Tuesday, March 06, 2007

State Bar's Amended Complaint and Nifong's Answer Merged - Part II

Withholding or Failing to Provide Potentially Exculpatory DNA Evidence

182. During the investigation of the Duke Lacrosse rape cases, various pieces of evidence were collected for later DNA testing.

182. The allegations contained in paragraph 182 of plaintiff's Amended Complaint are admitted.

183. On March 14, 2006. a Sexual Assault Nurse Examiner (SANE) and physician examined the alleged victim and generated numerous evidentiary items, commonly referred to as a "rape kit."

183. The allegations contained in paragraph 183 of plaintiff's Amended Complaint are admitted.

184. The alleged victim asserted that she had been vaginally, rectally, and orally penetrated with no condom used during the assault and with at least some of the alleged perpetrators ejaculating.

184. The allegations contained in paragraph 184 of plaintiff's Amended Complaint are admitted.

185. The rape kit contained cheek scrapings, oral, vaginal, and rectal swabs, a pubic hair combing, and a pair of the alleged victim's underwear.

185. The allegations contained in paragraph 185 of plaintiff's Amended Complaint are admitted.

186. On March 16, 2006, the three residents of 610 North Buchanan, who were captains of the Duke lacrosse team, voluntarily assisted law enforcement in executing a search warrant at their residence. During the search, law enforcement seized numerous pieces of evidence for later testing, including several false fingernails in the bathroom and bedroom of the residence.

186. The allegations contained in paragraph 186 of plaintiff's Amended Complaint are admitted.

187. These three residents also provided voluntary statements and submitted DNA samples for comparison testing purposes. One of these three individuals was Dave Evans, who was subsequently indicted in the alleged crimes.

187. The allegations contained in paragraph 187 of plaintiff's Amended Complaint are admitted.

188. On March 23, 2006, swabbings of all 46 Caucasian members of the Duke University 2006 Men's Lacrosse Team (hereafter referred to collectively as, "lacrosse players") were obtained pursuant to the NTO sought by Nifong's office.

188. The allegations contained in paragraph 188 of plaintiff's Amended Complaint are admitted.

189. In the application seeking the NTO, Nifong's office represented that "the DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim."

189. It is admitted that Assistant District Attorney, David Saacks, included the language on the Application seeing the NTO as stated in paragraph 189.

190. On or about March 24, 2006, Nifong assumed primary responsibility for prosecuting any criminal charges resulting from the investigation (hereafter, "underlying criminal cases") and directed the Durham Police Department (DPD) to go through him for any directions as to how to conduct the factual investigation of those matters.

190. It is admitted that on March 24, 2006, Nifong assumed primary responsibility for prosecuting any criminal charges resulting from the investigation of the "Duke lacrosse case". Defendant further admits that he advised the Durham Police Department that any request for assistance from the office of the District Attorney be directed to him and that he be kept advised of the progress of the investigation being performed under the supervision of the Durham Police Department.

191. On March 27, 2006, the rape kit items and referenced DNA samples from the lacrosse players were delivered to the SBI lab.

191. The defendant is uncertain whether the date of March 27, 2006 is correct, but the remaining allegations contained in paragraph 191 are admitted.

192. On March 28, 2006, the SBI lab examined the items from the rape kit and was unable to find any semen, blood, or saliva on any of those items.

192. The defendant is uncertain whether the date of March 28, 2006 is correct, but the remaining allegations contained in paragraph 192 are admitted.

193. On or about March 30, 2006, Nifong had a conversation with an agent in the DNA section of the SBI lab about the status of its testing of evidentiary items in the case.

193. It is admitted that defendant had more than one conversation with various representatives of the SBI lab during the period of time they were conducting tests, one of which conversations may have been March 30, 2006. Any remaining allegations contained in paragraph 193 are denied.

194. On April 4, 2006, at Nifong's direction, Investigator Michelle Soucie of DPD contacted Dr. Brian Meehan, president and director of DNA Security, Inc. (DSI) a private laboratory located in Burlington, North Carolina.

194. It is admitted that after the defendant received word from Mike Budzynski at the SBI that additional more sensitive testing may be appropriate in this case, both he and the Durham Police Department began contacting laboratories to determine whether they could conduct Y-STR testing and the cost of such testing and that investigator Soucie contacted Dr. Meehan at DSI. Any remaining allegations contained in paragraph 194 are denied.

195. The purpose of this contact was to determine if DSI could perform more sensitive or sophisticated DNA testing than the SBI lab.

195. The allegations contained in paragraph 195 of plaintiff's Amended Complaint are admitted.

196. On April 5, 2006, Nifong's office sought and obtained an Order permitting the transfer of the rape kit items to DSI from the SBI for Y chromosome DNA testing.

196. The allegations contained in paragraph 196 of plaintiff's Amended Complaint are admitted.

197. As justification for its order, the Court noted that the additional testing Nifong's office sought in its petition was "believed to be material and relevant to this investigation, and that any male cells found among the victim's swabs from the rape kit can be evidence of an assault and may lead to the identification of the perpetrator. "

197. The allegations contained in paragraph 197 of plaintiff's Amended Complaint are admitted.

198. The rape kit items were subsequently transferred to DSI, who shortly thereafter began testing and analysis on those items.

198. The allegations contained in paragraph 198 of plaintiff's Amended Complaint are admitted.

199. Between April 7 and April 10, 2006, DSI performed testing and analysis of DNA characteristics found on the rape kit items.

199. The allegations contained in paragraph 199 of plaintiff's Amended Complaint are admitted.

200. In performing this initial testing, DSI found DNA characteristics from up to four different males on epithelial and sperm fractions from several pieces of evidence from the rape kit.

200. The allegations contained in paragraph 200 of plaintiff's Amended Complaint are admitted.

201. By April 10, 2006, DSI had analyzed the DNA characteristics from at least some of the evidence specimens from the rape kit containing multiple male DNA characteristics and excluded all of the lacrosse players as potential contributors of the DNA it had analyzed.

