Friday, December 15, 2006
Failure to Turn Over Exculpatory Evidence
The headline is a very bad statement regarding any prosecutor. But it certainly appears to apply to Durham, N.C. district attorney Mike Nifong regarding lab results of DNA recovered from the nether regions (and I do mean the plural) of the Duke Lacrosse accusser, who is pregnant but apparently has not, as was reported, delivered her new baby. Here's the straight skinny from the better Durham area paper about the recent hearing in the district court:
Brian Meehan, director of DNA Security of Burlington, said his lab found DNA from unidentified men in the underwear, pubic hair and rectum of the woman who said she was gang-raped at a lacrosse party in March. Nurses at Duke Hospital collected the samples a few hours after the alleged assault. Meehan said the DNA did not come from Reade Seligmann, David Evans, or Collin Finnerty, who have been charged with rape and sexual assault in the case.
Meehan struggled to say why he didn’t include the favorable evidence in a report dated May 12, almost a month after Seligmann and Finnerty had been indicted. He cited concerns about the privacy of the lacrosse players, his discussions at several meetings with Nifong, and the fact that he didn’t know whose DNA it was.
Under questioning by Jim Cooney, a defense attorney for Seligmann, Meehan admitted that his report violated his laboratory’s standards by not reporting results of all tests.
Did Nifong and his investigators know the results of all the DNA tests? Cooney asked.
“I believe so,” Meehan said.
“Did they know the test results excluded Reade Seligmann?” Cooney asked.
“I believe so,” Meehan said.
Was the failure to report these results the intentional decision of you and the district attorney? Cooney asked.
“Yes,” Meehan replied.
Good examination by Mr. Cooney, but as I recently opined, the defense attorneys know now, so Nifong's defense is 'no harm--no foul.' I can't see this getting this all but certainly bogus case dismissed.
UPDATE: The 'money' motion for dismissal is the motion to suppress the tainted 'can't-pick-wrong' photo line up Nifong made the police investigators use to get someone to prosecute. If the ID by the accuser is suppressed, because her ID procedure was so unfair as to violate due process and the taint cannot be removed now, then the case is over because there is no other evidence besides the victim's protean allegations.
Thursday's 43-page motion recounts the day-by-day progress of the investigation and police efforts to get a reliable identification from the accuser, an escort service worker who said she was raped by three men at a March lacrosse team party.
"Putting to one side the substantial evidence that no sexual assault ever occurred at 610 N. Buchanan, there is quite simply no evidence that any of the accuser's identifications or descriptions of her alleged attackers are in any way reliable," the motion says. "Rather the State is left with an incoherent mass of contradiction and error, one which not only raises the issue of a 'substantial likelihood of misidentification,' but which establishes that the accuser has in fact misidentified the Defendants."
UPDATE II: Betsy Newmark, a North Carolina teacher with a great blog, catches a detail I missed; apparently Nifong told the judge he had no idea there was exculpatory evidence at the lab, then the lab man testified that Nifong did know and he and Nifong conspired not to turn over the exculpatory evidence. It's never good to lie to the judge.
She asks: Don't they disbar attorneys who lie to judges?
And opines: I think it's disbarrment time for Mike Nifong. If this were a movie or a novel, no one would believe that a district attorney could be both so dishonest and so incompetent.
Brian Meehan, director of DNA Security of Burlington, said his lab found DNA from unidentified men in the underwear, pubic hair and rectum of the woman who said she was gang-raped at a lacrosse party in March. Nurses at Duke Hospital collected the samples a few hours after the alleged assault. Meehan said the DNA did not come from Reade Seligmann, David Evans, or Collin Finnerty, who have been charged with rape and sexual assault in the case.
Meehan struggled to say why he didn’t include the favorable evidence in a report dated May 12, almost a month after Seligmann and Finnerty had been indicted. He cited concerns about the privacy of the lacrosse players, his discussions at several meetings with Nifong, and the fact that he didn’t know whose DNA it was.
Under questioning by Jim Cooney, a defense attorney for Seligmann, Meehan admitted that his report violated his laboratory’s standards by not reporting results of all tests.
Did Nifong and his investigators know the results of all the DNA tests? Cooney asked.
“I believe so,” Meehan said.
“Did they know the test results excluded Reade Seligmann?” Cooney asked.
“I believe so,” Meehan said.
Was the failure to report these results the intentional decision of you and the district attorney? Cooney asked.
“Yes,” Meehan replied.
Good examination by Mr. Cooney, but as I recently opined, the defense attorneys know now, so Nifong's defense is 'no harm--no foul.' I can't see this getting this all but certainly bogus case dismissed.
UPDATE: The 'money' motion for dismissal is the motion to suppress the tainted 'can't-pick-wrong' photo line up Nifong made the police investigators use to get someone to prosecute. If the ID by the accuser is suppressed, because her ID procedure was so unfair as to violate due process and the taint cannot be removed now, then the case is over because there is no other evidence besides the victim's protean allegations.
Thursday's 43-page motion recounts the day-by-day progress of the investigation and police efforts to get a reliable identification from the accuser, an escort service worker who said she was raped by three men at a March lacrosse team party.
"Putting to one side the substantial evidence that no sexual assault ever occurred at 610 N. Buchanan, there is quite simply no evidence that any of the accuser's identifications or descriptions of her alleged attackers are in any way reliable," the motion says. "Rather the State is left with an incoherent mass of contradiction and error, one which not only raises the issue of a 'substantial likelihood of misidentification,' but which establishes that the accuser has in fact misidentified the Defendants."
UPDATE II: Betsy Newmark, a North Carolina teacher with a great blog, catches a detail I missed; apparently Nifong told the judge he had no idea there was exculpatory evidence at the lab, then the lab man testified that Nifong did know and he and Nifong conspired not to turn over the exculpatory evidence. It's never good to lie to the judge.
She asks: Don't they disbar attorneys who lie to judges?
And opines: I think it's disbarrment time for Mike Nifong. If this were a movie or a novel, no one would believe that a district attorney could be both so dishonest and so incompetent.
# posted by Roger Fraley @ 3:01 PM 
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I just finished reading John Grisham's The Innocent Man. It's a non-fiction account of a wrongly accused man (well, two men actually), and opened my eyes to the prosecutorial process.
In some jurisdictions it seems that once the DA's office gets you in their sights, you're screwed, evidence be damned.
In some jurisdictions it seems that once the DA's office gets you in their sights, you're screwed, evidence be damned.
It is an office of awsome power vis a vis any particular citizen. That's why we need to punish the bad eggs to encourage all the others to obey their oath. Thanks for reading and commenting, Eric.
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