DNA Remains Focus of Nifong Trial Before State Bar
Posted June 14, 2007
Raleigh, N.C. — Defense attorneys made repeated requests of Mike Nifong for the full results of DNA testing conducted by investigators in the Duke lacrosse case, one of the attorneys said Thursday in the third day of an ethics trial that could lead to the district attorney's disbarment.
Brad Bannon, who represented former player David Evans, also recounted under questioning by North Carolina State Bar attorneys the offers that he and other defense attorneys had made to meet with Nifong before he sought indictments against their clients.
Nifong refused those offers, Bannon testified.
Bannon is credited with uncovering data showing that DNA profiles of four males who were not Duke lacrosse players had been extracted from evidence collected from exotic dancer Crystal Mangum's underwear and body. Mangum alleged she was raped, sodomized and beaten at a lacrosse team off-campus party in March 2006.
The State Bar alleges, in part, that Nifong withheld the potentially exculpatory evidence from defense attorneys and made false statements to the court about it.
During his half-day testimony Thursday, Bannon also recounted how he spent an estimated 60 to 100 hours poring through thousands of pages of raw data after purchasing a college textbook on Amazon.com.
"It just kept getting worse," Bannon recalled. "I would find another one of the items that had male DNA that excluded our clients, and their teammates, and then another, and then another, and then another."
He and his colleagues were bewildered late one afternoon, he said, when he made the discovery.
"You have to understand, we had all been in court all summer and fall being told there wasn't anything that was found or discussed in these meetings with Dr. [Brian] Meehan that hadn't been reported to us," he said.
Nifong released an initial report on the DNA testing to defense attorneys in May 2006. They quickly trumpeted the news that Meehan's private lab, DNA Security Inc., had been unable to find a conclusive match between the accuser and any lacrosse players.
Meehan testified Wednesday that he told Nifong about the full extent of the test results – specifically, that the lab had found a connection between the accuser and other men – as early as April 10, 2006, a week before Nifong won indictments against Reade Seligmann and Collin Finnerty.
Evans was indicted a month later. Attorney General Roy Cooper later cleared the three, calling them "innocent" victims of a rogue prosecutor's "tragic rush to accuse."
"We said to them, 'Look, the harm that has been done to these young men by the state of North Carolina can only be, can only begin to be, undone by the state of North Carolina,'" Bannon said.
Under questioning from State Bar counsel, Bannon recounted how Nifong insisted, as he wrote in a May filing, that he was "not aware of any additional material or information" that might be considered exculpatory.
At a June hearing, Bannon recalled, Nifong told Judge Ronald L. Stephens he had no additional evidence to provide the defense. In September, Nifong again said he had nothing new to hand over, this time in a hearing held by Judge Osmond Smith.
Bannon said it wasn't until Oct. 27, more than six months after learning about the test results from Meehan, that Nifong finally gave the defense the raw test data from DNA Security.
"I don't believe a six-month delay and not even telling opposing counsel what's in those documents is timely or fair," Marsha Goodenow, an assistant prosecutor in the Mecklenburg County District Attorney's Office, testified later Thursday.
State Bureau of Investigation agent Jennifer Leyn testified Wednesday that her agency, which conducted an initial round of testing in the case, always includes the complete information on DNA testing in its reports.
Meehan testified Wednesday that he and Nifong did not conspire to keep the results from defense attorneys, adding that he was concerned that releasing all the information would have violated the privacy of those tested.
The initial DNA report he provided to Nifong was never intended to be all-inclusive, he said, adding that Nifong never asked for a final and complete report on his lab's findings. Had Nifong asked for the information, Meehan said, the lab would have provided it.
State bar officials also asked Goodenow about Nifong's numerous comments to the media in the early days of the case, which included calling the lacrosse team "a bunch of hooligans."
Nifong faces a third ethics charge of allegedly making inflammatory and prejudicial statements to the media early on in the case about the lacrosse players.
Prosecutors played a video showing Nifong confidently proclaiming he wouldn't allow Durham to become known for "a bunch of lacrosse players from Duke raping a black girl." The bar's initial ethics complaint accused Nifong of making misleading and inflammatory comments about the athletes, and Goodenow testified Thursday that his comments were inappropriate.
"You're not supposed to be talking about the case. Period," she said.
Although Bannon spent most of Thursday on the DNA evidence, he had testified Wednesday on Nifong's comments, calling them "outrageous."
“I thought they were outrageous – the types of things I had been hearing – that a rape had occurred and it had been racially motivated," he said.
He said he also had a second reaction to Nifong's statements that a rape had occurred.
"I could not have imagined a prosecutor speaking in such certain terms about his confidence and referring to evidence in the process about a crime having occurred and why it had occurred without him having absolute and complete concrete evidence that it had occurred,” Bannon said.
He also detailed how Nifong told Joseph Cheshire,- Evans' other attorney, through an assistant that he would not meet with him early on unless Evans was prepared to be charged.
Cheshire sent a letter to Nifong on March 30 saying he did not understand why Nifong would meet with local and national media, but not with a potential defendant's attorney.
Nifong never responded to Cheshire’s letter, Bannon said, and continued making statements after he received it.
State Bar's counsel played video of two such interviews Nifong gave March 31. In one with MSNBC, he statedthat lacrosse players were not cooperating because their statements that no rape had occurred "were not true."
“Cooperation for Mr. Nifong was somebody saying that a sexual assault had occurred.” Bannon said.