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Lab in lacrosse case found many DNA sources


By Joseph Neff and Benjamin Niolet, Staff Writers

A private laboratory hired by the prosecution in the Duke lacrosse case failed to report that it found DNA from multiple males in the accuser's body and underwear, according to a defense motion filed today.
The lab, DNA Security of Burlington, found that the DNA did not match the three defendants, their lacrosse teammates or anyone else who submitted their DNA to police, including the accuser's boyfriend.

The new evidence emerged in thousands of documents handed over to the defense in October.

"This is strong evidence of innocence in a case in which the accuser denied engaging in any sexual activity in the days before the alleged assault, told police she last had consensual sexual intercourse a week before the assault, and claimed that her attackers did not use condoms and ejaculated," said the motion, which was signed by lawyers for all three defendants.

"There is not a single mention of this obviously exculpatory evidence in the final DNA Security report."

Three former players -- Dave Evans, 23, of Bethesda, Md.; Collin Finnerty, 20, of Garden City, N.Y.; and Reade Seligmann, 20, of Essex Fells, N.J. -- are charged with rape, kidnapping and sexual offense. The three have said they are innocent.

The accuser, an escort service worker, was one of two women hired to dance at a lacrosse team party in March. The accuser said she was gang-raped by three men in a bathroom over a 30-minute period. She told nurses that she was raped anally, orally and vaginally, that one or more of the men ejaculated, and that her assailants did not wear condoms.

Early on the morning of March 14, a few hours after the party, a doctor and nurse at Duke Hospital examined the woman and collected standard evidence for a rape kit: a pair of panties, hair and swabs of the woman's orifices.

On March 28, the lab at the State Bureau of Investigation tested the rape kit items and found no evidence of semen, blood or saliva, according to SBI records.

On April 4, after meeting with District Attorney Mike Nifong, Durham police investigator Michele Soucie called DNA Security to ask whether the laboratory could do any additional testing of the evidence, according to Soucie's handwritten notes.

Dr. Brian Meehan, director of DNA Security, said his lab could do Y-chromosome testing, which is more sensitive than the tests performed by the SBI lab. The tests isolate cells containing a Y chromosome from the sample, thereby analyzing only DNA contributed by males.

The lab would test the swabs and panty stains for DNA and match any results to the 46 players, the accuser and any other DNA samples collected by police.

Meehan told the investigator that he "can possibly adjust prices because they would really like to be involved in case," Soucie's notes say.

On April 8, 9 and 10, DNA Security found DNA from multiple males on the panties and rectal swab from the rape kit; none matched the lacrosse players.

On April 10, Meehan met in his office with Nifong and the two lead investigators in the case, Sgt. Mark Gottlieb and Investigator Benjamin Himan.

On April 18 and 19, DNA Security ran tests on pubic hair from rape kit; multiple male DNA was found that did not match the players or any other sample taken by police, the motion said.

On April 20 or 21, Meehan again met with Nifong and the two investigators in his Burlington office.

Meehan included none of these DNA results in his final report to Nifong on May 12.

The report violated DNA Security's own policies, which state that reports shall include "results of every DNA test," according to a copy of the policy filed with the motion.

Citing the state's open-file discovery law and the U.S. Supreme Court's requirement for prosecutors to hand over all helpful evidence to the defense, the defense lawyers asked the judge to order Nifong and the lab to provide copies of all laboratory analyses, including those performed after May 12.

Nifong did not immediately return calls for comment. Meehan said he could not comment on the case without first carefully reviewing his files.

Old tests show Duke rape accuser had others' DNA in her body but none from players



DURHAM, N.C. ¢¢¬¢‚¬ Buried in thousands of documents handed over to defense lawyers by the district attorney in the Duke rape case was a stunning report from a private lab hired by the prosecution that found DNA from multiple males in the accuser's body ¢¢¬¢‚¬ but none that belonged to the accused players, according to a defense motion filed Wednesday.

The lab, DNA Security of Burlington, found during tests performed last April that not only did the DNA not match the three defendants, but that it also did not belong to any of their lacrosse teammates or anyone else who submitted DNA samples to police, including the accuser's boyfriend. Those findings were not turned over to the defense until October, when District Attorney Mike Nifong's office turned over thousands of case-related documents.

"This is strong evidence of innocence in a case in which the accuser denied engaging in any sexual activity in the days before the alleged assault, told police she last had consensual sexual intercourse a week before the assault, and claimed that her attackers did not use condoms and ejaculated," lawyers for the three accused players said in the motion.

