Saturday, July 28, 2007

Bannon on the DNA Process

Brad Bannon recently gave the "blog hooligans" at Liestoppers an inside look as to his rationale for mastering the DNA evidence:

In fact, the first thing we asked Judge Smith to do, in the first sentence on the first page of the motion, was to hold Mike Nifong in criminal contempt of court for his misconduct before the Court on September 22 and December 15. The first thing we asked for in the motion’s concluding prayer for relief was “an order holding Mr. Nifong in criminal contempt.” That is why, when Judge Smith entered his order to show cause regarding the September 22 misconduct, he specifically noted that he was doing so on our motion as well as his own. In effect, when Judge Smith found probable cause to believe that Mike Nifong engaged in criminal contempt by misleading the Court on September 22, we won the primary objective of the sanctions motion, which was a forum for the Court to determine whether Mike Nifong should be held in criminal contempt of Court.

Regarding the comments about the “story” of my DNA work being “misplayed to some extent for dramatic effect,” while I agree that far too much emphasis has been placed on my DNA work (to the exclusion of equal focus on the more important contributions of the rest of the defense team), it has not been “misplayed for dramatic effect.” The truth is that no one was focused on the DNA except me, for the reasons I stated under oath at the State Bar hearing and that Jim Cooney has mentioned here in these threads. While I did not know much about DNA when we got this case, I knew a lot about representing criminal defendants at trial, and I knew about trying criminal cases where expert testimony & subject matter is involved. So I knew that you simply cannot dump a bunch of documents on an expert, say “Tell me what I need to know about these materials,” and wash your hands of your responsibility to provide context & know the science yourself. You must provide your expert with context related to the facts & procedure of the specific case. You must also review the materials yourself, because (a) you have knowledge about the law that an expert does not have when he or she is reviewing materials, and (b) you may catch things an expert would miss. Most importantly, as it turned out in this particular case, you have a duty to learn about the science & the complexities of the area of expertise yourself; otherwise, you will not be able to effectively deal with experts in the courtroom (whether it's cross examining the prosecution expert or presenting your own).

Say, for example, a prosecutor walks into a courtroom one day and, without notice, presents an expert for testimony, and this will be the only opportunity you have to cross-examine that expert. If you had not taken the time to learn about all of the underlying documents & the rudimentary scientific concepts necessary to interpret them (if, in other words, you had taken the approach of sending materials to an expert and saying “Tell me what I need to know about these materials”), you would not remotely be ready to cross-examine that expert extemporaneously, especially if that expert (a) initially attempted to deny the premise of your scientific conclusion, or (b) became very difficult & erratic under questioning. By contrast, learning about the materials & the science gives you both the scientific & legal knowledge necessary to effectively get that expert witness under control and lead him to the truth.

I learned this approach from the master: Jim Cooney. That is why it was entirely appropriate for Jim to deliver the final blows at the hearing on December 15, and that is why it was entirely appropriate for him to get the applause.

As I testified in the State Bar hearing, I learned fundamental concepts of DNA testing from reading John Butler's second edition of Forensic DNA Typing. After recieving the underlying data (1,844 pages) on October 27, I reviewed them while reading that book. In November, I made the discoveries. I put them into a 40-page memo and sent it to Rob Cary and Chris Manning at Williams & Connolly in DC. Rob & Chris had provided Joe Cheshire & me with very valuable input on various issues in the case up to that point and had agreed to help us coordinate a DNA expert at the appropriate time. They shared my memo and the underlying data (1,844 pages) with Hal Deadman, a DNA expert. He reviewed the memo & materials and met with Rob and me on December 8 at Williams & Connolly's office in DC. He confirmed the analysis in my memo. We converted it to the Motion we filed on December 13. Two days later, on December 15, Mike Nifong presented Dr. Brian Meehan for testimony without giving us any notice. If you review the transcript of that proceeding, you will see that Dr. Meehan initially denied the basic premise of our motion: that his lab found but did not report multiple male DNA on various rape kit items that excluded the lacrosse players. I then took him through each of the findings I had made and questioned him about specific concepts in DNA analysis & interpretation, and he ultimately admitted that yes, they did find it, and no, they did not report it. He then admitted that Mike Nifong knew about it in April and had participated in the process of deciding to report only the "matches," a reporting formula that necessarily excluded the exculpatory results we found. Whether that process & turn of events was dramatic or not, that was how it unfolded.


