Why Were They Tested?

When the State Bar amended its complaint against Defendant Nifong in January, some of the most compelling new charges were those pertaining to the misrepresentations Durham's disgraced DA made to the Grievance Committee. Considering that these charges were generated by Nifong’s misleading responses to the Bar’s investigation of newly added complaints concerning his withholding exculpatory DNA evidence, Nifong’s detachment from reality was made strikingly clear.

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His response to the amended complaint does little to change that perception. Incredibly, Defendant Nifong chose to include as part of his response to the full complaint the same offending reply that earlier resulted in additional ethics charges. After being cited for the misrepresentations contained within his December reply, Nifong, rather than modify or rationalize the misrepresentations made therein, shoves the same unsteady responses back at the Bar.

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Included in his formal response to the State Bar complaint as Exhibit I, Nifong’s December response is a bizarre compilation of contradictions. Most comical is Nifong’s attempt to defend his withholding of evidence as a privacy concern for the un-indicted players, whom he appears to describe as not “in any way implicated in the assault” after stating that he viewed the DNA testing as an opportunity to corroborate or refute the validity of three suspects “identified” by his mind’s eye witness.

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Explaining how he viewed the DNA testing conducted by co-conspirator Dr. Meehan and the insignificance of the multitude of other men‘s DNA discovered by that testing, Nifong offers:

"To place the matter trther in context, on April 4, 2006, prior to DNA Security, Inc. having become involved in the ease, the victim had identified two lacrosse players to a certainty of 100% (Collin Finnerty and Reade Seligmann) as her assailants and a third player (David Evans) as her assailant to a certainty of 90%. Based on that identification, indictments were sought for Mr. Finnerty and Mr. Seligmann and were returned as true bills on April 17, 2006 – before I had ever spoken to Dr. Meehan. For me, this case was an eyewitness identification case, one in which I was looking for DNA evidence that either corroborated that identification or refuted it." [emphasis added]

To justify his exclusion from discovery of the full results of all of the DNA testing, Durham’s disgraced district attorney declares:

"First, the reports in this case would be prepared with the knowledge that each would be furnished to each of the 46 team members who submitted to the non-testimonial procedure, regardless of whether that individual was in any way implicated in the assault."

The combination of these two responses raises one very obvious question. If the 43 players not identified by the mind’s eye witness were not “in any way implicated," and if Nifong's object, as he informs the Bar, was to corroborate or refute the identification of the two suspects “identified” with 100% certainty and the one supect “identified” with near certainty, and if the motion for this additional testing was made on April 5 (the day after the “identifications” were made), and if the privacy of the 43 not “in any way implicated” players was a primary concern, then why were they tested? Surely, if the privacy of the 43 was the paramount concern, one would expect that frivolous DNA testing, in a case in which they were no longer included among the suspects and deemed not "in any way implicated," would be viewed as an egregious invasion of their privacy and avoided.

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Other questions follow logically behind the obvious one. Was Judge Ronald Stephens told that the purpose of the additional intrusive testing of all forty-six men was to “corroborate or refute” the “identification” of three suspects? Or was he asked to order the additional testing for all forty-six because,

“The tests conducted by the S.B.I. laboratory failed to reveal the presence of semen on swabs from the rape kit or the victim’s underwear” ?