Sunday Hearing Round-Up

For those curious about how the forensics community reacted to Brian Meehan’s appearance at Friday’s hearing, Kathleen Eckelt at Forensics Talk has the answer. Brent Turvey heads Forensic Solutions LLC and has authored several forensics books and articles; he also has conducted lectures on forensic practices in China, Australia, dozens of state and university conferences in the United States.

Turvey strongly doubted that an innocent explanation existed for Meehan’s conduct, and he demanded an investigation of Meehan’s lab by its certifying agency. He ridiculed Meehan’s claim that the DNA Security director didn’t understand the workings of the “legal arena.” “State prosecutorial agencies, and those in their employ,” Turvey correctly noted, “have a duty to disclose ALL potentially exculpatory evidence to the defense, per Brady v. Maryland. What Dr. Meehan has admitted to, under oath, is that he personally conspired with prosecutors to conceal actual exculpatory findings from the defense. He has further testified that this is a violation of his own lab’s policies - policies that he would have written. There is no good reason for such conduct, and there can be no excuses for such conduct. Moreover, Dr. Meehan has admitted to contaminating suspect samples with his own DNA. In other words, his house is not in order from a scientific perspective.”

Turvey believes that his day in court effectively ended Meehan’s future usefulness to law enforcement. “Dr. Meehan’s conduct in this case has single-handedly demonstrated that privately funded and operated forensic labs are just as easily influenced by zealous prosecutors as their government lab counterparts. And to the question ‘Have you ever willfully conspired with the prosecution to conceal evidence that you to be exculpatory?’ - he must forever answer yes, while under oath in future cases. For many in the forensic science community, this would be a career headshot.”

I first became involved in this case because the actions of the Group of 88 represented an embarrassment to my profession. Turvey responded similarly to Meehan’s behavior. “Those in the forensics field,” he told Eckelt, “don’t appreciate having a profession they take pride in being placed in an unfair light or subjected to scorn and ridicule because a small number choose to forget what professionalism is all about.”

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Yesterday’s N&O, under the joint bylines of Joseph Neff, Ben Niolet, and Anne Blythe, offered the best summary of the high points of Meehan’s testimony, while also providing two significant out-of-court items.

The first came from Duke law professor Jim Coleman, Nifong’s most eloquent and influential critic. “I tell you,” said Coleman, “the more you hear about [Nifong’s] missteps, the more you have to question whether it’s purely a matter of incompetence or worse.”

The second came from Nifong himself. In court, in a direct statement to Judge Osmond Smith, Nifong affirmed, “The first I had heard of this particular situation [Meehan’s non-reporting of exculpatory evidence] was when I was served with this particular motion” on Wednesday.

Meehan’s testimony directly contradicted Nifong’s assertion, and the district attorney thereafter backtracked. After the court session, Nifong admitted that he had known about the DNA results, but claimed that he and Meehan simply wanted to protect the privacy of the lacrosse players (or, as Nifong termed them on another occasion, the “hooligans”). Stated Nifong, “We were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud.”

If it took months for this material to come to public light, continued Nifong, the defense was to blame: Meehan’s “report made it clear that all the information was available if they wanted it and they have every word of it.”

On November 1, Creative Loafing’s Tara Servatius noted an “epic legal battle” that most in the media were ignoring—“over basic information about what happened the night of the alleged rape, evidence a 2004 open-file discovery law says the defense has a right to and should have received months ago. At the moment,” she observed, “Durham prosecutor Mike Nifong is making an utter mockery of that law, and a game of legal ‘chicken’ is quietly unfolding in which those in the know hold their breath, waiting to see if someone, anyone, will—or can—rein him in.”

Friday’s hearing made Servatius’ highlighting Nifong’s flouting of the Open Discovery Law appear prophetic.

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By this point, we’ve become accustomed to impressive journalism from the N&O. National newspapers, however, have performed poorly. Perhaps fortunately, neither the Washington Post nor the New York Times sent reporters to Friday’s hearing, and instead relied on the AP for coverage. The L.A. Times, however, produced a strong article by David Zucchino.

Critically—given his non-local audience—he provided background:

Black community leaders, backed by some Duke professors, seized on the case as a symbol of enduring white privilege and racism at an elite Southern university. Nifong joined in, publicly condemning the lacrosse players as “a bunch of hooligans” who had victimized a struggling young black woman. He said the alleged rape indicated a “deep racial motivation,” with the players showing “contempt for the victim, based on her race.”

Zucchino obtained commentary from a major law professor, NYU’s Stephen Gillers, who heretofore hadn’t spoken out about the case. Gillers noted that Nifong “seemed to rush to indict” while ignoring offers from defense attorneys to consider exculpatory evidence. “That’s simply incomprehensible,” he said. “They might persuade you and save you a lot of grief.”

Zucchino’s article captured both the tone—desperate—and the content—devastating—of Meehan’s testimony. And he painted a brilliant picture of the reaction between witness and procecutor: “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.”

The New York Times should take notice: national papers can cover the case according to high journalistic standards, provided they’re willing to do so.

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The fireworks associated with the Meehan testimony overshadowed three other items of considerable relevance.

1.) Brad Bannon asked Meehan to discuss the concept of “transference.” Meehan feigned ignorance, so Bannon explained how the transference of one or two cells—from, say, intermingling in a trashcan, or through a spec of dandruff—can lead to finding a partial match of someone’s DNA on an item.

The example he cited: Meehan’s own DNA, which was found on one of the items in the rape kit. Meehan conceded that this discovery (which he didn’t include in his initial “report”) undermined his lab’s credibility. And, of course, the theory offers the likely explanation for the partial match to Dave Evans’ DNA, on a fingernail that was in a trashcan in Evans’ bathroom.

