don`t want to increase that. We want to decrease that. We want to use this as an opportunity for healing and bringing people together. So let`s see how we can do that in the next segment.

Stay right there.

Tonight, a baby Jesus statue stolen last Christmas from a manger scene makes its way back home to its owners in Buffalo, after a tour around the state of New York. Several college students believed to be behind this prank even -- get this -- documenting the stunt in a photo album they left on the owner`s doorstep.

The statue made appearances at some rather unusual locations, including college campuses and even a psychiatric center.

Well, the owners are in very good holiday clear and happy to have their baby Jesus back, so they have very graciously decided not to press charges.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: 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.

(END VIDEO CLIP)

VELEZ-MITCHELL: I`m Jane Velez-Mitchell, in tonight for Nancy Grace, as we hone in on a racially and sexually charged case out of North Carolina.

Have to warn you, language that is key to this case, very sexually graphic. You may not want your kids to hear it.

We are talking about the Duke lacrosse sexual assault case. Now those rape charges have been dropped against the three young men who`ve insisted all along they are innocent. So the big question, what should happen next?

I have to tell you the phone lines lighting up. A lot of people weighing in on this extraordinarily controversial case. Let`s go to Judy from Tennessee. Your question?

CALLER: Yes, every day there seems to be a new report or allegation from this lady. And you see very little of her. I think I`ve seen one picture of her on TV. She apparently is in hiding away from her family. If she is single and she is away from her family, who`s footing the bill for her to be in hiding? And is she working? Who`s taking her to the doctor if she supposedly is pregnant and, you know, just everyday things?

VELEZ-MITCHELL: Well, good question. Investigative reporter Kevin Miller, what do we know about this woman? I understand she`s pregnant.

K. MILLER: Right. She`s about ready to have a baby. And before that we had known throughout the street at Durham that she had been working in clubs, really after the incident had occurred.

So again, she is estranged from her family. She is pregnant. And three players have been ordered to take paternity tests once she has her child.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: 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. The accuser had said they were not using condoms.

When it was shown that Reade Seligmann had an absolute alibi for the time frame that 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.

(END VIDEO CLIP)

VELEZ-MITCHELL: Jane Velez-Mitchell sitting in tonight for Nancy Grace. We warn you this story is sexually graphic and not suitable for young children.

The question: How will justice be achieved in the Duke lacrosse case given the fiasco -- and that`s the word for it, really -- many and now most say it`s become. First you have the female exotic dancer who said she was raped at a lacrosse party, but then tests showed no DNA from any of the lacrosse players in her body or underwear. That information reportedly kept secret from the defense.

Just days after that stunning announcement, the key exculpatory evidence was withheld by the D.A. Word now prosecutors have re-interviewed the woman, and she has changed her story again. Now she says she`s not sure that she was vaginally penetrated by a penis, so the rape charges have been dropped.

I want to go to victims` rights advocate Gloria Allred, because what disturbs me also is the finding of unidentified male DNA that is not from the lacrosse players in this woman`s body. And, you know, of course, it`s so disturbing to even discuss this. It feels so violating to get that graphic, but this is what this case has become.

It would imply that she wasn`t honest with the prosecutors from the get-go, because you would think that she didn`t say, "Hey, I have several other men that I`ve been intimate with in the last couple of hours"?

GLORIA ALLRED, ATTORNEY: Well, we don`t know how long that other DNA was in her body. So we don`t know whether it was just a few hours or substantially longer period of time.

But, you know, for people who want to call her a liar, you know, if she wanted to lie, she could say she was absolutely certain that there was a penis inside of her vagina and then proceed with the rape charge. Yes, I know there`s no DNA, but, I mean, she could have said that and she didn`t.

So maybe people should give her more credit than they`re giving her for her honesty, even though her story may be a little different now. You know, maybe her recollection is different or maybe she`s not certain now.

By the way, she`s not just a stripper. She`s also a college student. But, unfortunately, the press often doesn`t describe her as the college student that she also is.

VELEZ-MITCHELL: Well, Stephen Miller, executive director, Duke Conservative Union, Gloria makes a good point. If she was a liar, straight out, why not stick to the original story, whether or not it`s true? Why volunteer that she now doesn`t have the certainty?

STEPHEN MILLER, DUKE CONSERVATIVE UNION: Well, actually, it`s, I`m afraid to say, not a good point, because she has no, for one thing, original story. Again, on the night in question, she had a different number of alleged attackers. She at one point said that she wasn`t raped but only groped.

And I would speculate that she probably, if she cooks up this whole thing, would start feeling guilty after a while and looking for some sort of way to maybe exit out of it and to back down.

And, also, it`s possible that she believes something happened that didn`t happen. I feel bad for this person, because I think that she probably does have some issues that need to get worked out. We know that she has been hospitalized for a nervous breakdown.

