Is the the DNA Disclosure Damaging?

This is a partial transcript of "Special Report With Brit Hume" from April 11, 2006, that has been edited for clarity.

BRIT HUME, HOST: So how damaging to the Duke case is the negative result from the DNA evidence? For a look at the legal aspects, we turn to Judge Andrew Napolitano, our senior judicial analyst who's in our FOX News studio in New York. What about this? How conclusive is it or not that the DNA tests were negative?

ANDREW NAPOLITANO, FOX NEWS JUDICIAL ANALYST: It’s profoundly conclusive, Brit. Remember, DNA is a comparison. It’s a comparison between evidence found or in the victim’s body, and the genetic makeup of 46 of the 47 members of this lacrosse team.

Where there is no match whatsoever that is conclusive proof of what lawyers call actual innocence. No prosecution has been successfully made since the onset of DNA where DNA actually proves innocence and this prosecutor, I’m sure, ought to know that.

HUME: Well, we keep hearing others say, forensic pathologists and others say, look, in most cause cases you do not have DNA evidence. In this case the DNA evidence is negative and it’s not dis-positive. I don’t understand. Help me out here.

NAPOLITANO: OK. When forensic pathologists say in most cases do you not have DNA, they’re correct. That means they do not have a suspect to give them a sample of genetic material with which to make a comparison from what they obtained from the body of the victim. Or it means the prosecuting authority lacks the wherewithal from which to obtain such genetic material. So they’re right, you don’t have DNA in most cases. But where do you have it and it proves absolutely without fault it is impossible for any of these 46 guys to have touched her in any way, that’s proof of innocence.

HUME: Well, wait a minute. We keep also hearing, guys wear condoms and, therefore, their semen or any other source of DNA would not be communicated and so this does not disprove the matter. What about that?

NAPOLITANO: Well, if they touched the condom in order to put it on them, which presumably they would have to do, they would leave genetic material on the outside of the condom, which would be found on this woman. So there also would be other evidence of the condom such as lubricant or products within the condom that would have been found, which would have been connected to whoever put the condom on.

HUME: All right. Let me just ask you one other question. I’m struck by the conduct of defense lawyers in this case in the sense as early as last week before the DNA test results were known, they were saying the DNA tests would be negative because, a whole bunch of them said this — there was no attack. It struck me at the time, whoa, if that guy were my lawyer, I would not want to foreclose the defense that if the DNA tests panned out it was consensual or paid for or whatever.

NAPOLITANO: I’m smiling, Brit. Because that is a great question and good defense lawyers would not foreclose an avenue of defense that they might have to use it in the future unless, for some reason, they have absolute faith in their clients’ denials and that’s apparently what happened here.

HUME: All right. You have been on the bench and you have been at many a trial. You were not an elected judge, you were appointed, but you have obviously seen elected officials in the courtroom before. Can you assess for us the kind of political pressures or other pressures that this prosecutor is under — you heard what he went through at that event today.

NAPOLITANO: Right. He’s under enormous pressure. His career is on the line and he must do the right thing. He must make a decision whether it charge or not charge on the basis of the evidence and whether that evidence is strong enough, taking into account the problems in the victim’s background that you started this report out, that Megyn Kendall told us about, taking all of that into account. If he makes a decision just on the basis of his career, it will be obvious and it will ruin him.

HUME: Really? But I’m trying to put myself in his position and I’m thinking, I have a community, a very large segment of that community down there which he serves is African American. You saw the strength of the demand that were being made on him today. Wouldn’t it be in his interest to keep it alive for a while with or without an actual charge until gets past his primary?

NAPOLITANO: Well, he may want to do that. Because his primary is it only three weeks away. But if it is perceived I think ultimately that his decision the charge was made on the basis of politics that is an appealable issue should there ever be a conviction in this case. He has to make his decision a charge just on the basis of the evidence. He’s a human being. He wants to get elected to that office. He has thus far is appointed to the job to fill the partial term of his predecessor who is now a judge in that county.

Unfortunately this is the intersection, the vortex of politics and the law. Hopefully he will do the right thing ethically and legally and let the chips fall where they may for his political career.

HUME: You have got a chance to get a sense of him from his public appearances and indeed from the — you saw the way he reacted, fairly strongly, I thought today, to the demands that were being made on him. What is your sense about him? How do you think will he come out?

NAPOLITANO: My sense is he is going to give into the crowd he faced today, Brit, and that’s the wrong thing to do.

HUME: Why do you think?

NAPOLITANO: Just looking at his eyes and face and response to the crowd, he desperately wanted to please them. He should not have been there today. He should not be making this more political than he has. He has given something like 70 interviews to the media since these charges were filed. He’s obviously going make the political decision and that’s the wrong thing to do.

HUME: All right. Judge Napolitano always a pleasure to have you. Thank you very much.

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