201. With respect to the items in the rape kit, the allegations contained in paragraph 201 are admitted.

202. On April 10, 2006, Nifong met with Dr. Meehan and two DPD officers at the DSI office.

202. Defendant only recalls two meetings with Dr. Meehan occurring April 21st and May 12th, 2006. Defendant is however aware that Officers Gottlieb, Himan and Dr. Meehan indicate that there was an initial meeting occurring on April 10, 2006. Any remaining allegations contained in paragraph 202 are denied.

203. At that meeting, Dr. Meehan discussed with Nifong the results of the analyses performed by DSI to that point, including those referred to in paragraphs 199-­201 above.

203. Defendant admits discussing with Dr. Meehan the analysis performed by DS! including those referenced in paragraph 199 through 201. The defendant believes that those conversations occurred on April 21, 2006, rather than April 10, 2006 as alleged. Any remaining allegations contained in paragraph 203 are denied.

204. On April 17, 2006, Nifong sought and obtained indictments against Collin Finnerty and Reade Seligman for first-degree rape, first-degree sex offense, and kidnapping. (The indicted lacrosse players are hereafter referred to collectively as, "the Duke Defendants")

204. The allegations contained in paragraph 204 of plaintiff's Amended Complaint are admitted.

205. Nifong sought and obtained these indictments after receiving the preliminary results from Dr. Meehan and despite his office's prior representation in the application for the NTO that the "DNA evidence requested will immediately rule out any innocent persons."

205. Defendant admits the allegations contained in paragraph 205, but denies any inference that he was bound by representations made by subordinates in his office prior to his having knowledge of the case.

206. Before the Duke Defendants were indicted, Nifong repeatedly refused offers from counsel for the players who were eventually indicted to consider evidence and information that they contended either provided an alibi or otherwise demonstrated that their clients did not commit any crime.

206. The allegations contained in paragraph 206 of plaintiff's Amended Complaint are denied.

207. On April 19, 2006, two days after being indicted, Duke Defendant Reade Seligman through counsel served Nifong with a request or motion for discovery material, including witness statements, the results of any tests, all DNA analysis, and any exculpatory information, among various other requested items.

207. The allegations contained in paragraph 207 of plaintiff's Amended Complaint are admitted.

208. By April 20, 2006, DSI had performed additional DNA testing and analysis and found DNA characteristics from multiple males on at least one additional piece of evidence from the rape kit.

208. It is admitted that as of April 21, 2006 that DSI had performed tests which indicated the matters outlined in paragraph 211 of the Amended Complaint and that the items and the times said items were tested are more specifically outlined in the documents produced by DSI and provided to the Duke defendant's counsel through discovery in the underlying "Duke lacrosse case", the terms of which speak for themselves. Any remaining allegations contained in paragraph 208 are denied.

209. By April 20, 2006, from its testing and analysis, DSI had determined that all the lacrosse players could be excluded as contributors of the numerous DNA characteristics from multiple males found on several evidence items from the rape kit. Stated differently, DSI had determined that none of the DNA from multiple males found on several items from the rape kit matched any of the lacrosse players, including the two players who had already been indicted.

209. As it relates to the rape kit items of evidence, the allegations contained in paragraph 209 are admitted.

210. On April 21, 2006, Nifong again met with Dr. Meehan and the two DPD officers to discuss all of the results of the DNA testing and analyses performed by DSI to date.

210. Defendant admits that on April 21, 2006 he met with Dr. Meehan and two Durham Police Department Officers to discuss the results of the DNA testing and the analysis of DSI. Any remaining allegations contained in paragraph 210 are denied.

211. At this April 21 meeting, Dr. Meehan told Nifong: (a) that DNA from multiple males had been found on several items from the rape kit, and (b) that all of the lacrosse players, including the two players that Nifong had already sought and obtained indictments against, were excluded as possible contributors of this DNA because none of their DNA profiles matched or were consistent with any of the multiple DNA characteristics found on the rape kit items.

211. The allegations contained in paragraph 211 of plaintiff's Amended Complaint are admitted.

212. The evidence and information referred to above in paragraphs 200-211 was potentially exculpatory of the Duke Defendants or other lacrosse player suspects in the investigation because it tended to negate the guilt of the accused (hereinafter referred to as "potentially exculpatory DNA test results" or "potentially exculpatory DNA evidence").

212. At the time that defendant met with Dr. Meehan, he was focused on the question of whether evidence had been discovered that corroborated the victim's photographic identification of the two indicted Duke lacrosse players as her assailants and whether there was any evidence to corroborate her near certain photographic identification of a third Duke lacrosse player as a third assailant. As such, as of the time of the meeting with Dr. Meehan as alleged in paragraph 212, his attention was not focused on whether trace DNA from individuals not members the Duke lacrosse team which was found on certain items tested would be material evidence which would affect the outcome of any subsequent trial. Defendant therefore denies that he made any conscious decision, at the times referenced in paragraph 212 of the Amended Complaint, as to whether trace DNA of individuals not members of the Duke lacrosse team was potentially exculpatory, as a trial date had not yet been scheduled in this matter and he was still investigating the facts of his underlying case and had not focused on whether this information was exculpatory. Furthermore, at this time the defendant knew that he would be required to produce the underlying data from any forensic test performed by DSI in the course of discovery. Any remaining allegations contained in paragraph 212 of plaintiff's Amended Complaint are denied.

213. During one of the meetings in April, Nifong discussed and agreed with Dr. Meehan that the report to be produced concerning DSI's tests and examinations would only include tests for which DNA found on specific evidence items matched or was consistent with DNA from known reference specimens, the so-called "positive results."

213. Defendant admits that he knew that the summary report being prepared by Dr. Meehan would not include the underlying documents reflecting the results and tests of all examinations performed by DSI, as thedefendant knew he would be required to produce this documentation through the discovery process. Defendant denies any inference raised in the allegations contained in paragraph 213 of plaintiff's Amended Complaint that he agreed to have the summary report include only positive results in an effort to prevent the Duke defendants from knowing this information as the underlying results of the tests and examinations performed by DSI would clearly provide that information to the Duke defendants. Any remaining allegations contained in paragraph 213 are denied.

