December 15 Hearing

State of NC v. Finnerty, Seligmann, and Evans
Hearing Date:
12/15/06
1
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF DURHAM
FILE NOS. 06-CRS-4331,
06-CRS-4332, and 06-CRS-4333
----------------------------x
STATE OF NORTH CAROLINA,
:
v.
:
COLLIN FINNERTY,
:
Defendant.
:
----------------------------x
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF DURHAM
FILE NOS. 06-CRS-4334,
06-CRS-4335, and 06-CRS-4336
----------------------------x
STATE OF NORTH CAROLINA,
:
v.
:
READE SELIGMANN,
:
Defendant.
:
----------------------------x
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF DURHAM
FILE NO. 06-CRS-5581,
06-CRS-5582, and 06-CRS-5583
----------------------------x
STATE OF NORTH CAROLINA,
:
v.
:
DAVID EVANS,
:
Defendant.
:


TABLE OF CONTENTS
STATE'S WITNESSES
BRIAN WALTER MEEHAN, Ph.D.
Examination by Mr. Bannon
18
Examination by Mr. Cooney
77
Examination by Mr. Kingsbery
86
Examination by Mr. Nifong
89
EXHIBITS
DEFENDANTS'
MARKED
RECEIVED
1


P R O C E E D I N G S
MR. COONEY: Your Honor, as I warned you, the
defendants have filed a motion yesterday and a motion today
that we'll be discussing later. The clerk's got copies. I've
prepared copies for Your Honor.
THE COURT: Just put it right over there.
MR. COONEY: And just for Your Honor's
information, you have hard copies and you also have a copy of,
a CD-ROM which contains everything in the notebooks.
THE COURT: All right. If you'll just stick it
down so I can still see those folks over here.
MR. COONEY: Yes, Your Honor. The CD-ROM will
have hyperlinks to all the exhibits in the case so you'll be
able to access them.
THE COURT: To begin with, let me thank y'all
for waiting. I began today's proceedings with an in chambers
conference with counsel to discuss my ruling of disclosure of
records that I reviewed in camera.
Madame Clerk, there is an order for public access
that I'm ordering disclosure of certain records. Here is a
separate order. It is the identical order with one attachment
to it. The attachment shows the records that I reviewed.
This order is under seal and that the itemization of the
records I reviewed is under seal and is not available for
public access. It is not a public record and that is to be
Page 5


sealed at this time. That's the sealed order; the other one
is public record. It gives my reasons for . . . Well, it
states what it states it states.
I probably should have said it first to remind
everyone here that the, there is a standing order in place
prohibiting the use of electronic media in these pretrial
proceedings that prohibits, with the exception of the court
reporter, all recording devices, audio and/or visual. It
prohibits the use of any microphones or other equipment that
would transmit the proceedings outside. I certainly don't
prohibit people from taking notes or making their own notes as
we go along. We are in open court. But I have prohibited
electronic media from the pretrial proceedings, and that is a
standing order.
The Court, as I said, did conduct the in chambers
conference just to discuss the mechanics of copying and
disseminating information I ordered disclosed to both parties
from records that I reviewed. They are not matters of public
record. They may have some involvement in the proceedings as
we go along and up until that time, they are ordered sealed.
The Court also conducted a hearing upon the actual
procedure for the copying of those records and for
dissemination of those records to the parties. And by a
consent order entered into between the -- or among the
parties, the Court ordered a procedure for the copying and
Page 6


disseminating and then return of the originals to the clerk
under seal for preservation for court purposes.
Bringing us to matters for today, we will be hearing
a motion filed this week by the defense regarding discovery
issues, maybe another motion that may be brought up by the
defense. We will also discuss future scheduling in general
terms. I don't know if we'll be setting specific timetables.
I do note from the records that there have been numerous
pretrial motions filed. Some have been asked to be heard and
ruled upon. Some are in the file without a request for a
hearing at this point in time, or a ruling at this point in
time, and at least one that I recall, the defense specifically
asked not to be heard on this time.
The Court notes that the Court hears what's before it
when it's requested to be heard on it. This is the last
session that the Court will be in session with regard to this
case in this calendar year, as I understand it. I've just
completed my regular six-month rotation in Alamance County and
will be assigned to Durham County beginning January 1 with,
except for administrative matters in my home district and will
be available. And the pace will probably pick up in dealing
with matters dealing with this case. And as I said, we'll
discuss preliminarily scheduling some of those matters to move
forward.
I do know there are two other specific motions filed
Page 7


by the defense this week that the defense will be requesting
hearings upon. And as I said, we'll discuss that schedule.
Before I get to the defense motion, anything else either of
you want to say as we are now?
MR. NIFONG: No, Your Honor.
THE COURT: All right. Let's see. Mr. Bannon,
is it you?
MR. BANNON: Your Honor, I believe it is me. As
the Court is aware, we filed a motion earlier this week that
was filed and served upon Mr. Nifong and the State of
North Carolina on Wednesday regarding DNA testing that was
performed in this case. We gave a copy to the Court for
delivery yesterday morning and, of course, we copied
Mr. Nifong in a cover letter to that so he would know that we
had provided the Court with a copy.
I don't know to what extent the Court's had the
opportunity to review it and its attachments. We understand
it's voluminous and that there wasn't a lot of time between
yesterday morning and today. So if I could, what I'd like to
be able to do is just sort of summarize the contents of the
motion for the Court unless you would like me to not do that.
THE COURT: You can summarize it. I did read
the motion. I did not read all the attachments. I read the
motion last night and this morning.
MR. BANNON: As the Court may or may not be
Page 8


aware, the defendants in this case weren't charged until
May -- I'm sorry, weren't indicted until May -- or, excuse me,
April 17 and May 15. The case arose as a result of an
allegation of a sexual assault that occurred on March 13 or 14
and sort of around the midnight hour.
A number of items of evidence were collected from the
accuser in this case, Crystal Mangum, within hours of the
alleged assault. And those items included what is commonly
referred to as a rape kit. Those items included vaginal
swabs, oral swabs, rectal swabs, panties that she was wearing
at the time of the alleged attack, and also other items of
clothing that she was wearing at the time of the alleged
attack.
Those items were logged into evidentiary custody by
the Durham Police Department and were soon transported to the
State Bureau of Investigation lab for testing that is standard
in cases where accusers have reported that they were raped by
multiple men without the use of condoms, which is what the
accuser in this case alleged during the early morning hours of
March 14. As a result, the state obtained expedited DNA
testing from the State Bureau of Investigation lab. They
obtained that testing under the theory, of course, that the
tests would immediately rule out innocent persons and would
immediately implicate anybody who had actually committed this
offense.
Page 9


Preliminary testing was done on the rape kit items on
March 28. That preliminary testing reflected that there was
no semen. Presumptive tests for semen were performed on those
items and the State Bureau of Investigation lab determined
that there was no semen on those items. Those items were then
transported not to the DNA section of the SBI lab but were
held off for further testing.
That further testing was conducted in this case by a
lab called DNA Security, Incorporated. It is a private lab
that apparently Mr. Nifong and Investigator Michele Soucie
discussed for the first time on April 4. During that
conversation, it was reported to Mr. Nifong that
Investigator Soucie had contacted Dr. Meehan, who is the lab
director at DNA Security, Incorporated. And Dr. Meehan
informed them that he and his lab would very much like to be
involved in this case and would be able to work with the state
on pricing as it related to their work in this case.
They explained to the state that what they could
offer the state in this testing that the State Bureau of
Investigation lab could not offer was the isolation of a
Y male chromosome. I'm presuming that this Court has dealt
with DNA issues before, so I don't want to reinvent the wheel
as it relates to that. But Y chromosome testing is a
different type of DNA testing that isolates a male chromosome
so that essentially, the only DNA characteristics that are
Page 10


lifted from an evidentiary item or from a reference sample are
male.
As a result of that, the state obtained an order from
Judge Stephens on April 5 and the language of the order,
itself, actually spoke to how important it would be in a rape
case to find out whether there was any Y chromosome DNA in or
on the accuser. As a result of that order, those items were
transported to DNA Security. They were first tested by
Dr. Meehan around April 8, 9, and 10. Those tests revealed
that there was male DNA present on rectal swabs, panties,
and . . . Well, the rectal swabs and the panties at that
point in time.
On April 10, Mr. Nifong and Investigator Himan and
Sgt. Gottlieb, who were the lead detectives in this case, went
for their first meeting with Dr. Meehan. They went to his
Burlington lab and began discussions which have been the
subject of previous motions for discovery in this case about
the contents of those conversations. It has been represented
to this Court that during the course of those conversations,
all in the world they discussed was that they wanted to do
YSTR testing and they discussed the results and how those
would be used in court.
Following that meeting, additional tests were
performed on a number of different evidentiary items, to
include a pubic hair comb that was taken from the rape kit.
Page 11


The reason that hadn't made its way to DNA Security yet is it
has been, it had been at the SBI lab's hair analysis section.
Testing on that particular item, DNA testing on that item
revealed the presence of male DNA characteristics. That
testing was done on or about April 17, 18, and 19.
On April 20 or 21, Mr. Nifong and Investigator Himan
and Sgt. Gottlieb returned to DNA Security, had another
meeting with Dr. Meehan. Those meetings and the substance of
those meetings have been summarized for the Court, in essence,
the same way that the April 10 meeting was discussed, that
they talked about the testing, the type of testing that was
done, the results and how they'd be used in court.
Following that, on April 12, DNA Security completed
its final report in these matters. That report was provided
to the defendants the same day. It was actually provided to
Mr. Nifong and Investigator Himan first in another third
meeting that they had with Dr. Meehan at DNA Security, which
has been discussed in previous court settings, as well. The
way that that meeting has been characterized is that the
results, all the results of the test were reported to
Mr. Nifong and Investigator Himan, that all the results of the
test were included in the report, and that that report had
been provided to us that same day.
The problem is that report that was provided to us
that same day only listed findings with respect to three of
Page 12


the evidentiary items that had been tested by DNA Security.
There were over a dozen items that were tested by DNA
Security. The results of those tests essentially were
limited, the reporting of the results of those tests were
limited to only three of those items and did not include
findings with respect to the items that I've previously
discussed and are the subject of this motion.
That's the main thrust of this motion is that we
received a report in this case that did not fully disclose
what I believe anybody who is involved in criminal law and
rape prosecutions would find to be exculpatory evidence in the
sense of multiple male characteristic DNA that did not match
any of the defendants in this case. Of course, it did not
also match any of their teammates on the 2006 Duke University
lacrosse team, teammates who had been also represented as
suspects in the media up to that point in time. Did not match
any of those persons but none of those results were reported.
The main thrust of this particular motion is a
request by the defendants under the circumstances to get a
full report of those findings in that analysis. The
attachments show what the motion states in terms of the
findings of DNA Security. It shows the notations at the top
of the forms that say they compared them against these samples
and they didn't match. That would be the first point of this
motion.
Page 13


The second point of this motion is we received these
materials, these underlying materials that revealed these
findings after asking this Court to produce them. Dr. Meehan
at DNA Security, as the Court will probably remember, sent a
letter to Mr. Nifong and Mr. Nifong read to the Court that
essentially objected to the provision of those materials based
on financial concerns and privacy concerns. This Court
ordered disclosure of those records. When we analyzed those
records, we also found out that DNA Security performed testing
on a number of items that were nowhere elsewhere identified in
any way in any of the discovery materials: Not in evidence
logs from the Durham Police Department, not in evidence logs
from DNA Security, not in evidence logs from the State Bureau
of Investigation. Those include specific what appear to be
reference samples that are given names of people. That's also
cited in the motion. Part of our motion is to ask this Court
to clarify exactly who those people were and what those
evidentiary samples were and the results of those.
Another thing that's missing from the DNA Security
materials is what's commonly referred to in the parlance of
forensic laboratories as communication logs. In this case, we
received similar materials from the State Bureau of
Investigation lab that included telephone logs of
communications between the DNA section and anyone else
regarding any of the testing in this case. We received no
Page 14


such similar record from DNA Security. We are aware that
Dr. Meehan had at least three personal meetings with
Mr. Nifong and the lead investigators in this case. There are
no notes of those meetings at all. We are aware that
Dr. Meehan had conversations with State Bureau of
Investigation laboratory personnel. There are no notes of
those conversations.
So a part of this motion, as well, is to produce
from the file all logs of all communications, and that is the
subject not only of our previous motion; it's a subject of
this Court's order directing the lab to release its entire
file. So those are the significant main portions of this
motion. The prayer for relief, as we discussed previously in
chambers, dealt with the issue of us being able to talk to
Dr. Meehan under oath about these things. It is my
understanding that he is present here from Mr. Nifong's
representations and that that may be something that Mr. Nifong
wants to do in response to this motion.
THE COURT: Response by the state?
MR. NIFONG: Just very briefly, Your Honor. The
first that I heard of this particular situation was when I was
served with these reports -- this motion on Wednesday of this
week. And it was accompanied by a request from Mr. Bannon
that we deal with the matters today, if possible. The nature
of the subject matter contained in this motion is obviously
Page 15