2.) Nifong wasn’t the only Durham employee present at the April 10 Burlington meeting, when Meehan stated that while no DNA matches existed to those the D.A. would seek to indict two days later, DNA from multiple males was discovered in the rape kit.

Sgt. Mark Gottlieb attended as well. So Gottlieb as well as Nifong has opened himself up to civil suits under Sections 1983 and 1985 of the U.S. Civil Code.

3.) Finnerty attorney Doug Kingsbery asked only a few questions at the end of Meehan’s testimony, but elicited one significant response. Meehan admitted that in addition to Nifong’s three personal visits to the Burlington lab, he spoke to Nifong an unspecified number of times on the telephone. It’s my understanding that no record of these phone calls previously had existed. Meehan couldn’t say how many times he and Nifong spoke by phone, because his lab—incredibly—keeps no communications logs. He did add that no e-mail correspondence (which would, of course, have been documented) occurred between the two.

Meehan’s admission raises an intriguing question: if Nifong and Meehan felt comfortable discussing case-related matters over the phone, what motivated Nifong to make so many personal journeys to Burlington?

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The contrast between the professionalism of the two courtroom tables was striking. The defense table was all business: on two or three occasions, Bannon stopped questioning Meehan to confer with his co-counsel. The binders containing Meehan’s underlying data were spread out on the table, and regularly consulted by Bannon during his examination.

The prosecution table, on the other hand, looked like amateur hour. Nifong sat stonefaced through most of the hearing, occasionally yawning, rubbing his temples, or shuffling a few documents in front of him. He took few, if any, notes, and rarely objected to Bannon’s questioning. Next to him, Inv. B.W. Himan appeared not to move for nearly two hours. Remarkably, the case’s new “lead investigator” took no notes during Meehan’s testimony, and didn’t appear to consult once with Nifong.

To Himan’s left was Nifong’s chief investigator, Linwood Wilson, who arrived late to the hearing. A rotund man, Wilson spent the hearing with his chair pushed back from the table, his legs spread out on the side. Like Himan, he took no notes. Behind this trio sat Nifong citizens’ committee co-chair Victoria Peterson, the woman who previously had explained away the DNA results that Meehan discussed as “tampered with” by Duke University hospital. Though Peterson lacks legal training, she chatted with Nifong before the hearing and during the break. She also ignored court rules by bringing in a bag of Lays’ potato chips and a soda.

Finally, at the side of Nifong’s table was his administrative assistant (and a campaign contributor) Candy Clark. I make no claim to being a fashion expert. But given that Nifong’s prosecution has been attacked as amateurish, did Clark showing up for court in a leopard-spot sweater with matching leopard-spot shoes send the right message?

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The head of a private lab admitted to having conspired with the prosecutor not to report exculpatory evidence. What did Herald-Sun readers see as Bob Ashley’s Saturday op-ed? “Double Dose of Good News for Durham,” in which Ashley stated that “for a community that often worries about its image, Durham had a double-barrelled [sic] good week last week.” I’d hate to see what would constitute a bad week for Durham.

John Stevenson, meanwhile, offered his own unique brand of coverage of the Meehan hearing. Meehan, according to Stevenson’s summary, “denied a deliberate cover-up was involved.” Actually, Meehan repeatedly stated that he and Nifong had “agreed” that his report would exclude exculpatory evidence—even as Nifong denounced as a “witch-hunt” defense attempts to obtain the underlying data that exposed this agreement. Most people would consider that record a “cover-up.”

[Update, 8.43am: In the Sunday paper, Stevenson lays out the pro-Nifong spin on the venue change motion, under a headline of "venue change requests are rare." Stevenson notes that the change-of-venue motion cited Nifong's myriad inflammatory statements. "But," he adds, "Nifong soon clammed up, admitting he had made a mistake and saying he would avoid the national media if he could begin the case over again." Apparently the fact that Nifong allegedly admitted "he made a mistake" means that his procedurally improper statements should be ignored.]

For some good background on the dilapidated state of the Herald-Sun, see this article from the National Press Photographers Association. With a cost-cutting approach to journalism, the H-S looks to guarantee copy by reflecting the party line. It has become the Pravda of what Ruth Sheehan has termed the People’s Republic of Durham.

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At a press conference after the hearing, attorney Joseph Cheshire praised the support shown for the players targeted by Nifong. At least six current members of the Duke men’s lacrosse team came to the hearing. So did current coach John Danowski. So did one of the genuine heroes of this affair, women’s lacrosse coach Kerstin Kimel—the first Duke employee to publicly defend the character of the men’s team—and her two assistant coaches.

Former coach Mike Pressler and his wife Sue also attended. After the hearing, Pressler said, “It’s all about support. It’s all about being there for them, and that's where we’re going with it.”

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This hearing provided the first real opportunity to evaluate the fairness of Judge Osmond Smith. He passed with flying colors.

First, he opened the session by announcing that he had turned over at least some of the accuser’s medical file to the defense. This was the correct decision, of course, but it’s hard to imagine a pro-Nifong judge such as Ronald Stephens making it.

Second, Smith gave the defense sufficient leeway to examine Meehan, a critical point as Meehan wasn’t the most forthcoming witness. This decision, too, proved justified. After Bannon laid the foundation, Jim Cooney extracted from Meehan unequivocal admissions that he and Nifong had intentionally acted not to report exculpatory evidence; and that he had specifically decided to exclude from his report any notation that DNA evidence did not link either Reade Seligmann or Collin Finnerty to any crime.

In a pre-election article in the New York Times, Stephens gushed about Nifong. (The article, reflecting the Times’ biases, never mentioned that Stephens presided over the initial actions in the lacrosse case.) Smith, on the other hand, appears to be loyal to the law, not to either side in the case. That approach is just what this case needs.