Special Prosecutor Maureen Devlin intends to file a motion to dismiss charges against Lorenzo Crawford and Justin Smith, the two former football players who had not yet gone to trial for their participation in a March 2002 incident, in which a female student alleged she was gang raped by four football players.
Crawford and Smith were both charged with rape, conspiracy to commit rape and sexual battery; Crawford was also charged with criminal deviate conduct. The football players said the sex acts were consensual.
The two other players had already gone to trial, with little success for the prosecution. Three weeks ago, a jury acquitted Donald Dykes of rape, conspiracy to commit rape and sexual battery. In August, another jury convicted Abram Elam of sexual battery, but acquitted him of two more serious charges, conspiracy to commit rape and criminal deviate conduct.
Devlin said her decision came after considering how likely it would be for her to obtain a conviction.
"This decision is primarily the result of an objective assessment of the likelihood of success and is based upon consultation with others involved in the case, input from jurors from the trials of Abram Elam and Donald Dykes and my own experience as a trial attorney," Devlin said.
Devlin also said she considered the impact two more trials would have on the community and the victim.
"I believe that my obligation to the citizens requires a constant awareness that, while there is no price too great for justice, prosecution of a case involves the utilization of substantial resources and involves an emotional and financial price for the victim, the witnesses and the community at large," Devlin said.
Attorneys for Crawford and Smith said they were pleased by Devlin's decision.
Tony Zappia, Smith's attorney, said in a statement to WNDU that Devlin's decision was just and the only reasonable conclusion based on what he called incomplete and questionable evidence.
Zappia criticized former St. Joseph County Prosecutor Chris Toth who originally filed the charges, saying charges would not have been filed if his client had not been a Notre Dame football player.
"We feel that it was election year politics at its best - or worst, so to speak," he said to WSBT-TV.
Toth lost the 2002 election to current prosecutor Michael Dvorak. Dvorak brought a special prosecutor to try the case because members of his office either were connected to or represented the former players.
In a telephone interview with WSBT, Smith said he had consensual sex with the woman and said, "Like I always said, I made a bad decision."
Smith's stepfather also criticized Notre Dame for its role in the trials. The University expelled the former players, following an investigation by the Office of Residence Life. University spokesman Matt Storin declined to comment on Devlin's decision to file a motion to dismiss.
If Devlin's motion to dismiss is accepted, the only court action remaining in the four cases will be the sentencing of Elam on the sexual battery charge. Sentencing was originally scheduled for today, but St. Joseph Superior Court Judge Roland Chamblee postponed it last week until the outcome of all trials would be known.
According to The South Bend Tribune, Chamblee said in a letter to defense attorney Mark Lenyo and Devlin, "I think that from my own point of view, the determination of the appropriate sentence for all of the defendants should bear some relationship to the ultimate culpability determined by an appropriate jury to exist as to each."
Following Devlin's announcement that she would drop charges against Smith and Crawford, Lenyo told WNDU he hoped Chamblee would drop the felony indictment to a misdemeanor.
A judge can decrease a Class-D felony conviction, which carries a maximum jail term of three years and a maximum fine of $10,000, to a Class-A misdemeanor, which carries a maximum sentence of one year or $5,000 fine.
It is not known how the dismissal of charges could affect the date of Elam's sentencing.
WNDU-TV, WSBT-TV and The South Bend Tribune contributed to this article.