Neither DNA Security or Nifong ¢¢¬¢‚¬ who has come under intense criticism for his handling of the case ¢¢¬¢‚¬ explained Wednesday why the DNA findings were not reported immediately to defense lawyers, as is required by law, or why they were not turned over to the defense until October.

Durham County District Attorney Nifong Wins First Full Term Durham County District Attorney Nifong's Race Captures National Attention North Carolina District Attorney Race Draws Attention Amid Duke Lacrosse Probe Duke Lacrosse Team Rape Case Draws Attention to District Attorney's Primary Duke Lacrosse Accuser Filed Gang Rape Claim 10 Years Ago Duke Counselors Swamped With Calls in Wake of Alleged Gang Rape Can the Durham Prosecutor Make the Case? FOX Facts: Duke Case Timeline None of DNA Security's findings were included in its final report to Nifong on May 12.

"There is not a single mention of this obviously exculpatory evidence in the final DNA Security report," the motion said.

Citing the state's open-file discovery law and the U.S. Supreme Court's requirement that prosecutors hand over all helpful evidence to the defense, the players' lawyers asked that Nifong and the lab be ordered to provide copies of all laboratory analyses, including those performed after May 12.

The three now former lacrosse players ¢¢¬¢‚¬ Dave Evans, 23, of Bethesda, Md.; Collin Finnerty, 20, of Garden City, N.Y.; and Reade Seligmann, 20, of Essex Fells, N.J. ¢¢¬¢‚¬ are facing charges of rape, kidnapping and sexual offense. All three have not only proclaimed their innocence, but the innocence of their teammates as well.

Their trial is not expected to begin until the spring.

The accuser, who is an exotic dancer, was one of two women hired to dance at an off-campus lacrosse party in March. She claims she was gang-raped by three men in a bathroom over a 30-minute period. She told hospital officials that not only was she raped, but that one or more of the men ejaculated, and that her assailants did not wear condoms.

All but one lacrosse player submitted to DNA tests back when the charges first surfaced earlier this year. The sole black player on the team did not get tested because the accuser, who is black, said her attackers were white. Tests failed to conclusively show any lacrosse players' DNA in or on the accuser.

The prosecution has claimed that those tests do not positively prove that no lacrosse players were involved, only that they were careful during the alleged attack.

A few hours after the party on March 14, a doctor and nurse at Duke Hospital examined the accuser and collected standard evidence for a rape kit from her mouth, vagina and other areas. Samples were sent to the State Bureau of Investigation (SBI), which on March 28, found no evidence of semen, blood or saliva.

On April 4 after meeting with Nifon, Durham police called DNA Security for more sensitive Y-chromosome testing that analyzes only male DNA. The next day, Nifong's office asked a judge to approve the transfer of the DNA evidence to DNA Security, since SBI found no traces of semed on any of the swabs from the accuser or her underwear.

The lab would test the swabs and panty stains for DNA and match any results to the 46 players, the accuser and any other DNA samples collected by police.

On April 8, 9 and 10, DNA Security found DNA from multiple males on the panties and from rape-kit swabs. Although DNA Security did not report specifics of those findings, the motions filed Wednesday say other documents provided to defense attorneys in October showed 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."

By April 10, DNA Security analysts concluded DNA from multiple males was on the accuser's panties in in her rape kit, but none belonged to any of the Duke lacrosse players.

None of those findings, however, were included in DNA Security's final report, according to the defense motion. The motion claims that omission was a direct violation of the company's policy.

Rep. Walter Jones, R-N.C., wrote a letter to Attorney General Alberto Gonzales Tuesday asking for an investigation into Nifong to determine whether he is guilty of prosecutorial misconduct.

"Over the past several months, many of my constituents and a growing number of mainstream media outlets have raised serious questions about the accuser's allegations and Mr. Nifong's prosecution," Jones wrote.

Jones' complaints to Gonzales repeat criticisms that defense attorneys and others have raised about Nifong's handling of the case.

The Jones Letter


Yesterday, North Carolina Congressman Walter Jones became the first member of Congress to urge the Justice Department to look into the misconduct of Mike Nifong. With an out-of-control prosecutor, a state bar that¢¢¬¢ž¢s asleep at the switch, and a governor who appointed Nifong to his post and since has refused comment about Nifong¢¢¬¢ž¢s behavior, federal involvement is needed.

Such involvement, it¢¢¬¢ž¢s worth noting, would be extremely rare; the Justice Department normally inquires into prosecutorial misconduct (in the rare instances it does so) after a trial¢¢¬¢ž¢s conclusion.

This delay, however, occurs for practical reasons: evidence of massive prosecutorial misconduct almost never can be documented before a trial begins, or, in fact, before a post-appellate review has occurred.