very important. I contacted Dr. Meehan. First, I faxed him a
copy of the motion for him to read and then I contacted him
the next morning, which would have been yesterday morning, and
told him that because of the nature of the items that were
raised, I did feel it was appropriate to address these right
away.
And his initial feeling was that he might have
difficulty being prepared to do that today but he subsequently
called me back and said that he would be prepared to come and
submit to questioning under oath, which was one of the
alternate prayers for relief that the defendants made in this
case, which appears on item -- or on Page No. 16 of that
motion. And Dr. Meehan is here for that purpose today.
I would point out that on September 22, pursuant to a
motion that a joint or an omnibus motion for discovery in this
case, we dealt with the specific items that were requested.
Dr. Meehan had presented a letter to the Court through me that
gave an indication of how long it would take to provide these
records and the approximate cost in terms of man-hours. And
that was used, I believe, by the Court in determining how much
to pay for this.
I don't know whether any of these items that are
asked for today are items that they failed to include in their
initial request. But my understanding is that every item that
was included or that was listed in Item 36 of their motion was
Page 16
1
2


included. And we did turn over close to 1800 pages of
material in conjunction with that. Now, when Dr. Meehan
arrived today, he asked whether or not I had a specific file
that he had brought with him. And we checked through the
materials he provided. And it was not there. That was an
additional, I believe, 50 pages. And those 50 pages have been
provided to the defense this morning. They are pages that I
had not previously seen.
The initial report that the state received and the
initial report that was furnished to the defendants in this
case consisted of 11 or 12 pages. That was the extent of that
report. So obviously, the documentation, the underlying data
and the notes that were requested are substantially more
voluminous. They were received on October 27 by the defense.
The state agrees that these are matters of importance
to the case. They are items of importance because it's
crucial that everybody have access to all of the evidence in
this case. And for that reason, Dr. Meehan is present. My
understanding, based on our conference prior to coming into
court, was that the examination would be limited to the
matters raised in the motion, itself, and would not evolve
into a fishing expedition with respect to the meaning of
certain items. Dr. Meehan is present and my understanding is
that he is prepared to testify. It would be my intention to
call him to the stand and to ask that he be sworn. I would
Page 17


not have any questions of him. He is being tendered to the
defense for whatever examination they wish to give.
Dr. Meehan.
THE COURT: Is that satisfactory to the defense
at this time?
MR. BANNON: Yes, Your Honor.
MR. COONEY: It is, Your Honor.
THE COURT: The witness may come around and be
sworn.
Whereupon,
BRIAN WALTER MEEHAN, Ph.D.,
was called for examination by counsel for the State of
North Carolina, and having been duly sworn, was examined and
testified as follows:
THE COURT: If you would, take the stand. Let
me note the courtroom, being the typical, typically used as a
grand jury room, is not ideally set up for testimony. The
courtroom is, relatively speaking, very crowded. Generally,
we don't allow people to stand but I have discussed with the
sheriff that security seems okay with people standing. You
have not been disruptive and as long as it continues that way
and it's not interfering with court proceedings, I will allow
people to stand, as they've done without any hindrance so far.
I don't think there's a microphone to amplify your
voice there. I think there's a recording microphone available
Page 18


for some certain recording purposes, so I will ask you to keep
your voice up. And to begin with, if you will, state your
name, please.
THE WITNESS: Brian Walter Meehan.
THE COURT: And you are tendered by the state
for examination by defense attorneys.
MR. BANNON: Your Honor, I can't see Dr. Meehan.
Is there any way . . .
THE WITNESS: I can just move over here.
EXAMINATION
BY MR. BANNON:
Q.
Dr. Meehan, my name is Brad Bannon. I represent, I'm
one of the lawyers who represents Dave Evans, who's seated
right here. This is Joe Cheshire. He is Dave Evans' other
lawyer.
Seated over there in the blue tie is Collin Finnerty.
He's one of Dave's codefendants in this case. Seated a couple
of people down is Reade Seligmann, the young man who is
sitting a few people over from Dave.
I presume from Mr. Nifong that you've had an
opportunity to read the defendants' joint motion regarding
this DNA testing that was recently filed?
A.
Yes.
Q.
Have you had an opportunity to thoroughly review it?
A.
Not thoroughly. I've only had it for a little bit
Page 19


more than a day.
Q.
Okay. Well, I would first like to ask you, I would
like to direct your attention to what is essentially a group
of attachments in this motion. Do you have the motion up
there handy with you?
A.
I do have the motion but I don't have any
attachments.
MR. BANNON: Okay. Your Honor, may I approach?
THE COURT: Yes, sir.
MR. BANNON: It's just the attachments.
(DEFENDANTS' EXHIBIT NO. 1 IS MARKED.)
BY MR. BANNON:
Q.
Dr. Meehan, I'm handing you what's been marked as
Defendants' Exhibit No. 1. That is a clipped group of
documents, the first of which says Attachment 1. Have you
been able to look at any of those attachments at all before
this morning?
A.
No. You just handed them to me.
Q.
Okay. But so you haven't seen them at all either
yesterday or this morning?
A.
No.
Q.
Well, what I -- you have had the opportunity, I
presume, to read in the motion, if I could direct your
attention to page 5. And let me know when you get there, sir.
A.
I'm there.
Page 20


Q.
Page 5, paragraph 18. Does that paragraph accurately
reflect the testing that was done on those particular items in
this case?
A.
I have to read it. No.
Q.
It does not --
A.
I don't think it does, on the surface. Now, again, I
haven't had a chance to go back and review this in the file.
But unless I'm reading it incorrectly, it says that DNA from
multiple male sources was discovered on the rectal swabs,
panties in the rape kit. And if that's read to mean that each
one of those specimens had DNA from multiple males, it would
be incorrect. If it's read to mean that some of those
specimens, not all those specimens, had DNA that could be from
male, a single male source, then it is correct.
Q.
Okay. Well, let me direct your attention to what is
Attachment No. 3 for you.
A.
I'm there.
Q.
Does that appear to be an electropherogram of DNA
testing done on Item No. 15780 by your laboratory?
A.
Yes.
Q.
Does that electropherogram appear to reflect that
there was male DNA found on that item?
A.
Yes.
Q.
Does that electropherogram appear to reflect that
there was more than one male's DNA on that item?
Page 21


A.
Yes.
Q.
Does that electropherogram reflect that that male
DNA, those male DNA characteristics do not match 15719 to
15764?
A.
Yes.
Q.
And isn't it true that 15719 to 15764 are the
reference sample swabs for all of the 2006 Duke University
men's lacrosse team players that were tested by your
laboratory?
A.
I'd have to go back and look at the numbers. I'll
accept that if you've already checked that. There may be some
additional ones.
Q.
Let me ask you to turn to what is Exhibit No. 10 in
your report.
MR. NIFONG: Objection to this.
MR. BANNON: Or I'm sorry. Attachment No. 10.
MR. NIFONG: There again, I mean, Your Honor,
I'm not sure if he was allowed to finish the answer to the
previous question. I mean, it seemed to me that he was
expanding, attempting to expand on his answer and then he
asked a different question.
THE COURT: Were you still answering?
THE WITNESS: I don't even remember the
question.
BY MR. BANNON:
Page 22


Q.
I'm sorry. The question was were Item 15719 through
Item 15764 the reference swabs for the 2006 Duke lacrosse
team?
A.
Right. Okay. I recall that one. I was, I was just
cautioning that I believe I received one reference specimen
later on. And it may not be encompassed in 719 through 764.
Now, I haven't gone back and checked all the numbers. Maybe
it is in that group. But it may not have been. So if your
question really is related to does that include all of the
players on the lacrosse team that was tested, I can't say for
sure or not if they're all included in that group of numbers.
Q.
Okay. Is that the conclusion of your response to
that question?
A.
Sure.
Q.
Okay. If I could ask you to return to Attachment
No. 10 in that bundle that I gave you in Defendants' Exhibit
No. 1.
A.
I'm there.
Q.
If I could ask you -- well, first of all, what does
that appear to be?
A.
That appears to be the report that we issued on
May 12.
Q.
The final report of your work in this case?
A.
It's the report we issued on May 12.
Q.
Well, have you issued any other report in this case?
Page 23


A.
No.
THE WITNESS: Could I get a drink of water,
Mike?
MR. NIFONG: Yes, sir.
THE WITNESS: I might point out that the reason
I said it is the report is because -- and I did see in the
motion that this was included in the motion but not all of it.
On, under results for DNA analysis, and I think this gets to
the meat of what you're after.
MR. BANNON: Actually, Your Honor, I'd just like
to stick with the meat of what I'm after right now.
THE COURT: Overruled. I'll allow you to
complete your answer.
THE WITNESS: You'll allow me?
THE COURT: Yes, sir.
THE WITNESS: Okay. Was the implication that we
didn't release all the results in the final report or more so,
that we withheld information purposely for some reason unknown
to me. And it is true that we did not release the full
profiles of all the players in this case. And I did that
after discussions with Mike Nifong because of concerns about
getting those profiles out into the public media.
I think a good example of why I was concerned about
that is that I actually received this motion not from Mike
Nifong first but a couple hours prior to that from somebody in
Page 24


the press. If my son was distantly related to a possible
crime and his DNA profile was collected for some reason, I may
not want that in the national press.
So on this report that's indicated by this sentence,
Individual DNA profiles from nonprobative evidence specimens
and suspect reference specimens are being retained, not
withheld, retained at DSI pending notification of the client.
Now, had the client himself, Mr. Nifong, or through
him, you, would request that additional information, we would
gladly supply it. And then it goes on to say what you did
include in your motion, that three of the reference specimens
are consistent with DNA profiles obtained from some evidence
items and the analysis of these specimens is below.
So that, this is not what I would consider a final
conclusive report of the case. This is the report issued on
May 12 with that underlying caveat, okay. That's the end.
Q.
Is that --
A.
I'm finished.
Q.
Okay. Directing your attention to, again,
Attachment 10 to Defendants' Exhibit No. 1, then that appears
to be your final -- excuse me, a report that you issued in
this case, correct?
A.
Yes, it is.
Q.
The only report you issued in this case?
A.
Yes.
Page 25


Q.
Okay. If I could direct your attention to their
numbers at the bottom right-hand corner of that page, if I
could direct your attention to Page No. 125 . . .
A.
I'm there.
Q.
Item No. 15719 is listed, is the beginning of a
series of reference specimens; is that correct?
A.
That's correct.
Q.
That series begins with Michael S. Young, correct?
A.
Correct.
Q.
If you go down about five lines, you find Item
No. 15723. That is a reference specimen for David Evans; is
that correct?
A.
Correct.
Q.
And then if you carry on down to Item No. 15725, that
is a reference specimen for Reade Seligmann, isn't it?
A.
That's correct.
Q.
And if you flip over to the next page, you go down to
Item No. 15758, that's a reference specimen for Collin
Finnerty, isn't it?
A.
Yes.
Q.
Then if you go down to Item No. 15764, that is a
reference specimen for someone named Ned Crotty; is that
correct?
A.
Correct.
Q.
And then the next reference specimen, which is 15765,
Page 26


is a known blood sample from Crystal Mangum, correct?
A.
Correct.
Q.
So if we could flip back to the initial attachment
that I was talking to you about, which is the
electropherogram, I believe, for Item 15780 . . . Just let me
know when you get there.
A.
I'm there.
Q.
Okay. That series that says, Does not match 15719
to 15764 includes the reference specimens for the defendants
in this case, correct?
A.
That's correct.
Q.
It, in fact, includes every person in that series
except the last item; is that correct? Except Crystal
Mangum's known blood sample?
A.
That's correct.
Q.
And that item, 15780, contains on it what I believe
you characterized as multiple male DNA characteristics; is
that correct?
A.
That's correct.
Q.
So of the multiple male DNA characteristics that were
found on this particular item tested by your lab, none of them
were the defendants in this case; is that correct?
A.
That's correct.
Q.
And that is the stain from the panties that were
taken from the rape kit; is that correct?
Page 27


27
A.
Yes, it is.
Q.
Now I'm going to direct your attention --
A.
Oh, yes. It is.
Q.
I'm sorry?
A.
I just had, I was checking the number to make sure it
was correct.
Q.
Now I'm going to direct your attention, and you may
see a theme develop here, to Item No. 15767.
MR. NIFONG: Could you give a page reference?
MR. BANNON: Oh, I'm sorry. It's Attachment 4
on Defendant's Exhibit No. 1. And it's, the bottom right-hand
corner is 3053.
THE WITNESS: I've got it.
BY MR. BANNON:
Q.
That is a DNA, a Y chromosome DNA profile lifted from
Item No. 15767 from your laboratory; is that correct?
A.
Well, I wouldn't, this is not classified as a
profile. Your term of "Y DNA characteristics" is more
appropriate than "profile" because if you notice, much of the
fragments are missing, so we would not report this as a
profile. But it is characteristic; it does indicate that
there's Y DNA there. But it's not a profile.
Q.
So it's your position that if your lab does not find
characteristics at a particular locus, you won't report it as
a finding?
Page 28