214. Nifong and Dr. Meehan agreed that the final report would not include all of the results of the tests and examinations performed by DSI but would be limited only to the "positive" results.

214. Defendant admits that he knew that the summary report being prepared by Dr. Meehan would not include the underlying documents reflecting the results and tests of all examinations performed by DSI, as the defendant knew he would be required to produce this documentation through the discovery process. Defendant denies any inference raised in the allegations contained in paragraph 214 of plaintiff's Amended Complaint that he agreed to have the summary report include only positive results in an effort to prevent the Duke defendants from knowing this information as the underlying results of the tests and examinations performed by DSI would clearly provide that information to the Duke defendants. Any remaining allegations contained in paragraph 214 are denied.

215. This agreement between Nifong and Dr. Meehan meant that the potentially exculpatory DNA evidence and test results would not be included in DSI's report and, therefore, would not be provided to the Duke Defendants or the other player suspects.

215. The defendant incorporates his answer to paragraph 214 of the Amended Complaint in responding to the allegations contained in paragraph 215 of plaintiff's Amended. Complaint. Any remaining allegations contained in paragraph 215 are denied.

216. On May 12, 2006, Nifong again met with Dr. Meehan and discussed the final results of DSI's testing, all of which had been completed by that point.

216. The allegations contained in paragraph 216 of plaintiff's Amended Complaint are admitted.

217. On that date, consistent with his prior agreement with Nifong, Dr. Meehan provided Nifong a 10-page report produced by DSI, which set forth the results of tests on only three evidence specimens containing DNA characteristics that were consistent with DNA profiles from several known reference specimens.

217. Defendant incorporates his answer to the allegations contained in paragraph 214 of the Amended Complaint in responding to the allegations contained in paragraph 217 of the Amended Complaint. The defendant is without sufficient information with which to form a belief as to the truth of any remaining allegations contained in paragraph 217 of plaintiff's Amended Complaint other than the fact that Dr. Meehan provided the report identified therein, the terms of which speak for itself, and as such, any remaining allegations are denied.

218. The three items in DSI's report concerned DNA characteristics on two fingernail specimens that were at least partially consistent with the DNA profile of two unindicted lacrosse players and a sperm fraction from the vaginal swab that was consistent with the DNA profile of the alleged victim's boyfriend.

218. The allegations contained in paragraph 218 of plaintiff's Amended Complaint are admitted.

219. The report contained no reference to any of the multiple unidentified male DNA characteristics, even though it listed the evidence items on which DSI had discovered this evidence. Moreover, the report did not even note that testing had been performed on those specific items on which the potentially exculpatory DNA evidence had been discovered.

219. Defendant incorporates his answer to the allegations contained in paragraph 214 of the Amended Complaint in responding to theallegations contained in paragraph 219. The defendant is without sufficient information with which to form a belief as to the truth of the remaining allegations contained in paragraph 219, and as such, said allegations are denied.

220. The report contained no statement indicating that DSI had discovered multiple male DNA characteristics on any evidence specimen other than the three specifically set forth in the report.

220. Defendant incorporates his answer to the allegations contained in paragraph 214 of the Amended Complaint in responding to the allegations contained in paragraph 220. The defendant is without sufficient information with which to form a belief as to the truth of the remaining allegations contained in paragraph 220, and as such, said allegations are denied.

221. Nifong personally received DSI's report from Dr. Meehan and later that day provided it to counsel for the two Duke Defendants who had been indicted and for Dave Evans, among others.

221. The allegations contained in paragraph 221 of plaintiff's Amended Complaint are admitted.

222. When he received DSI's report and provided it to counsel for the Duke Defendants, Nifong had just met with Dr. Meehan and was fully aware of the test results that were omitted from the DSI report, including the potentially exculpatory DNA test results.

222. Defendant admits that he received DSI's report and immediately provided it to counsel for the Duke lacrosse defendants. Defendant incorporates his answer to the allegations contained in paragraph 214 of the Amended Complaint in responding to the allegations contained in paragraph 222. The remaining allegations contained in paragraph 222 are denied.

223. Three days later, on May 15, 2006, Nifong sought and obtained an indictment against Dave Evans for first-degree rape, first-degree sex offense, and kidnapping.

223. The allegations contained in paragraph 223 of plaintiff's Amended Complaint are admitted.

224. On May 17, Duke Defendant Collin Finnerty served discovery requests on Nifong, which specifically asked that any expert witness "prepare, and furnish to the defendant, a report of the results of any (not only the ones about which the expert expects to testify) examinations or tests conducted by the expert."

224. The allegations contained in paragraph 224 of plaintiff's Amended Complaint are admitted.

225. On May 18, 2006, Nifong provided various discovery materials to all three Duke Defendants, including another copy of DSI' s report, in connection with a hearing in the case on that same day.

225. The allegations contained in paragraph 225 of plaintiff's Amended Complaint are admitted.

226. The discovery materials Nifong provided on May 18 did not include any underlying data or information concerning DSI's testing and analysis. The materials Nifong provided also did not include any documentation or information indicating the presence of the potentially exculpatory DNA evidence or test results.

226. The defendant admits the first sentence contained in paragraph 226 because the underlying data including documentation reflecting the results of all tests and examinations performed was still in the possession of DSI and as such, the defendant did not have said documentation in his possession as of May 18, 2006. Defendant incorporates his answer to the allegations contained in paragraph 214 of the Amended Complaint in responding to the allegations contained in paragraph 226. Any remaining allegations contained in paragraph 226 are denied.

227. Nifong's failure to provide a complete report from DSI containing the results of all DSI's tests and examinations, including the potentially exculpatory DNA test results, was a violation of N.C. Gen. Stat. 15A-282, 15A-903(a)(1), and 15A-903(a)(2).

227. Defendant denies that he is required to provide a "complete report.. . . containing the results of all . . . test and examinations" pursuant to the statutes identified in paragraph 227, as he provided the underlying data which revealed the results of all tests and examinations performed byDSI which underlying data included the findings of trace DNA from other individuals not members of the Duke lacrosse team. Any remaining allegations contained in paragraph 227 of plaintiff's Amended Complaint are denied.

