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Duke rape saga just beginning

What else was Nifong hiding?

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To the public, it probably looks like the end of the road for the Duke lacrosse rape case and the remaining charges against the students who supposedly raped a stripper last year.

But those familiar with what's in the six boxes of evidence turned over to the state attorney general's office know that the saga of the Durham case heard 'round the world is only just beginning.

As far as the world knows, prosecutor Mike Nifong's credibility was destroyed after it was discovered in December that he had collaborated with a DNA lab to deliberately withhold DNA evidence that pointed to the innocence of the Duke lacrosse players Nifong indicted for raping a stripper last year. The fiasco finally embarrassed the state bar into bringing unrelated ethics charges against Nifong in a successful attempt to force him off the case.

But the DNA skirmish was just one of at least a half dozen more instances of withheld or missing evidence in the case that still appear to be, well, missing. In December, Nifong and police investigators made a big show of interviewing the accuser "for the first time" about the case. But in other instances in court papers Nifong filed, he refers to another interview he had with the accuser in which she told him she didn't use Ecstasy the night of the raucous party that led to the charges.

According to state law, defense attorneys are entitled to the notes from any interview with the accuser. In a case like this, where the accuser regularly changes her story, they are critical. Was December the first time the accuser ever told Nifong she wasn't raped? Or has she told him that before? At this point, anything is possible.

But despite referring to interviews he had with the accuser before December in court papers and at political events when he was running for office, Nifong continued to insist to the judge in court that he never interviewed the accuser about the case before December.

Throughout the case, pieces of information came out of nowhere with no notes or police activity reports to support them. Weeks worth of police activity reports were never turned over.

When all hell broke loose for Nifong in December over the DNA debacle, he was still fighting a multi-front war with the defense over other notes and reports the defense says should have been in the case file, but were missing.

The question now is whether that information, which by law the defendants were entitled to view, has finally been turned over by Nifong and his investigators to the state attorney general's office. It's a legitimate question, considering that Nifong has told the court on more than one occasion that he has turned everything over -- only to have it become plain that he wasn't telling the truth.

What's in those six boxes is probably enough to justify the dropping of the remaining charges against the three lacrosse players. But it is critical to the future of justice in this state that all the evidence in the case be recovered; if the other missing evidence is like the DNA missing evidence discovered in December, it will likely show a pattern of cover-up that will make legal history not only in this state, but in this nation.

And it is critical for another reason. So far, Nifong has been the one taking the heat on this. But for this case to go on as long as it did and for Nifong to hold back or hide as much evidence as he did required the help of judges in the case who ignored North Carolina statutes designed to force prosecutors to turn over evidence defendants are entitled to. According to a state law passed in 2000, the court is supposed to set a date for the completion of discovery in a case and/or a schedule for turning over evidence to the defendant.

But in July, the judge in the case disregarded state statutes by denying Reade Seligmann's request that the court do exactly that. In the process, the judge turned a rogue prosecutor loose.

The impact of the judge's decision "is a de facto reinstatement of the old, outlawed discovery and calendaring system," Seligmann's attorney wrote. That would be the same system that for years had been sending innocent defendants to jail or death row because it failed to force district attorneys to turn over or disclose evidence against them.

What the judges in the Duke case essentially did was slap the face of the state legislature, making a mockery of evidence rules passed by it in 2000 and 2004 to allow defendants basic access to all the evidence against them, especially evidence that proves their innocence.

It's critical that the legislators of this state figure out that the justice system has been mocking them and their open discovery laws -- which lay out no specific penalties for judges or prosecutors that ignore them beyond giving the judge the discretion to dismiss the case if the prosecutor is caught hording evidence.

The Duke case has proven that judges cannot be trusted to enforce those laws and district attorneys can't either. It's time for the legislation to smack back.

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