Outcome turned on close calls

Staff WritersJune 17, 2007 

The Duke lacrosse case has twisted and turned in wild directions over the past 15 months. According to defense lawyer James P. Cooney III, the case might still be in Mike Nifong's hands if not for a fingernail and a single vote.

The fingernail points to how lucky the defense was to find DNA evidence hidden by Nifong, the district attorney.

"We literally stumbled across it while looking for something else," Cooney said.

Nifong sent a false fingernail found in a trash can in Dave Evans' bathroom to a private DNA lab. Tests showed a mixture of DNA that appeared to include DNA from Evans. Nifong used the result as the basis for indicting the player.

In trying to understand the test results, Brad Bannon, one of Evans' lawyers, spent weeks combing through 1,844 pages of technical documents. In those pages, he discovered that Nifong had withheld the private lab's finding of DNA from at least four unidentified men in and on the accuser.

The case turned dramatically in favor of the defense Dec. 15, when Bannon got the lab director to admit in court that he and Nifong had agreed to withhold the evidence.

"We had no idea it was there," Cooney said. "If they hadn't tried to tag the fingernail to Dave Evans, we would have never caught it."

The single vote came nearly two weeks later, when the Grievance Committee of the N.C. State Bar took the unprecedented step of filing a complaint against Nifong for misconduct.

The complaint forced Nifong to recuse himself from the case and turn it over to the Attorney General's office.

The complaint was controversial, and the 16-member committee split evenly over whether it should be filed. Grievance Committee Chairman Jim Fox cast the deciding vote, Cooney said.

"Without that single vote," Cooney said, "this case could still be going terribly wrong."

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