A.
No. We're not that general in our characteristics,
our criteria. If we have 16 loci, each one of these
individual markers we consider a locus. If we are looking for
16 and we might find 15 instead of 16, based on the
statistical parameters of those 15, it could qualify as a
profile.
For example, we look at -- and this is not an example
of Y-filer but I think the example can be understood. We look
at with normal STR 16 different locations. The CODIS, the
infamous CODIS file database, uses only 13. So the fact that
we look at 16 doesn't mean that it has to be 16 all the time
to be a profile.
Q.
Okay. So you can see male DNA characteristics on an
evidentiary item that don't necessarily generate an entire
profile --
A.
That's correct.
Q.
-- a DNA profile?
A.
And this would be a great example of that. This is,
has only approximately half of the character, half of the loci
that we would want to see. And it is statistically very weak.
Q.
Okay. So the thing that you can, the only real thing
you can say with certainty about this particular
electropherogram is that there's male DNA there?
A.
That's correct.
Q.
Okay. Does it appear to you that there is male DNA
Page 29


from more than one person on that particular --
A.
Yes.
Q.
-- item? And I direct your attention to the top line
that says, Does not match. And then it lists a number of
items there.
A.
Right.
Q.
I see that missing from that list of items are the,
is a reference on, it was on the previous example, to the
series involving the reference samples that we talked about.
Is that the way you see it?
A.
Yeah. I don't see that on there, either.
Q.
Going back to the language that you described earlier
in the answer to a question of mine, is it fair to
characterize what you reported in the May 12 report as
follows -- and I'm just going to say it and if it's wrong,
please correct me. But wherever you were able to identify
male DNA characteristics on a particular evidentiary item and
where those particular characteristics in your estimation were
consistent with one of the reference samples, that is what you
reported in terms of your evidentiary analysis on the May 12
report; is that correct?
A.
That's correct.
Q.
Okay. So in other words, if you did not put in your
May 12 report that this particular item was consistent with
any of that series of reference samples, by definition, that
Page 30


means they didn't match, correct?
A.
That could be true. This probably would not have
made a report because it's not a full profile, either.
Q.
Well --
A.
But if it were a full profile and did not match any
of the evidentiary -- any of the reference specimens, our
client, Mr. Nifong, specifically wanted us to, he wanted to
know does any, do any of the reference specimens match any of
the evidence. And that's the report that we gave him. So in
that case, if this were a full profile and it did not match
any of the reference specimens, it would not have been in that
report.
Q.
Well, let me --
A.
But I'm not, you get my -- in other words, what I'm
saying is this may not have even been, made it, anyway.
Q.
Of course, is it not fair to say --
MR. NIFONG: Your Honor, I'm going to object to
his interrupting the answer.
MR. BANNON: I apologize, Your Honor.
THE WITNESS: It's okay. Go ahead. Go ahead.
I think I was finished.
BY MR. BANNON:
Q.
I get conversational; I apologize.
A.
We're even.
Q.
The language at the top, Does not match, reflects, of
Page 31


course, that technicians compare these DNA characteristics --
A.
Sure.
Q.
-- against reference samples?
A.
Right.
(Interruption by the court reporter.)
THE COURT: This is the way I'll direct it: Ask
a question, pause before you start answering to be sure the
question is completed. Pause before you ask the next question
to be sure the answer is completed.
MR. BANNON: Thank you, Your Honor. I apologize
for that. I'm not even sure what I was saying.
BY MR. BANNON:
Q.
I was just asking if somebody --
(Interruption)
THE COURT: Hold on. I'll stop right now. If
anybody has a cell phone or other kind of electronic thing
that's going to make some noise, put it on silent. Stop and
do it right now. Even if it makes noise to put it on silent,
do it right now. This is a moratorium right now. I've
already checked mine. Try again.
MR. BANNON: Thank you, Your Honor.
BY MR. BANNON:
Q.
I think what I had been asking was that the,
essentially, that the top language, that it does not match,
indicates that lab technicians at DNA Security compared the
Page 32


characteristics, not necessarily a full profile but the
characteristics to the reference sample and concluded there
wasn't a match?
A.
That's normal procedure, yes.
Q.
Okay. Now I'm going to direct your attention to the
next item that is in Paragraph No. 18, which actually flips
over onto page 6, which is Item No. 15776. And that is in the
attachment, Attachment 5. The bottom right-hand corner is
3056. Are you there, sir?
A.
Yes. I'm sorry. I am.
Q.
Item No. 15776 is the sperm fraction from a rectal
swab that was tested by DNA Security; is that correct?
A.
That's correct.
Q.
The profile -- I'm sorry. I apologize. The
electropherogram that you're looking at right there reflects,
does it not, the existence of at least some male DNA
characteristics on that reference?
A.
That's correct.
Q.
Does it reflect the existence of more than one male
DNA characteristic?
A.
No.
Q.
Okay.
A.
And that's the point I was making earlier, that there
are some that don't have more than one.
Q.
So this is one of the items that you were only, that
Page 33


you only generated one, necessarily one male's DNA
characteristics on this item?
A.
Well, we didn't generate the male DNA on the item but
we only found characteristics from possibly one male on this
item. And I'll also point out that this is another good
example of what we would not report this profile. This report
would not be seen on any report. If you look at some of,
even some -- this is -- what we're talking about for these,
these electropherograms is DNA that you would have a hard time
relating to. It's DNA that would be present in maybe just
one, perhaps two cells. It's very small quantity, very hard
to characterize. And here, we were not even able to
characterize what we have. Do you see a number of these have
an OL designation?
Q.
Yes, sir.
A.
That means there's something there. There's
something there but we can't identify what it is. It's not
consistent with what we'd expect to see, okay. So this is an
exceptionally weak profile but it is something. It could be
possibly male DNA there.
Q.
Of course, I do see an OL, though, but if I can
direct your attention to the locus at DYS-456, that's an
allele that's been identified, correct?
A.
Yes.
Q.
Same with the next locus, which is DYS-3899. That's
Page 34


a locus that's been identified; is that correct?
A.
That's correct.
Q.
Go a couple over, DYS-38911. That's a locus that's
been identified, correct?
A.
Correct.
Q.
You go down a couple graphs, the locus at DYS-439,
that's an allele that's been identified, correct?
A.
Correct.
Q.
If you go to DYS-635, that's a locus that's been
identified, correct?
A.
That's correct.
Q.
And you or someone in your lab compared those
characteristics to all of the reference samples in this case,
correct?
A.
That's correct.
Q.
And your lab concluded that they did not match any of
the reference samples?
A.
The technician that did that did conclude that, yes.
Q.
And that included the defendants?
A.
Yes.
Q.
Okay. Now, if I could direct your attention to what
is Attachment No. 6, bottom of the right-hand corner,
page 3057 . . .
A.
I'm there.
Q.
Does that appear to be a reference -- or, excuse me,
Page 35


an electropherogram for reference or for Item No. 15777?
A.
Yes.
Q.
And that is, according to your lab's evidence log, a
stain from the panties from the rape kit, correct?
A.
Yes, that's correct.
Q.
Okay. That electropherogram appears to show alleles
at all 16 YSTR loci; is that correct?
A.
That's correct.
Q.
So essentially, there were male DNA characteristics
found at every single locus in that profile?
A.
That's correct.
Q.
And those male characteristics -- if I'm not correct,
please tell me if I'm not -- indicate that there's more than
one male's DNA there; is that correct?
A.
That's correct.
Q.
And all of those DNA characteristics were compared to
all of the reference suspects' swabs in this case; is that
correct?
A.
That is also correct.
Q.
And there was not a match to anyone; is that correct?
A.
Yes, that is correct.
Q.
Including the defendants?
A.
Right, that's correct. Didn't match anyone.
Q.
Okay. I'm going to direct your attention to the next
page -- or, excuse me, to the next attachment which is
Page 36


Attachment No. 7. Attachment No. 7, does that appear to be
the electropherogram for Item No. 15778?
A.
Yes.
Q.
Does that appear -- and that's, of course, according
to your lab's evidence log, another section stain from the
panties from the rape kit; is that correct?
A.
Yes, that's correct.
Q.
And does that electropherogram appear to show male
DNA characteristics identified on that item?
A.
Yes.
Q.
Does it, in fact, appear to show multiple male DNA
characteristics generated from that item?
A.
Yes.
Q.
Does it also appear to show that those
characteristics do not match any of the reference samples
submitted in this particular case?
A.
Yes.
Q.
Including the defendants in this case?
A.
Yes.
Q.
Now I'd like to direct your attention to the motion
that's in front of you, page 8, Paragraph No. 26. Please let
me know when you get there, sir.
A.
I'm there.
Q.
This paragraph, if I'm correct, has to do with
testing -- well, first of all, your lab, according to your
Page 37


report, received what is a pubic, pubic hair comb from the
rape kit; is that correct?
A.
That's correct.
Q.
And you did four swabbings on that pubic hair comb?
A.
I'd have to look it up. We did some swabbings.
Q.
If I can, just so we can clarify the issue, if you
can go to your report, which is Attachment No. 10, the bottom
right-hand corner, page number 125.
A.
I'm there.
Q.
Did it appear to you that Item Nos. 15815 through
15818 are separate swabbings and separate sections of the
pubic hair comb?
A.
Yes.
Q.
Specifically, Item No. 15816 is a swabbing
Section II, correct?
A.
That's correct.
Q.
Now, if I could take you back to the previous page we
were talking about, which is Attachment No. 8 . . . And the
bottom right-hand corner page is 3383.
A.
Okay. I'm there.
Q.
Does that appear to be an autosomal DNA
electropherogram for Item No. 15816?
A.
Yes.
Q.
Autosomal is different than Y chromosome testing,
correct?
Page 38


A.
Yes.
Q.
Autosomal can identify both male and female DNA
characteristics; is that correct?
A.
Yes.
Q.
Does this particular autosomal profile appear -- I'm
sorry. The characteristics listed on this particular
autosomal electropherogram appear to reflect the existence of
more than one contributor to this profile?
A.
Yes.
Q.
And that is for Section II of the pubic hair comb; is
that correct?
A.
What page is the report on again?
Q.
It's 3383 is the bottom right-hand corner.
A.
No, no. The report that says whether or not this --
Q.
Oh, I'm sorry. That is your report at Page No. 125.
A.
Yes, Section II of the comb.
Q.
Okay. And in fact, there are notes at the top of
that electropherogram written by someone in your lab that
says, Section II of comb.
A.
That's correct.
Q.
Correct. And a couple lines above that are notes
written by the lab reflecting that these were compared to the
reference samples 15719 to 15764 and that none of these DNA
characteristics matched?
A.
That's correct.
Page 39


Q.
That's correct. And that includes the defendants in
this case?
A.
That's correct.
Q.
I'm going to ask you, if you can, to flip over to
Attachment 9, which is 3387, bottom right-hand corner.
A.
I'm there.
Q.
That appears to be a Y chromosome electropherogram
from the same item, Section II of the comb; is that correct?
A.
That's correct.
Q.
And does it reflect male DNA characteristics on that
item?
A.
Yes.
Q.
In fact, does it, does it indicate multiple male DNA
characteristics on that item?
A.
Yes.
Q.
And at the top, are there not handwritten notes that
reflect that your lab compared those to the reference samples
15719 to 15764 and there was not a match?
A.
That's correct.
Q.
And that includes the defendants in this case, does
it not?
A.
Yes. That's correct.
Q.
Now, a few moments ago, you were talking about what
Mr. Nifong asked you to report in this case. I believe --
well, actually, why don't you clarify that. When you were
Page 40


asked to do testing in this case, can you tell me exactly what
you were asked to report in this particular case?
A.
Well, I can, I can paraphrase as I remember the
conversation.
Q.
Please.
A.
That we were asked to look at the items submitted to
us, see if we can obtain any male DNA. That was the first
thing that we were asked to do. When we determined that we
could identify some male DNA characteristics, I think it was
some time after that that Mr. Nifong began submitting the
reference specimens from the people in this case. And we were
asked to determine if any of the evidence items match any of
the reference specimens or really, can we exclude any of these
reference? Who can we exclude in this reference group?
That's what we do. We exclude suspects. That's the best way
to approach this work. And that's what we were asked to do,
to find out if we can exclude everybody or offer anybody
match.
Q.
Did every item that we just talked about exclude the
defendants in this case as a contributor to the DNA
characteristics?
A.
Yes.
Q.
If your lab is about the first thing you do excluding
reference samples, why did you not put in your report that you
uncovered male DNA characteristics on multiple rape kit items
Page 41


that excluded these defendants as the contributor?
A.
Well, I tried to explain that earlier. The reason
was because if we, we did not -- we were trying to do what we
thought was the right thing to do was minimize the exposure of
the rest of the players. It would have meant that we produced
profiles and names of all of those people.
Now -- and that's what we gave you today that was in
there. That's the reason why it wasn't included in that
report. All we did was show a report on what we could match
to the evidence items.
Q.
When you first met with or spoke to anybody about
this case, what were you told about this case?
A.
The first conversation I had with the case was with,
with a detective, I believe. And she, I think it was a she,
she just wanted to know if we could do Y chromosome DNA.
Q.
Okay. Were you told anything about this case,
anything about the facts of this case? I mean, did you even
know --
A.
No.
Q.
-- what kind of case it was?
A.
Well, it was in the news. Of course, we heard about
it in the news. But in that conversation, there was nothing
discussed about the facts of the case.
Q.
So you read the news and you read news coverage and
saw news coverage of this case?
Page 42


