The Duke Wrongful Prosecution Case and the Importance of Criminal Discovery

KC Johnson, author of the blog Durham-in-Wonderland, discusses prosecutor Mike Nifong’s inconsistent statements…first in a public hearing with a judge, then in a letter to the State Bar.

At issue, of course, is his meeting with Dr. Brian Meehan where it now seems clear that they agreed to withhold exculpatory evidence from the defense. It is now a matter of public record that Meehan told Nifong about the presence of multiple unidentified males on the accuser’s rape kit on April 10th. 

In June, the defense asked for the complete rape kit in a discovery motion. They also asked that the prosecutor memorialize his conversation with the doctor about the results. The judge denied their motion.

Now Nifong has denied to the State Bar that the meeting ever took place.

But, back to the inconsistent statements about the meeting itself, and whether it even occurred.  How could Nifong have tripped up in his letter to the bar, and contradicted his previous public and transcribed account?

Here’s where Johnson nails it:

Given the significance of the April 10 meeting, how could Nifong have been caught flat-footed by [defense attorney] Cheshire’s discussion of it?

The context of the hearing explains why.

In June, the key issue was not when Nifong met with Meehan, but whether the court would force the district attorney to memorialize two conversations—his April 10 meeting with Meehan, and his April 11 meeting with the accuser—and turn over additional items from what appeared to be an incomplete rape kit…

Meanwhile, on the conversations, Nifong focused most of his effort on explaining why the reliably pro-prosecution [Judge] Stephens should not require… him to memorialize what the accuser did or did not say in their April 11 meeting.

“It was not a meeting,” Nifong declared, “to discuss the specifics of the evidence in this case. Other matters were discussed, which, again, are not matters that are subject to discovery.”

So that’s indeed how Nifong got himself in this mess. But there’s a much bigger issue involved here:

Discovery in criminal prosecutions should not be limited. In any way. Ever.

The heart of the problem, particularly from the perspective of the wrongfully accused, is that their lawyer can’t walk into the DA’s office and have immediate, full, complete access to everything in the file.

I’ve previously discussed the Texas rules on criminal discovery, and we see here another example of the types of problems when the State is allowed to play hide and go seek with evidence.

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Comments (1) Read through and enter the discussion with the form at the end
dick jarvis - March 30, 2007 9:37 PM

Regarding "we see here another example of the types of problems when the State is allowed to play hide and go seek with evidence."

This is not a problem! It is a solution that creates artificial demand for over priced lawyers.

If you can't afford to prove you are innocent, well that's your fault.

Thank You,

Your pal, the
American Bar Association

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