Nifong: If there was a TOX, it would've been included in the discovery Docs.
http://www.heraldsun.com/durham/4-737491.html
Defense seeks toxicology reports
By John Stevenson : The Herald-Sun
May 22, 2006 : 10:25 pm ET
DURHAM -- Medical records of the alleged victim in the Duke lacrosse rape case suggest she might not have been tested for drugs or alcohol, according to a defense filing Monday.
Several people described the accuser as being severely impaired the night of the alleged attack, with one of the first police officers to see her describing her a "passed out drunk." But some have suggested that she may have been given a so-called "date rape drug," and Newsweek magazine said District Attorney Mike Nifong had hinted at such a possibility.
Authorities have said a doctor and a specially trained nurse performed a physical exam on the accuser that found her condition to be consistent with having been sexually assaulted. But the nurse who filled out a report on that exam indicated no toxicology tests were performed, according to a defense motion filed Monday.
Several attorneys not connected with the case said Monday they were surprised by the apparent lack of a toxicology report.
If such data showed the exotic dancer was intoxicated on the night in question, it could be highly beneficial to the defense, lawyer Mark Edwards said.
"Either way -- whether it was a date-rape drug or voluntary intoxication -- it would affect the reliability of her identification," Edwards added. "It goes to the question of her credibility."
On the other hand, evidence of a date-rape drug in the dancer's body could have helped the prosecution by showing evil intentions on the part of someone, Edwards said.
"It would help to explain the apparent intoxication when police encountered this woman later," he said. "It also would show that there was likely a sexual assault or at least a plan to commit a sexual assault."
The question of whether a toxicology report was conducted arose in a motion filed Monday by lawyers representing indicted rape suspect Reade Seligmann.
They said no toxicology information was contained in 1,278 pages of data Nifong gave them last week. Nevertheless, if such a report exists, the lawyers said they have a right to see it and asked a judge to force Nifong to turn it over.
Nifong declined to comment to The Herald-Sun.
But he told WRAL: "If there was a toxicology report available, it would've been included in the discovery I handed over to the defense."
Nifong told WRAL he had turned over all the evidence he has to date and that when any new reports or documents come in, they too, would be handed over to the defense.
Theoretically, it could be argued that the failure to obtain and preserve toxicology data had violated the suspects' right to a fair trial, according to Edwards.
"But that would be a tough argument to sell," he conceded.
In a second motion filed Monday, the defense attorneys Kirk Osborn and Ernest Conner said they also are still waiting for a "substantial portion" of police notes and interview summaries in the case, along with access to cell phone records and other, unspecified physical evidence. They reminded Nifong that he was legally bound to make such details and access available to them.
As for the nearly 1,300 pages the defense did receive from Nifong last week, Osborn said he didn't see anything that might significantly hurt Seligmann's case.
"I can say that, after reviewing all the discovery, there's nothing in there that causes us any concern," he said.
Seligmann is one of three lacrosse players indicted on rape, kidnapping and sex-offense charges in the case. The others are Collin Finnerty, a 20-year-old sophomore at the time of the March party, and David Evans, who graduated from Duke this month.
The dancer picked out Seligmann and Finnerty from a police photo lineup and said she was 100 percent sure they were among her alleged attackers, according to a transcript of the photo lineup session. But she expressed only 90 percent certainty about her identification of Evans from the same lineup.
Seligmann, meanwhile, says he has an alibi: cell phone, taxicab and bank ATM records indicating he was otherwise occupied during the only time defense lawyers believe a rape could have occurred.
Scientific testing by the State Bureau of Investigation showed there was no DNA from Seligmann, Finnerty, Evans or any other Duke lacrosse players in or on the exotic dancer's body, on her clothing and belongings or under her fingernails -- even though she claimed she clawed at her assailants to fend them off.
More recent tests by a private laboratory, DNA Securities of Burlington, indicated the woman had engaged in sexual relations around the time of the alleged rape. But it was with an apparent boyfriend rather than a Duke lacrosse player or anyone who attended the March party, according to a defense interpretation of the lab results.
Lawyers said the private lab also found tissue "consistent" with Evans' bodily makeup under one of the dancer's fake acrylic fingernails, which was retrieved from a trashcan. However, attorneys insisted the fingernail evidence was inconclusive and did not constitute proof of a rape anyway.
The Associated Press contributed to this article.