Duke lacrosse: A good attorney and a lousy DA

We’re starting to learn about important evidence suggesting the Duke lacrosse players are innocent. We’re also learning that Durham DA Mike Nifong and the Durham Police withheld much of that evidence from the courts and the public.

With that in mind I hope you’ll take a look at a post by attorney Jonna Spilbor, a legal analyst on Fox News Channel's Weekend Live with Brian Wilson and frequent guest commentator on Court-TV. Spilbor’s a noted criminal defense attorney who’s also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units.

Spilbor commented at Findlaw.com on the Duke lacrosse case, including some statements and actions of Durham DA Mike Nifong.

When you read her comments, keep this in mind: Spilbor made them exactly 8 weeks ago today on April 14. Excerpts:

In the absence of DNA, (Nifong) should, indeed, drop the case - both because the evidence strongly indicates the players' innocence, and because it means he will never be able to prove their guilt.

The D.A.'s written request for a court order to obtain those forty-six DNA samples stated that DNA testing would provide "conclusive evidence" as to which three lacrosse players allegedly assaulted the accuser.

This phrasing poses a compelling question: If DNA can be considered convincing evidence of guilt in sex crimes, as the DA himself argues, shouldn't the absence of DNA evidence provide equally convincing proof of innocence?

D.A. Nifong argues, instead, that the lack of DNA "doesn't mean nothing happened. It just means nothing was left behind." He has pointed out, in addition, that rape prosecutions can go forward - and convictions can result - without DNA evidence. According to Nifong, in 75 to 80 percent of all sexual assault cases, there is no DNA to analyze.

But those cases aren't like this one - for several reasons.

Why, In This Case In Particular, the Absence of DNA Indicates Innocence

Often, women do not report sex crimes for days or weeks - washing much, or all, of the DNA evidence down the drain long before police and prosecutors can collect it. But not in this case. Here, the victim submitted to a "rape kit" examination only hours after what she said was the time of the alleged attack.

Often, rape is accomplished by fear, not force. But in this case, the crime alleged was brutal and barbaric. The accuser said, for instance, that her acrylic fingernails were torn off as she tried to defend herself.

And often, an attacker will use a condom precisely to destroy the chance that he will be caught via DNA. But here, the alleged victim made no mention of any of her attackers using a condom. (Also, while a condom might prevent organic DNA from being deposited on or around the accuser, it would have left its own trace evidence, especially if coated with spermicide. Here, it appears that no such evidence was found.)

For all these reasons, it seems very unlikely that if the attack alleged occurred, none of the attackers' DNA would have been collected from the accused's body or clothing - or from underneath her fingernails.

D.A. Nifong has pointed out that the accusers' clothing could have protected them - but their hands, face, and necks likely remained exposed. What is the chance that the accuser would not have made contact with any of their hands, faces or necks if a brutal attack truly occurred? […]

The D.A. Should Look at Exculpatory, Not Just Inculpatory, Evidence

The District Attorney has an obligation, prior to charging anyone with a crime here, to examine all the evidence procured per the investigation, both inculpatory and exculpatory. […]

We're learning how Nifong discharged his obligation regarding evidence.

Spilbor went on to consider the question of whether the accuser has been lying.

In this particular case, it seems that evidence of the accused's innocence equates to evidence of the accuser's lie.

If so, one would hope the Durham prosecutor would do an about- face - pursuing charges against this accuser with the same fervor he is exhibiting in his efforts to prove her a victim.

But why would the accuser lie? Bill Thomas, a defense attorney for one of the team captains, has offered one possible reason - he believes she was trying to avoid a charge of public drunkenness. He's stated, "It is my sincere hope that she comes forward and tells the truth in this matter and allows these young men to go on with their lives and for this community to heal."

Let's hope that if he is right, and the accuser is lying, the D.A. recognizes that before the case goes any further.

When you read the rest of Spilbor’s column, you’ll see she didn’t anticipate everything that’s developed in the past 8 weeks.

But Spilbor sure had a lot right, including the most important thing that the rest of us are learning only now: Nifong didn’t have a case on April 14.

Today sensible people in Durham have to ask why Nifong persisted with the case?

And why did Nifong so seriously mislead the courts and the community regarding evidence?

And what should be the consequences for Nifong?

I hope the courts and state bar association address those questions.

I also hope some politically active Durham citizens, including attorneys, look at what’s involved in organizing a campaign to support a write-in candidate for Durham DA in November’s elections.

Who in Durham wants to face 4 years with Nifong as DA?