A.
I'm sure I did.
Q.
Was it explained to you that this was a rape case?
A.
I don't know if it was explicitly explained in that
conversation but I think the case was known. There was a
reference, you know. It said, you know, this case, this Duke
lacrosse case. So, you know, it was explicitly implied, of
course, that it's a rape case.
Q.
Do you remember your meeting with Mr. Nifong and
Investigator Himan and Sgt. Gottlieb on April 10? It would
have been the first day you met with them.
A.
I remember the meeting.
Q.
Do you remember whether you were told at that time
anything about the details of this case?
A.
I'm not sure what you mean by details. But at that
meeting, we discussed, I think at that first meeting, we
discussed our initial findings, the veracity of these
profiles, whether or not they're good profiles or weak
profiles. And I think I made a special point with Mr. Nifong
and the other people there that these were pretty weak. And
but other details of the case, I don't believe we discussed.
Q.
And by these, you mean the reference -- or the
evidentiary items we just discussed?
A.
That's correct.
Q.
So in that particular meeting on April 10, you told
Mr. Nifong and Investigator Himan and Sgt. Gottlieb that you
Page 43


had uncovered male DNA characteristics on these items but that
it was pretty weak?
A.
That's correct.
Q.
Then also told them that it didn't match any of the
reference swabs?
A.
I don't know if we had done all the reference swabs
by that date or not.
Q.
Well --
A.
I don't have, I don't have --
Q.
-- is it fair --
A.
-- I don't have notes of that meeting --
Q.
Okay.
A.
-- so I, if you're asking me specific questions of
what was said exactly at that meeting, I'm not sure if we
discussed those reference specimens at that meeting or not.
Q.
So you're not certain whether you discussed the
findings regarding the testing in that meeting or not?
A.
I believe we discussed the initial findings of the
results but the details of what we discussed in those
findings, like, did we discuss the comparison of every
reference specimen, I don't know.
Q.
But it's fair to say that you, that you, you can't
either match or not match something unless you've compared it.
That's correct; true? In other words --
A.
Yeah, of course, right.
Page 44


Q.
-- if there are notes reflecting -- yeah, I can ask
this a little bit better. If there are notes reflecting that
something does not match something, you've conducted a
comparison at that time; is that correct?
A.
That's correct.
Q.
And by the way, did Investigator Soucie accurately
report that when she had her initial conversations with you
about your testing in this case that you actually called her
back and said that you could work with the state in pricing
because you really wanted to be involved in this case?
A.
I don't think that that's accurate. I don't remember
the conversation like that. But I don't, I can't deny or, you
know, it was a long time ago. I doubt that we said it like
that. Or maybe it was even someone else in my company that
talked to her. I do remember that there was a concern about
pricing because of the volume of specimens. That concern was
expressed by somebody on, either Det. Soucie or Mr. Nifong,
you know, his staff. And they wanted to know how much it
would cost, how much would it cost to do all this work. DNA
testing is not cheap. And so we gave them a price.
And when we price work for large-volume companies or
police departments, they get a different price than onesies
and twosies. It's just like anything else that you do. So
I'm sure we probably did say that we can adjust our price down
because this is a large-volume case and there will be savings
Page 45


45
there. But exactly the words that we used, I don't know.
Q.
Why did you want to adjust your prices in this
particular case?
A.
I don't want to, okay. The customer wants me to.
Q.
Why did you adjust your prices in this case?
A.
Because we're a business. It's a high-volume case
and that's the business we're in. You know, if you go buy
25 pairs of shoes, the person you buy them from is probably
you could say, well, you know, I'd like a, you know, a
20 percent discount on those 25 pairs of shoes. And you're
likely, if you're a shoe salesman, to give them that discount.
Same thing.
Q.
Because by reducing the price but increasing the
volume, you make more money?
A.
Sure.
Q.
Okay. There was another meeting that you had with
Mr. Nifong and Investigator Himan and Sgt. Gottlieb around
April 20 or 21. Mr. Nifong has in court previously said you
discussed the results of these tests at that point in time.
Do you recall anything about that meeting?
A.
Well, it's like I said, I don't have notes on
specific meetings. If you've gotten notes from Mr. Nifong
that he kept at the meeting and gave them to you, then that's
when the meeting occurred. And I'm sure the only time I ever
met with him was to talk about this case.
Page 46


Q.
Are you saying that you have no recollection of that
meeting?
A.
No. What I'm saying is I met with Mr. Nifong on a
few occasions. If you're asking me if I met with him on that
date, I couldn't tell you specifically I met with him on that
date.
Q.
Is it fair to say that when you met with Mr. Nifong
that you had, you were discussing with him the results of
these tests sort of contemporaneously as they were ongoing?
In other words, whatever had been done by your laboratory up
to this meeting, you talked about that; whatever happened up
to this meeting --
A.
That's fair. We do that with all of our customers.
Q.
And it's correct, isn't it, as the motion states,
that the testing that had been done on these rape kit items
that we just talked about was done around April 8 or 9; is
that correct?
A.
That's correct.
Q.
And that the matches and the exclusions were analyzed
on April 8 or 9; is that correct?
A.
Around that period of time, right, April 9 onward.
Q.
So it would be reasonable to assume that if you met
with Mr. Nifong on April 10, you would have discussed the
results of those analyses at that point in time, correct?
A.
I think that's a good assumption.
Page 47


Hearing Date:
12/15/06
47
Q.
And if, for example, between April 10 and April 17 or
18, you had done additional testing, for instance, of
Section II of the pubic hair comb, it's fair to say that you
would have discussed the results of those tests, including
that, at that particular meeting?
A.
That's correct. Whatever we did prior to the meeting
we probably discussed at the meeting.
Q.
Now, I want to direct your attention to another item
that's in this motion. It is at, if you go to Paragraph
No. 41, it's on page 12 of this motion.
A.
I'm there.
Q.
That references the DNA extraction worksheet that I
have -- excuse me, that we have attached to this motion as
Attachment No. 12. The bottom right-hand corner number is
3530.
A.
What's the number in the corner?
Q.
It's 3530.
A.
I can't find any 35 ending numbers.
Q.
Attachment --
A.
Three-three, you mean? Attachment 10?
Q.
Attachment 12 should be bottom right-hand corner,
3530.
A.
I found it, okay.
Q.
Does that appear to be a DNA worksheet extraction
number?
Page 48


A.
It's a DNA worksheet.
Q.
Okay. And it's labeled at the top, Extraction
Worksheet Number?
A.
That's correct. It's actually extraction worksheet
and then the number.
Q.
Okay. And that appears to list several items of,
several items from your lab that extraction for DNA was done
on, correct?
A.
That's correct.
Q.
16062 is an item that is listed there, correct?
A.
That's correct.
Q.
And the name next to that is Brent comma E; is that
correct?
A.
That's correct.
Q.
Do you know who Brent comma E is?
A.
No, I haven't the foggiest notion.
Q.
Item No. 16074-C beneath that is Bobby comma; is that
correct?
A.
That's correct.
Q.
Do you know who that is?
A.
No.
Q.
Item No. 16075-C has the name Owen comma next to it.
Do you know who that is?
A.
No, I don't.
Q.
Would it surprise you to know that there is no
Page 49


identification or intake sheet in any of the materials your
lab provided to us to identify who Bobby and Owen are?
A.
Okay.
MR. NIFONG: Objection as to whether or not it
would surprise him or not.
THE COURT: Sustained as to the form of the
question.
MR. BANNON: I'm sorry.
BY MR. BANNON:
Q.
Is it unusual for the materials provided regarding
your testing in this case to not include any identifying
information about item numbers?
A.
I really -- you lost me on that question.
Q.
Okay. I'll try to be a little bit simpler. Should
the items your lab provided to us about all of your testing in
this case have provided identification of who these particular
people are?
A.
Only if they're a part of this case.
Q.
Are you saying that you tested other items that are
part of another case in conjunction with this case?
A.
You mean at the same time on the same worksheet?
Q.
Yes, sir.
A.
Yes.
Q.
So it is the custom and practice of DNA Security to
intermingle case items when you're doing DNA extraction work?
Page 50


50
A.
No. We don't intermingle the items but we
intermingle them on the worksheet.
Q.
Okay. So you would have performed these extractions
on separate dates?
A.
No. All these extractions occurred on 7/12.
Q.
So it is, if there appear to be numerous numbers, if
there appear to be numerous items throughout the materials
that we received on extraction worksheets and PCR worksheets
that aren't otherwise identified in the materials you've
provided to us, is it fair to say those are items from another
case?
A.
I think that's fair to say.
Q.
Do you keep communication logs at DNA Security?
A.
No.
Q.
You don't?
A.
No.
Q.
Whenever you have a meeting with somebody about the
testing you're doing, you don't keep notes of that?
A.
There are some meetings we keep a note of and we note
that on our paperwork in our case but we don't necessarily
keep notes at every meeting, no.
Q.
So if you had any meetings in this case, it would be
noted in the paperwork you provided to us back in October?
A.
If we kept any notes of the meetings, it would be in
there, yes.
Page 51


Q.
Well, let me make sure we understand it correctly
because I thought you said if you had a meeting at all, you
kept a log of that meeting?
A.
No. I said we don't keep logs.
Q.
You don't. Okay. What about telephone conversations
about this case? Do you keep logs of telephone conversations
about cases you work on?
A.
No, we don't.
Q.
Do you ever, for instance, in your agencies e-mail
each other about cases you're working on?
A.
You mean from our agency to another agency? When you
say, in our agencies . . .
Q.
Sure.
A.
We only have one company.
Q.
Sure. Or within, internally, within your agency. In
other words, whatever, one lab technician e-mail another, I've
done this or --
A.
Sure, we do that, yeah.
Q.
And, of course, getting to what you just said, do you
ever e-mail people outside of your agency about testing you
might do, like clients --
A.
Sure.
Q.
-- or others that you consult about these things?
A.
Yes.
Q.
Did you have any such communications in this
Page 52


particular case either with someone outside your agency or
internally?
A.
Did I send any e-mails to anybody?
Q.
Yes.
A.
I don't think that I exchanged e-mails with anybody
in this case, meaning, really, our client, Mr. Nifong, or his
staff. And I doubt that I e-mailed anybody internally.
Q.
If you had e-mailed anyone internally, would those
have been materials that you provided to us when you provided
your entire case file?
A.
Only if that e-mail was something that whoever sent
it or received the e-mail felt it was important to the case
and made it a record in the case. In other words, they would
have had to have printed it out and included it in the case
file. And that happens sometimes.
Q.
Does it also happen sometimes that a person might
send an e-mail or a communication about a case that for
whatever reason they don't put inside what you're
characterizing as your file?
A.
Sure. We could get an e-mail that says, I would like
to have my results by next Wednesday. Or, you know, How is
everything going? Are you having any problems with our
specimens? And one of our analysts would just e-mail them
back and say everything's fine.
Q.
Okay. And where are those e-mails kept?
Page 53


A.
We don't, we don't catalogue them or do anything to
keep them. If the individual analysts have saved them on
their computers, that's where they would be. Or if I had
saved them on my computer, that's where they would still be.
Q.
Direct your attention to, for a moment, to the issue
of the YSTR database. If you've read this motion, you know
that one of the things that we've requested is the database
that I believe you, your lab used to make the three
conclusions with respect to what you reported on May 12. You
tried to get that database, didn't you?
A.
I asked for it for our purposes. It was before your
request for it. I asked to have access to that raw data in
the database to conduct the analysis, yes.
Q.
Why did you ask for that database?
A.
Well, because Y, Y profile testing is new. It's
fairly recent and the databases are basically under
construction. And ABI has one of the best or -- and we
characterize them as best by being large, one of the largest
databases for Y profiling.
Now, one of the things about Y-filer or Y DNA testing
is new, what's new on top of that is Y mixtures, more than one
Y person, more than one person contributing to that mixture
profile. It becomes difficult. Not difficult. Cumbersome to
analyze. In order to properly analyze it, I wanted to take
the raw database of 3000 -- and I don't know if it's 3800 or
Page 54


3300 individuals -- randomize our mixture profile and then go
to those 3000 and something individuals and find out how many
out of a randomized Y mixture people I would find match that,
because the real question is if you have somebody, whoever
that might be, if Mr. Nifong matched, if his Y profile matched
a mixture, well, how many other people might match that
mixture. And the only way to do that was to go find the
largest database available to me and scour that database for
all those possible combinations.
To do that, I needed their raw data. At least, I
thought I needed their raw data. It turned out -- and it
would have been easier to do it with their raw data. But what
I had to do since they wouldn't release that to me is I had to
randomize that Y profile mixture and then do multiple
electronic searches of that data, which took hours to do but
we were able to do it. It would have been cleaner had I had
the raw data to work with.
Q.
And are those materials that you just talked about
the, what appear to be the databases that are provided in
these materials? Would you have --
A.
No --
Q.
-- printed out those items?
A.
Oh, oh, the, what's, the data, some of the data in
here, it's, this data that looks like -- do you have any idea
what page I'm looking at?
Page 55


