http://www.nytimes.com/2006/12/23/sports/23duke.html?ex=1324530000&en=83fbf1e560d9854e&ei=5088&partner=rssnyt&emc=rss

DURHAM, N.C., Dec. 22 — The Durham district attorney dropped rape charges against three former Duke lacrosse players on Friday, but he said he would continue to pursue kidnapping and sexual offense charges that carry equally stiff sentences.

The district attorney, Michael B. Nifong, who has faced relentless and rising criticism for his handling of the case, said he dismissed the rape charges because the accuser had begun to waver on crucial details.

The woman, who said she was attacked while performing as a stripper at a lacrosse team party last March, has repeatedly asserted that she endured violent penile penetration. She said this to the first doctor who saw her, to the sexual-assault nurse, to the sexual-assault doctor, to detectives and in her own handwritten statement to the police, records show. She also consistently said she was forced onto her hands and knees and raped from behind.

Yet when questioned again on Thursday afternoon by Mr. Nifong’s investigator, the woman said for the first time that she could no longer be sure what had penetrated her.

Mr. Nifong said her uncertainty required him to act.

“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 of proof with respect to this offense,” he said in court papers.

But his decision, coming in a case that has already transfixed and divided this state and much of the nation, also intensified questions about Mr. Nifong himself. Since the first frenzied weeks of this case, Mr. Nifong’s judgment has repeatedly come under fire. Defense lawyers, defendants’ families and friends, bloggers and many experts have attacked him for making early outspoken comments about the case, setting up a lineup that violated police procedures, failing to interview the woman himself and sitting on evidence favorable to the defendants. Above all, they say, he ignored his basic obligation to seek the truth.

One defense lawyer, Wade M. Smith, said that after all the revelations, Mr. Nifong ought to “do the honorable thing” and drop the remaining charges. “We have this bare assertion and nothing else, and we’ve come three-quarters of a year down the road with the suffering of these people,” Mr. Smith said.

Mr. Nifong declined interview requests Friday, but said in an e-mail message that his decision to dismiss the rape charges showed he was “willing to go in whatever direction the evidence takes me.” And in a three-hour interview on Thursday, Mr. Nifong said he would not hesitate to drop all the charges if the accuser expressed doubt about the identity of the men she has accused when she sees all three defendants at a pretrial hearing set for February.

“If she came in and said she could not identify her assailants, then we don’t have a case,” Mr. Nifong said. On the other hand, he continued, “If she says, yes, it’s them, or one or two of them, I have an obligation to put that to a jury.”

The woman, a 28-year-old single mother who worked for an escort service, danced at an adult club and attended North Carolina Central University in Durham, told the police she was gang-raped by the three lacrosse players on March 13 after she and another dancer performed at the team party. The accuser said that her assailants did not wear condoms and that at least one ejaculated.

But despite extensive DNA testing, including tests sensitive enough to detect DNA from a single cell, Mr. Nifong has not linked any of the defendants — or any other members of the lacrosse team — to DNA on the rape kit swabs or the accuser’s clothing.

Although the woman identified three lacrosse players as her rapists from an array of photographs, Mr. Nifong said she would get a better look at them at the pretrial hearing in February. “You can’t always tell from a photograph,” he said, adding, “The only real time that you’re able to say if you have a misidentification is to put the person in the courtroom with the other people.”

Mr. Nifong said he intends to ask the woman about her level of certitude after February’s hearing. “It’s an opportunity to say, ‘Yes, I’m 100 percent certain these are the people who did it,’ ” he said. “It’s also an opportunity to express doubt.”
Given the absence of physical evidence, he said, any doubts from the woman could end the prosecution for one or more of the defendants.

As it happened, as Mr. Nifong made those remarks on Thursday afternoon, the woman was expressing new doubts to his investigator, doubts that forced him to drop the rape charges late Friday morning.