228. Nifong also did not provide in the discovery materials any written or recorded memorialization of the substance of Dr. Meehan's oral statements made during his meetings with Nifong in April and May 2006 concerning the results of all DSI's tests and examinations, including the exculpatory DNA test results (hereafter, "memorializations of Dr. Meehan's oral statements").

228. Defendant denies that he was required to make a memorialization of Dr. Meehan's oral statements made to him, as the Duke lacrosse defendants' request for this memorialization was denied by the Honorable Ronald L. Stephens in an Order dated June 22, 2006 (June 22, 2006 Transcript, pp. 20-23) and the Honorable W. Osmond Smith, III in open court on September 22, 2006 (Transcript page 29). As such, he admits that he did not provide a copy of such memorialization to the Duke lacrosse defendants as alleged in paragraph 228. Defendant further denies that he is required to provide said memorialization pursuant to N.C.G.S. § 15A-903. Any remaining allegations contained in paragraph 228 of plaintiff's Amended Complaint are denied.

229. Nifong's failure to provide the Duke Defendants with memorializations of Dr. Meehan's oral statements was a violation of N.C. Gen. Stat. 15A-903(a)(1).

229. The allegations contained in paragraph 229 of plaintiff's Amended Complaint are denied.

Misrepresentations and False Statements to Court and Opposing Counsel

230. Accompanying the discovery materials, Nifong served and filed with the Court written responses to the Duke Defendants' discovery requests. In these responses, Nifong stated: "The State is not aware of any additional material or information which may be exculpatory in nature with respect to the Defendant."

230. At the time the defendant made the representation referenced in paragraph 230, he had not analyzed whether trace DNA from individuals not members of the Duke lacrosse team which was found on certain items tested would be material evidence which would effect the outcome of any subsequent trial and as such, as of the date of said representation, he had not considered whether this evidence was possibly exculpatory evidence. Any remaining allegations contained in paragraph 230 of plaintiff's Amended Complaint are admitted.

231. At the time he made these representations in his responses, Nifong was aware of the potentially exculpatory DNA test results and had provided the Duke Defendants only the DSI report, which contained no analysis of or other reference to the potentially exculpatory DNA test results.

231. Defendant incorporates his response to allegations contained in paragraph 230 in responding to the allegations of paragraph 231 of plaintiff's Amended Complaint. Defendant admits that at the time that defendant served his initial discovery responses on May 18, 2006, he was aware that the underlying data of the tests performed by DSI would reveal that trace amounts of DNA not matching the members of the Duke lacrosse team was found on certain items of evidence tested by DSI. The defendant further admits that the underlying data and reports from DSI would be available to the "Duke lacrosse defendants" upon request through discovery and they would be provided with the underlying data revealing this information. It is further admitted that he knew that the DSI report was a summary report which outlined positive matches between DNA found on items of evidence and the Duke lacrosse players. Any remaining allegations contained in paragraph 231 of plaintiff's Amended Complaint are denied.

232. At the time he made the representations in his discovery responses, Nifong also was aware that he had not provided the Duke Defendants with memorializations of Dr. Meehan's oral statements, as he was required to do by N.C. Gen. Stat. 15A-903(a)(1).

232. Defendant denies that at the time that he made the representation in his May 18, 2006 discovery response that he was required to memorialize Dr. Meehan's oral statements pursuant to N.C.G.S. § 15A-903(a)(1). Any remaining allegations contained in paragraph 232 of plaintiff's Amended Complaint are denied.

233. Nifong's above statements contained in his discovery responses were misrepresentations and false statements of material fact made to a tribunal and to third parties in the course of representing a client.

233. The allegations contained in paragraph 233 of plaintiff's Amended Complaint are denied.

234. At the May 18, 2006 hearing, the Court asked Nifong if he had provided the Duke Defendants all the discovery materials.

234. Defendant denies that the court on May 18, 2006 asked him if he had provided "all the Duke discovery materials". Attached hereto as Exhibit "C" is a true and accurate copy of the May 18, 2006 hearing transcript, the terms of which speak for itself relating to the questions of the court as alleged in paragraph 234. Any remaining allegations contained in paragraph 234 of plaintiff's Amended Complaint are denied.

235. In response to the Court's inquiry, Nifong stated: "I've turned over everything I have."

235. Defendant admits that he advised the court that he had turned over "everything I have", but he denies that at the time he made that response that he had in his possession the underlying data resulting from the tests performed by the SBI and DSI.

236. Nifong's response was a misrepresentation and false statement of material fact made to a tribunal because the materials he provided the Duke Defendants did not include any documentation or information indicating the presence of the potentially exculpatory DNA evidence or test results or memorializations of Dr. Meehan's oral statements about those and other test results.

236. The allegations contained in paragraph 236 of plaintiff's Amended Complaint are denied.

237. In his May 18, 2006 discovery responses, Nifong also identified Dr. Meehan and R.W. Scales, another person at DSI, as expert witnesses reasonably expected to testify at the trial of the underlying criminal cases pursuant to N.C. Gen. Stat. § 15A-903(a)(2). Nifong also gave notice in these discovery responses of the State's intent to introduce scientific data accompanied by expert testimony.

237. The allegations contained in paragraph 237 of plaintiff's Amended Complaint are admitted.

238. On June 19, 2006, counsel for the Duke Defendants requested various materials from Nifong, including a report or written statement of the meeting between him and Dr. Meehan to discuss the DNA test results.

238. The allegations contained in paragraph 238 of plaintiff's Amended Complaint are admitted. However, defendant specifically denies that he was required to provide a report or written statement of the meeting between he and Dr. Meehan by any statute or subsequent court Order. Any remaining allegations contained in paragraph 238 of plaintiff's Amended Complaint are denied.

239. This request was addressed at a hearing before the Court on June 22, 2006.

239. The allegations contained in paragraph 239 of plaintiff's Amended Complaint are admitted.

240. In response to this request and in response to the Court's inquiry, Nifong represented that no information beyond what was in DSI's report was discussed at the meeting with Dr. Meehan.

