DURHAM, N.C. — 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."