Anonymous said...

Beyond doubt, one of the good guys.

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KC Johnson said...

Re the above two deletions:

Since I was denied permission by Ho to quote from her e-mail to me, I deleted the two comments above, which referenced the e-mail (which she apparently sent to others).

haskell said...

Great explanation of your elegant assessment and presentation of impossibly complex science. Thanks for your diligence. You set a shining example of how things should be done. The bar has just been raised way up there.

Anonymous said...

Brad is brilliant, as are most of the defense attorneys. Of course, this makes perfect sense. Ho will be out of our lives soon and hopefully a wiser person when giving her opinion.

Anonymous said...

I did find the post purportedly written by Professor Ho to be quite odd. It claimed that a friend "texted" her to inform her about DIW. But anyone who visited her blog before she made it invite-only would have seen that most of the commenters explicitly stated they follow the link to her comments from DIW; so she was certainly aware of the existence of DiW and what was said in the initial post. Given that, the comment of being "texted" raised my suspicions.

Anonymous said...

Off-topic - post from kbp from today's Blog and Media Roundup at Liestoppers:

Good ol' Jennifer Ho locked her blog up so we can't read or comment at it now! Maybe Wayne has her email, she seemed to like the fact he put a name on his comment.

"This blog is open to invited readers only"

I guess she reads KC's "marginal blog entitled Durham In Wonderland" now!

DFA said...

In contrast, Bannon is a credit to his profession.

In Ho's case, however, higher "education" has apparently left her confounded and confused. This is the unavoidable downside of our liberal system, wherein a very ordinary mind is thrown into a murky, infested swamp, absent the intellectual means to defend, much less extract itself.

Which in this instance resulted in something even more dangerous than ignorance.

Anonymous said...

JLS says....,

1. Bannon's DNA work was very important for the case of the NC bar v. Mike Nifong.

2. Bannon's DNA work while important was less important for the cases of NC v. Evans, Finnerty and Seligman. It was already determined that there no DNA link between the accused and Mangum. It was already determined that there was DNA of others on the clothing of Mangum. Nifong's case was non-existent by the time the December hearing happened and was very likely to completely implode at the February suppression hearing.

3. From the point of view of the defendants, having the AG say they were innocent was enhanced by the case of NC Bar v. Nifong. Anyone paying attention knew they defendants were innocent long before the AG said so, so while that statement apparently was important for the accused and their families personally, I view it as somewhat redundant and doubt that it has shut up a single member of the something happened in that bathroom caucus.

4. Bannon is 100% correct that to be a good cross-examiner of an expert an attorney needs to understand the area of the expert as much as possible. The attorney never will completely understand the area of the expert, but the more they understand the better.

5. The defendants were in some sense quite lucky a young smart attorney was looking at the DNA data. Bannon was probably at his most careful and enthusiastic because of his inexperience in this area.

Michael said...

Bannon is truly a hero AND anyone who would suggest
that his story was played up for dramatic effect --
that is absolute sour grapes. IN FACT, I did not
know that Meehan initially denied Bannon's findings
SO IN FACT, the story was not played up as much
as it could have been.

And, IN FACT, this points to the fact that Meehan
was more complicit with Nifong than I originally
thought. IN FACT, I believe more so now that
Meehan should be held accountable for his
part in this. Just think of it, Meehan was
ACTIVELY hiding the information about the DNA
from the four non-lacrosse players!!

Why? Why did all these people lie to support
Nifong's case? You got Wilson, Gottlieb, Levicy,
and Meehan. Craziness!!!

Anonymous said...

