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Sunday, May 14, 2006
Missing Evidence? Defense says Nifong has not provided discovery in case

THE ASSOCIATED PRESS

RALEIGH

For weeks, defense attorneys have stood in front of TV cameras and granted countless interviews to eagerly pronounce the innocence of Duke University lacrosse players accused of rape.

Meanwhile, the man charged with prosecuting the case has remained largely silent, apparently even to those defense attorneys.

The defense says that two rounds of DNA testing have failed conclusively to link any player to the woman who told police that she was raped at a March 13 team party in Durham, where she was hired to perform as a stripper. They add that District Attorney Mike Nifong has provided little evidence through discovery, leaving them to wonder what other evidence is out there.

"You'd think he'd have the statements of the woman," Kirk Osborn, who represents charged sophomore Reade Seligmann, said yesterday. "You'd think he has the hospital reports. You'd think he has a toxicology report. You'd think he'd have all of that. And that's all discoverable."

The woman, a 27-year-old black student at nearby N.C. Central University, told police that she was raped and beaten for a half-hour by three white men at the party. A grand jury has charged Seligmann of Essex Fells, N.J., and Collin Finnerty of Garden City, N.Y., with rape, kidnapping and sexual assault.

Nifong has said that he hopes to charge a third person, and he could do so as early as Monday at the next meeting of the Durham County grand jury.

Nifong - who has declined daily requests for comment from The Associated Press - has said little else about the facts of his case, other than that he firmly believes that a rape occurred and doesn't need DNA evidence to move forward.

"We don't know what else the prosecution may have," said Stan Goldman, a professor at Loyola Law School and a former public defender in Los Angeles County.

Other evidence might include a lacrosse player willing to testify for the prosecution, although that's a prospect that defense attorneys have strongly dismissed.

"Every single one of these young men steadfastly deny that anything of a sexual nature took place with this accusing woman whatsoever," said defense attorney Bill Thomas, who represents an uncharged player.

Defense attorneys say that Nifong's silence extends to them. Attorney Joseph Cheshire, who represents a team captain who has not been charged, said that Nifong has not responded to several requests for discovery.

"Generally, when people bring indictments, they have made their case and they have the discovery to give to the defendants," Cheshire said. "It's awfully strange when a person is charged and the district attorney says he doesn't have his discovery. It's kind of like putting the cart before the horse."

The issue led Finnerty's attorneys to successfully delay a preliminary court appearance scheduled for Thursday to mid-June. According to their motion, Nifong said he would not have "a complete set of discovery available for the defendant."

Osborn said he has received a report on the photo identifications made by the accuser, and Nifong has provided defense attorneys with the results of two rounds of DNA testing. Nifong hasn't commented directly on the results, but defense attorneys said that the first round - conducted at the state crime lab - found no match between the 46 players tested and the accuser.

The second set of tests, ordered by Nifong and performed at a private lab, found no conclusive match between any player and the accuser, defense attorneys said. They said that the tests found some genetic material from several people on a plastic fingernail that had the "same characteristics" as some of the players but not the two who have been indicted.

The nail was found in a bathroom trash can at the off-campus house where the party took place, and was among items - such as Q-Tips and Kleenex - that defense attorneys suggested might have contaminated the nail.

Wade Smith, one of two attorneys representing Finnerty, said at a news conference at his office in Raleigh that the latest DNA test "is a total and complete failure if the prosecutor intended to find something that would be useful."

Cheshire said that the tests also showed that genetic material from a "single male source" was found on a vaginal swab taken from the accuser, but that the material did not match any of the players.

After Monday's grand jury meeting, the case will next appear in a courtroom on Thursday, when Seligmann is scheduled to appear. Osborn said he will proceed then with arguments about the lack of discovery evidence.

"I don't know what it's going to take to convince (Nifong) he doesn't have a case and these kids never did it," he said.

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