"And we were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud but at the same time his report made it clear that all the information was available if they wanted it and they have every word of it," Nifong said.
“Our report AND the additional results of tests where there was no DNA match were provided to our client, and then to defense counsel in the normal criminal pre-trial “discovery” process.”
“Our findings have been disclosed and discussed in Motions filed with the Court and available for public review, and in testimony in an open Court hearing on December 15, 2006.”
“After poring over the new DNA evidence from January, defense lawyers noticed key data still missing. From the new material, defense lawyers learned that a swab collected from the accuser's body contained evidence of two unidentified men, not just one.
“In the motion filed Tuesday, defense lawyers said they realized that they have received only 11 of the 22 DNA sequencing charts from the samples tested.
"The defendants are still in the dark," the motion said. "The statistical likelihood is that such data will show that there was even more exculpatory, unidentified male DNA discovered by DNA Security in the rape kit extractions that, by Jan. 12, 2007, still had not been reported to the defendants by Mr. Nifong and Dr. Meehan in any way." N&O
THEREFORE, plaintiff alleges that Nifong’s foregoing actions constitute grounds for discipline pursuant to N.C. Gen Stat. 84-28(b)(2) in that he violated the Revised Rules of Professional Conduct as follows:
(d) By never providing the Duke Defendants on or after November 16, 2006 and prior to his recusal on January 12, 2007 a report setting forth the results of all tests or examinations conducted by DSI, including the potentially exculpatory DNA test results and evidence, and demoralizations of Dr. Meehan’s oral statements concerning the results of all examinations and tests conducted by DSI in written, recorded or any other form, Nifong:
- i. did not, after a reasonably diligent inquiry, make timely disclosure to the defense of all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions, including all evidence or information known to him that tended to negate guilt of the accused in violation of current Rule 3.(d) of the revised Rules of Professional Conduct, as well as the United States Constitution, N.C. Gen Stat. 15A-282, NC Gen. Stat. 15A-903(a)(1), NC Gen. Stat. 15A-903(a)(2), and the Court’s June 22, 2006 order compelling discovery; and
- ii. Failed to disclose evidence or information that he knew, or reasonably should have known, was subject to disclosure under applicable law, rules of procedure or evidence, or court opinions in violation of current Rule 3.4(d)(3) of the Revised Rules of Professional Conduct, as well as the United States Constitution, N.C. Gen. Stat 15A-282, N.C. Gen. Stat. 15A-903(a)(1), N.C. Gen. Stat. 15A-903(a)(2), and the Court’s June 22, 2006 order compelling discovery.
Given this reported response of his attorneys to the new motion and Nifong’s December 15 public assertion that the defense had “every word of it” with regard to the evidence the Bar contends was never provided to the defendants, yesterday’s motion demonstrates further both the substance to the Bar complaint and Defendant Nifong’s continued defiance of State law, the Court, the Constitution, the ethics of his profession, common sense, and now, the State Bar.
“North Carolina's discovery rules require prosecutors to provide the defense with both a report of DNA findings as well as the underlying data. The defendants claim that both the reports and the data they were given are insufficient. Attorneys for Nifong, on the other hand, contend that the prosecution handed over everything that was required by law.”