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Duke defender tells of quest for DNA data

The legal team sought the report for 6 months, the witness tells the bar in an ethics case against prosecutor Mike Nifong.

June 15, 2007|David Zucchino | Times Staff Writer

RALEIGH, N.C. — For months, a defense lawyer testified Thursday, Durham County Dist. Atty. Mike Nifong rebuffed all requests for detailed DNA test results in a highly publicized rape investigation, saying he had provided all relevant results.

After six months of legal sparring last year, Nifong suddenly released 1,844 pages of highly technical DNA data. Defense lawyers then uncovered what they say Nifong tried to hide: DNA from at least four unidentified men had been found on the clothing and body of a stripper who had accused three Duke University lacrosse players of raping her -- but none of the DNA was from a defendant.

"We were bewildered by the fact that it had never been provided to us before," defense lawyer Brad Bannon told a North Carolina State Bar panel investigating Nifong's conduct.

The bar has charged Nifong with withholding exculpatory evidence, lying to judges, and making prejudicial public statements while pursuing the rape prosecution. The state's attorney general eventually dismissed all charges in the Duke case.

Nifong, 58, a career prosecutor, could be disbarred if found guilty. If so, he would probably be obligated to step down as district attorney, according to North Carolina legal authorities.

Bannon, his voice rising in indignation at one point, said Nifong had nearly ruined the lives of three young men and had besmirched the reputation of justice in North Carolina by repeatedly describing "some heinous crime that was racially motivated." The former defendants are white and the stripper is black -- circumstances Nifong emphasized last year.

As the county's most powerful law enforcement officer, Nifong's statements held enormous sway over ordinary citizens and potential jurors, Bannon testified. He added: "I cannot count how many times I heard that 'There is no way the district attorney would have said the things he said in this case unless there was something there.' "

Testifying for the bar as a North Carolina legal ethics expert, Mecklenburg County Assistant Dist. Atty. Marsha Goodenow said Nifong's approach to the DNA evidence and many of his public comments violated the state's legal code of ethics.

Goodenow said Nifong's behavior had created "a lack of confidence in the justice system" in North Carolina. She said a state prosecutor recently remarked in court, after being denied a request, "I've been Nifonged."

A courtroom TV played footage of Nifong remarking at a public forum last year that he would not let Durham's public image become "a bunch of lacrosse players at Duke raping a black girl from Durham." Goodenow testified that it was highly improper for Nifong to castigate the entire team or to stoke racial tensions.

Asked about Nifong's decision to have a private lab release only some results of DNA testing to defense lawyers, Goodenow said Nifong had violated discovery rules.

Nifong's attorney, David Freedman, has elicited testimony suggesting that Nifong believed he had turned over all required evidence.

The DNA report, turned over in May 2006, showed no conclusive DNA matches between genetic material recovered from the stripper and samples submitted by all 46 white lacrosse team members. But the report did not include the DNA matches from the unidentified males.

The director of the private lab that performed the tests has testified that he considered the report preliminary -- as did Nifong, according to testimony. Dr. Brian Meehan said he also was concerned that releasing all results would violate the privacy of people who submitted samples.

Meehan said he and Nifong discussed all test results in detail during three face-to-face meetings last spring. Despite the DNA results -- and despite conflicting accounts provided by the stripper -- Nifong pursued and won indictments against David Evans, Collin Finnerty and Reade Seligmann.

Nifong released the full DNA report in late October. Bannon said he spent 60 to 100 hours poring over the data before realizing that DNA from at least four unidentified men had been recovered from the stripper.

Just before a pivotal hearing Dec. 15, according to Bannon, Nifong told a judge in chambers that he knew nothing of exculpatory DNA results in the full report until he received a detailed defense motion just days earlier.

Bannon testified that Nifong had described his own reaction to the motion as " 'I was, like, whoa.' "

"It was my impression that Mr. Nifong was saying he was just as much in the dark about this as we were," Bannon testified.

Nifong is expected to testify today or Saturday.

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