The DNA Hoax

In our Hoax Within a Hoax series, we have detailed the various misleading statements and unethical actions that Durham County District Attorney Nifong has used throughout the case to spitefully prosecute three innocent young men. We now have another Hoax to add to the list, perhaps the most serious to date - the purposeful non-disclosure and misrepresentation of DNA test results and their evidentiary implications. The DNA chronology, when examined with dates and events in sequence, unambiguously demonstrates Mr. Nifong's, and others', intentional misconduct and abuse of power.

A recent motion by the defense attorneys contained new information from the much delayed discovery turned over to them by Nifong in late October. It has been a long and torturous process to have the unwilling prosecutor comply with the State of North Carolina’s Discovery rules. Several months later, he has still not fully complied. The prior two judges on this case, Ronald Stephens and Kenneth Titus, seemed content to unquestioningly accept Mr. Nifong's shallow excuses for his continuing delays in providing the mandated discovery. Showing no desire to move the matter along in a timely fashion, despite the repeated pleas of defense attorneys, the judges facilitated Nifong's stalling. Only now, many months later and with a neutral judge in charge, is it clear why the defense had to fight to obtain the information Nifong tried so hard to deny them.

DNA Securities and DA Nifong

At the December 15 hearing, Lab Director Dr. Brian Meehan of DNA Securities, whose private lab was hired by Nifong to perform additional DNA tests, testified under oath that he and DA Nifong had agreed to withhold part of the DNA lab results, including scientific evidence proving no DNA was found that matched the three defendants. Also, they agreed to purposefully withhold the evidence that DNA from multiple unknown males was found on the accuser's panties, around her genital area, and in her rectum. The illogical reason given for omitting this indisputably exculpatory information from the lab's official report, once it was discovered by the defense, was that it was of no probative value. Adding to that absurdity, both Meehan and Nifong also claimed that they were concerned about the privacy of the lacrosse team, which the tests totally exonerated.

The reality is that the sensitive YSTR tests proved that no lacrosse player sexually assaulted the accuser. DA Nifong admitted to the NY Times that he knew of those unreleased exculpatory results, yet did not inform the defense on May 18 when he offered the court a signed document swearing that the discovery information he was providing the defense was all that he had or knew of. To the Times he characterized this purposeful, self-serving lie as merely "a mistake." N&O

March 23 Non-Testimonial Order

On March 23 Superior Court Judge Ronald Stephens took the unprecedented and, in our opinion, unwarranted step of ordering DNA tests for the entire Duke lacrosse team, minus the one black player.

In that order submitted by Asst. DA David Saacks requesting DNA samples and photos of the players, it states:

"Medical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally. Furthermore, the SANE nurse stated the injuries and her behavior were consistent with a traumatic experience"

It also included this:

ATTACHMENT FOR APPLICATION FOR NONTESTIMONIAL IDENTIFICATION ORDER IV

Facts That Establish Reasonable Grounds

.

"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" Motion to Suppress

Since then, it has been stated in motions, and confirmed by independent reporters who have examined the actual SANE Exam, that it did not make any conclusions as to rape, and the accuser did not have those injuries. Indeed, DA Nifong’s most recent admission, taken from his dismissal of rape charges, stated this:

“Since penetration of the vagina by a penis is one of the elements of this offense that the State must prove beyond a reasonable doubt, and since there is no scientific or other evidence independent of the victim’s testimony that would corroborate specifically penetration by a penis, the State is unable to meet its burden of proof with respect to this offense” N&O

Nifong, despite what his defenders have claimed for months, finally admitted in that dismissal there is no scientific or other evidence independent of the accuser's testimony that would corroborate specifically penetration by a penis. Thus, nothing from the SANE Exam forensic evidence backs her accusations. There was no justifiable reason for the DNA order, as it falsely presented what the SANE Exam showed. In truth, no DNA from any lacrosse player was found in those twice-tested samples. There is no forensic evidence of an assault and never was! There was no rape, only unfounded accusations! There should have never been such a far-reaching non-testimonial order, and certainly no indictments once the DNA results were known.

