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Lawyer: Nifong Never Read DNA Report That He Gave Defense

Posted August 30, 2007

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— Former Duke lacrosse prosecutor Mike Nifong never read a report about DNA evidence in the case before giving it to defense attorneys and, therefore, did not intentionally lie to the court last fall, his attorney argued Thursday.

During opening statements of the disbarred prosecutor's criminal contempt hearing, Chapel Hill attorney Jim Glover said his client thought he turned over all results in the May 12 report when he told Superior Court Judge W. Osmond Smith III on Sept. 22 that there was no other information. (Watch video from the hearing.)

If convicted, Nifong faces up to a $500 fine and up to 30 days in jail.

Glover said Nifong didn't realize until months later that the report was missing results about DNA profiles from multiple male sources, none of them lacrosse players.

"The question is not whether those statements Mr. Nifong made are literally true or literally false," Glover said. "The question is were they willfully and intentionally false and were they also part of an effort ... to hide potentially exculpatory evidence, and that's the issue before the court."

Nifong learned of the unidentified DNA matches on April 10, 2006, from Dr. Brian Meehan, director of the private laboratory DNA Security Inc., but did not provide it to the defense until October in the form of 1,844 pages of raw DNA data.

Defense attorney Brad Bannon, who represented David Evans, testified Thursday that he spent dozens of hours going through the second round of documents before finding information about the potentially exculpatory DNA test results.

During cross examination, Glover tried to portray Nifong's initial DNA report as adequate, suggesting no additional information would have helped clear the players.

"The fact is, you've got nothing significantly exculpatory beyond what you already knew from the report itself," Glover said to Bannon.

"That's absolutely false," Bannon said abruptly. "And you know it."

Defense attorneys for the lacrosse players contend that Nifong and Meehan agreed to release the report without the information.

"Mr. Meehan spoke with Mr. Nifong about what would go in the report, and at the conclusion of that conversation, Mr. Meehan did not report all of the results," Bannon said.

Benjamin Himan, the lead investigator in the case, later testified he was with Nifong and Meehan for three visits to DNA Security to review test results and never heard them talk about leaving out information.

Meehan testified for Nifong's defense that it was his understanding that the May 12 report was part of a series before a trial and that Nifong was only interested in the matches. He also said it was his impression that he would be writing another report later.

Meehan's testimony ended the day's hearing with him speaking more than an hour about what evidence was tested and about the type of DNA tests he performed. He is expected to resume his testimony Friday at 9:30 a.m.

Nifong could also testify Friday.

If so, it would be the first time he speaks since he admitted publicly at a preliminary hearing last month that there was no credible evidence that the three former defendants – David Evans, Collin Finnerty and Reade Seligmann – committed any crimes against the accuser, Crystal Mangum.

"I have admitted on more than one occasion that I have made mistakes in the prosecution of these cases. For that, I sincerely apologize to Mr. Seligmann, Mr. Finnerty, Mr. Evans and to their families," he said.

In December, Nifong dropped the rape charges after Mangum changed a key detail in her story. He later recused himself from the case after being charged with ethics violations by the North Carolina State Bar.

State prosecutors took over the case and dropped the remaining charges while calling the players innocent victims of a "tragic rush to accuse."

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  • pleshy Aug 31, 2007

    Also, Deb, merely being ignorant is not a crime. If it were, everyone would be guilty. You are actually required to commit a crime ot attempt to commit a crime to be guilty of a crime. Merely being ignorant of the law is not a crime, whereas breaking a law, the existence of which you are ignorant, is still a crime.

  • pleshy Aug 31, 2007

    Ignorance of the law is not a defense for breaking a law. Ignorance of evidence, whether on purpose or by accident, may not in and of itself, actually be a crime or even be wrong. That would depend on the circumstances. Defense attorneys almost never ask the most important question, "Did you do it?", because knowing that answer almost never helps the attorney mount a defense and may even make defending the client more difficult.

  • Network dude Aug 31, 2007

    He got the report but didn't read it. does this quote sound farmiliar?..."I did not have sex with that woman, mrs. lewinski." I believe him.....really! ok well maybe not.

  • Deb1003 Aug 31, 2007

    I was always taught that IGNORANCE is no excuse for the law. His obvious ignorance for not reading the DNA report does not excuse his actions. As the DA, he should've known better. Convict him on ignorance if nothing else.

  • pleshy Aug 31, 2007

    mph - 2 things. First, most of the public defenders I know are very skilled lawyers. Generally they have too large a case load and yes, most of their clients are actually guilty. Second, the Public defenders office has acceess to the SBI or is provided funds for DNA testing if DNA is being used. Due process requires it.

  • pleshy Aug 31, 2007

    Sando - I am personally insulted by your claim that all lawyers are inept, corrupt and seek only to protect their own. There is and can be no greater punishment handed out by a professional organization than the one handed out by the Bar against Nifong. To say lawyers only seek to protect their own is incorrect - we have done all we can as a profession. If the criminal justice system - such being the District attorneys office in Durham, the AG's office in Raleigh or the Federal AG, or if the Court itself (such as the already instituted contempt action) have further punishment, they are well within their rights to seek it. However, Lawyers as a profession have done all they can to protect our collective reputations from what seems to be another rotten apple.

  • HangOn Aug 31, 2007

    Oh he didn't lie, he just didn't give a darn enough about the kids he was ruining to read the thing and find out the truth. LIAR. Hmm, how 'bout the lying stripper? Guess it goes to show it's ok to lie about rape.

  • WTFmph Aug 31, 2007

    Isn't it a good thing that these accused young men were from rich families.

    If they were poor, they would have been sold down the river with no thought.

    Is it really fair that they get reimbursed not only for the outlay for their lawyers, and time out of school?

    Would a poor person with a publicly provided lawyer have been able to hire the independent expert who brought the DNA evidence to light? I think not.

    That poor person would be exactly like the man who was recently released on DNA evidnece who was accused of a horrible rape crime against a 12-year-old. He was totally innocent!

    Please remember Nifong and all of the people released on negative DNA evidence when you sit on a jury.

    I know, our society has become vindictive, and ever more willing to convict someone on no evidence. This defies tbe constitutional provison of "innocent until proven guily."

    Pleae, people, consider reasonable douht, when you sit on juries.

  • arta82 Aug 31, 2007

    and the lies keep on coming and coming ,,,,,,,,,,,,,,

  • girlwonders Aug 31, 2007

    I am just curious, What charges have been filed against the young female who accused the young men? I am sure that the cost of the investigation to the community, to the defendants, and the fact that she made up a story, for God knows what reason would be enough evidence to charge her with a felony at the very least. Anyone know?

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