Q.
I'm pretty sure but why don't you tell me.
A.
Well, they're not numbered but it would be under
fingernail mixture comparisons. Do you have those tabs? I
tell you what, why don't you just look at this and then you'll
know what you're looking for.
Q.
Interestingly, I do have those tabs.
A.
Okay.
MR. BANNON: Can I just approach with this
notebook, Your Honor, and see if we're talking about the same
thing?
BY MR. BANNON:
Q.
If you can tell me what you're referring to.
A.
These, these, these databases are the databases of
the possible Y profiles that can be generated from a mixture.
It's not the raw data from ABI. But this, these are all the
possible what we call haplotypes that can be generated from
these loci in the mixture.
Q.
Okay. But it was the raw data from ABI that you
needed and that took you hours to analyze in order to make
your conclusions in this case; is that correct?
A.
That's correct.
Q.
Where is that raw data in the materials that you
provided to us?
A.
Well, I explained. ABI has that data and they
wouldn't give it to us.
Page 56


Q.
Then how did you analyze it and make your
conclusions?
A.
Well, I went through that, also. We electronically
uploaded that data that I just showed you.
Q.
Okay.
A.
I had to batch that and electronically upload it to
their system and conduct the search. And that's a standard
procedure on a onesie and twosie, all right. There aren't a
lot of companies that run Y-filer testing, as we know. And
accumulating the database, Y-filer databases need to be
inherently larger than typical autosomal databases. So
companies like ABI collect data and they create databases for
us to utilize.
On a one single case on a simple profile, we
electronically load that one profile up and it searches that
database to find out if it's ever been seen before or what the
frequency of that database -- that profile might be in their
database.
Q.
In the particular Y database that was used in this
case, was -- how many people were in that database? How many
males?
A.
You know, that first page that you brought up here
and showed me, I think it says right on the bottom of that
page. How many males -- well, they're all males. It's a
Y-filer database.
Page 57


Q.
True. And how many were in --
A.
Well, it says so right on the bottom of that page.
It's 3800 or 3500. I'm not sure.
Q.
And that's the database that you used to make the
conclusion about your Y chromosome testing that you reported
on May 12, correct?
A.
That's correct. So that database can only be had
from ABI. I cannot do anything to assist you in getting that
database. There's nothing I can do there.
Q.
Now, I want to direct your attention back to
Paragraph No. 32 of this motion.
THE COURT: Why don't I stop you now and take a
morning recess. People seem to be moving around a little bit.
It's 11:22 by that clock. We will take a recess until 11:40
by that clock. 11:40.
(Recess from 11:21 a.m. until 11:37 a.m.)
THE COURT: You may continue.
MR. BANNON: Thank you, Your Honor.
BY MR. BANNON:
Q.
Dr. Meehan, I want to return just real briefly to an
issue we've discussed a couple different times earlier, and
that is the issue of matching and no matching. Is it fair to
say that once you determine that something does not match,
that's an exclusive determination? It either matches or it
does not match, correct?
Page 58


A.
That's correct.
Q.
And if it matches, then you can make determinations
about how strong or weak that particular match might be?
A.
That's correct.
Q.
But there's no such thing as a weak no match. There
is no such thing as a weak conclusion --
A.
Right.
Q.
-- I guess is a better way to say it.
A.
Either you're excluded or you're not.
Q.
Right. Okay. Now, if I can direct your attention
back to your lab report, which is Attachment 10, if you'll go
to page 124.
A.
I'm there.
Q.
It reflects that Item No. 15775 is a sperm fraction
of a vaginal swab from the sexual assault kit, correct?
A.
Correct.
Q.
And if I can kind of direct your attention over to
page 131 of the report.
A.
I'm there.
Q.
That reflects a summary analysis of your lab's work
with that particular evidence specimen, correct?
A.
That's correct.
Q.
So that particular piece of evidence was probative
evidence for your lab's analysis, correct?
A.
Correct.


Q.
So the vaginal swab from the rape kit was a probative
piece of evidence for your testing?
A.
That's correct.
Q.
Fair to say the rectal swab was probative evidence
for your testing, as well?
MR. NIFONG: Objection, unless he tells us what
he's referring to specifically.
THE COURT: Overruled.
THE WITNESS: When we talked about the rectal --
oh, I'm sorry. Did you rule?
THE COURT: Overruled. You may answer.
THE WITNESS: Okay. I think when we -- I may go
back and look at it just now but I think the rectal swab
didn't match any reference specimens or anybody else. Is that
correct? And so, you know, our statement on this report, it
said it was not reported because of that and so would be
considered nonprobative.
BY MR. BANNON:
Q.
So you find in a rape case where male DNA is found on
multiple items from a rape kit not probative evidence?
MR. NIFONG: Objection, argumentative. He's
explained.
THE COURT: Overruled.
THE WITNESS: No, that's not a general rule,
okay. This report was a specific report at the request and in
Page 60


60
discussions with Mr. Nifong that we would report only
specimens that matched evidence items. Only, we would only
disclose or show on our report those reference specimens that
matched evidence items. So that's all that's here.
BY MR. BANNON:
Q.
But of course, you discussed all the results of your
tests?
A.
Yes.
Q.
Correct?
A.
Yes.
Q.
But you only wrote a report about some of those
pieces of evidence, correct?
A.
That's correct.
Q.
And is that because Mr. Nifong told you to write the
report that way?
A.
I don't think he told me specifically to write it
that way. I think we were in agreement that the alternative
would have been, as I said earlier, to produce names and
profiles of everybody in the case. And I do believe it
initiated with me, not with Mr. Nifong, the concern that -- we
had evidence coming in, reference specimens. I had no idea
who these people were, where they were coming from. They
could have been the bus driver, okay. And so my concern was
that that's going to come out and get available to the media
and just being associated by name and that a DNA profile was
Page 61



done, I expressed that concern. And Mr. Nifong agreed with me
that it was okay to do this.
Q.
So Mr. Nifong agreed with you that it was okay to not
report male DNA findings on multiple rape kit items?
A.
No. Mr. Nifong agreed that it was okay to report the
evidence items and reference items that matched.
Q.
But at the same time, he knew that there were male
DNA characteristics on some of those rape kit items that
didn't match reference swabs, correct?
A.
I would have to assume that he did know that, right.
Q.
And he asked you to create a report that didn't show
that; is that correct?
A.
Well, those weren't his words. He didn't ask me
specifically to exclude those, okay. And I think what, we're
splitting hairs and you're looking for language. He did not,
Mr. Nifong did not request that I exclude data from evidence
specimens specifically.
Q.
Okay. Let me ask you, whose privacy would it have
violated if you had simply reported the male DNA
characteristics found on multiple rape kit items from multiple
different males who you didn't have reference swabs for?
Whose privacy would it violate?
A.
That, that wouldn't have violated anybody's privacy.
But it got enveloped into that whole process of just limiting
the report to those matches. And I think from my point of
Page 62


view -- and I'm not a lawyer in the case -- from my point of
view, if there's no match found, then it's a strong
implication of an exclusion.
Q.
How long have you been conducting forensic work in
criminal cases, Dr. Meehan?
A.
Since 2003.
Q.
Have you ever worked on any rape case before?
A.
Yes.
Q.
Do you know what exculpatory evidence is?
A.
Yes.
Q.
What is exculpatory evidence?
A.
It's evidence that would provide information that
would release a person as a suspect, so to speak in lay terms.
Evidence to indicate that you were not party to that.
Q.
So it's evidence that tends to negate the guilt of a
person charged with a crime; is that correct?
A.
That's correct.
Q.
You understood this case to be a rape case, correct?
A.
That's correct.
Q.
You understood it to be a case where the allegation
was that a person had been raped by multiple males?
A.
That's correct.
Q.
And that those males had not been wearing condoms?
A.
I don't remember if I knew that or not.
Q.
Of course, why -- the point being you were testing
Page 63


for the presence of DNA from males, correct?
A.
Right, right. But it could have been one person
wearing a condom and one person not.
Q.
Okay. But you knew, you were testing for the
presence of male DNA because a rape allegation had been made?
A.
That's correct.
Q.
Correct?
A.
Correct.
Q.
And you found male DNA from multiple different
sources on those rape kit items, correct?
A.
That's correct.
Q.
Wouldn't that tend to negate the guilt of the person
who is charged with raping someone?
A.
You know what? We -- no.
Q.
Well --
A.
Not necessarily.
Q.
-- please explain your answer.
A.
And I will. And we run across that fairly often. It
is possible for a person to be raped and no semen left there,
okay. So it doesn't, by itself, it does not show that the
person was not there. And it's a CSI effect. We call it a
CSI effect, okay. Just because a person doesn't leave DNA at
the scene, it doesn't mean that he was not there. He may not
have been there and he would have to be there to leave the
DNA, but if the DNA is not there, it doesn't mean they were
Page 64


not there. Simple analogy, and it may be an
oversimplification: A person can rob a bank and never leave a
fingerprint. It doesn't mean they didn't rob the bank.
MR. BANNON: I'm trying to really -- and,
Your Honor, I apologize, but I'm really trying to get an
answer to this question.
BY MR. BANNON:
Q.
I'm trying to determine whether the standard that you
developed for writing this report, which is a standard that
allowed you to not provide these profiles, I want to know the
reason for that. I'm getting different kinds of answers. I'm
getting it's privacy. I'm getting it didn't match a reference
sample. I'm getting it's conversations with Mr. Nifong. And
I'm getting this was sort of us together.
I don't really understand why it is that you chose to
write a report in this case, in a rape case where you found
male DNA characteristics all over the rape kit but you didn't
report that those male DNA characteristics didn't match the
people who have been indicted for that rape.
Can you explain that to me in a way that comports
with your understanding of what exculpatory evidence is and
negating the guilt of the accused?
A.
Well, I explained how that process evolved, that we
limited the scope of this report to only that evidence that,
in my words, in my terms, was probative. All right. That
Page 65


being the evidence, as it says on the report, that matches
suspects to evidence.
Now, we would be glad to provide a more thorough
report, a report of every single profile upon the request of
our client as was indicated on this report. Explicitly says
this information was retained pending notification of the
client. So, and Mr. Nifong is our client and had he said,
listen, I want a report on everything, that's what we would
produce.
Q.
Let me direct your attention to what is exhibit
Attachment No. 15 of Defendants' Exhibit No. 1. The bottom
number is 3883.
A.
I'm there.
Q.
Does that appear to be the protocols for your lab --
A.
Yes.
Q.
-- on how you run your lab?
A.
Yes.
Q.
Do you rely on those protocols routinely to maintain
your accreditation with ASCLD/LAB?
A.
Yes.
Q.
I'd like to direct your attention to standards for
reports. It says, No. 4, item reports shall include . . .
A.
I'm there.
Q.
Doesn't it say, Results for each DNA test?
A.
Yes.
Page 66


Q.
You didn't include the results for each DNA test in
your report dated May 12; is that correct?
A.
That's correct.
Q.
So you violated this protocol of your own lab?
A.
That's correct.
Q.
And you violated this protocol of your own lab
because the district attorney told you to; is that correct?
A.
No. It's not just because the district attorney told
me to. And, you know, I don't know a better way to say this.
You know, we, we legitimately -- and it may not hold any
weight in your legal arena, but we were legitimately concerned
about a report that could become explosive if it had overly
detailed all those profiles from all those players in it,
okay.
Now, so we agreed with Mr. Nifong that we would
report just the stuff that matched so that it would, so the
report was limited in its scope. However, it's not a -- and
by the letter of the law, by the letter of the wording of the
standard, you're absolutely correct. It diverges from the
letter of that standard, okay. But we do indicate on the
report that there is additional information. We would be glad
to provide this information if you would like.
But at this point on this report, it was limited.
This, I don't have another explanation for it.
Q.
Okay.
Page 67