Again, that 23 March order states:

“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”

That was the very basis and justification of the unusually broad order, yet Nifong violated its stated purpose almost immediately. When the second set of tests once again completely cleared the entire lacrosse team, Nifong withheld those results. Yet they did find DNA of others! Did Nifong direct the DPD to follow up and find whose it was?

Tests at SBI labs

In North Carolina, when accusations of a multiple rape are made, all SANE kits are sent to NC SBI Laboratories, the governmental lab responsible for assisting LE investigations. The technicians there are agents of the State of North Carolina. The first testing procedure is to look for semen, blood, and saliva in swabs. It is a simple test and the results are immediate.

From the Defense Motion 13 December, Page 3, Paragraph 7:

"On March 28, 2006, Agent Winn examined the vaginal swabs and smears, oral swabs and smears, rectal swabs and smears, and panties from the rape kit, none of which showed the presence of semen, blood, or saliva. She did not forward any of those items to the DNA Section for further testings. She did, however, forward the swabs containing the DNA reference samples from the lacrosse players." DNA Motion

So while the press was reporting stories of team behaviour, such as drinking and urinating on lawns, and the town gown racial upset, unbeknownst to everyone outside of a small group of LE and DA representatives, and eventually Judge Ronald Stephens, the investigation had been dealt a serious blow. There wasn’t any semen, blood, or saliva detected. Indeed, Agent Winn didn’t even send those samples for STR DNA sampling. There was no testing possible for DNA by SBI labs in those swabs taken on or in the accuser's vagina, anus, mouth and clothes using STR. If the accuser had been assaulted in the manner she described, DNA would have been found in STR testing.

April 5 Order to transfer samples

We know by April 5 Judge Stephens was aware that this investigation was in serious trouble when he signed the order submitted by ADA Saacks for the transfer of the rape kit items to DNA Security for Y-chromosome DNA testing.

From the DNA Motion, Page 8, Paragraph 13:

"On April 5, 2006, the Durham County District Attorney's Office sought and obtained an order from Judge Ronald Stephens to allow it. In doing so, the State informed the Court:

“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. In cases without semen present, it is sometimes possible to extract useful DNA samples for comparison purposes using a technique known as Y STR. This technique isolates cells containing a Y chromosome from the entire sample, which must have been contributed by a male person. The S.B.I. laboratory is not equipped to conduct Y STR DNA analysis. DNA Security is a private laboratory in Burlington, North Carolina that can conduct Y STR DNA analysis and has agreed to undertake this analysis in an expedited manner.”

Stephens, an experienced judge & former DA, should never have invaded the privacy rights of the lacrosse team in the first place. There was scant evidence; only an accusation by an accuser who had twice failed to identify anyone. Ordering 46 DNA tests was far too over-reaching. Judge Stephens has prosecuted cases of rape and presided over rape trials. He cannot claim ignorance of police procedure, lab techniques, and DNA tests.

Why did Judge Stephens sign that order? Why weren’t those samples at least examined and tested before subjecting the entire team to DNA testing and the accompanying public notoriety? Imagine the difference in this case if that had been done? Did Judge Stephens ever ask to see those medical records and proof the "victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally?” Clearly, there is no evidence of it. Those questions remain unanswered to this day.

McFadyen E-mail Release

Also on April 5, Judge Ronald Stephens released the previously sealed McFadyen e-mail. Why would Stephens have done that on the same day he should have understood the likelihood that no assault took place? McFadyen fits no description given by the accuser; he is 6’6” and weighs 225 lbs. It should also be noted that the source of that e-mail was claimed to be anonymous, and, according to defense attorney Joe Cheshire, the authorities failed to also release exculpatory e-mails along with the e-mail that was almost a verbatim reference to a passage in the book, American Psycho.

With the release of the e-mail, a failing investigation got a huge PR boost by enraging the community. Duke immediately cancelled the lacrosse team's season, fired the coach, and suspended McFadyen. The eventual defendants, their identities unknown even to the defense at that time, would be seriously harmed by Judge Stephen's decision for no apparent reason, as they were not the source of what is admittedly a disgusting satire with no probative value to this case. However, it was used nightly on newscasts across America to falsley show the mindset of these players, and imply that the unsupported accusations were likely to be true. As we have seen previously, the misconduct in the dissemination of false and misleading statements leads one to question the motivations behind this release, along with just who was pushing for it.