And I think that it`s possible that she has some severe issues that should be treated. And I don`t have animosity towards her, because probably, on some level, she`s also a victim of Nifong`s insane behavior, because Nifong should have stepped in and said, "Wait, hold on a second, let`s get you seen by a medical health professional."

VELEZ-MITCHELL: I see what you`re saying. And I want to go back to Gloria, because this is really point-counterpoint. And he also makes a valid point that perhaps she`s been victimized as well, because this is obviously going to tarnish and affect her life for the rest of her life. And you remember the Tawana Brawley case. This kind of thing really goes into the history books.

And she`s got to live with this for the rest of her life. He could have circumvented it, if he really felt that it was a very weak case, and said, "Hey, you don`t really necessarily want to proceed with this unless you`re absolutely sure."

ALLRED: Well, absolutely. I think that she may very well have been a victim of District Attorney Nifong, because I think a district attorney really has a duty to vet the case.

I have seen cases, Jane, where rape victims have gone in, there`s a whole lot more proof than appears to exist in this case, and still district attorneys don`t prosecute. And especially in a high-profile case where they seem to require so much more than even the law requires, in order for them to stick their neck out as a D.A. and prosecute.

So I think that perhaps there has been mishandling of this case by the district attorney. Whether or not it`s too late to save it, it`s hard to tell at this point. But I do feel very sorry for the alleged victim, and just the fact that her story may be a little different doesn`t mean, again, that she lied.

I see that your other guests are not seeming to give any weight whatsoever to the fact that she might have been under the influence of drugs or alcohol at the time of the incident, and also her emotional state may have been such that it did have an impact on her memory.

VELEZ-MITCHELL: Well, we`ve got a lot of comments coming in on this. Mary, North Carolina, your question?

CALLER: Hi. I was wondering, with the lady changing her story so many times, and the fact that there is no physical DNA, how is the jury pool not going to be tainted by all this news coverage?

VELEZ-MITCHELL: Oh, that`s actually a really good question. Defense attorney Alan Ripka, is this case viable? Everybody`s wondering, why doesn`t he just drop the charges and walk away from this? Do you feel that the D.A.`s trying to save face? Do you feel he might have a strategy?

A lot of people have actually wondered whether this is a ploy to drop the rape charges, because the DNA exculpatory evidence is so damaging to his case that, if he takes away the rape charges, then he really doesn`t have to discuss the whole issue of DNA.

ALAN RIPKA, DEFENSE ATTORNEY: Well, you know, he may be trying to save face now, but what he`s doing is digging a deeper hole, because I will bet you that there would not have been charges of kidnapping had there not been charges of rape, and one came from the other.

And in this particular case, he`s going to dig a deeper hole, because he`s going to realize that he can`t prove his case because she has no credibility. And I don`t want anyone to forget that the reason there was a case is because this woman played a complaint of rape to begin with.

And generally, people who make the complaint of rape know they`ve been raped. So to say later on that she doesn`t think she was penetrated, I think is a far cry from the original story. And I don`t see her as the victim. I see the boys, that their lives may be over, as the victims.

VELEZ-MITCHELL: And Kevin Miller, investigative reporter, people are talking generally about, well, this is politics, but explain. He was up for re-election, and he had a primary battle shortly after this case broke, right?

KEVIN MILLER, INVESTIGATIVE REPORTER: Jane, he was appointed by the governor, because the original district attorney got appointed to a judgeship. He ran for election against one of his campaign rivals who had worked with him for many years in the district attorney`s office.

He used -- a lot of people claim he used the issue to get elected, which caused a big firestorm. But if I could correct Gloria Allred for a minute, there was a drug test. She was not given a date rape drug. If that was the case, that there, in fact, would have been something in the indictment. That hasn`t happened. It`s been speculated for quite some time, and that`s an inaccurate statement, so...

VELEZ-MITCHELL: Yes, but the other dancer who was there that night said she appeared intoxicated. So was she acting?

(CROSSTALK)

K. MILLER: Right, that`s the other dancer that flipped off everybody and who one time said it was a crock, the next minute said it was rape, the next minute made derogatory comments about the Duke lacrosse players. The bottom line is that this case has gone from a DNA case to a credibility case to just a joke.

VELEZ-MITCHELL: It`s a mess, is what it is. And I want to ask Eleanor Dixon, prosecutor, hasn`t this also done a disservice to the African-American community? They took D.A. Nifong`s word and trusted him that this was a legitimate case, and there were protests, and there were demonstrations. They were seeking justice on the assumption that this was a very, very sturdy case.

ELEANOR DIXON, PROSECUTOR: Yes, I think it does a disservice. But at the same time, the district attorney had to go on the information that he had at the time, which that there was a rape allegation. He put forth the rape charge.