I appreciate Mr. Brad Bannon's modesty, but he understates his accomplishments and the drama involved in his discovery of the exculpatory DNA evidence, as well as the eventual use of that evidence at the December 15, 2006 hearing. On October 27, he received 1,800+ pages of techincal documents written in a language foreign to him, DNA-ese.

Additionally, those documents contained lies to distract and confound him. The most important lie was the use of "non-probative specimens" to describe the finding of exculpatory DNA from at least 4 unidentified males, two of whom deposited sperm in Mangum's mouth. Another lie was the omission of those results in the report summary.

Bannon had about 48 days from receiving the data on October 27 to the hearing on December 15. In that time, he became conversant in DNA science, reviewed all the data AND discovered Nifong/Meehan's hiding of the exculpatory evidence.

Then, on December 15, 2006, with only minutes of prior notice to Bannon, Nifong calculatedly put Meehan on the stand as a hostile expert (lying) witness, whose job was, in part, to confound attorneys. I believe Nifong felt:

1. No attorney could be ready to cross-examine an expert on 1,800+ pages of data in that short span of time. [The lazy attorney's view of other attorneys].

2. The exculpatory DNA evidence was sufficiently hidden by the use of the "non-probative" descriptor and its omission from the report summary. [The unethical attorney's view of his fool-proof scheme].

3. With no time to prepare, Brad Bannon would not be able to cross-examine the expert witness and would probably ask for a continuance. [The vain attorney's view that if he couldn't do it, nobody could].

4. After having talked to Meehan on the phone and having met with him in person right before the hearing, Nifong was certain the weasly Meehan could avoid the issue at the hearing. [The co-conspirator attorney's view of his co-conspirator expert's ability to use mumbo-jumbo and avoid the issue].

Most significantly, Brian Meehan began his testimony STILL TRYING TO HIDE THE EVIDENCE. In a very weasly and technical way, he claimed that the only items missing from the report were the LAX PLAYERS' DNA PROFILES! With his knowledge gained in less than 2 months' time, Bannon eventually pinned down the wriggling Meehan, and Cooney swooped in for the kill.

K.C. Johnson reported about the moment when the crowded courtroom erupted in cheers as the weasly Meehan admitted to the criminal conspiracy and Nifong hung his head low.

Hell yes, that was drama. Without Nifong's miscalculation and Bannon's skill, the Jury trial of "State v. Evans, Seligmann & Finnerty" might be starting this week.


Bannon and K.C. Johnson share the X324 gene, which is only found in people who go "Samuel L. Jackson" on injustice. Meehan Summary Report (May 2006). MOO! Gregory

Anonymous said...

Yes, Brad Bannon is hardworking and brilliant.

Joe Cheshire refers to Brad as brain.

Many people are smart, but it takes an unusual brand of persistence to have done what Brad did.

How many of us would have gone out and bought a book....then sat down for countless hours of many days going through that book.....teaching ourselves a new order to comprehend what was the equivalent of a whole new language in a few days?

Not many of us to be sure.


(About the troubled poster who has done damage to us all by his actions--there was open sabatoge of this blog. I have been angry many times before when the role-playing poster attempted to do damage to individuals here in the same way by making up posts and characters.

For someone to continue sabotaging comments of fellow posters is a dirty way to perform on any blog; however, the person KC has just banned--and we all must assist in this method, for he will return playing many roles--went WAY beyond anything endurable by allowing his hoax to be sustained by all of our comments.

Not just one or two posters were sabatoged, but the entire blog!

The lacrosse case has been too significant an element of our justice system for this blog to be sidetracked by such nonsense.

Jennifer Ho's ridiculous commentary on the lacrosse case stands on its own. She, Duke's Gritty Gang of 88, and other destructive enablers of injustice have been illuminated for everyone to see. No need to add embroidery to their insanity.

We all should have known that people of her ilk do not have the integrity to respond and defend their senseless logorrhea.

If Ho's response had been authentic, at least she might have been looked upon as less vile than her circle of loons. As it is, she has written pure falsehoods and cannot support her position.