The Results of the DNA Securities Tests

Meanwhile, the nation and the inflamed Durham community waited for the DNA test results, promised within a week. Many of us wondered why their release was taking so long, especially as Nifong got the SBI to expedite them and put them first in line, causing protests from other NC prosecutors whose evidence had languished there untested for months. Now we know the truth. The tests were basically done and the results were known, but DA Nifong didn’t like what they showed.

So, on April 4, at Nifong's direction, DPD Officer Soucie learned from Dr. Meehan of DNA Securities that the turn around time for the YSTR testing was 3-5 days. On April 6, 2006, the rape kit items (Including the oral, vaginal, and rectal swabs; the cheek scrapings; and the panties), known blood sample, and the lacrosse players' reference DNA swabs were all transferred from Agent Leyn back to DPD/CSI Ashby, who transferred them to DNA Security. True enough, the 3-5 days turn around time was correct, and on April 8, 9, and 10 DNA Securities analyzed those results.

From the DNA Motion, Page 4 Paragraph 15:

"On April 8, 9, and 10, 2006, DNA Security analyzed the DNA profiles extracted from the cheek scrapings, oral swabs, vaginal swabs, rectal swabs, and panties from the rape kit items taken from the accuser at Duke Hospital in the early morning hours of March 14. While DNA Security's final report would not reflect the findings from that analysis, underlying documents provided to the Defendants on October 27, 2006, reflect that DNA from multiple male Sources was discovered on the rectal swabs and panties from the rape kit It was all compared to the known reference samples from the lacrosse players; and none of it matched any of the players."

Page 6 Paragraphs 19 & 20:

"Thus, by April 10, 2006, DNA Security analysts had apparently discovered multiple male source DNA on the rectal swabs and panties from the rape kit; had compared it to the lacrosse players' DNA; and had concluded that none of it matched the lacrosse players, including the Defendants. However, none of those findings would be included In DNA Security's final report."

That same day, in late afternoon, Nifong finally released the results of DNA tests from SBI, but not the DNA Securities results which he had just discussed with Dr. Meehan. Unbelievably, after just learning there was no YSTR DNA from any lacrosse player and that multiple DNA samples from other unknown men were found, Nifong said:

"I believe a sexual assault took place. I'm not saying it's over. If that's what they expect, they will be sadly disappointed." FOX News

The First Grand Jury – April 17

As we have reported in an earlier article, Nifong refused to meet with defense attorneys prior to the April 17 grand jury. They were trying to show him exculpatory data and were at a loss as to why he wouldn’t meet with them. Little did they realize DA Nifong himself was sitting on what should have been case-ending exculpatory evidence! We revealed that Durham PD Officers Gottlieb & Himan were the only witnesses appearing before the grand jury that indicted Reade Seligmann & Collin Finnerty on April 17. Gottlieb & Himan accompanied DA Nifong on April 10 to his visit with Dr Meehan in which they went over the DNA results. No transcripts exist showing what Gottlieb & Himan told the grand jurors, but it is pretty obvious they withheld Dr. Meehan's finding the complete lack of DNA evidence against the players and the finding of other DNA from five other unknown sources. LS

DNA Motion, Page 9 Paragraph 28

Thus, by April 20, 2006, DNA Security analysts had discovered DNA from multiple male sources on the rectal swabs, pubic hair combing, and panties from the rape kit; had compared it to the lacrosse players' DNA; and had concluded that none of It matched the lacrosse players, including the Defendants. They had also apparently discovered possible contamination in the testing of at least one item in this case. However, none of those findings would be induced in DNA Security's final report.

Several questions remain. Why were Reade Seligmann, Collin Finnerty, and Dave Evans indicted at all? Why would an accredited DNA lab purposely withhold obviously exculpatory evidence in a police investigation? Why would a DA withhold exculpatory evidence and file a court document he knew was a lie? Why would any DA interested in evidence and truth refuse a rare golden opportunity to view the defense's evidence? What did Officer Gottlieb & Himan say to the grand jury? Did they knowingly lie or mislead them? Were they instructed to do so? Why were so many falsehoods spread by so many?

Baldo