And now that the victim has come forward and said, "Well, I`m not really sure," again, he dropped that part. But you still have the other two charges. And with the kidnapping, that is just movement of a person from one place to another. It doesn`t necessarily mean you take them somewhere, hold them for ransom. So that`s not as sinister as it may sound.

VELEZ-MITCHELL: Well, when we come back, I want to talk about the pole dancing that she was allegedly doing at the very same time she was going to the hospital, saying that she was suffering from pain, so we`ve got a lot more controversy to come.

To tonight`s Trial 101: burden of proof, the legal obligation of proving a disputed charge or allegation. In a majority of criminal cases, burden of proof is the responsibility of the prosecution. In this case, D.A. Mike Nifong said that, because the accuser could not testify with certainty that she was raped, the state could not meet its burden of proof on that charge. More breaking news in the Duke case when we come right back.

(COMMERCIAL BREAK)

(NEWSBREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: I never saw a rape occur. Everybody knows -- I think -- it`s hard for me to remember who knows what, you know, because the facts are so simple to me, so elementary, so simple. The time line, all that stuff that`s so confusing to everybody, I was there from the beginning to the end.

The only thing I did not see was the rape, because I was not in the bathroom at that particular moment. Everything leading up to it, I was there; everything leaving from it, I was there. And mind you, I believe I was the only sober person in the place.

(END VIDEO CLIP)

VELEZ-MITCHELL: I`m Jane Velez-Mitchell in tonight for Nancy Grace. We warn you again that this is sexually graphic and you may not want your kids to hear about it.

Attorneys for the three Duke lacrosse players accused say today`s decision to drop the rape charges against them is not enough, that all the charges should be dropped, because very serious charges were made. And others say D.A. Mike Nifong should be canned. And still others say if it`s proven the female exotic dancer made up the story of sexual assault, she should be prosecuted.

Now, I know, Stephen Miller, of the Conservative Union, you say you feel empathy for her. But I`m willing to bet that you think she should be prosecuted if she`s lying?

S. MILLER: Well, that`s how you do it in America. If you commit perjury, if you obstruct justice, if you levy false allegations, unless it can be demonstrated that you`re not criminally responsible, then, yes, you should be prosecuted. But I`m not the kind of person that`s going to say, well, if someone has mental difficulties and they`re a deeply distressed and disturbed person, that I`m going to personally hate that person.

VELEZ-MITCHELL: Do you think, though, that if, as you are saying, she`s a pawn in a larger political battle and that she might be mentally unbalanced and essentially being used, perhaps that weighs against prosecuting her, since she`s also a victim then?

S. MILLER: Yes, there are mitigating circumstances, to be sure. And I`ll say this: The one person, again, who without question has behaved in an unethical, immoral and sinister fashion is District Attorney Mike Nifong. He`s pursued a case, not because of the evidence, but in spite of the evidence.

And the idea that in America you would pursue a case against three people, when the evidence suggests not that they did it but that they didn`t do it, to me is beyond unconscionable.

VELEZ-MITCHELL: Well, Gloria Allred, victims` rights attorney, jump in here, because I think that you really show the other side, in terms of the fact that we have to prosecute difficult cases, messy cases in this country, because that`s also part of achieving justice?

ALLRED: Well, of course. And whatever Nifong does, he`s going to be criticized.

He drops his rape charge because he doesn`t think it`s in the interest of justice to pursue it and because he doesn`t think he can prove it beyond a reasonable doubt, and he gets criticism for dropping it, and then he gets criticism if he doesn`t drop it.

In that way, I feel a little sympathetic towards him, although I wish he had never called them rapists in the first place. And he has hurt himself by some of his initial press statements.

You know, having said that, this case is not over yet. And we don`t know how it`s going to end. So, you know, for those people who just kind of want to hang him from the nearest tree, I think we still need to be cautious. We still need to wait and see. There may or may not be a trial.

He seems to be headed that way. But maybe in the end he`ll drop it. I don`t know.

And I am concerned, too, Jane, about what kind of support this alleged victim is getting. You mentioned that she`s estranged from her family. Has she been isolated? Has she had the advice of a private attorney? Has she had the support of advocates that an alleged victim in a high-profile case especially needs?

We don`t know the answers to that. And I`m concerned that she might be feeling fearful at this point, feeling anxious, and maybe feeling very much alone.

VELEZ-MITCHELL: And, of course, a lot of concern for what the suspects and their families are going through, as well.

Psychologist Lillian Glass, this has been a vortex that has damaged the lives of everyone who has fallen into this arena, because it is so charged with so many hot-button issues. This is awful for all parties, is it not?

DR. LILLIAN GLASS, PSYCHOLOGIST: It`s horrible, and everybody in this case is a victim. And certainly this is not the end for these three young men, because they will carry this for the rest of their lives. And the impact is going to be very severe, with post-traumatic stress syndrome down the years to come, and it`s going to have a lot of repercussions.