240. It is admitted that at the June 22, 2006 hearing defendant discussed his meetings with Dr. Meehan as is more particularly outlined in a transcript of said hearing, the terms of which speak for itself, a true and accurate copy of which is attached hereto and incorporated herein by reference as Exhibit "D". Any remaining allegations contained in paragraph 240 of plaintiff's Amended Complaint which are inconsistent with statementsin said transcript are denied.

241. Nifong represented to the Court: "That's pretty much correct, your Honor. We received the reports, which he has received, and we talked about how we would likely use that, and that's what we did."

241. The allegations contained in paragraph 241 of plaintiff's Amended Complaint are admitted.

242. Nifong's representations to the Court at the June 22 hearing were misrepresentations and false statements of material fact to a tribunal because Nifong had discussed with Dr. Meehan, including just over a month earlier, the potentially exculpatory DNA test results which were not included in DSI's report.

242. The allegations contained in paragraph 242 of plaintiff's Amended Complaint are denied.

243. After the June 22 hearing, the Court entered an Order directing Nifong to provide Collin Finnerty and later all the Duke Defendants with, among other things: (1) "results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant," (2) statements of any witnesses taken during the investigation, with oral statements to be reduced to written or recorded form, and (3) a report of the results of any examinations or tests conducted by any expert witness the State reasonably expected to call as a witness at trial.

243. It is admitted that the defendant consented an Order being entered on June 22, 2006, a copy of which is attached hereto and incorporated herein by reference as Exhibit "E", the terms of which speak for itself. It is further admitted that pursuant to the terms of said Order, defendant was required to produce the reports of any examinations or tests conducted by the expert and the underlying basis for the expert's opinion "within a reasonable time prior to trial, as specified by the court". (emphasis added) Any remaining allegations contained in paragraph 243 which are inconsistent with the terms of the June 22, 2006 Order are denied.

244. On August 31, 2006, the Duke Defendants collectively filed a joint omnibus motion to compel discovery. This motion sought, among other things, the complete file and all underlying data regarding DSI's work and the substance of any discoverable comments made by Dr. Meehan during his meetings with Nifong and two DPD officers on April 10, April 21, and May 12, 2006.

244. It is admitted that on August 31, 2006 the defendants filed a joint Omibus Motion to Compel Discovery, a copy of which is attached hereto and incorporated herein by referenced as Exhibit "G", the terms of which speak for itself. Any remaining allegations contained in paragraph 244 of plaintiff's Amended Complaint which are inconsistent with the terms of said Motion are denied.

245. These discovery requests were addressed by the Court at a hearing on September 22, 2006.

245. The allegations contained in paragraph 245 of plaintiff's Amended Complaint are admitted.

246. In this hearing, counsel for the Duke Defendants specifically stated that they were seeking the results of any tests finding any additional DNA on the alleged victim even if it did not match any of the Duke Defendants or other individuals for whom the State had provided DNA specimens to the experts.

246. It is admitted that the counsel for the Duke defendants specifically stated that they were seeking results of any test findings of any DNA found on the items tested not just positive matches to the Duke lacrosse defendants, as is more particularly outlined in a transcript of the September 22, 2006 hearing, a true and accurate copy of which is attached hereto and incorporated herein by reference as Exhibit "F". Any remaining allegations contained in paragraph 246 of plaintiff's Amended Complaint which are inconsistent with statements in said transcript are denied.

247. In response to a question from the Court, Nifong represented that DSI's report encompassed all tests performed by DSI and everything discussed at his meetings with Dr. Meehan in April and May 2006.

247. Defendant incorporates his statements, as more particularly outlined, in the transcript of the hearing before the court on September 22, 2006 in response to the allegations raised in paragraph 247. Any allegations contained in said paragraph which are inconsistent with said transcript are denied.

248. The following exchange occurred immediately thereafter on the Duke Defendants' request for memorializations of Dr. Meehan's oral statements: Judge Smith: "So you represent there are no other statements from Dr. Meehan?" Mr. Nifong: "No other statements. No other statements made to me."

248. Defendant incorporates his statements, as more particularly outlined, in the transcript of the hearing before the court on September 22, 2006 in response to the allegations raised in paragraph 248. Any allegations contained in said paragraph which are inconsistent with said transcript are denied.

249. Nifong's above statements and responses were misrepresentations and false statements of material fact to a tribunal because Nifong had discussed with Dr. Meehan only several months earlier the potentially exculpatory DNA test results and DSI's report did not include these results.

249. The allegations contained in paragraph 249 of plaintiff's Amended Complaint are denied.

250. In the same hearing, Nifong referred to the Duke Defendants' request for the complete file and the underlying data from DSI as a "witch-hunt list."

250. The allegations contained in paragraph 250 of plaintiff's Amended Complaint are admitted.

251. Nifong also read into the record a letter prepared by Dr. Meehan at his request, which letter objected to the Duke Defendants' request and cited privacy and cost concerns.

251. Defendant incorporates his statements, as more particularly outlined, in the transcript of the hearing before the court on September 22, 2006 in response to the allegations raised in paragraph 251. Any allegations contained in said paragraph which are inconsistent with said transcript are denied.

252. Nifong raised no such concerns or objections in response to the Duke Defendants' request for the SBI' s complete file and underlying data.

252. Defendant incorporates his statements, as more particularly outlined, in the transcript of the hearing before the court on September 22, 2006 in response to the allegations raised in paragraph 252. Any allegations contained in said paragraph which are inconsistent with said transcript are denied.

253. The Court ordered Nifong to provide the Duke Defendants the complete file and underlying data from both the SBI and DSI.

253. The defendant admits that the court entered an Order on September 22, 2006 directing the SBI and DSI to provide him with a copy of the complete file and the underlying data (with certain exceptions as more particularly outlined in the transcript of said hearing) from both the SBI and DSI to ultimately be provided to the defendant.

254. On October 27, 2006, Nifong provided 1,844 pages of underlying documents and materials to the Duke Defendants pursuant to the Court's September 22, 2006 order.

254. The allegations contained in paragraph 254 of plaintiff's Amended Complaint are admitted.

255. Even when Nifong ultimately provided the underlying documents and materials on October 27, he did not provide the Duke Defendants a complete report from DSI setting forth the results of all of its tests and examinations, including the potentially exculpatory DNA test results.

