{"id":52301,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/is-the-district-attorney-in-the-duke-lacrosse-rape-scandal-turning-a-blind-eye-to-valuable-evidence.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"is-the-district-attorney-in-the-duke-lacrosse-rape-scandal-turning-a-blind-eye-to-valuable-evidence","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/is-the-district-attorney-in-the-duke-lacrosse-rape-scandal-turning-a-blind-eye-to-valuable-evidence.html","title":{"rendered":"Is The District Attorney In The Duke Lacrosse Rape Scandal Turning A Blind Eye To Valuable Evidence?"},"content":{"rendered":"\n
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Is The District Attorney In The Duke Lacrosse Rape Scandal Turning A Blind Eye To Valuable Evidence?
The Cold, Hard Proof That Suggests The Three Defendants Are Innocent<\/span><\/h1><\/td>\n <\/tr>\n

By JONNA SPILBOR<\/h2><\/a><\/td>\n <\/tr>\n

Friday, May. 19, 2006<\/td>\n\n <\/tr>\n <\/table>\n

On Monday, May 15, a Durham County grand jury handed up a third indictment in the nothing-short-of-notorious Duke rape case. This latest indictment charges the lacrosse team’s captain, David Evans, with first-degree rape, first-degree sexual assault, and first-degree kidnapping. <\/p>

The charges against Evans are identical to those handed up last month against fellow players Reade Seligmann and Collin Finnerty. Still, this final indictment does come as a bit of surprise. As I detailed in a prior column<\/a>, the cases against Seligmann and Finnerty appear quite weak. As I’ll discuss in this column, the case against Evans may be even shakier.<\/p> \n\n

It’s true that the grand jury did return indictments against Evans, and previously against the other two. It’s also true that the District Attorney, Mike Nifong, is forging ahead — seemingly undeterred. <\/p>

But Nifong’s judgment has been poor all along- and the old adage that a D.A. can get a grand jury to “indict a ham sandwich” shouldn’t be forgotten. Without defense attorneys there to test the prosecutor’s evidence via the invaluable process of cross-examination, weak evidence can be made to look pretty convincing. It’s not the grand jury’s fault; it’s just the reality that if you only hear one side, you tend to believe it. <\/p>

At least a ham sandwich has some weight to it. As I’ll explain in this column, the Evans indictment – like the two that preceded it – does not. The very evidence that may have convinced the grand jury – accuser identification and new DNA evidence – is just the kind that will ultimately fall apart when defense attorneys finally do get to cross-examine the witnesses presenting it. <\/p>

The Mounting Evidence in Favor of Defendants’ Innocence<\/b><\/p>

All three defendants in the Duke lacrosse case have unfailingly and repeatedly proclaimed their innocence – Evans doing so most eloquently, on behalf of all three men, in a brief public comment following his being formally charged. <\/p>

In fact, in a highly unusual move, newly indicted defendant Evans went to so far as to volunteer<\/u> to take a lie detector test at the direction of law enforcement. When the D.A. refused, Evans enlisted a top polygrapher to administer the test anyway. He passed. <\/p> \n\n

Thus far, the defense camp has come forward with a host of seemingly reliable, exculpatory evidence -evidence that will be admissible in court, and that is likely to sway a jury. I’m not talking about, maybe, kinda, sorta, or could be, exculpatory evidence either. I’m talking about weighty evidence – receipts, photos, phone records, alibi witnesses, an absence of DNA, and now actual<\/u> DNA – that directly supports the defendants’ claims of innocence. <\/p>

A plethora of proof supporting a defendant’s claim of innocence – not just the government’s failure to carry its burden of proof beyond a reasonable doubt — is a rare pearl in the practice of criminal defense. It should cause the D.A. to reassess his case.<\/p>

The Problems with the Accuser’s “Identification” of Evans<\/b><\/p>

In my prior columns, I discussed the problems with evidence against Seligmann – who has strong evidence supporting an alibi – and, to a lesser extent, against Finnerty. The evidence against Evans is also weak, maybe even more so. <\/p>

Evans reportedly was not initially indicted, with the other two, because the accuser couldn’t identify him with certainty (only with “90 percent certainty,” in her words) from a photo lineup. Ten percent doubt sounds like a lot like reasonable doubt to me – and perhaps, at least initially, it sounded that way to D.A. Nifong too. And if the accuser herself has reasonable doubt, how can a prosecution go forward? <\/p>

The accuser’s lack of certainty is even more worrisome in light of the fact that the photo lineup was grossly biased. It included only Duke lacrosse players – meaning that the accuser had no choice but to select a Duke lacrosse player if she were to select anyone at all. And this photo lineup was apparently the sole means of identification for all three defendants. <\/p>

Finally, and perhaps most disturbingly, the accuser is reported to have said that Evans’s photo “looks just like [one of my assailants] without the mustache.” According to Evans’s defense lawyer, Evans has never worn a mustache. And party photos support this contention. <\/p>

For all these reasons, the accuser’s identification testimony is likely to be destroyed upon cross-examination.<\/p>

The Problems with the New DNA Evidence <\/b><\/p>

Besides the accuser’s testimony, prosecutors also presented to the grand jury the results of a second round of DNA testing. <\/p>

Readers may recall that the first round of DNA testing was, if anything, exculpatory: There was no DNA match whatsoever linking any of the forty-six lacrosse players whose DNA was taken, to the accuser. <\/p>

Following those results, D.A. Nifong reportedly hired a private lab to re-test certain samples. In so doing, the new lab found a possible connection between defendant Evans and the accuser’s discarded fake fingernail, found in the trash bin inside the bathroom. <\/p>

