Duke Rape Case Update

This is a partial transcript from "On the Record," December 18, 2006, that has been edited for clarity.

MARTHA MACCALLUM, GUEST HOST: Well, some astounding fallout from last weeks' events in the Duke rape case scandal. The accuser pregnant, a paternity test is now ordered and accusations that the D.A. was hiding evidence. And just today the Duke University president weighed in, he said the case itself will be on trial as much as the players charged.

And with all eyes on Prosecutor Mike Nifong, what will happen to the state's case? We have a great panel tonight. Joining us from Raleigh, North Carolina, Durham Attorney, Woody Vann is here. Former San Francisco assistant D.A. Jim Hammer is out in San Francisco. And here in New York, with me, is former Westchester County district attorney, Jeanine Pirro.

Welcome Jeanine, good to have you here.

JEANINE PIRRO, FMR WESTCHESTER COUNTY DIST ATTORNEY: Nice to be here.

MACCALLUM: All right, we're going to start with Jeanine because she's right here in the studio with me. You know, couple of big issues here. The lab director says that he had an agreement with Mike Nifong that they would not release the information that none of the DNA matched until a later date. What do you do — how do you get away with that?

PIRRO: I have to tell you Martha, that is outrageous. When you have a case that rests on so little evidence and the DNA then is — there is no DNA connected to these three lacrosse players. You have to really be stunned with the fact that the head of the lab takes the stand and says, "I had a conversation with the D.A. and we agreed not to release exculpatory information. We agreed not to release information that no DNA matched the lacrosse players." And what he said was, "I was concerned about the privacy of these three lacrosse players." Well, that's just hogwash...

MACCALLUM: Yeah, they would want nothing more than to hurt that information it's not going to hurt their privacy to hear that.

PIRRO: It is essential to the case. If this woman says that she was raped and sodomized by three individuals and there's no genetic material from any of the three of them on her, then you have the DNA telling the lab director to violate his own rules and not report the fact that there was no match, this is an outrage and it's indicative of the way this case is being handled.

VAN SUSTEREN: So, Woody Vann, your thoughts on this.

WOODY VANN, DURHAM ATTORNEY: I'm not sure that's contactly how it was. I know that the report handed down indicated that there was no finding of any match with the three accused. I think what was not disclosed was the fact there was a great deal of additional DNA that matched other persons. Still should have been submitted. Jeanine's absolutely right. The whole report and all the information in it should have been delivered lock, stock, and barrel, then let all parties make their own conclusion and use it as they see fit. But I don't know if it was quiet or sinister as that. But, still, the fact is it was all done wrong. And should have been...

(CROSSTALK)

MACCALLUM: According to the report that I have, the lab director says that he admitted that he withheld results and that he did meet with Mike Nifong and they had an agreement. Those are the words that...

VANN: Right. But not results related to the three guys, result related to other persons whose DNA material was found. And you are right, there was a decision.

MACCALLUM: Yes, but that in and of itself rules out those three players, correct?

VANN: No, no. That's not true, because they've already been excluded by the testing has already excluded those three.

PIRRO: So, then why wasn't the testing released — Woody.

VANN: It should have been. I'm not disagreeing with that part. It absolutely should have been. It was an unwise decision to say, "Give us the results relate to my indictment persons, don't give us the rest now." That was an unwise decision. I agree.

MACCALLUM: All right. I want to move on. Jim, go ahead.

JIM HAMMER, FMR SAN FRANCISCO ASSISTANT D.A.: Calling it unwise is like calling an elephant a flea. I mean, it's outrage, it's illegal, and I think it's enough to remove the D.A. from the case, Martha. You had another question. Go ahead.

MACCALLUM: Well, I wanted to ask you about the lineup issue, because I want back to that tonight, and looked at that again. You know, you put her in this situation…

HAMMER: More of the same.

MACCALLUM: She looks at pictures only of these players. It's like a turkey shoot. I mean, all she has to do is pick three guys, right?