255. The allegations contained in paragraph 255 of plaintiff's Amended Complaint are denied.

256. Nifong's failure to provide a complete report from DSI containing all of DSI's test results constituted a continuing violation of N.C. Gen. Stat. 15A-282, 15A-903(a)(1), and 15A-903(a)(2).

256. The defendant denies that he is required pursuant to the statutes outlined in paragraph 256 to provide a "complete report" from DSI, as the underlying data produced contained a report or the results of all tests or examinations conducted by said company. Any remaining allegations contained in paragraph 256 of plaintiff's Amended Complaint are denied.

257. With the discovery materials he provided on October 27, Nifong also did not provide in written, recorded or any other form memorializations of Dr. Meehan's oral statements concerning the results of all examinations and tests conducted by DSI.

257. It is admitted that the defendant did not provide a written or recorded memorialization of Dr. Meehan's oral statements to him. Defendantdenies that he was required to produce such a memorialization as both The Honorable Ronald L. Stephens in the June 22, 2006 hearing (See: June 22, 2006 Transcript, page 20-23) and The Honorable W. Osmond Smith, Ill in the September 22, 2006 hearing denied defendant'srequest for said relief. (See: September 22, 2006 Transcript, page 29) Defendant further denies that he is required to make a memorialization of his communications with Dr. Meehan pursuant to N.C.G.S. § 15A­903. Defendant submits that the conversations between he and Dr. Meehan are protected from discovery pursuant to N.C.G.S. § 15A-904.

258. Nifong's failure to provide the Duke Defendants memorializations of Dr. Meehan's oral statements in written, recorded or any other form was a continuing violation of N.C. Gen. Stat. 15A-903(a)(1).

258. The allegations contained in paragraph 258 of plaintiff's Amended Complaint are denied.

259. After an extensive and exhaustive review of the documentation Nifong provided on October 27, counsel for the Duke Defendants determined that DSI's report had not included the results of all DNA tests that DSI had performed and further realized that the report excluded the potentially exculpatory DNA test results and evidence.

259. Defendant admits that the documents provided to the Duke lacrosse defendants on October 27, 2006 pursuant to the Orders of the trial court dated June 22, 2006 and September 22, 2006 contained the reports and results of all tests and examinations performed by DSI from which counsel for the Duke lacrosse defendants were able to determine that trace amounts of DNA from other individuals not members of the Duke lacrosse team was found on evidentiary items tested. The defendant is without sufficient information with which to form a belief as to the truth of the remaining allegations contained in paragraph 259 of plaintiff's Amended Complaint, as such, said allegations are therefore denied.

260. On December 13, 2006, based on this review and determination, the Duke Defendants filed a motion entitled "Motion to Compel Discovery: Expert DNA Analysis."

260. The allegations contained in paragraph 260 of plaintiff's Amended Complaint are admitted.

261. In this motion, the Duke Defendants set forth in detail the potentially exculpatory DNA test results and evidence that had been excluded from DSI's report. The focus of this motion was the existence of the potentially exculpatory DNA test results and their exclusion from DSI's report.

261. Defendant incorporates the allegations of defendant's Motion to Compel Discovery: Expert DNA Analysis, a copy of which is attached hereto and incorporated herein by reference as Exhibit "G" in response to the allegations in paragraph 261. Any allegations contained in said paragraph which are inconsistent with said Motion are denied.

262. The motion did not allege or assert any attempt or agreement to conceal or hide the potentially exculpatory DNA evidence or test results.

262. Defendant admits that although the motion did not specifically state that there had been an attempt or agreement to conceal potentially exculpatory DNA evidence, defendant's reading of said motion which asserted the failure of Dr. Meehan's initial report to include certain information, in light of the fact that the Duke lacrosse defendants had been provided with the underlying reports and results of all tests and examinations performed by DSI, was that the defendants were asserting some improper action on the part of Dr. Meehan and/or the State. As such, the defendant denies any inference raised in paragraph 262 that said motion was not alleging or asserting some active concealment by Dr. Meehan and/or the State.

263. This motion was addressed by the Court at a hearing on December 15, 2006.

263. The allegations contained in paragraph 263 of plaintiff's Amended Complaint are admitted.

264. In his initial comments about the motion, Nifong stated or implied to the Court that he was unaware of the potentially exculpatory DNA test results or their exclusion from DSI's report.

264. Defendant incorporates his statements, as more particularly outlined, in the transcript of the hearing before the court on December 15, 2006, a true and accurate copy of said transcript is attached hereto and incorporated herein by reference as Exhibit "H" in response to the allegations raised in paragraph 264 of plaintiff's Amended Complaint. Any allegations contained in said paragraph which are inconsistent with said transcript are denied.

265. Nifong represented to the Court in response to the Duke Defendants' motion: "The first I heard of this particular situation was when I was served with these reports -- this motion on Wednesday of this week."

265. Defendant incorporates his statements, as more particularly outlined, in the transcript of the hearing before the court on December 15, 2006, a true and accurate copy of said transcript is attached hereto and incorporated herein by reference as Exhibit "H" in response to the allegations raised in paragraph 265 of plaintiff's Amended Complaint. Any allegations contained in said paragraph which are inconsistent with said transcript are denied.

266. Nifong's statements indicating that he was unaware of the potentially exculpatory DNA test results or, alternatively, was unaware of their exclusion from DSI' s report were misrepresentations and false statements of material fact to a tribunal.

266. Defendant denies that he made any misrepresentation or false statements of material fact to the Court at the December 15, 2006 hearing. Defendant further incorporates his statements, as more particularly outlined, in the transcript of the hearing before the court on December 15, 2006, a true and accurate copy of said transcript is attached hereto and incorporated herein by reference as Exhibit "H" in response to the allegations raised in paragraph 266 of plaintiff's Amended Complaint. Any allegations contained in said paragraph which are inconsistent with said transcript are denied.

