Key DNA Evidence in Duke Rape Case Withheld From Defense for Six Months, Lawyers Charge

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.

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.