A.
I don't have a legal justification for it or a
reason, okay. It was just trying to do the right thing. And
that information is still available and it was available to
you when we released the full documents.
Q.
Of course, you didn't want to release the full
documents, did you?
A.
What do you mean? These documents?
Q.
Well, didn't you send a letter to Mr. Nifong saying
that you had your privacy concerns and cost concerns with
releasing these documents?
A.
Well, in fact, I reiterated those concerns. But let
me go back to that letter because that does bother me a little
bit.
Q.
Sure.
A.
And let me pull it up. Because it's not, we didn't,
we don't mind releasing this information. And I think this is
a good example of . . . This letter to Mr. Nifong simply
states -- I'll paraphrase, if that's okay. Simply states that
this discovery request is large, much larger than we're
usually accustomed to just by sheer volume of the number of
specimens processed. And because of that, the cost in
providing these documents would be more than we're accustomed
to charging people. So we wanted to let Mr. Nifong and the
Court know that this was going to be expensive.
That's normal protocol. If you call our lab tomorrow
Page 68


and tell us you want to do discovery of a small document or
you want to run specimens, we let you know it's going to cost
this much money. You need to be aware of it because it is an
expensive process. That's the first paragraph of the letter.
It doesn't say we don't want to do it.
Then the second paragraph of the letter just
reiterates what I'm trying to explain to you now, that -- let
me just read it, although you've already read it, I'm sure,
right?
Q.
Please do. I have read it.
A.
Okay. It says, When requesting documents for
discovery, it may be important to consider the privacy of all
the individuals that were included in DNA testing for this
case.
There are a lot of people tested and I don't even
know how distantly related they were to the case.
As you know, we performed DNA testing of all the
lacrosse team players and a number of other persons with
suspected links to this case. In an effort to protect the
privacy of these individuals in a very high-profile case, we
limited -- and we acknowledge -- we limited our formal
reporting to the evidence items and only the persons tested
that could be linked to the evidence with the DNA testing
results so as not to drag anybody else through the mud.
Q.
May I ask you a question about that?
Page 69


MR. NIFONG: I think he's still reading it.
THE WITNESS: Let me just finish the paragraph
and actually the letter.
A blanket discovery of the entire case file including
all records and related materials could jeopardize the privacy
of these same individuals. We at DSI -- DNA Security -- feel
that this matter should be considered.
And then my very last sentence, which strongly
indicates that I in no way are objecting to the request for
the documentation or am I in no way not wanting to cooperate
with the Court: Without incurring overtime costs, we can
gather this material in one week. Will that meet your needs?
So I was just letting everybody know it's going to be
expensive. We still do have this concern but if you want it,
just let us know. Okay. So I don't see this as objecting to
providing documentation.
BY MR. BANNON:
Q.
Let me just sort of isolate one issue and ask you
with respect to my question to focus on just one issue with
your response.
A.
All right.
Q.
The issue about privacy, what I would like for you to
explain to me is how it would violate anyone's privacy to
report that your lab uncovered multiple male DNA
characteristics on multiple rape kit items that did not match
Page 70


any of the people who are being prosecuted or any of the
suspects that have been submitted in reference samples?
THE COURT: Sustained. That's previously asked
and answered.
THE WITNESS: Yeah, that's what I thought.
BY MR. BANNON:
Q.
Okay. I'd like to direct your attention to another
item in the motion that you've reviewed that is
respecting . . .
MR. BANNON: Can you give me just one moment,
Your Honor, please?
THE COURT: Yes, sir.
BY MR. BANNON:
Q.
Okay. It is also item number -- I'm sorry, Paragraph
No. 26, page 8 of the motion.
A.
I'm there.
Q.
Does, that actually references, I think, a page
number that is attached to the exhibit that is page or
Attachment No. 9. And I think the bottom of the page is 3387.
A.
I'm there.
Q.
Do those initials -- there's a handwritten note at
the top of that page and that's with respect to the pubic hair
combing section; is that correct?
A.
That's correct.
Q.
And there's a handwritten note on the top that says,
Page 71


Could be B.M.
A.
That's correct.
Q.
Is that you?
A.
Yes, it is.
Q.
What does that notation mean?
A.
It means that from the characteristics within this Y
profile, my Y profile is consistent with those
characteristics. So in other words, if we were to use this
profile, I would not be excluded from it.
Q.
Does it also reflect there could possibly have been
contamination in the testing that got your profile into that
particular testing?
A.
Well, of course. That's what, that's what that
means. That means that somehow a small amount of my Y DNA
could have been on this specimen.
Q.
How on earth could that happen?
A.
Well, actually today, it's a very simple process.
I'll just point out something to you so that you understand
what we're talking about. If you look at the left-hand column
on that plot.
Q.
Um-hmm. That's 3383?
A.
3387.
Q.
Yes, sir.
A.
Okay. Notice the numbers are, it goes from as high
as 150 on the left-hand, a little more than that, 160, on that
Page 72


scale.
Q.
Um-hmm.
A.
Those values are even below our standard threshold
values for saying this is a report of a profile. Normal
profiles have to be over 150 and they're usually in the 2000
range. It's important to look at that here because it tells
us how much DNA is there, okay. What this tells us is -- and
there's another factor. Notice that there's a number of
markers that are not indicated. There is no, no indication of
any DNA at a number of other markers. Those two parameters
tagged together tell us that there is an exceptionally low
level of DNA that's been picked up, okay.
Again, like I indicated earlier, it's part of the
nature of what we do nowadays. Our systems are so sensitive
it's just one or two cells, sometimes not even a whole cell
and that could have been the case here because there's missing
markers. So some extraneous DNA possibly from me, not
conclusively from me because it's only six markers out of the
bunch, so but it could possibly be from me.
Now, do I doubt that it's from me? To be honest with
you, no, I don't. This could have been -- you know what a
piece of dander looks like. Right there on your table, you
can probably see a piece of dander. We're talking about the
amount of DNA that might be 1/20 of that piece of dander,
okay. That happens. And we have systems in our lab that
Page 73


protect ourselves from that. There are procedural systems.
We also have computer systems that monitor profiles that are
produced all the time. And my profile is in our system; every
analyst that's worked in our lab is in our system; police
officers we regularly work with are in our system so that any
time their profile comes up, we identify that.
And that's what happened in this case. Somebody, one
of the analysts, identified that with this limited amount of
information here it is possible that that could be DNA that
got there from me. It's not, it happens in every lab. It's
not unusual -- I shouldn't say -- it is unusual. But it does
happen in every lab and it could possibly be here.
Q.
Okay. So despite all the precautions that you take
that you just talked about, sometimes you still can identify
DNA on an item from even a small piece of dander or one cell;
is that correct?
A.
That's possible, yes.
Q.
And your lab has standards in effect for whether you
call alleles based on the RFU reading that you just talked
about; is that correct?
A.
That's correct.
Q.
And you would characterize the profile that's on this
particular page that we've been talking about, 3387, as a very
weak profile, correct?
A.
That's correct.
Page 74


Q.
So there were other alleles identified in other
testing in this case that were much smaller than that at the
RFU; they would be even weaker identifications, correct?
A.
Absolutely correct.
Q.
And those identifications can be made from even one
cell, one human cell --
A.
That's correct.
Q.
-- is that correct?
A.
That's correct.
Q.
Now, when you produced your report in this case --
first of all, you reviewed, with respect to 3387, you reviewed
and I think if I'm correct, you reviewed most of the documents
that were in this file when you produced your report, correct?
A.
Yeah, I may have reviewed everything in it.
Q.
But your initials are on the top of this particular
document that's dated, is that May 3 that your initials are?
A.
That's correct.
Q.
So on May 3, you reviewed these documents that showed
that this could have possibly been your DNA on this item?
A.
Yes.
Q.
Why didn't you report that in your final report in
this case?
A.
There was -- I don't see any basis for reporting it.
Q.
Well, would you agree that the location of your DNA
characteristics on an item -- I think you would because I
Page 75


think you just said this could reflect contamination, correct?
A.
This, this could be, these characteristics are
consistent with my Y profile, yes, which would mean that if it
is me, it would be a contaminant me gotten on the specimen.
Q.
And, of course, that's happened in your lab before,
correct?
A.
Yes.
Q.
Wouldn't you agree that potential contamination in
your lab really goes to the credibility of the findings of
your lab based on your testing?
A.
Absolutely.
MR. NIFONG: Objection.
THE COURT: Sustained.
BY MR. BANNON:
Q.
What is transference, Dr. Meehan?
A.
Transference. Not sure.
Q.
Well, is it appropriate to say that in your line of
work whenever DNA -- I think you just used the example of a
piece of dander and one or two cells. And the fact that a
piece of dander could perhaps get on an evidentiary item or
get sort of in one of these tubes, that would then be itself
part of the DNA analysis of an evidentiary item? Is that
correct?
A.
Can that happen? Is that a question?
Q.
Yes.
Page 76


A.
Yes, that can happen.
Q.
And that is essentially when DNA from one source is
transferred to another item or another source; is that
correct?
MR. NIFONG: Your Honor, I'm going to object to
this line of questioning as being in violation of our previous
agreement with respect to questions having to do with the
items here unless he can show how that relates to the specific
matters of, in the DNA analysis. This sounds to me as it's
going to the evidence, itself, as opposed to this.
THE COURT: I'll hear Mr. Bannon's argument.
MR. BANNON: Your Honor, I can withdraw that
line of questioning.
THE COURT: All right. Withdrawn.
(Interruption)
THE COURT: That's two.
MR. BANNON: May I have a moment, Your Honor?
THE COURT: For the record, my comment, That's
two, was referring to the second audible cell phone, so the
record will reflect what I was referring to.
MR. BANNON: Your Honor, that's all the
questions I have for Dr. Meehan.
THE COURT: Any other defense counsel have
questions?
MR. COONEY: Yes, Your Honor, I do.
Page 77


THE COURT: Mr. Cooney.
EXAMINATION
BY MR. COONEY:
Q.
Dr. Meehan, my name is Jim Cooney. I represent Reade
Seligmann. I've just got a few questions for you. I'm going
to try not to ask the same things Mr. Bannon asked. And I
promise you I will not get into the level of detail that
Mr. Bannon has gotten into. But I do want to make sure I
understand certain things.
You had a meeting with representatives of the state
in which you told them that the Y DNA you found was weak?
A.
That's correct.
Q.
All right. And when we talk about weak, just so I
understand it, when you can exclude somebody, that's with a
hundred percent certainty?
A.
That's correct.
Q.
And the weakness you're referring to is if you can
exclude somebody, then it's a statistical matter of what the
odds are of them being included?
A.
No.
Q.
All right.
A.
What we're referring to specifically in this case in
the matter of weak profiles has to do with a couple of
factors. One is that we were dealing with a lot of mixtures.
So with mixtures, it's hard to determine, to pull apart those
Page 78


individuals. In addition to that, it was at least some, if
not all, of the DNA in some of those mixtures was very low,
extremely low. So, and in some cases, that DNA was just maybe
only two or three times the noise in the background. And so
that's what we meant by weak. Not the statistical comparison
level weak but it was like, you know, these, some of these
profiles are just marginal, similar to ones we've talked about
here that they're difficult calls.
Q.
But even on these weak profiles, when you can exclude
somebody, you can exclude them with a hundred percent
certainty?
A.
That's correct. That's absolutely correct.
Q.
So when you say, for example, that none of the
subjects or none of the players match a profile, that's with a
hundred percent scientific certainty?
A.
That's correct.
Q.
So as I understand it, and I'll not have you turn to
each attachment, but in Attachment 3 where you identified two
males as contributing, potentially contributing DNA, we are a
hundred percent certain it was not Reade Seligmann?
A.
Well, I don't know who was on what you're reading but
if he's not one of those two, then that's correct.
Q.
And the same would hold true for Attachment 5 and
Attachment 6 and Attachment 7 and Attachment --
A.
Oh, so you're talking about, like, on the top of the
Page 79


page where it says --
Q.
Right.
A.
-- they're -- yes. They're not there.
Q.
With a hundred percent certainty?
A.
That's correct.
Q.
Even though there are -- but there are multiple males
and we just don't know who they are other than we do know who
they aren't?
A.
That's correct.
Q.
And from what you've told me, even the smallest cell,
a single cell would be enough to generate perhaps a very weak
DNA finding?
A.
That's right. With a few cells, you get a pretty
nice profile. A single cell, you could get sporadic DNA.
Q.
So it would be fair to say at least on the items that
were tested by your lab, there wasn't even a single cell from
Reade Seligmann on any of those items?
A.
For the items that we said he was not present on. I
think we're talking about the panties and the sexual assault
kit.
Q.
Yes.
A.
There were other items tested, as well.
Q.
Right. But you didn't find Reade Seligmann anywhere
in any of those items?
A.
I'd have to go to the report and check.
Page 80


Q.
If you'd like to do that, go ahead.
A.
Okay. That's correct.
Q.
In fact, there was more of your DNA in that than
there was Reade Seligmann's?
MR. NIFONG: Objection. I believe he's already
testified he could not say it was his DNA, just that it was
consistent with his DNA.
THE COURT: Sustained.
MR. COONEY: I'll withdraw, Your Honor.
BY MR. COONEY:
Q.
Now, for Mr. Finnerty, who's sitting over here,
again, he would have been excluded with a hundred percent
certainty on each of those items in the attachments that
you've been through with Mr. Bannon?
A.
That's correct.
Q.
And, in fact, you didn't even, you didn't find any
DNA from even a single cell from Mr. Finnerty on any of the
items that you subjected to testing?
A.
Let me check his numbers. That's correct.
Q.
Now, the date of your report is May 12, 2006?
A.
That's correct.
Q.
And as of May 12, 2006, both Mr. Finnerty and
Mr. Seligmann had been indicted in this case. Were you aware
of that?
A.
I haven't been following the case but, I mean, I'm
Page 81


sure -- they're sitting there so I guess they have been.
Q.
Well, and I -- let me put a finer focus on it. I
wasn't clear.
A.
All right.
Q.
I apologize.
A.
All right.
Q.
As of the time you wrote your report, Mr. Seligmann
and Mr. Finnerty had already been charged with rape and
kidnapping and sexual offense. Were you aware of that when
you wrote your report?
A.
No.
Q.
Did any representatives of the state inform you about
that before you wrote your report?
A.
Not that I recall.
Q.
Okay. And what you're telling -- and I want to make
sure I'm understanding this. You were concerned that if you
put a sentence in your report saying that Reade Seligmann is
excluded from all DNA analyzed under these items as a sentence
in your report, that would have violated his privacy rights?
A.
If we included it in our report, if I can answer more
than just a yes or no --
Q.
Well, you --
A.
If we included it in our report, it would have
been --
MR. COONEY: I'll be happy to let him explain.
Page 82