The Nifong case is thus exceptional in two respects: (1) the misconduct has come to light months before a trial could start; (2) the misconduct has occurred in the public eye. Federal inaction, therefore, risks undermining public faith in the justice system, by sending a message that all prosecutors are rogues like Nifong.

What constitutional grounds, however, could justify a federal action? Here are five possibilities from the U.S. code.

1.) 18 U.S.C. ⤠371


If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

This section normally is used to prosecute white-collar crime. The conspirators, in this case, would be Nifong and Sgt. Mark Gottlieb.

A 1924 decision of the Taft Supreme Court narrowed the exceedingly broad language of this section. In Hammerschmidt v. United States, the Court defined ¢¢¬…œdefraud¢¢¬‚:


To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.

The ¢¢¬…œbut it also . . .¢¢¬‚ clause would easily cover Nifong¢¢¬¢ž¢s actions in the Duke case.

Subsequent Court decisions have clarified the Taft Court¢¢¬¢ž¢s decision. As the Justice Department¢¢¬¢ž¢s manual for U.S. attorneys states, acts that ¢¢¬…œmake wrongful use of a governmental instrumentality¢¢¬‚¢¢¬¢‚¬i.e., a prosecutor¢¢¬¢ž¢s power, misused for the purpose of winning an election¢¢¬¢‚¬can be constructed as seeking to ¢¢¬…œdefraud the United States under 18 U.S.C. ‚§ 371.¢¢¬‚

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2.) 18 U.S.C. ⤠1503


Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (/cool.gif" style="vertical-align:middle" emoid="B)" border="0" alt="cool.gif" />.

The U.S. attorney¢¢¬¢ž¢s manual lists how federal courts have defined a ¢¢¬…œcorrupt¢¢¬‚ action:

<!--[if !supportLists]-->‚· <!--[endif]-->¢¢¬…œfor an evil or wicked purpose,¢¢¬‚ United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1972);

<!--[if !supportLists]-->‚· <!--[endif]-->¢¢¬…œwith the purpose of obstructing justice,¢¢¬‚ Rasheed, 663 F.2d at 852;

<!--[if !supportLists]-->‚· <!--[endif]-->¢¢¬…œfor an improper motive,¢¢¬‚ United States v. Haas, 583 F.2d 216, 220 (5th Cir. 1978), cert. denied, 440 U.S. 981 (1979);

<!--[if !supportLists]-->‚· <!--[endif]-->¢¢¬…œat least in part, by a corrupt motive,¢¢¬‚ United States v. Brand, 775 F.2d 1460, 1465 (11th Cir. 1985).

This section normally involves attempts by corrupt defendants or defense attorneys to improperly influence witnesses or judges. It gives some sense of Nifong¢¢¬¢ž¢s misconduct that, it seems to me, little investigative creativity would be required to apply Section 1503¢¢¬¢ž¢s provisions to Nifong.

The U.S. attorneys¢¢¬¢ž¢ manual notes that some courts have held that the excerpted clause, or the ¢¢¬…œcatch-all provision,¢¢¬‚ should ¢¢¬…œbe read broadly to include any conduct interfering with the fair administration of justice if that conduct was undertaken with a corrupt motive.¢¢¬‚

For instance, this clause would seem to apply to a prosecutor¢¢¬¢ž¢s ordering the police to violate their own procedures to somehow get three¢¢¬¢‚¬any three¢¢¬¢‚¬defendants chosen so that the prosecutor who had improperly given myriad interviews promising a crime had occurred could charge someone¢¢¬¢‚¬anyone¢¢¬¢‚¬before a primary election.

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3.) 18 U.S.C. ⤠241


If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;

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4.) 42 U.S.C. ⤠1985.


. . . In any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

Both (3) and (4) have traditionally involved minorities who have been mistreated in the criminal justice system¢¢¬¢‚¬i.e., civil rights activists falsely arrested in the late 1950s South. Using either provision on behalf of white defendants would represent a blow for a procedurally color-blind interpretation of federal statutes. While intellectually proper, such a course would entail political risks.

Nonetheless, as Jeralyn Merritt pointed out a few days ago, the Second Circuit just upheld a Section 241 conviction in United States v. Acosta, in which the allegations against former law enforcement officers involved falsifying information to get search warrants, fictitious informant payments, and stealing property from targets of their search warrants. It's not too much of a leap to see ¢¢¬…œfalsifying information to obtain a non-testimonial order¢¢¬‚ as covered under the Ascosta precedent.



