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Robbery in broad daylight 

Witnesses see nothing

Civil rights activists marched for convicted rapist and murderer Darryl Hunt.

State legislators, activists and the newspaper editorial boards of this state raged over what our justice system did to death row inmate Alan Gell and accused rapist Lesly Jean. Thanks to their efforts, the three men were eventually released from prison for crimes the evidence in their cases clearly showed they didn't commit.

But last week in Durham, the silence from the activists and the editorial boards was deafening as Prosecutor Mike Nifong did the same thing to three Duke lacrosse players that prosecutors in the Hunt, Gell and Jean cases did. Nifong flagrantly broke the law by withholding evidence favorable to the accused.

Under oath, Brian Meehan, director of the lab that tested evidence in the Duke lacrosse rape case, admitted that he and prosecutor Mike Nifong agreed not to report results of DNA tests favorable to the three defendants. For months, the two had been telling the world that the lab's DNA analysis of swabs taken from the accuser had failed to turn up DNA that matched the players. But what Nifong and Meehan conspired to leave out was that the lab tests did identify the sperm of multiple other men found on and inside the alleged victim.

State law says prosecutors must turn over all the evidence in a case -- every note and the results of every test. Yet for months, as I have reported in this space, Nifong has obstinately stonewalled defense attorneys' efforts to obtain evidence he is clearly withholding.

I'm no attorney and I'm not even covering this case full time, but after a few hours of reading court documents, the omissions were blindingly obvious even to me.

After a judge in the case forced Nifong to turn over some of the evidence the defense is entitled to, Nifong claimed in court documents that he'd now given the defense everything he had. It became clear that Nifong lied after he was later forced to turn over hundreds of additional pages of documents in response to repeated requests for them by the defense.

As I've pointed out, Nifong asserted in court documents that the accuser told him she wasn't using the drug Ecstasy the night of the crime, yet he has never provided any notes from the meeting, which he is required to turn over to the defense. When challenged on this by the defense, Nifong contradicted himself and court documents by claiming he and the accuser had met, but never discussed the case. That leaves only two possibilities -- he is lying about the Ecstasy, or the two did discuss the case and he's withholding evidence.

There are dozens of other examples of still-missing evidence, including whole sections of investigative files that are referenced in legal documents, but not included in the evidence Nifong has turned over.

Yet for months, the editorial boards of this state and the activists, the folks I call the innocence posse, have said and done nothing. As of deadline, they're still largely AWOL, even in the face of Meehan's testimony that, essentially, he and Nifong conspired to break state law that says all evidence must be turned over.

What Nifong and Meehan did is the equivalent of a bank robbery in broad daylight in front of hundreds of people -- all of whom, the bank, the tellers, the witnesses, neglect to call the police.

Part of the problem here is that privileged white Duke students aren't the kind of defendants the activists and the editorial boards are accustomed to standing up for. That's a shame, because it won't be the white kids from Duke who ultimately pay the price for their silence. It'll be the Gells of the future who don't have the legal dream team they do, the kind that has the resources to dig through hundreds of pages of evidence in search of what should be there, but isn't; the kind that has endless hours to file a mountain of motions demanding illegally withheld evidence.

"This is the first high-profile case since the open discovery law passed in North Carolina in 2004," says Brooklyn College professor K.C. Johnson, who has scoured reams of legal documents in the case. "If Nifong gets away with this, other North Carolina DAs will do the same thing."

Two years ago, the innocence posse cheered when the state legislature passed the law that Nifong is currently violating, the one that mandates that prosecutors turn over all the evidence in a case to the defense. Judges, most of whom are elected, were supposed to enforce it. The law was supposed to level the playing field for the Gells of the future.

Instead, the state's prosecutors are watching a legal team that includes some of North Carolina's best lawyers struggle to get their hands on basic evidence they are entitled to while judges look the other way.

So what do you think the least scrupulous among them will do the next time a public defender in a worn suit asks for all the evidence in a murder case?

Exactly what Nifong taught them.

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