To begin, it’s awfully odd that the fake fingernail found its way into the trash bin in the first place, if a rape really occurred, and if the fake fingernail broke off during the victim’s struggle, as she claims. No victim would clean up after her accusers; she would flee the scene. And if a culprit had the presence of mind to clean up — realizing that the fake fingernail might be evidence against him — surely he wouldn’t just drop it in the trash can in the very room where the rape occurred, for police to easily find.<\/p>

Significantly, too, defense attorneys claim the DNA material was found on the front of the nail — not on the underside<\/u>, where it would logically have lodged had the accuser scratched and clawed at her attackers as she claims. <\/p>

But even putting these points aside, the DNA connection to Evans is weak. To begin, this isn’t remotely close to the kind of “match” you may be familiar with from CSI – the kind where the odds of a false positive are infinitesimally small. Indeed, “match” here is a misnomer. All that can be said is that the DNA is “consistent” with DNA voluntarily supplied early on by Evans.<\/p>

Shocking? Hardly. Evans lived<\/u> in the house, and therefore may have, from time to time, blown his nose, swabbed an ear, or otherwise disposed of DNA-laden waste into that very trashcan. <\/p>

Moreover, it was reportedly Evans himself who fished the fake nail from the garbage, voluntarily handing it over to police and maybe, just maybe, shedding some skin cells in the process.<\/p>

As for direct evidence of sex, there is none; none from any of the forty lacrosse players, that is. <\/p>

While the second round of DNA testing proved that semen was found inside the accusers vaginal cavity, spokespersons close to the defense are confident the source of the semen is the accuser’s own boyfriend. <\/p>

In sum, after cross-examination, there is little, if any, chance that a jury will give weight to this DNA evidence. It clashes with the accuser’s own story, and it’s as fully consistent with Evans’s innocence as it is with his guilt. <\/p>

The D.A.’s Unusual Hostility to Even Viewing Defense Evidence<\/b><\/p>

Defense lawyers have repeatedly implored District Attorney Nifong to meet with them and to examine the evidence that favors the defendants. But Nifong has said no – with an attitude that boils down to, “Talk to the hand.”<\/p>

That’s unusual. More often than not, prosecutors are quite open to exchanging – or at least being entertained by – the defense’s evidence. After all, it provides them with a valuable preview of what the defense’s case may ultimately look like in court. Prosecutors are legally required to turn over certain evidence to the defense, but no obligation runs the other way. And since the defense goes second, prosecutors may not be able to effectively counter defense “surprises.” <\/p>

For prosecutors, meeting with the defense is thus typically a win-win situation: If they are convinced to drop the case, then that’s embarrassing – but far less than as a loss at trial would have been. If they aren’t convinced to drop the case, they’ve gotten a precious new edge at trial. And either way, both the reality and appearance of fairness to the defendants are enhanced. <\/p>

Giving a defendant a lie detector test, in contrast, isn’t a win-win situation: It may hurt prosecutors’ case if the results are released to the public. (Lie detector results are rarely – if ever – admissible in court.) But at the same time, a lie detector test – while risky, and far from perfect – is likely to get prosecutors closer to the truth, which is supposed to be what they are after. <\/p>

As noted above, in this case, Evans claims Nifong refused to give Evans a lie detector test. (He ultimately took one himself, and passed.) In my professional experience, a prosecutor’s refusing to administer a lie detector test to a defendant is nearly unheard-of. The defendant’s answers – and the lie detector’s response to them – may provide the prosecutor with a road map to what his vulnerabilities on the stand may be. <\/p>

Just as meeting with the defense previews the defense case for prosecutors, administering a lie detector can preview the defendant’s testimony, as well as his on-the-stand demeanor, showing prosecutors what kind of a witness he will be. (Confident? Nervous? Shifty? Solid?) <\/p>

I can’t help but believe that, were any of these defendants to assert that they had proof that a crime was indeed committed, this district attorney would be all ears. Suppose, for instance, that Seligmann or Evans were to turn on Finnerty, to try to save themselves – surely Nifong would happily hear them out. So how can the prosecutor justify, then, turning a blind eye to evidence of any of the accused’s innocence?<\/p>

If There’s A Card Up the D.A.’s Sleeve, the Law Requires Him to Play It Soon<\/b><\/p>

Some pundits have suggested that the only explanation for the District Attorney’s pressing on in the light of strong evidence that the defendants are innocent, is that he has a card up his sleeve. If so, then he needs to show that card, pronto. <\/p>

The discovery statutes in North Carolina – as in most states – do not allow prosecutors to play “hide the ball.” This is a judicial proceeding, not a magic show. So D.A. Nifong will have to reveal this evidence sometime before trial. <\/p>

He ought to opt to reveal it right now – to give the defense a chance to counter it. When evidence suggesting innocence is as strong as it is in this case, it’s wrong to just let the case go to trial and “see what the jury says.” These three young men’s live will be forever affected, even if they are acquitted. Even an arrest leaves a scar; the scar of trial is far deeper. <\/p>

D.A. Nifong should listen to the defense, and should drop the case unless he has strong evidence supporting the accuser. Moreover, if he does have such evidence, he should show it to us now. The defendants have been forthcoming – especially Evans, who volunteered to, and then did, take a lie detector test. The prosecution should follow their example. <\/p> \n\n\n<\/span>\n\n\n

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\n\n\n<\/a>\nJonna M. Spilbor an attorney and legal analyst on “Kendall’s Court”, airing Sundays on Fox News Channel’s Weekend Live with Brian Wilson. She is also a frequent guest commentator on Court-TV and other television news networks, where she has covered many of the nation’s high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney’s Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review. \n

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