Nifong and the Naïf

Perhaps the quality of the defense bar in Burlington, North Carolina, is unusually low. It appeared yesterday as if DNA Security head Brian Meehan had never before faced a challenging cross-examination: over a 90-minute period, he withered under questioning from Brad Bannon and Jim Cooney.

Mike Nifong gambled and lost: confronting a defense motion strongly suggesting that DNA Security, for a reason or reasons unknown, had withheld obviously exculpatory evidence, he decided to produce, without notice, Meehan for cross-examination. The advantage: he might catch the defense unprepared for questioning. The disadvantage: he obviously didn’t have time to prep Meehan.

To the extent that he displayed any strategy at all, Meehan’s goal seemed to be to stall as much as possible, looking expectantly at Nifong (who was seen to be frequently yawning by those with a head-on view of him) after each question. Unfortunately, the judge, Osmond Smith, didn’t shut down the questioning, and Meehan was eventually forced to concede the obvious. So an appearance that should have lasted 10 minutes stretched into nearly two hours.

The most charitable interpretation of Meehan would see him as remarkably naïve, a scientist who didn’t realize that those doing work for law enforcement have to follow standard procedures, rather than making up their own rules. Those less inclined toward the charity of the season might suggest that Meehan willfully joined in a conspiracy with Mike Nifong to withhold exculpatory evidence, because he wanted business for his lab.

Meehan got off to a bad start. Less than 10 questions into a session with Bannon, he challenged a defense assertion that the underlying DNA test results—the results that he and Nifong had mutually agreed would be excluded from his report to the D.A.—showed DNA from multiple men on the material from the accuser’s rape kit. Since the accuser had claimed to have had no sexual intercourse for a week prior to the lacrosse party, this evidence would seem to undercut what remains of her credibility.

Meehan’s denial triggered a detailed walk-through, lasting around 40 minutes, in which Bannon took the DNA Security head through each piece of rape kit evidence. By the end of the exchange, Meehan had confirmed the defense interpretation. His tests showed evidence of DNA from multiple males, none of whom were on the lacrosse team.

Bannon concluded by asking Meehan whether the lab head understood the definition of “exculpatory.” It quickly emerged that Meehan seemed to believe that he wasn’t obligated to follow the law. Instead, he would make up whatever definition of “exculpatory” he found convenient, and produce a report that reflected his personal definition.

(It’s worth remembering that the Open Discovery Law was supposed to avoid this very debate: prosecutors in North Carolina do not have the right to decide whether evidence might or might not be exculpatory: they must turn over all evidence in their file to the defense. Nifong and Meehan apparently conspired to get around the law’s requirements by producing a report that wouldn’t reveal key exculpatory evidence, and hope that the defense wouldn’t ask for the underlying data.)

What motivated Meehan? As Joseph Neff’s article from today’s N&O nicely summarizes, the lab director justified his actions through an ever-changing array of reasons, several of which were transparently absurd.

1.) He wanted to protect the privacy of the other lacrosse players.

He approached the issue, said Meehan, as if he were a parent of one of the unindicted players.

Meehan never explained, however, how he would impinge upon the other 43 players’ privacy by producing a report that (a) conclusively stated that no DNA matches existed between the unindicted players and the accuser and (b) matches did exist between five other males and the accuser.

Here’s how the L.A. Times described the scene: "Asked by a defense attorney how lab results clearing all 46 players would violate their privacy, Meehan fumbled for an answer as Nifong sat with his head lowered, staring at documents."

Another revelation from the hearing, meanwhile, cast strong doubt upon Meehan’s self-proclaimed position as an ardent privacy-rights advocate. He admitted that in one document turned over to the state, his lab included the names of three other men who were subjects of another case. Concern for their privacy appears not to have formed a major priority of the lab director.

2.) The May 12 report was not a “final conclusive report on the case,” and Meehan would have supplied additional information had local authorities requested he do so.

The Meehan Model would represent a novel approach to law enforcement. Experts could produce reports tailored as the prosecution desires. These reports, in turn, could be presented in such a way that any reasonable person would consider the document to be comprehensive. But, when caught withholding exculpatory information, experts could claim that their report was only an ‘interim” document, with a finalized version to be produced at a later date.

3.) Meehan wanted to “do the right thing.”

“I don’t have a legal justification or a reason,” said Meehan at one point, “I was just trying to do the right thing.”

This line of argument generated an exasperated question from defense attorney Jim Cooney, who wondered if Meehan was familiar with the laws of North Carolina.

Agencies contracted to do work for the state, of course, don’t get to make up their own rules: they must follow state laws. Meehan, however, \ didn’t even follow the protocols of his own company—which call for producing a report of all DNA examined. “By the letter of the standard,” he noted, his report “diverges from the letter of that standard.” That the head of the company appears to see no problem in flouting his own regulations raises questions how seriously DNA Security takes the principle of due process.

Meanwhile, according to Meehan, state law could be trumped by his definition of what constituted “the right thing.” His decision, the lab director told Bannon, “might not hold any weight in your legal arena.” This statement made no sense: Meehan was producing a report for the “legal arena.” If he wants to change North Carolina’s evidence laws, he should lobby the legislature.

The “protect-the-players” argument was transparently absurd. The “non-final report” claim was little more than a word game. And the “do the right thing” contention portrayed Meehan as a naïve scientist who didn’t understand the intimidating world of criminal justice.

I suspect that not even all four of the figures seated at the prosecution’s table found these arguments credible, leaving the likeliest alternative:

4.) Meehan and Nifong conspired to violate the lacrosse players’ civil rights.

Before the hearing, Nifong would have done well to have reminded Meehan of the 5^th amendment: on several occasions, the lab director essentially admitted to a conspiracy with Nifong.

Meehan remarks about this issue included:

• Nifong “specifically wanted to know: does any reference specimen match any of the profiles we gave?”
• Before indictments, Nifong knew that there was no match to Reade Seligmann and Collin Finnerty but that matches to other unidentified males existed.
• The match to unidentified males from the rectal swab not reported because it was “not probative evidence,” an approach on which “we agreed.”
• “This report was a specific report on a request from Mr. Nifong.”
• “We were in agreement that the alternative would have been to produce names and profiles of everybody in the case.”
• “We would be glad to provide a more thorough report upon the request of our client.” [Meehan repeatedly referred to Nifong as the “client.”]
• Had Nifong said, “‘I want a report on everything,’ that’s what we would produce.”
• Violated his own lab’s protocol, but “not just because the district attorney told me to.”

And, the killer question: Was the failure to report these results the intentional decision of you and the district attorney?

Meehan: Yes.

Over and over again, Meehan informed the court that he and Nifong conspired to deny the civil rights of the three accused players and quite possibly the entire team. The 5^th amendment is made for such occasions; the posture as a naïf about the affairs of the law seems unlikely to carry much weight.