Is Nifong ignoring evidence in the alleged Duke rape case?

Jonna M. Spilbor:

Defense lawyers have repeatedly implored District Attorney Nifong to meet with them and to examine the evidence that favors the defendants. But Nifong has said no - with an attitude that boils down to, "Talk to the hand."

That's unusual. More often than not, prosecutors are quite open to exchanging - or at least being entertained by - the defense's evidence. After all, it provides them with a valuable preview of what the defense's case may ultimately look like in court. Prosecutors are legally required to turn over certain evidence to the defense, but no obligation runs the other way. And since the defense goes second, prosecutors may not be able to effectively counter defense "surprises."

For prosecutors, meeting with the defense is thus typically a win-win situation: If they are convinced to drop the case, then that's embarrassing - but far less than as a loss at trial would have been. If they aren't convinced to drop the case, they've gotten a precious new edge at trial. And either way, both the reality and appearance of fairness to the defendants are enhanced.

Giving a defendant a lie detector test, in contrast, isn't a win-win situation: It may hurt prosecutors' case if the results are released to the public. (Lie detector results are rarely - if ever - admissible in court.) But at the same time, a lie detector test - while risky, and far from perfect - is likely to get prosecutors closer to the truth, which is supposed to be what they are after.

As noted above, in this case, Evans claims Nifong refused to give Evans a lie detector test. (He ultimately took one himself, and passed.) In my professional experience, a prosecutor's refusing to administer a lie detector test to a defendant is nearly unheard-of. The defendant's answers - and the lie detector's response to them - may provide the prosecutor with a road map to what his vulnerabilities on the stand may be.

Just as meeting with the defense previews the defense case for prosecutors, administering a lie detector can preview the defendant's testimony, as well as his on-the-stand demeanor, showing prosecutors what kind of a witness he will be. (Confident? Nervous? Shifty? Solid?)

I can't help but believe that, were any of these defendants to assert that they had proof that a crime was indeed committed, this district attorney would be all ears. Suppose, for instance, that Seligmann or Evans were to turn on Finnerty, to try to save themselves - surely Nifong would happily hear them out. So how can the prosecutor justify, then, turning a blind eye to evidence of any of the accused's innocence?

Some pundits have suggested that the only explanation for the District Attorney's pressing on in the light of strong evidence that the defendants are innocent, is that he has a card up his sleeve. If so, then he needs to show that card, pronto.

The discovery statutes in North Carolina - as in most states - do not allow prosecutors to play "hide the ball." This is a judicial proceeding, not a magic show. So D.A. Nifong will have to reveal this evidence sometime before trial.

He ought to opt to reveal it right now - to give the defense a chance to counter it. When evidence suggesting innocence is as strong as it is in this case, it's wrong to just let the case go to trial and "see what the jury says." These three young men's live will be forever affected, even if they are acquitted. Even an arrest leaves a scar; the scar of trial is far deeper.

D.A. Nifong should listen to the defense, and should drop the case unless he has strong evidence supporting the accuser. Moreover, if he does have such evidence, he should show it to us now. The defendants have been forthcoming - especially Evans, who volunteered to, and then did, take a lie detector test. The prosecution should follow their example.

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