Let's not give this fraud anymore attention......just as we will not give further attention to the poster fraud who has operated in our midst....even as some of us tried to be civil to him.

Let's give this topic a big heave-Ho.)


Lyle Sanford said...

Thanks very much for this post, as I'd wondered why he needed to learn the DNA science himself, and this explains why. And thanks for this blog, as it's been terrifically informative and a wonderful model of the effectiveness of "new media".

Anonymous said...
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Chicago said...

I love the fact that Cooney said to himself as he was about to finish the job on Meehan "This is gonna be fun!"

Chicago said...

I would very much like to see Dr. Brian Meehan also held in contempt of court for his willingness to lie and attempt to do so. As Mr. Bannon makes clear, initially Meehan denied Bannon's theory the motion probed (my guess is he figured Bannon didn't know a thing abut DNA). However, once Meehan realized Bannon had done tremendous homework on the issue he had an "oh shit" moment and was trapped in his own lies and the lies of Michael B. Nifong. If his initial attempts to lie on the stand coupled with his decision in April of 2006 to not provide a full report to the courts is not criminal contempt I do not know what is. Furthermore, Meehan should be banned from ever working for the courts. He put the buck in front of integrity and our democracy should have zero tolerance for such behavior.

Gary Packwood said...

Lyle Sanford 2:07 said...

...Thanks very much for this post, as I'd wondered why he needed to learn the DNA science himself, and this explains why.
It also explains why the lacrosse players call him Mr. Tenacious...which fits perfectly.

Anonymous said...

I wish to correct the spelling of the word--sabotage--in a prior post.

Once was correct. Twice I switched the vowels.

And I'm not even dyslexic!



Anonymous said...

Carolyn says:

Brad Bannon amazes me! Mostly because I find it incredible that someone so incredible can spend so much time insisting he isn't. He's smart, modest and thinks damned quick on his feet! Damn, I wish I could have been in that courtroom to watch him nail that weasly Meehan down. However, I thank God the kids' parents were there instead. What a wonderful early Christmas present that must have been.

(Hopefully next Christmas Bannon will be able to give the parents another lovely gift - Meehan's license on a platter.)

Anonymous said...

Did anyone notice in some of the photos of Mikey during the latest court appearance that he has begun to resemble Al McSurely, an attorney for the NC NAACP?

He was a bit gaunt and straggly. Seems even more gray has emerged in his hair since he took refuge in the roads with his guitar.

BTW, what is a Van Dyke beard? A news report characterized Mikey's new facial hair that way. Never heard of it.


Anonymous said...

A clever little view of the DNA process:



inman said...

Is there a source on-line that has the transcript of the December 15 cross examination of Meehan by Bannon? And the subsequent cross by Cooney?

I'd be interested in reading that to get a better sense of the extent to which Meehan is culpable.


(Oh and Debrah, May I please extend civil, courteous and appropriate comments to you as they occur to me? Thanks!)

Anonymous said...

Hey Chicago: The scope of Meehan's complicity is breathtaking. He was instrumental in, among other things, the following:

1. Calling the exculpatory DNA evidence of at least 4 unidentified males (2 of them semen profiles in Mangum's mouth) "non-probative" specimens in an attempt to hide them from the defense.

2. Not putting all the DNA evidence results in the report summary.

3. Attempting to hide the hiding of the exculpatory evidence by making cost and privacy objections to the court through Nifong.

4. Conspiring with Nifong, Gottlieb and Himan to hide the evidence in at least three documented meetings and other telephone calls.

5. Starting the December 15, 2006 hearing with another attempt to HIDE HIS HIDING of the exculpatory evidence. Here was his response when Brad Bannon suggested that he might not have reported all the test results:

"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 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, Mr. Nifong, or through him, you, would request that additional information, we would gladly supply it ...."

As you can see, Meehan, at first, ONLY ACKNOWLEDGED HIDING THE PLAYERS' DNA PROFILES. In that whole, long dissertation, Meehan does not mention the real exculpatory evidence once! He was still trying to HIDE HIS HIDING of the evidence sitting in front of the Judge, under oath.

