Omission of DNA data rocks Duke case

Incomplete report on lab tests had been given to defense team

December 24, 2006|By New York Times News Service

DURHAM, N.C. -- The moment that might have changed the course of the Duke lacrosse rape case came in a packed courtroom two Fridays ago.

On the stand at a pretrial hearing was Brian W. Meehan, director of a private laboratory that performed extensive DNA testing on swabs and underwear collected from a stripper only hours after she alleged that she had been gang-raped by three Duke lacrosse players after performing at a team party. Meehan's tests had detected traces of sperm and other DNA material from several men.

But his tests had found something else, too: None of that DNA material was from the three players, or any of their teammates.

Meehan promptly shared this information with Michael B. Nifong, the Durham district attorney. Yet his summary report - the one that would be turned over to the defense - made no mention of this.

It was an awkward omission that Meehan struggled to explain under withering cross-examination from defense lawyers. At one point, he was forced to admit that the incomplete report violated his lab's own protocols.

Finally, a defense lawyer asked him whether the decision not to report complete test results was "an intentional limitation" arrived at between him and Nifong.

"Yes," Meehan replied.

The courtroom, packed to standing-room capacity with supporters of the defendants, erupted with applause.

In a case where virtually every fact is bitterly contested, both sides agree that Meehan's testimony revealed much about the current state of this prosecution. On Friday, one week after that testimony, the case took an abrupt turn when Nifong dropped the rape charges but said he would proceed with kidnapping and sexual offense counts.

Perhaps more than anything else, the testimony added substantially to the long list of questions about the accuser's credibility and Nifong's judgment. The woman had told investigators that before the alleged attack she had not had sex with her boyfriend for about a week. How, then, to explain DNA from several other unidentified men?

And given her description of a brutal gang rape, how could the most sensitive DNA test available fail to find even a single incriminating cell?

Finally, why had Nifong failed to disclose this information for nearly seven months and repeatedly told the judge that there were no such results?

Looking back, defense lawyers describe Meehan's testimony as a moment that opened a window on the tactics of a prosecutor they say was all too willing to trample state law and ethical duties to get a conviction. In the most unvarnished terms, they accuse Nifong of deliberately hiding test results - results they say further confirm their clients' innocence. What is more, they say, Nifong's decision to recast his prosecution Friday is a cynical attempt to sidestep damage from Meehan's testimony.

Nifong said that, to him, Meehan's testimony revealed a ruthless defense strategy aimed at vilifying him and intimidating a victim of a brutal assault. "The whole point was the vilification of the district attorney, I believe," he said during a three-hour interview in his office Thursday.

Still, Nifong concedes that he erred in not providing all of Meehan's test results to defense lawyers months earlier than he did. "Obviously, anything that is not DNA from the people who are charged is potentially exculpatory information," he said.

Although Nifong has taken heavy criticism in news accounts, it is not clear whether this error will matter much to the one person who counts most - W. Osmond Smith III, the judge presiding over this case.

Trial judges in North Carolina have broad authority to impose sanctions when prosecutors violate discovery rules. The state's criminal discovery law requires prosecutors to share test results, regardless of whether they were delivered in writing or orally. Likewise, the North Carolina State Bar puts the onus on prosecutors to "make timely disclosure" of evidence that "tends to negate the guilt of the accused."

If these rules are violated, the judge can dismiss charges or hold lawyers in contempt. In extreme cases, North Carolina law allows a judge to remove a district attorney from office for "willful misconduct."

But the severity of the sanction often turns on whether the error was innocent sloppiness or a deliberate attempt to conceal important evidence.

Nifong insists it was innocent, but defense lawyers are scouring transcripts of hearings and other records to build a case that the error was a calculated strategy to withhold or at least greatly delay the release of crucial evidence. Joseph B. Cheshire, a Raleigh lawyer for one of the players, said defense lawyers intended to take "specific legal steps" to seek sanctions or Nifong's removal from the case.

It was clear from a state laboratory report in April that none of the players' semen, saliva or blood was found on or in the woman or her clothes. Meehan's firm, DNA Security, was hired to conduct more sophisticated testing.

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