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5.) 18 U.S.C. ⤠1512(/cool.gif" style="vertical-align:middle" emoid="B)" border="0" alt="cool.gif" /> and (d).


(b)Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to . . . cause or induce any person to . . . withhold testimony, or withhold a record, document, or other object, from an official proceeding;

(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from attending or testifying in an official proceeding;


In the record of the lacrosse case, this section could be called the ¢¢¬…œElmostafa Clause.¢¢¬‚

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The basic message: grounds exist for granting Jones¢¢¬¢ž¢ request and beginning a federal investigation of Nifong¢¢¬¢ž¢s misconduct. What¢¢¬¢ž¢s unclear is whether the Justice Department will reverse its heretofore inexcusably passive attitude.

[Update, 2.09am: The Herald-Sun spin machine is in full force, chiding Jones, in his letter, for citing the 60 Minutes report. ¢¢¬…œEverything Jones cited in the ¢¢¬‹Å“60 Minutes¢¢¬¢ž¢ account,¢¢¬‚ reporter Bill Stagg huffed, ¢¢¬…œhad previously had been reported in The Herald-Sun, The News Observer of Raleigh [sic] and other local and national newspapers.¢¢¬‚

Well, it certainly had been reported in the N&O. The H-S, on the other hand, still hasn¢¢¬¢ž¢t ¢¢¬…œreported¢¢¬‚ that Duke Law professor Jim Coleman criticized the lineup procedure. Nor has the H-S mentioned General Order 4077, the Durham policy regarding lineups that Nifong ordered the police to violate.

The H-S also gets a quote from Durham congressman David Price, who stated through a spokesperson that it ¢¢¬…œwould be premature and inappropriate¢¢¬‚ to comment on Nifong¢¢¬¢ž¢s misconduct. Price, by the way, is on leave as a professor of political science at Duke. No word yet on whether Price was disappointed his former colleagues failed to ask him to join the Group of 88.]

Duke defense lawyers want photo lineup tossed


RALEIGH, N.C. -- The woman who said she was sexually assaulted at a party thrown by Duke's lacrosse team misidentified her alleged attackers in a photo lineup that was "an incoherent mass of contradiction and error," defense lawyers argued in court papers filed Thursday.

Attorneys for the three indicted players filed a motion asking a judge to bar prosecutors from using the photo lineup at their clients' trial and prevent the accuser from identifying the players from the witness stand.

Duke University law professor James E. Coleman Jr. said the case would be "effectively dismissed" if the court finds the lineup inadmissible "and rules that it is so suggestive that there can't be an in-court identification."

Within Thursday's motion, the defense highlights what it considers numerous holes in the accuser's story.

Among the details cited are examples of how the accuser's story changed in the hours and days after the party; that she has a history of bipolar disorder; that she identified two people as having attended the party who were not there; and that she identified four attackers during the April photo lineup.

An earlier defense motion argued the lineup was "unnecessarily suggestive" because the accuser was shown only photos of lacrosse players.

Thursday's motion adds details about efforts by police investigators and district attorney Mike Nifong to assist the accuser in identifying the three men she said sexually assaulted her in a bathroom at a March 13 team party where she had been hired to perform as an exotic dancer.

Based in part on those identifications, Reade Seligmann, Collin Finnerty and David Evans were indicted on charges of rape, kidnapping and sexual offense. All three players have insisted they are innocent.

"There is quite simply no evidence that any of the accuser's identifications or descriptions of her alleged attackers are in any way reliable," the defense motion says. "Rather the state is left with an incoherent mass of contradiction and error, one which not only raises the issue of a 'substantial likelihood of misidentification' but which establishes that the accuser has in fact misidentified the defendants."

Nifong, who has generally refused to comment about the facts of the case, did not return a message seeking comment. Investigators conducted three photo lineups, according to the defense motion. In the first two, the accuser failed to identify Evans and did not identify Seligmann as an attacker, despite being shown photos of both men.

Defense lawyers argue that the third lineup, conducted April 4 at the Durham Police Department, violated departmental policies and the defendants' constitutional due process rights because it included only pictures of those at the party.

"In short, this procedure was designed to permit her to pick any person she desired and identify him as an attacker; that person would then be charged with rape," the motion reads.

In court papers Wednesday, defense attorneys said DNA testing found genetic material from several males in the accuser's body and her underwear -- but none from any member of the lacrosse team.

A hearing is scheduled Friday, but it is unclear whether the defense might argue their motions filed Wednesday and Thursday. The hearing had been expected mostly to deal with scheduling.

