Duke case worsens for prosecution

Times Staff Writer

In the latest setback to the prosecution in the Duke University lacrosse rape case, the director of a private lab hired by the district attorney testified Friday that he withheld exculpatory DNA evidence after conferring with prosecutors.

Under questioning from defense lawyers, the lab director confirmed that DNA samples taken from the body and clothing of a stripper who accused three lacrosse players of rape did not match any of the defendants. The tests found DNA from several unknown males, Brian Meehan testified, but none matched DNA taken from 43 other lacrosse team members.

Meehan also testified that DNA samples in the case had been contaminated with his own DNA during laboratory testing. The revelations came hours after news outlets here reported that the accuser was pregnant. A judge granted a motion for a paternity test that defense lawyers said would exclude their clients -- though neither the judge nor the lawyers could confirm that the woman was pregnant.

Durham Dist. Atty. Mike Nifong agreed to the test, saying that the woman conceived at least two weeks after the March 14 party at which she was allegedly attacked. He said he did not know the identity of the father but conceded that it was not one of the defendants.

At a hospital the night the woman said she was attacked, she was given a pregnancy test -- which was negative -- as well as an emergency contraceptive, according to court records.

Meehan testified that he and Nifong had decided to withhold certain results of the DNA tests in order to protect the privacy of the Duke lacrosse players who had submitted samples. Asked by a defense attorney how lab results clearing all 46 players would violate their privacy, Meehan fumbled for an answer as Nifong sat with his head lowered, staring at documents.

"It was just simple me trying to do the right thing and say: 'Let's not put that information out there in the public,' " he said. He admitted that he had violated his own lab's protocols, which require that results of all tests be reported in court cases.

Meehan added that he withheld some results in his final report in May "so as not to drag anyone else through the mud."

Meehan's comments capped a day of testimony in a case punctuated by extraordinary findings and unexpected disclosures. From the moment a black woman accused three white Duke athletes of rape after they hired her to strip at a team party, the case has unfolded fitfully in court and reverberated in public over issues of race, privilege and class.

The 28-year-old woman, a single mother of two and a student at predominately black North Carolina Central University, told police that at least three lacrosse players raped and sodomized her in the bathroom of an off-campus house.

Black community leaders, backed by some Duke professors, seized on the case as a symbol of enduring white privilege and racism at an elite Southern university. Nifong joined in, publicly condemning the lacrosse players as "a bunch of hooligans" who had victimized a struggling young black woman. He said the alleged rape indicated a "deep racial motivation," with the players showing "contempt for the victim, based on her race."

On Friday, defense attorneys cited those comments and others in asking the judge for a change of venue. They said Nifong helped create a polarized atmosphere in which their clients could not receive a fair trial.

Stephen Gillers, a professor at New York University School of Law, said Nifong "seemed to rush to indict" without allowing defense lawyers to offer their side of the story. "That's simply incomprehensible," Gillers said. "They might persuade you and save you a lot of grief."

In recent weeks, the defense has sought to alter the public narrative of the case, creating the aura of a rush to judgment. Defense lawyers have raised doubts about the accuser's credibility and behavior, while shifting the focus to Nifong's handling of the prosecution.

On Thursday, the defense asked the court to invalidate a police photo lineup in which the accuser belatedly identified the three defendants -- David Evans, 21, Collin Finnerty, 20, and Reade Seligmann, 20.

Defense lawyers said she was shown only photos of Duke lacrosse players and a few other men at the party, contrary to Durham police guidelines that require the inclusion of photos of people not considered suspects. "She was, in effect, given a multiple-choice test in which there were no wrong answers," a defense motion said.

That lineup was conducted April 4 after the accuser had failed to identify two of the defendants in a March 21 photo lineup, according to the defense motion. Defense lawyers said the woman identified a fourth attacker whom police did not investigate.

The prosecution's case was further challenged by Meehan's testimony that his discussions with Nifong -- whom he called "my client" -- resulted in the withholding of exculpatory DNA results. Nifong was not questioned in court about his role, but prosecutors are generally required by law to provide the defense with all evidence in a case.

Asked whether Nifong and other prosecutors knew that the tests ruled out the defendants as the source of male DNA found on the accuser, Meehan, the director of DNA Security in Burlington, N.C., replied: "I assume so."

And asked whether he would have provided all test results if asked to do so by the prosecution, Meehan replied, "Certainly." He added later: "Maybe it could have been done better."

Nifong questioned Meehan briefly, asking whether anyone had told him to "conceal or hide any results."

"No," Meehan replied.

Under persistent defense prodding, Meehan conceded that his lab's DNA tests cleared the three defendants -- as well as 43 other lacrosse players -- "with 100% scientific certainty," as one lawyer put it during questioning.

Meehan also said the samples were contaminated by a minute sample of his own DNA -- perhaps dander -- that he said was probably introduced during testing. Asked whether that undermined the credibility of his testing, he replied: "Absolutely."

The next hearing in the case is scheduled for Feb. 5

david.zucchino@latimes.com

Times staff writer Lianne Hart in Houston contributed to this report.

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