267. During the hearing, Dr. Meehan testified under oath to the following statements:a. he discussed with Nifong at the April 10, April 21, May 12 meetings the results of all tests conducted by DSI to date, including the potentially exculpatory DNA test results;b. he and Nifong discussed and agreed that "we would only disclose or show on our report those reference specimens that matched evidence items;"c. DSI's report did not set forth the results of all tests and examinations DSI conducted in the case but was limited to only some results;d. the limited report was the result of "an intentional limitation" arrived at between him and Nifong "not to report on the results of all examinations and tests" that DSI performed;e. the failure to provide all test and examination results purportedly was based on privacy concerns; andf. he would have prepared a report setting forth the results of all DSI's tests and examinations if he had been requested to do so by Nifong or other representatives of the State of North Carolina at any time after May 12.

267. Defendant incorporates Dr. Meehan's testimony, as more particularly outlined, in the transcript of the hearing before the court on December 15, 2006, a true and accurate copy of said transcript is attached hereto and incorporated herein by reference as Exhibit "H" in response to the allegations raised in paragraph 267 in plaintiff's Amended Complaint. Any allegations contained in said paragraph which are inconsistent with said transcript are denied.

268. Immediately after the conclusion of the December 15 hearing, Nifong stated to a member of the news media: "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."

268. Defendant admits that he made statements to members of the news media consistent with the allegations contained in paragraph 268 of plaintiff's Amended Complaint.

269. Nifong's above statement stated or implied, contrary to his earlier representations to the Court but consistent with Dr. Meehan's testimony, that Nifong was aware of the potentially exculpatory DNA test results and was aware that this information had intentionally been omitted from DSI's report, purportedly for privacy reasons.

269. The allegations contained in paragraph 269 of plaintiff's Amended Complaint are denied.

270. Up through the time of the December 15, 2006 hearing on the Duke Defendants' motion to compel expert DNA analysis, Nifong did not provide a complete report from DSI setting forth the results of all of the tests and examinations performed by DSI or memorializations of Dr. Meehan's oral statements concerning the results of all tests performed by DSI.

270. Defendant denies that he is required to provide "a complete report" setting forth the results of all of the tests and examinations performed by DSI when he has provided the underlying data which reports the results of all tests and examinations performed. Defendant further denies that he is required to make a memorialization of his oral conversations with Dr. Meehan concerning the results of the tests performed by DSI. As such, defendant admits that he did not provide a memorialization of Dr. Meehan's statements prior to December 15, 2006.

271. After seeking and obtaining DNA evidence from the lacrosse players pursuant to the NTO, N.C. Gen. Stat. § 15A-282 required that Nifong provide to all the lacrosse players who were the subject of the NTO or to their attorneys "a copy of any reports of test results as soon as the reports are available."

271. The allegations contained in paragraph 271 of plaintiff's Amended Complaint are admitted.

272. Once the Duke Defendants filed voluntary discovery requests or motions beginning on April 19, 2006, N.C. Gen. Stat. 15A-903(a)(1) required that Nifong disclose to the Duke Defendants all "witness statements" and mandated that all oral statements be reduced to written or recorded form.

272. It is denied that N.C.G.S. § 15A-903(a)(1) requires the defendant to produce in discovery his attorney work product generated in relation to his interviews with potential witnesses prior to trial, as said documents are not statements within the meaning of said statute and they are protected from discovery pursuant to the provisions of N.C.G.S. § 15A­904. Any remaining allegations contained in paragraph 272 of plaintiff's Amended Complaint are hereby denied.

273. N.C. Gen. Stat. 15A-903(a)(1) also required that Nifong disclose to each indicted Defendant the "results of tests and examinations or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant."

273. The allegations contained in paragraph 273 of plaintiff's Amended Complaint are admitted.

274. After identifying Dr. Meehan and Mr. Scales as potential experts in his May 18, 2006 discovery responses, N.C. Gen. Stat. 15A-903(a)(2) required Nifong to provide the Duke Defendants with "a report of the results of any examinations or tests conducted by the expert."

274. The allegations contained in paragraph 274 of plaintiff's Amended Complaint are admitted.

275. From at least May 12, 2006 through January 12, 2007, when he recused himself from the prosecution of the criminal cases, Nifong never provided the Duke Defendants a complete report setting forth the results of all examinations and tests conducted by Dr. Meehan, Mr. Scales, or others at DSI.

275. Defendant denies that he is required pursuant to the provisions of the United States Constitution or the North Carolina discovery statutes to provide "a complete report setting forth the results of all examinations and tests conducted" when he has provided the underlying data and results of all tests and examinations performed by an expert to a criminal defendant through discovery. As such, the allegations contained in paragraph 275 of plaintiff's Amended Complaint are denied.

276. Nifong's failure to provide a complete report of the results of all examinations and tests conducted by DSI was in violation of 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.

276. Defendant denies that he is required pursuant to the provisions of the United States Constitution or the North Carolina discovery statutes to provide "a complete report setting forth the results of all examinations and tests conducted" when he has provided the underlying data andresults of all tests performed by an expert to a criminal defendant through discovery. As such, the allegations contained in paragraph 276 of plaintiff's Amended Complaint are denied.

277. From at least May 12, 2006 through January 12, 2007, when he recused himself from the prosecution of the criminal cases, Nifong also never provided the Duke Defendants memorializations of Dr. Meehan's oral statements concerning the results of all examinations and tests conducted by DSI in written, recorded or any other form.

277. Defendant admits that he did not provide the Duke defendants with a memorialization of Dr. Meehan's oral statements made to him at any time prior to his recusal, as he was not required to create said memorialization pursuant to the provisions of the United States Constitution, N.C.G.S. § 15A-903, and that said information is not discoverable pursuant to the provisions of N.C.G.S. § 15A-904. In addition, the Duke defendants' request to the court for an Order directing that defendant memorialize his interview with Dr. Meehan were denied by the Honorable Ronald L. Stephens in the hearing of June 22, 2006 and the September 22, 2006 hearing before W. Osmond Smith, Ill. Any remaining allegations contained in paragraph 277 of plaintiff's Amended Complaint are denied.