And as far as the woman is concerned, you also have to ask yourself, what are some of the things that are going on with her psychologically? How psychologically impaired is she? Does she have a bipolar syndrome? Does she have delusions going on? Does she have some severe psychiatric problems that could cause her to, let`s say, falsely accuse these men?

VELEZ-MITCHELL: And I want to go back to the very beginning of this. The genesis of this was this party that happened that got very intense, and racial slurs were uttered. And, Ellie, I want to go to the fact maven. I don`t think anybody disputes that there were some ugly words uttered by some of the players. What can you tell us about that?

UNIDENTIFIED FEMALE: Right, well, the other dancer said that, as they were leaving and the players were hurling these racial insults at them, a neighbor, somebody who lived nearby, also claimed that he heard some of these things from his house.

VELEZ-MITCHELL: And they apparently involved some very graphic things, like I want to use a broomstick on you in a sexual way?

UNIDENTIFIED FEMALE: That`s when they were still in the house performing this dance, they threatened one of the dancers.

VELEZ-MITCHELL: And I want to go to Stephen Miller of the Conservative Union for the big picture here, because you could argue that, if she`s making this up, you know, people have a tendency to want to get even when racial slurs are uttered at them and that the ugliness began with those slurs.

Your thoughts on that? Because I know you`re saying that that does not fairly represent Duke, and I certainly agree. But this ugliness came from somewhere; it did happen. Those slurs were uttered.

S. MILLER: Well, it doesn`t fairly represent Duke. It also doesn`t fairly represent the lacrosse team. Because, first of all, we`re talking about a few individuals that are alleged to have said these things.

But the three players that are on -- that have been indicted that are about to face trial are not the ones that are supposed to have said these things. The majority of the players on the team, no one`s accused them of saying anything racist, so you can`t take a brush and paint the whole team because of what a few people said, which is heinous, but doesn`t reflect on the whole team as a whole. That would be absolutely absurd.

VELEZ-MITCHELL: And I`m not doing that. But what I`m saying is that we talk about this horrible situation and this racially polarizing situation, and it stemmed from those words. And people say, "Oh, words are meaningless, but words count. Words count a lot, and they can create a lot of tragedy."

S. MILLER: Words do count a lot. And there`s no question. Let me tell you something: If somebody said to a black person or an Asian person or a Jewish person or any person something like that and I was around, I would put them in their place, because there`s no place for that in America. But that cannot be the justification for a bogus trial.

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VELEZ-MITCHELL: I`m Jane Velez-Mitchell, in for Nancy Grace. What a week in America`s courtrooms. Take a look at the stories and, more important, the people who touched our lives.

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GRACE: Three American men stranded on Oregon`s Mt. Hood, last known alive inside a cave. One climber, 48-year-old Kelly James, found dead. Two others still missing.

UNIDENTIFIED MALE: Kelly always told us that he felt closest to God when he was on a mountain.

GRACE: Get out the handcuffs. Imagine Mom drunk at 1:00 p.m. on a school day, people. A 12-year-old boy wrestles his own mom to stop her driving drunk after she tries to physically force her son into the car.

UNIDENTIFIED MALE: A very responsible, very brave decision he made, but on behalf of the mother, very irresponsible.

VELEZ-MITCHELL: A 32-year-old female Colorado English teacher charged with sexually assaulting a teenage boy.

UNIDENTIFIED MALE: The dating scene in Parker must be pretty bad when you have to troll your high school classes for a date. This is just despicable.

GRACE: O.J. Simpson being sued again. Simpson sets up a fake, a dummy corporation, to hide millions in blood money from the families of his two murder victims. It doesn`t seem right.

RENEE ROCKWELL, DEFENSE ATTORNEY: Well, Nancy, that`s just the reality of it. He had his trial; he was acquitted; he`s innocent.

GRACE: Merry Christmas and happy Hanukkah from all of us here in New York. Good night, friends.

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VELEZ-MITCHELL: And tonight, we remember Marine Corporal Jose Galvan, just 22, from San Antonio, Texas, killed in Iraq on his third tour of duty. Galvan wanted to be a Marine since high school, part of the first Combat Engineer Battalion. Galvan sacrificed his own life during a mine sweep, saving the lives of his fellow Marines. He leaves behind grieving parents. Jose Galvan, an American hero.

We want to thank all of our guests tonight for their insights. And thanks to you at home for tracking these very important cases with us.

And tonight, a special goodbye to our technical director, George Galvez (ph), who is moving to CNN headquarters in Atlanta. Good luck, George.

I`m Jane Velez-Mitchell in for Nancy Grace. We hope to see you right here tomorrow night, 8:00 sharp Eastern. Until then, have a terrific and a safe evening, and happy holidays.

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