If I could get a yes or no and then --
THE COURT: If you can answer with a yes or no,
do so and then explain. If you cannot, start with the
explanation.
THE WITNESS: I can't answer with a yes or no
because we would not have reported with a single sentence like
that. Now --
BY MR. COONEY:
Q.
Why not?
MR. NIFONG: Objection, again, for his
interrupting the answer.
MR. COONEY: I apologize.
THE COURT: Go ahead and finish your answer.
THE WITNESS: A typical report, and this was not
a typical report, but a standard report will reflect all the
DNA profiles of that, all the DNA data from that information,
from that person, and it would not just be a single little
line. And again, you know, it was just a simple me trying to
do the right thing saying, well, let's not put that
information out there for the public because it's my
experience that it will get out there and I can't, who knows
what's going to happen with that information.
So could we have said that? Could we have done that?
Yes, perhaps we could have. Perhaps we could have sat down if
we had more forethought and said, well, look, let's just, we
Page 83


could have said something like all the reference specimens
with these numbers were not, were excluded and their names
weren't even there. But it certainly was not an intention to
withhold information. It was a failed attempt to provide the
minimal amount of information to the public in a case that's
going to be just out there and they'll be undressing people.
So at the expense of talking too much, maybe it could
have been done better a different way. But we were trying to
do the best we could and respect everybody that was involved
in this case and only release information that really felt
like it had to be released because of the potential probative
value of it. So that's why I couldn't answer no, or yes.
BY MR. COONEY:
Q.
Is that your explanation?
A.
Excuse me?
Q.
Is that your explanation?
A.
Yes.
Q.
I appreciate that. This was not your standard
report?
A.
It was not a standard report. It was a report where
we were trying to -- yes, it's not, it's not the typical
standard report.
Q.
And as of the date you wrote your report, were
representatives of the State of North Carolina aware that none
of the DNA you had found matched Reade Seligmann?
Page 84


A.
I believe so.
Q.
Okay. Were they aware that all the testing that you
had done excluded Reade Seligmann with a hundred percent
scientific certainty as of the date you wrote your report?
A.
I believe so.
Q.
Did you have a specific discussion with them about
whether that information excluding Reade Seligmann should be
included in the report?
A.
Not with that specific name, no. We never mentioned
that specific name.
Q.
How about any defendant?
A.
We never, I actually don't recall using any
defendant's names.
Q.
Would you agree, then, that your report did not fully
report on the results of any examinations or tests conducted
by you?
MR. NIFONG: Objection.
THE COURT: Overruled.
THE WITNESS: I don't understand the question.
I'm not sure was raised correctly because of the word "any."
BY MR. COONEY:
Q.
Would you agree that your report, that your report
did not report the results of any examinations or tests that
were conducted by you in these cases?
MR. NIFONG: Objection.
Page 85


THE COURT: Ask that question again.
MR. COTTER: Sure. I'll put a finer point on
it.
BY MR. COONEY:
Q.
Are you aware that we have laws governing --
THE COURT: Just ask the question.
MR. COONEY: Okay.
BY MR. COONEY:
Q.
Did your report set forth the results of all of the
tests and examinations that you conducted in this case?
A.
No. It was limited to only some results.
Q.
Okay. And that was an intentional limitation arrived
at between you and representatives of the State of
North Carolina not to report on the results of all
examinations and tests that you did in this case?
A.
Yes.
THE COURT: Sheriff, I'll ask you to be looking
for people that are giving visible or audible reactions to
anything that takes place in the courtroom. If you detect who
it is, bring it to my attention. They'll be excluded from the
courtroom.
BY MR. COONEY:
Q.
I've just got a couple more questions, Dr. Meehan.
Is that one notebook in front of you or two notebooks?
A.
This is one.
Page 86


86
Q.
About how high is that? Six inches? Five inches?
A.
Yeah, five or six inches.
Q.
Five or six inches. And those represent the
underlying data that was produced by you on October 27, 2006?
A.
As well as chain of custody documentation and stuff,
yes.
Q.
And in order for Reade Seligmann or Collin Finnerty
or Dave Evans to have found the results of the tests that
excluded them, they needed to go through those six inches of
paper to find them; isn't that correct?
A.
That is correct.
Q.
Because you hadn't put them in the report; is that
fair?
A.
That is fair.
Q.
If you had been requested by representatives of the
State of North Carolina at any time after May 12 to prepare a
report reporting on the results of all of your tests and
examinations, would you have done so?
A.
Certainly.
MR. COONEY: I have no further questions.
THE COURT: Other counsel?
MR. KINGSBERY: Just a couple, Your Honor.
EXAMINATION
BY MR. KINGSBERY:
Q.
Dr. Meehan, your discussion with Mr. Nifong about


what would be disclosed in your May 12 report, was that a
face-to-face meeting?
A.
I honestly don't recall if we talked about it
face-to-face. I know we at least talked about it on the phone
and we may have talked about it face-to-face. We had a couple
of meetings that they came out to the lab on a number of
occasions. And I couldn't tell you if it was discussed
face-to-face.
Q.
All right. So you had a couple meetings face-to-face
out at your lab with Mr. Nifong?
A.
Yes.
Q.
And then you had telephone conversations with him, as
well?
A.
With him and members of his staff.
Q.
Okay. And it's possible that you discussed in each
of those communications what would be disclosed in your May 12
report?
A.
It is possible.
Q.
Do you have any records, computer records, diary,
notes, logs that would confirm for you the dates of those
various communications?
A.
I don't think I do. In fact, I'm sure I don't.
Maybe they exist in the telephone company.
Q.
Was there anyone else either present from your staff
or with whom you spoke that might have some record of when
Page 88


those communications took place?
A.
I don't know. I don't know.
Q.
You made no effort to try to determine when those
communications took place, though?
A.
No.
Q.
Did you communicate with Mr. Nifong about what would
go in the report by any other medium: E-mail, fax, letter?
A.
I'm sorry. I didn't hear you.
Q.
Did you communicate with Mr. Nifong about what would
be disclosed in your report by any other medium such as
e-mail, fax, letter?
A.
No.
Q.
But at any rate, your decision about what to disclose
in the report was based in part on your communications with
Mr. Nifong?
A.
That's correct.
MR. KINGSBERY: One moment, Your Honor. Thank
you, sir. No further questions.
MR. BANNON: Your Honor, I would only . . . I
think I did this -- okay. I don't need to do it.
THE COURT: Anybody else for the defense?
MR. COONEY: Nothing further for Mr. Seligmann,
Your Honor.
THE COURT: For the state? Do you have
questions?
Page 89


MR. NIFONG: Just a few, Your Honor. Thank you.
EXAMINATION
BY MR. NIFONG:
Q.
Dr. Meehan, if you would, look at Attachment No. 10
in the attachments to the motion from the defendant.
A.
I'm there.
Q.
I will call your attention specifically to the page
that is numbered 127 at the bottom.
A.
I'm there.
Q.
The first paragraph on that page is titled, Results
of DNA Analysis?
A.
Correct.
Q.
And it consists of two sentences?
A.
That paragraph is two sentences.
Q.
Would you read those two sentences for the record,
please?
A.
Individual DNA profiles of nonprobative evidence
specimens and suspect reference specimens are being retained
at DSI pending notification of the client, that being you.
Three of the reference specimens are consistent with DNA
profiles obtained from some evidence items and the analysis of
these specimens is below.
Q.
Now, the second sentence, then, says that you found
consistent profiles with respect to three samples?
A.
That's correct.
Page 90


Now, had you found consistent profiles from, say, a
dozen samples, would you have written a sentence, Three of the
reference specimens are consistent?
A.
No. It would say a dozen.
Q.
Although certainly the fact that you wrote three
would be true if you'd actually found a dozen?
A.
Yeah, it would. But I --
Q.
It would just be less than the full truth, wouldn't
it?
A.
Yes.
Q.
Did you attempt to put in less than the full truth
with respect to this?
A.
No.
Q.
So would it be a fair reading of your statement,
Three of the reference specimens are consistent, to infer from
that that none of the other ones were consistent?
A.
I think that would be fair. I think that's what we
intended in that statement.
Q.
Did anyone ever tell you to conceal or hide any of
your results from anybody?
A.
No.
Q.
Did anybody ever tell you who you were supposed to
come up with results of? Who we wanted you to pick?
A.
No. No. That's . . . Yeah.
Q.
Now, there is Attachment No. 10 in front of you. I
Page 91


believe you have a total of ten pages that are numbered 123
through 132; is that correct, sir?
A.
That's correct.
Q.
And that is the entirety of your May 12, 2006,
report?
A.
That's correct.
Q.
Now, subsequent to a hearing in this case on
September 22, you were ordered to provide additional pages.
And I believe you have most of those, perhaps all of them in
front of you here at this time; is that correct? A total of
1762 pages --
A.
Sure.
Q.
-- were provided in October?
A.
Right.
Q.
And didn't you give me another 50 this morning that
you said had inadvertently been left out of the original?
A.
That's correct.
Q.
So we've provided now a total of 1822 pages of your
results?
A.
I, I don't have page numbers but I'll accept that.
Q.
And the stuff that you've given me in your initial
report on May 12, in response to the Court's order following
the September 22 hearing, I believe that was to be provided by
October 20, and today, does that constitute all of the record
that you have in this case?
Page 92


A.
Yes.
Q.
Your entire case file is now in the hands of the
defense; is that correct, sir?
A.
That's correct.
MR. NIFONG: I have no further questions.
THE COURT: Further questions for any of the
defendants?
MR. BANNON: No, thank you, Your Honor, none for
David Evans.
MR. COONEY: None for Mr. Seligmann, Your Honor.
MR. KINGSBERY: No, sir.
THE COURT: Mr. Bannon, care to be heard any
further on your motion for, the defendants' motion? It's a
joint motion. You may step down, sir.
THE WITNESS: Am I free to go?
THE COURT: Any objection to discharging the
witness for today?
MR. SMITH: No objection.
MR. COONEY: No objection.
THE COURT: The witness is discharged for today.
THE WITNESS: I have their attachment.
THE COURT: You may hand it to Mr. Bannon as you
walk by him. He has your Defendants' Exhibit No. 1 in his
hand. Do you want him to -- do you want to offer it into
evidence or . . .
Page 93


93
THE WITNESS: Can I have it? Because I don't, I
never got it.
MR. BANNON: Absolutely you can have it.
THE COURT: The Court has one and they are
abundantly available. There's one attached to the original
motion in the file.
MR. BANNON: Your Honor, we'd actually like to
review the transcript of these proceedings. We probably will
have additional motions, but at this time, we would like to be
able to review the transcript before going forward with those.
THE COURT: Nothing else with regard to this
motion at this time; is that correct?
MR. BANNON: Not with respect to this particular
motion. There are other discovery issues that I would like to
address at the Court's convenience.
THE COURT: Other defendants have anything else
with regard to this motion at this time?
MR. COONEY: Nothing for Reade Seligmann,
Your Honor.
MR. KINGSBERY: Not at this time, Your Honor,
until after the transcript is received.
THE COURT: All right. Next matter.
MR. BANNON: Your Honor, there is an additional
discovery matter that I'd like to address. We are, have been
aware that Linwood Wilson, who is the district attorney's
Page 94


investigator on this particular case, has been conducting
investigative activities since actually before our last status
hearing. We sent a letter to Mr. Nifong on November 13 asking
for reports of that because at that particular hearing,
Mr. Nifong acknowledged under our discovery laws that
Mr. Wilson's activities fell under the open-file discovery
rules. We haven't received any reports of any of those
activities to date and we would ask the Court to inquire of
Mr. Nifong if we could be given copies of those reports of
those activities.
MR. NIFONG: Actually, I thought that you had
signed, somebody in your group had signed a receipt for that
this morning.
MR. BANNON: I'm sorry. I didn't have a chance
to look at that. I thought it was just the DNA Security stuff
that we got. Sorry about that, and I withdraw it.
THE COURT: The request is withdrawn.
MR. COONEY: Your Honor, I think at this time,
we have, as we discussed back in chambers, the defendants have
filed two joint motions over the last two days. One is a
motion to suppress the identification. Another is a motion
for change of venue. That was filed this morning. I provided
copies to Mr. Nifong and a personal copy for Your Honor.
I think now might be the time to talk about
scheduling a hearing on those. We anticipate, particularly
Page 95
1

with respect to the motion to suppress, the evidence will need
to be taken, the evidence may be extensive, may involve
multiple witnesses, and we would, we believe we could do both
that and probably the change of venue around the same time
depending on the Court's schedule in terms of free time here
in Durham after the first of the year.
I know for my own schedule, I begin a specially set
trial on January 8 and will be tied up most of January. I was
kind of mentally thinking about early February. I don't know
what Mr. Nifong's schedule is or the schedules of the other
attorneys or the Court's schedule.
THE COURT: I'm scheduled to be here starting
January 15 on except for administrative sessions in my home
district that don't take priority over this; that is, those
administrative sessions are in my home district as long as
they don't conflict with trials here. So, and I'm somewhat at
the scheduling discretion of the trial court administrator and
the district attorney and, of course, this case being
specially assigned to me. Let's just discuss it informally
right now. You're saying that you would not be ready for an
evidentiary hearing or available for an evidentiary hearing
before February?
MR. COONEY: Yes, Your Honor.
MR. NIFONG: Your Honor, if I may.
THE COURT: Yes, sir.
Page 96