HAMMER: That and not just that but it's another example, Martha, where the D.A. apparently violated the police's own procedure, which is you don't only put possible suspects in lineup like that. Apparently Durham actually has a written procedure covering that. Allegedly the D.A. told the police to violate that policy and stack it only with lacrosse players. Now you have two examples, the DNA and the lineup with the D.A. looking like he is trying to obstruct here to convict these guys, and hide exonerary (ph) information. Absolutely outrageous, Martha.

MACCALLUM: So, why is it, Woody Vann, that everybody I talk to about this case says, "Oh no, it won't be thrown out. It won't be thrown out?"

VANN: Well, because there's not a mechanism to allow it to be thrown out, the judge can't do it on his own motion. If it's going to be thrown out, the D.A.'s going to have to do it himself because...

MACCALLUM: So, the judge cannot look at this situation and say — I guess what he could say that the D.A. has to remove himself from the case and they bring in somebody new, right?

HAMMER: Exactly.

VANN: Well no. That's — first of all, there would have to be a motion to recuse and I'm not sure that a judge would. It could, although I'm not sure there's really a mechanism that's going to allow that to happen either. But Jim' right, in regard to the lineup, it was absolutely done wrong. I'd be shocked if it's not tossed.

PIRRO: Martha, look, a judge could, on a motion of the defense, dismiss this case in the interest of justice based upon all of the improper activity that has going on so far. And the fact that DNA indicates that none of these players' DNA was on this alleged victim is enough to as far, as I'm concerned, for a judge to dismiss based upon what appears to be inappropriate behavior on the part of the D.A.

But you know what, Jim, you were talking about the identification and the fact that there were only lacrosse players in it. The truth is that even if that identification and that array was unduly suggestive, the bottom line is she didn't even pick out the same guys every time. She picked out people who weren't even there.

HAMMER: Jeanine, you and I agree.

PIRRO: We do agree.

HAMMER: The problem is, the D.A. himself is telling the police to violate their own policy.

(CROSSTALK)

MACCALLUM: You have a combination of things — Woody, you have a combination of things here. You have what looks to be evidence that exonerates them, and then you have what looks to be...

HAMMER: A run away D.A.

MACCALLUM: You know, not following procedures and coming up with, perhaps, false leads based on the way the procedure was done.

PIRRO: And this isn't the way criminal justice is supposed to work. I mean, it's supposed to be fair, it's supposed to be with finding the truth. You don't tell people to violate rules. You don't tell people not to share information that's escalatory.

MACCALLUM: So Woody, let me ask you this, then why is the defense going in there with a hearing to excuse the case, to end the case if this judge doesn't have the power to do that?

VANN: Well, they're not. I mean, what they're doing is they're going in and...

MACCALLUM: They did ask for the case to be dismissed, no?

VANN: No. They didn't. What they've asked for is basically different aspects of the case, and again back to what...

MACCALLUM: Different venue.

VANN: Jim and Jeanine said, it regard to the lineup itself they've that the lineup be tossed and they've asked that she not allowed to make an in court identification, which if both parts of that motion are granted that essentially would end the case.

HAMMER: Game, set, match.

PIRRO: Then it's over.

VANN: But, we'll just have to see where they. I think a judge is going to toss the lineup. I'd be surprised if he didn't toss the lineup. But I'll also be surprised if they don't — if the judge doesn't at least allow the state to go forward if they get to a trial to allow at least an attempt for an inquiry identification with the proper foundation and then at that point in time if they haven't made a proper enough foundation with regard to I.D., the judge can still say, you know, no, you can't point out who you say may have assaulted you on that particular night. In any case, as Jim says, this case would be over.

MACCALLUM: Next hearing is in the beginning of February.

PIRRO: February 5.

MACCALLUM: We're going to keep a very close eye on this. Jeanine Pirro, Jim Hammer, Woody Vann, thank you very much to all of you for being here tonight.

HAMMER: Thanks Martha.

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