278. Nifong's failure to provide the Duke Defendants with memorializations of Dr. Meehan's oral statements was in violation of the United States Constitution, N.C. Gen. Stat. § 15A-903(a)(1), and the Court's June 22, 2006 order compelling discovery.

278. The allegations contained in paragraph 278 of plaintiff's Amended Complaint are denied.

Misrepresentations and False Statements to State Bar's Grievance Committee

279. On or about December 20, 2006, Nifong received a letter of notice and substance of grievance from the Grievance Committee of the North Carolina State Bar alleging that (a) he failed to provide the Duke Defendants with the potentially exculpatory DNA evidence and test results, (b) he agreed with Dr. Meehan not to provide those results, and (3) he falsely represented to the Court that he was unaware of these results or their omission from DSI's report prior to receiving the Duke Defendants' December 13 motion to compel discovery.

279. The allegations contained in paragraph 279 of plaintiff's Amended Complaint are admitted.

280. Nifong responded initially in a letter dated December 28, 2006 and supplemented his initial response, at the request of the State Bar's counsel, in a letter dated January 16, 2007.

280. The allegations contained in paragraph 280 of plaintiff's Amended Complaint are admitted and attached hereto and incorporated herein by reference are copies of the responses identified in paragraph 280.

281. In his responses to the Grievance Committee, Nifong acknowledged that he had discussed with Dr. Meehan during meetings in April and May 2006 the results of all DSI's testing, including the potentially exculpatory DNA test results.

281. Defendant incorporates his responses to the Grievance Committee in response to the allegations contained in paragraph 281 of the Amended Complaint. Any remaining allegations contained in paragraph 281 of which are inconsistent with the terms of Exhibit "I" are denied.

282. Nifong denied in his responses to the Grievance Committee that he had agreed with Dr. Meehan to exclude the potentially exculpatory DNA test results from DSI's report.

282. Defendant incorporates his responses to the Grievance Committee in response to the allegations contained in paragraph 282 of the Amended Complaint. Any remaining allegations contained in paragraph 282 of which are inconsistent with the terms of Exhibit "I" are denied.

283. Nifong represented in his responses to the Grievance Committee that the discussion and agreement with Dr. Meehan to limit the information in DSI's report was based on privacy concerns of releasing the names and DNA profiles of the lacrosse players and others providing known reference specimens.

283. Defendant incorporates his responses to the Grievance Committee in response to the allegations contained in paragraph 283 of the Amended Complaint. Any remaining allegations contained in paragraph 283 of which are inconsistent with the terms of Exhibit "I" are denied.

284. DSI's report that was prepared and provided to the Duke Defendants, however, listed DNA profiles for the alleged victim, for the alleged victim's boyfriend, and for Dave Evans and Kevin Coleman, two lacrosse players neither of whom had been indicted at the time the report was released.

284. The allegations contained in paragraph 284 of plaintiff's Amended Complaint are admitted.

285. DSI's report that was prepared and provided to the Duke Defendants also listed the names of all 50 persons who had contributed known reference DNA specimens for testing.

285. The allegations contained in paragraph 285 of plaintiff's Amended Complaint are admitted.

286. Nifong's representations to the Grievance Committee that his agreement with Dr. Meehan to limit the information in DSI's report was based on privacy concerns of releasing the names and DNA profiles of individuals providing known reference specimens were knowingly false statements of material fact made in connection with a disciplinary matter.

286. Defendant incorporates his responses to the Grievance Committee in response to the allegations contained in paragraph 286 of the Amended Complaint. Defendant denies knowingly making a false statement of material fact as alleged in paragraph 286. Any remaining allegations contained in paragraph 286 of which are inconsistent with the terms of Exhibit "I" are denied.

287. Nifong further represented in his responses to the Grievance Committee that he did not realize that the potentially exculpatory DNA test results were not included in DSI's report when he provided it to the Duke Defendants or thereafter, until receiving their December 13 motion to compel.

287. Defendant incorporates his responses to the Grievance Committee in response to the allegations contained in paragraph 287 of the Amended Complaint. Any remaining allegations contained in paragraph 287 of which are inconsistent with the terms of Exhibit "I" are denied.

  • State Bar allegations are printed in black.
  • Defendant Nifong's half-truths, misrepresentations, denials, and admissions are printed in blue.

11 comments:

Anonymous said...

Kudos for the hard work involved in that excellent compilation.

kbp said...

Thanks Liestoppers!

ALL that great work shared here helps us see a clearer picture!

Anonymous said...

I guess Nifong is going with "My Dog ate my Homework" Defense.

Poor Tillie!

Anonymous said...

I think that, taken as a whole, Nifong's lawyers did as good of a job as they could of doing the point by point rebuttal. Unfortunately (for Nifong)when the record is laid out like this it becomes very clear that Nifong is in very deep trouble. I hope the Bar proceeding is live on Court TV and that Nifong in on the witness stand being cross examined by a sharp lawyer.

Anonymous said...

If only Brad Bannon could do the cross examining... 30 year veteran prosector laid to rest by 30-something defense atty.

wayne fontes said...

Nifong, who has trouble getting the pages in his file numbered, must be amazed at the amount of work you put in.

Anonymous said...

Thank you for this LS ! there are many unhappy enablers tonight.

Anonymous said...

Wow this is going to take some time to read through. I am going to have to read it tomorrow. But a quick glance at has me impressed.

don t. said...

Absolutely incredible job. I only had time to look at a few of the charges and I think I must be misinterpreting what his response is to them..he is accused of making inappropriate comments to CBS...his reply is that he cannot remember if it was CBS or NBC so he denies the allegation??????
Someone set me straight.

Trinity60

Anonymous said...

Thank you so much for doing such a great job with this. It is easy to read, and therefore, easier to pick apart!

There are so many ridiculous denials in Nifong's responses, but my favorite is item 206, in which he denies that he ever refused to meet with defense attorneys prior to the indictments!!

Nifong is in Fantasyland if he thinks that the Bar is going to buy his responses!

duke2009mom

Steve said...

Hi,

You can write more effective complaints by utilizing resources on the net. www.writecomplaint.com is one of the best sources that I found on the net to write effectife complaint.

Regards