MR. NIFONG: If I may ask, there are an awful
lot of attorneys sitting over here. If we try to find a date
where all of them are available, I might not still be
breathing. Would it be necessary to have every attorney for
each defendant present at every hearing? I was hoping to move
forward with this more quickly than that. Specifically,
Your Honor, I note that you're scheduled to be in criminal
court -- well, as you pointed out, you're scheduled to be in
Durham on the 15th. You're actually scheduled for criminal on
the 21st -- pardon me, the week of the 22nd and the week of
the 29th and then not in criminal court again, although
obviously that could be changed, until the 12th of March. And
Your Honor is scheduled for criminal court the last three
weeks of the month of March.
Obviously, it had been our intention to move ahead
with trial as quickly as possible in this case. I had
understood that was everybody's desire here. I would like to
go ahead and deal with these motions because we can't set a
trial date until we determine where venue is going to be. And
I certainly agree that it's going to take us a considerable
amount of time to consider the evidence with respect to any
identification procedures.
But the law is relatively well-settled on that
subject and all the information has been in possession of the
defense attorneys since May. So I can't imagine that there's
Page 97


a whole lot of preparation that still needs to be done other
than subpoenaing the witnesses we need to get here.
MR. COONEY: Your Honor, I could, if Mr. Nifong
is indicating it would either be January 29 or mid- to late
March, I could probably --
THE COURT: Let me back up on that. I've
conferred with the trial court administrator this morning with
regard to that. My civil sessions or schedules here can be
altered with a little bit of advance planning here in Durham
County to expedite dealing with this matter.
MR. COONEY: And when I was talking February, I
was actually talking about the first full week of February,
that is, the week after January 29. If we had to do it the
week of January 29, I just wouldn't linger as long in closing
arguments the prior week to get here, Your Honor.
THE COURT: Is that an incentive for that, then?
MR. COONEY: Nolo contendere.
MR. SMITH: On behalf of Finnerty, we would
prefer, if we could, the first week in February. Mr. Cooney
has played a very important role in the development of these
motions and we certainly would want him to be here. We agree
that we want to move it as rapidly as we could but we believe
that's the best time. We would ask the Court to set it early
in February, first week of February. Thank you.
THE COURT: Thank you. For the defendant Evans,
Page 98


do you have --
MR. CHESHIRE: We are fine with that,
Your Honor.
THE COURT: Are you saying, Mr. Cooney, that if
I set it to start January 29 that you feel like you'll be
here?
MR. COONEY: About 70 percent certain. I may
still have a jury out by then. It's a paraplegic case that
begins on January 8 that's been specially set, so we're going
to start right away. I think three weeks is going to be long
enough. I know the Court appreciates that we're all guessing
at something like that.
MR. NIFONG: Your Honor, if they're all saying
they can be ready the first week in February, I'm not going to
insist on something other than that. I just, I would note
that the only criminal session that we have scheduled for that
week is Judge Hudson in a case management session, so it would
require changing your commission or exercising the option on
that commission for that week but . . .
THE COURT: Well, in terms of courtroom
availability and so forth, is February 5 a better week from
space standpoint?
MR. NIFONG: I would think. My administrative
assistant informs me that grand jury meets on Monday morning,
which would be in this room. But presumably, Your Honor would
Page 99


have a courtroom scheduled where we could --
THE COURT: We're going to seek a courtroom,
yes.
MR. NIFONG: Right.
THE COURT: How long, Mr. Nifong, do you
anticipate the state's evidence would be on the suppression
issues?
MR. NIFONG: Your Honor, it's really difficult
to say. As the Court may be aware, the entire identification
process was actually videotaped and has been provided so that
it, it's not going to be necessary just to hear evidence of
how it was conducted. It will be possible for the Court to
actually view the process as it took place. And that probably
lowers the need for me to call a lot of witnesses.
Now, that is not the only issue, obviously, being
dealt with. Specifically, we have both a motion to suppress
any identification by the victim in this case and then there's
also a separate motion that seeks to suppress the photographs
that were obtained by virtue of the nontestimonial
identification order. And that's a separate issue, obviously.
But with respect to that, I would need police officer
witnesses. And I'm aware at this time of three specific
police officer witnesses that were involved in the process of,
both for the nontestimonial identification order and also with
the subsequent identification procedure. The victim, herself,
Page 100


will obviously need to be present for this. Beyond that, I'm
not sure that there are any necessary witnesses for the state
for that motion.
THE COURT: Defense estimate in terms of time on
the suppress issues?
MR. COONEY: Just kind of playing the cards out
a little bit, I believe between that and the change of venue,
we ought to be able to get it done that week.
THE COURT: Both of them?
MR. COONEY: Yes. That would be our goal.
THE COURT: Sounds like the state is suggesting
and defense is requesting February 5. February 5, 10 a.m.
since we start 10 on Mondays.
MR. BANNON: Your Honor, if I could note one
other thing, too, with respect to the motions that were
previously filed on the grounds of the nontestimonial
identification order, we'd just like to give notice of intent
that Dave Evans will be advancing those grounds, as well. I
think they've already been filed on behalf of Reade Seligmann
but it's not any different.
MR. NIFONG: I anticipated that.
MR. BANNON: Same argument.
THE COURT: Any other matters for today?
MR. CHESHIRE: One more, Your Honor. We, as we
discussed earlier today, we have, we would like to file this
Page 101


morning a motion for paternity tests. We understand that the
accuser in this case -- may I approach, Your Honor?
THE COURT: You may.
MR. CHESHIRE: There is a copy of a motion and
an attached order. We understand that the accuser in this
case is pregnant and either has or is about to give birth.
And we would like to have a paternity test done on that child
to prove that none of these defendants could possibly be the
father.
MR. NIFONG: May I be heard, Your Honor?
THE COURT: In just a minute. All right.
MR. NIFONG: Your Honor, for the record, it's my
understanding that, for what it's worth, that the child has
not yet been born. I understand that some media groups are
reporting otherwise. I also, my understanding was that the
due date for the child was somewhere in the first week of
February. That would tend to indicate that this pregnancy
could not have resulted from any incident that took place
during the night of March 13 to March 14. For that reason,
the, paragraph 3 in the motion for paternity case -- motion
for paternity test says, A paternity test to accuser's child
would definitively prove that none of the defendants has
fathered the child. As such, the test results would be
powerful substantive evidence of their innocence.
I fail to see how the fact that they were fathers --
Page 102


they were not fathers of a child that was conceived at least
two weeks and probably longer after this incident would prove
anything about their guilt or innocence on that night. And
for the same reason, I would think that the part of the order,
paragraph 3 of the order which says, Defendants are seeking a
paternity test as evidence which tends to negate their guilt
of any of the charged offenses is inappropriately included
because I would submit that it does not do so.
MR. CHESHIRE: May I respond to that,
Your Honor? If Mr. Nifong is willing to stipulate that this
child is not the child of one of these defendants, we do not
need to put this, put a, have a paternity test. But when we
discussed this earlier, he wasn't willing to do that.
MR. NIFONG: Your Honor, I don't know --
MR. CHESHIRE: If he's willing to do that now,
as he said, then we don't even need to go there.
MR. NIFONG: Your Honor --
THE COURT: Well, you know, I've heard the child
has been born. I've heard the child has not been born.
Certainly there's no evidence here. There's arguments from
counsel. I would think that you might have access to
information in that regard but I don't know how reliable that
would be from the sources you may have. I don't know.
MR. NIFONG: Your Honor, I don't have the
objection to paternity testing being done. Quite frankly, in
Page 103


a case of this magnitude with all the publicity that's
attendant, I really think it's incumbent on both sides to see
that happens. The reason I cannot stipulate is I have no
personal knowledge of who the father of that child, or for
that matter, most of the children born in the world every day
would be. And so I cannot stipulate to that because I don't
know. But my understanding is that this child was not a
product of any activity that occurred on March 13 or March 14.
I still think we need to do a paternity test. I just object
to the wording of the order.
MR. CHESHIRE: We will be glad to rewrite --
THE COURT: I will enter an order that is a
conditional order directing a paternity test that is
conditioned upon the alleged victim being pregnant and
delivering a child. And if you want to draft such an order
and in the event there is, has been, or will be or in
anticipation of such delivery, I'll be glad to order it. And
you're asking in your order, in your request that the state
arrange for the procedure --
MR. CHESHIRE: Yes, sir.
THE COURT: -- for paternity testing? I'll
grant such a request. Anything else to address today?
MR. CHESHIRE: Not on behalf of David Evans,
Your Honor.
MR. COONEY: Not on behalf of Reade Seligmann,
Page 104


Your Honor.
MR. SMITH: Or Finnerty.
MR. NIFONG: And not for the state, either,
Your Honor.
THE COURT: And as it stands right now, then,
there's nothing currently scheduled before February 5. Of
course, things may develop that need to be heard, need the
Court's attention, so I'll be more available now by
mid-January, assigned to Durham County. If there's nothing
else, then, let court stand in recess, Sheriff.
(This matter in recess at 12:41 p.m.)
Page 105
Susanne M. Newman, RPR
Official Court Reporter
State of NC v. Finnerty, Seligmann, and Evans
Hearing Date:
12/15/06
105
CERTIFICATE
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF DURHAM
FILE NOS. 06-CRS-4331,
06-CRS-4332, and 06-CRS-4333
----------------------------x
STATE OF NORTH CAROLINA,
:
v.
:
COLLIN FINNERTY,
:
Defendant.
:
----------------------------x
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF DURHAM
FILE NOS. 06-CRS-4334,
06-CRS-4335, and 06-CRS-4336
----------------------------x
STATE OF NORTH CAROLINA,
:
v.
:
READE SELIGMANN,
:
Defendant.
:
----------------------------x
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF DURHAM
FILE NO. 06-CRS-5581,
06-CRS-5582, and 06-CRS-5583
----------------------------x
STATE OF NORTH CAROLINA,
:
v.
:
DAVID EVANS,
:
Defendant.
:
----------------------------x
I, Susanne M. Newman, the officer before whom the
foregoing proceeding was taken on December 15, 2006, do hereby
certify that said hearing, pages 4 through 104 inclusive, is a
true, correct, and verbatim transcript of said proceeding.
I further certify that I am neither counsel for,
related to, nor employed by any of the parties to the action
in which this proceeding was heard; and further, that I am not
a relative or employee of any attorney or counsel employed by
the parties thereto and am not financially or otherwise
interested in the outcome of the action.
Susanne M. Newman, RPR
Official Court Reporter
Page 106
Susanne M. Newman, RPR
Official Court Reporter
State of NC v. Finnerty, Seligmann, and Evans
Hearing Date:
12/15/06
106
CERTIFICATE OF DELIVERY
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF DURHAM
----------------------------x
STATE OF NORTH CAROLINA,
: FILE NOS. 06-CRS-4331,
v.
:06-CRS-4332, and 06-CRS-4333
COLLIN FINNERTY,
:
Defendant.
:
----------------------------x
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF DURHAM
----------------------------x
STATE OF NORTH CAROLINA,
: FILE NOS.
06-CRS-4334,
v.
:06-CRS-4335, and 06-CRS-4336
READE SELIGMANN,
:
Defendant.
:
----------------------------x
STATE OF NORTH CAROLINA
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF DURHAM
----------------------------x
STATE OF NORTH CAROLINA,
: FILE NO.06-CRS-5581,
v.
:06-CRS-5582, and 06-CRS-5583
DAVID EVANS,
:
Defendant.
:
----------------------------x
This is to certify that the transcript in the
above-captioned case was requested of Susanne M. Newman, RPR,
on the 15th day of December, 2006, and was delivered and/or
mailed to the attorney(s) of record as indicated below on the
22nd day of December, 2006.
Susanne M. Newman, RPR
Official Court Reporter
William J. Cotter, Esq.
William J. Cotter, P.A.
2003 Chapel Hill Road
Durham, North Carolina 27702
Michael Nifong, Esq.
District Attorney
Durham County Judicial Building
Sixth Floor
Durham, North Carolina 27701
Total page count: 106