Duke Defendants: More DNA Evidence Withheld

Feb. 27, 2007 — -- On the eve of Durham County District Attorney Mike Nifong's response to ethics charges filed against him, the defendants in the Duke lacrosse sexual assault case are accusing the prosecution of continuing to withhold evidence that could exonerate their clients.

This accusation follows the stunning revelation late last year that DNA tests by a private lab found genetic material from several males on the accuser's body and clothes, but none from any of the defendants. This information was allegedly withheld by the prosecution, which was then headed by Nifong.

DNA Information Possibly Withheld

In papers filed today, attorneys for the three lacrosse players charged -- Reade Seligmann, Collin Finnerty and David Evans -- say they are "still in the dark" about the DNA evidence, even after prosecutors provided them an "amended report" of DNA findings on Jan. 9.  They say there is even more evidence of DNA from other men found on the accuser's body and clothes that was not previously shared with the defense. Specifically, defendants say that another rectal swab of the woman who filed the charges against them revealed the presence of DNA from at least two males that did not match the defendants. "If the information we had in December was explosive, then this is doubly explosive," defense attorney Wade Smith told ABC News.

The defendants also claim in today's papers that they have not been provided all of the underlying DNA data that exists and that "the statistical likelihood is that such data will show that even more exculpatory, unidentified male DNA" was discovered and not reported.

North Carolina's discovery rules require prosecutors to provide the defense with both a report of DNA findings as well as the underlying data. The defendants claim that both the reports and the data they were given are insufficient. Attorneys for Nifong, on the other hand, contend that the prosecution handed over everything that was required by law.

Implications

This motion comes one day before Nifong, who recused himself from the case last month, is scheduled to respond to ethics charges by the North Carolina State Bar for his handling of the case. He faces accusations that he withheld evidence from the defense and lied to both the court and bar investigators.   If convicted, legal experts have said that Nifong could be disbarred. This will be decided at a trial scheduled for the second week of June.

The sanctions for withholding evidence in violation of North Carolina's discovery rules could also include dismissal of the case, according to Joseph Kennedy, criminal law professor at University of North Carolina at Chapel Hill Law School.  However, "dismissal is a very rare remedy" that is unlikely in this case, Kennedy told ABC News.  He added that the state attorney general's office, which took over the case from Nifong, can essentially disavow the conduct of a former prosecutor and continue with the prosecution.