A private laboratory hired by the prosecution in the Duke lacrosse case failed to report that it found DNA from multiple males in the accuser's body and underwear, according to a defense motion filed today. The lab, DNA Security of Burlington, found that the DNA did not match the three defendants, their lacrosse teammates or anyone else who submitted their DNA to police, including the accuser's boyfriend.
The new evidence emerged in thousands of documents handed over to the defense in October.
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Defense to get accuser's phone data
Seligmann's lawyer, Nifong spar; police to preserve notes
Herald-Sun, The (Durham, NC)
May 19, 2006
Author: JOHN STEVENSON
jstevenson@heraldsun.com; 419-6643
Estimated printed pages: 4
A judge agreed Thursday to let the defense try to find out what information is on the cell phone of the exotic dancer who has accused three Duke lacrosse players of rape, and also ordered police to preserve their notes in the case.
The decisions came as the case of State v. Reade Seligmann saw its first day in court after weeks of sometimes stunning developments, press conferences, leaked documents and almost nonstop chatter.
With a trial likely still months away, the brief hearing was supposed to be nothing more than a chance for District Attorney Mike Nifong and defense attorney Kirk Osborn, representing one of the three Duke lacrosse players charged with first-degree rape, sexual offense and kidnapping, to settle some administrative issues.
But that didn't stop the two sides from sparring over a number of issues, including what kind of access, if any, the defense would have to the accuser's cell phone, which is in police custody.
With protesters demonstrating outside the judicial building, Superior Court Judge Ron Stephens admonished those in the packed courtroom to be quiet and respect the proceeding.
"I'm not sure why everybody is here, but this is a court of law," Stephens said at the outset. "This is my court... If anybody thought this was a public forum in which anybody could stand and speak, that is not going to be allowed. I will put you in jail. If you stay, you have to abide by my rules."
Before the hearing began, the district attorney gave the defense 1,278 pages of prosecution information about the case, along with two videotapes and a photo CD.
In response to a defense request to "preserve" the accuser's cell phone, Stephens ordered that defense attorneys be allowed to view information retrieved from the phone. Lawyers said it might be important to know who the woman called on the night of the alleged rape, which allegedly occurred during a March 13 party attended by Duke lacrosse players. The accuser was hired as an exotic dancer for the party.
Stephens also granted a defense motion to preserve police notes in the case, although he cautioned that attorneys may not "rummage through" the files of officers.
However, Stephens declined Thursday to consider an immediate reduction of Seligmann's $400,000 bond.
Seligmann, a 20-year-old Duke sophomore at the time of the alleged crime, posted bail with a certified check and was released from jail a few hours after his indictment last month. But a defense motion says the money was supplied by a family friend who would like to have much of it back.
Stephens indicated that a possible bond reduction could be considered later.
The other defendants are Collin Finnerty and David Evans, who also are free under $400,000 bonds.
All three will have their next court appearances during the week of June 19.
Osborn, representing Seligmann, said Thursday he wanted his client's case tried as soon as possible.
"This young kid wants to go to school in the fall, and he can't until this is resolved," said Osborn.
"I respect the seriousness of the case," Stephens replied. "But this case is not going to jump ahead of the line of all the other cases we have."
Without being more specific, District Attorney Mike Nifong had previously said the spring of 2007 would be a good target time for the trial. And on Thursday, Nifong said he would seek to have all three suspects tried together, rather than one at a time.
Seligmann said nothing on his own behalf Thursday.
Before the court hearing, Nifong filed a motion saying he was entitled to receive certain information from defense attorneys. Among that information, Nifong said he needed advance notice if any of the suspects intended to claim "entrapment, insanity, mental infirmity, diminished capacity, self-defense, accident, automatism, involuntary intoxication and voluntary intoxication."
Nifong also wanted to know if any of the suspects intended to mount an alibi defense.
In fact, Seligmann already gave notice of an alibi, claiming he had phone, taxicab and ATM records to prove he was otherwise occupied during the only time defense lawyers believe a rape could have occurred.
As part of the motion filed Thursday, Nifong listed nine expert witnesses he expects to testify for the prosecution: L.D. Milks, Timothy G. Suggs, Hope Copeland, Jennifer Leyn and Rachel Winn of the State Bureau of Investigation; Brian W. Meehan and R.W. Scales of DNA Securities in Burlington; and Tara Levicy and J. Manly of Duke University Hospital.
The SBI conducted an initial round of scientific testing in the case but, according to defense attorneys, found no DNA from Seligmann, Finnerty, Evans or 43 other Duke lacrosse players in or on the alleged rape victim's body, on her clothing and belongings or under her fingernails -- even though she said she clawed at her attackers in an attempt to fend them off.
DNA Securities then conducted a second round of tests and found -- again according to defense lawyers -- that the exotic dancer had engaged in sex with a man about the time of the alleged rape. But the man was not a Duke lacrosse player and was not at the March party, attorneys said.
They said they believed the individual was romantically linked to the dancer.
In addition, DNA Securities found tissue on one of the dancer's fake acrylic fingernails that was "consistent" with Evans' bodily makeup, but the match was inconclusive, defense lawyers said.
The fingernail in question was retrieved from a trash can at 610 North Buchanan Blvd., where Evans was one of three tenants.
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