Congressman says civil rights may have been violated

DURHAM, N.C. -- A congressman asked the U.S. Department of Justice on Tuesday to investigate whether the district attorney prosecuting three Duke lacrosse players charged with rape has violated the athletes' civil rights.


In a letter to Attorney General Alberto Gonzales, Rep. Walter Jones also asked the Justice Department to review Durham County District Attorney Mike Nifong's actions for possible prosecutorial misconduct.


"Over the past several months, many of my constituents and a growing number of mainstream media outlets have raised serious questions about the accuser's allegations and Mr. Nifong's prosecution," wrote Jones, R-N.C.


Jones' complaints to Gonzales repeat criticisms that defense attorneys and others have raised about Nifong's handling of the case.


A grand jury indicted three lacrosse players on charges they raped a stripper at a team party in March. All three have strongly proclaimed their innocence, and a trial isn't expected to start until spring.


There was no immediate response to a call to Nifong's office seeking comment. In an interview with The Associated Press in October, Nifong said he and the city's police department have not mishandled the case and that his only regret was granting so many interviews to reporters during the investigation's early days.

Three years ago, Jones helped lead an effort to make sure Capitol Hill cafeterias revised their menus to list "freedom fries'' instead of french fries to protest France's opposition to the war in Iraq.

Judge Orders Paternity Test in Duke Rape Case

A judge ordered testing Friday to determine whether three Duke lacrosse players fathered the child of a woman who accuses them of rape -- a prospect defense attorneys dismissed as an "absolute impossibility."

News of the accuser's pregnancy comes roughly nine months after the team party where she says she was raped by three men, but District Attorney Mike Nifong said he believed the accuser became pregnant at least two weeks after the party.

Defense attorney Joseph Cheshire said Friday the defense, which requested the testing, has known for some time about the pregnancy.

A person familiar with the case, speaking to The Associated Press on the condition of anonymity, confirmed the pregnancy late Thursday but had no information about the father.

Testimony at a procedural hearing Friday focused on a defense request for more information about DNA testing conducted for the prosecution. Cheshire and the other defense attorneys also asked that the trial, which isn't likely to begin until spring, be moved outside of Durham County because publicity may have biased potential jurors.

Defense attorneys have stressed for months that no sex occurred at the party and they have cited DNA testing that found genetic material from several males in the accuser's body and her underwear -- but none from any member of the lacrosse team.

The woman has said the three men raped her in a bathroom at a March 13 team party where she had been hired to perform as an exotic dancer.

Medical records included in a defense motion filed Thursday were not made public, but Cheshire said the woman was given a pregnancy test immediately after reporting she was raped -- and it was negative -- and she took an emergency contraceptive.

"The possibility of her having gotten pregnant [from] these alleged incidents is an impossibility ... an absolute impossibility," Cheshire said.

Cheshire spoke shortly before a previously scheduled hearing in the case.

The defense motion claims the woman misidentified her alleged attackers in a photo lineup that was "an incoherent mass of contradiction and error."

Defense lawyers argue that the key lineup, conducted April 4 at the Durham Police Department, violated departmental policies and the defendants' due process rights because it included only pictures of lacrosse players.

Based in part on those identifications, Reade Seligmann, Collin Finnerty and David Evans were indicted on charges of rape, kidnapping and sexual offense. All three players have insisted they are innocent and were in court for the hearing Friday, as was Mike Pressler, the head lacrosse coach who resigned after the accusation became public.

"Our loyalty to each other remains and my wife and I are here to support the boys," he said.

Defense attorneys asked a judge to bar prosecutors from using the photo lineup at their clients' trial and prevent the accuser from identifying the players from the witness stand.

There had been no prior indication the woman, a 28-year-old college student who has other children, was pregnant. She has not spoken in public since granting a single interview to the News & Observer of Raleigh shortly after the party.

The accuser's father said Friday he had not spoken with his daughter since March and knew little about her pregnancy.

"I'm happy to have another grandchild," he said. "But I don't know the situation behind it."

Source: http://sports.espn.go.com/ncaa/news/story?id=2698515

This story has more twists than a preztel.lol

QUOTE(Buffmaster @ Dec 15 2006, 10:48 PM) This story has more twists than a preztel.lol

I think it's just a tramp that didn't get paid so she decided to abuse the word "rape" as so many women do these days. Check this shit out...two women in Fort Myers (where I live now) did it too and it made the news.

http://www.nbc-2.com/articles/article.a ... =10123&z=3

False Florida rape story

There you go, jdog

Ah, no automagic linking here for URLs? Oh well. But yeah, read that story. I can't believe that crap. They made up the stories because they felt bad cheating on their boyfriends.