He's going to have to argue, I think, that when he said he turned over all the exculpatory evidence to the defense, that he meant only "relevant" and "admissible" exculpatory evidence, and that in his view the DNA evidence of sex with other men was not relevant and would not have been inadmissible.
He could even argue that the DNA matches with other men could not have been used by the defense to impeach the credibility of the alleged victim's statement that she did not have sex within the past two weeks, on the grounds that the no-sex-in-two-weeks statement would not be admissible in the first place (having to do with her sexual history, which is only admissible under certain narrow circumstances), so there would be no opportunity by the defense to impeach that statement at trial.
As I say, to escape the worst penalty from the bar commission I don't think he has to prove that he would have succeeded on his legal positions in court, only that he believed in these positions in good faith. I don't know who is on the committee, but any feminist-leaning judges or law professors will be somewhat sympathetic to this rationale for not turning over the complete DNA report.
What this case, the Ronnie Earle case and the Fitzgerald case demonstrate is how inadequate are the remedies we have for abuse of power by a prosecutor.
meant "...was not relevant and would not have been admissible"
The fact that Precious seems to have had sex within hours of the alleged assault would certainly be relevant with regard to how she got the "diffuse edema". So I don't see any way Nifong could weasel out of things that way.
Actually, if one really wanted to nail Nifong, one could suggest that Precious was telling the truth about being raped without condoms, but was completely confused as to where and when it happened. That's actually the only scenario that makes sense which would involve Precious actually being sexually assaulted by anyone, but under that scenario the DNA is absolutely exculpatory; further, it raises the question of why Nifong seems to have no interest in doing anything about the actual rapists.
The law is clear. The DA doesn't get to decide what's admissable nor does he get to decide what's relevant or material to the defense, especially when the defense has already filed the necessary notices that they intend to put forward an affirmative defense, which the defense did indeed do in this case.
Nifong doesn't have a leg to stand on.
Here's another thing: Nifong has known about the state bar case for months (and thus his ongoing conflict of interest), but didn't recuse until his shenanigans with the DNA report came out. That tells us a lot about his thinking on his position in the case. It tells us that he knew he had to remove himself from a position where he had to continue lying in order to not admit violating the law. I think he thought he'd bluster through the first round of ethics charges, but the 12/15 revelations and the lies that followed were sinking him. He recused so he could stop digging, not because of the conflict of interest. The conflict was in play for several months before the 12/15 testimony and his further perjuries.
"As I say, to escape the worst penalty from the bar commission I don't think he has to prove that he would have succeeded on his legal positions in court, only that he believed in these positions in good faith. I don't know who is on the committee, but any feminist-leaning judges or law professors will be somewhat sympathetic to this rationale for not turning over the complete DNA report."
The "good faith" argument won't fly for the reasons I've already cited, but even if it could succeed, it isn't believable because of the lies he told with regard to not turning the evidence over and conspiring to not turn it over. Those lies show an acute consciousness of guilt about the entire matter, and the state bar knows it. In October, Nifong stated before the court and in a written declaration that he had in fact turned over every single bit of discovery he had possession of or was AWARE of. Then, when caught, he lied to the court by giving the court a series of different and conflicting excuses as to why he didn't turn the full DNA results over. He's boxed himself in this time, and that's why "good faith" won't work and it's why he recused.
This wouldn't fly becasue the evidence would have been relevant and admissible to show that if she was raped her identification of the defendant(s) was faulty and the DNA shows that someone else committed the rape. Nifong is toast and should be. It would interesting to research whether he is subject to civil suit by the defendants if he is disbarred on the basis of these illegal actions. Prosecutorial immunity may not apply in this situation.