Please note that I don't know Mr. Bannon - I don't even practice in the same state (or region of the country). But my professional esteem for him is very high.

"When he looked into the electron microscope at the piece of lacrosse evidence, Brian Meehan did a double-take, then rubbed his eyes, for staring back at him was a very tiny, very angry K.C. Johnson flipping him off." Meehan "Interim Report," at p. 10 (May 2006). MOO! Gregory

Anonymous said...

A VanDyke beard is named for Sir Anthony VanDyke (artist in the late 17th Century). It is a goatee with mustache.

One Spook said...

Debrah, eschewing Google asks,:

"BTW, what is a Van Dyke beard? A news report characterized Mikey's new facial hair that way. Never heard of it.


From the type of facial hair worn by Flemish artist Anthony vanDyck (Van Dyke)

One Spook

miramar said...

I agree with Chicago 3:03 and anon. 3:54 about Meehan's possible perjury. After all, Bannon indicates that "Dr. Meehan initially denied the basic premise of our motion: that his lab found but did not report multiple male DNA on various rape kit items that excluded the lacrosse players." Since he has not been charged, does this mean that if you finally break down and contradict your previous testimony, then somehow you did not perjure yourself in the first place? Aren't there any professional organizations that can control these DNA types, or will Meehan live to obfuscate another day?

One Spook said...


Anthony vanDyck (Van Dyke)

The color "Van Dyke Brown" originates from the same source.

One Spook

Anonymous said...

Brannon is doing what he considers his job. He sets a high standard for himself, which is reflected in the product.

As with other professions, being knowledgeable outside your area of expertise can make-or-break your performance.

So its not just smarts, its hard work. And how do you get smarts? Hard work.

Jonathan Trenn said...

This is an outstanding and important blog. Hadn't known about it until earlier today. I'm nominiating it for the Bloggers Choice Awards.

Anonymous said...

TO Spook--

I know, I know.

Sometimes I just throw a question out there to prompt comments.

You remember the Michael Myers character on SNL:

(Discuss among butta....)


When I googled, I found depictions of Satan sporting a VanDyke beard. How appropo is that?


christoph said...

Come to think of it, doesn't Duke's mascot have a VanDyke beard?

becket03 said...

KC, you've got a very incisive mind, but perhaps you're at times too earnest, an attribute slicksters love to target.

When "Prof Ho" referred to her own physical appearance in an unflattering way, I suspected immediately that the email wasn't genuine. The remark was wildly out of place in the context of the subject matter under discussion.


Michael said...

re: 7:20

Several of her website posts indicated her insecurity and self-esteem problems. Polanski probably read through it before making up the message.

Anonymous said...

TO beckett--

I agree with you. At the time, some of us responded enthusiastically......while issuing skepticism later that it might be the resident Sybill at work.

But, like everyone else, I bought into it because all you have to do is read some of the childish commentary from the Gang of 88 and their ilk, and it was no leap at all to take the post at face value.

You need to know Chapel Hill. There are urchins walking around like Jen-Ho anytime of day.

Besides, her "real" commentary is a strong enough indictment of the veracity and the significance of her scholarship.

I'm just angry because in the past, the role-playing poster did this kind of thing all the time.....aimed at me.

It's a way for an idle creep to "get revenge" on those who have dissed him. Hide under numerous monikers and sabotage the proceedings.

The now-banned poster helped minimize comments on a regular basis by working to discredit those who gave him a hard time.

I'm angry for what this sorry episode did to this blog.....albeit temporary......throwing detractors some red meat.


mac said...

Bannon's explication - (a good word) -
of his process shows just how
razor-thin the margin was between
a trial and no trial, with a
declaration of innocence.

I'm guessing that there will always be some
who think that the trial never would've happened, anyway,
but this seems to suggest otherwise.

Few persons recognize the depth of the pit
they've managed to avoid,
unless they are willing to
stand back and take a measurement.

Anonymous said...

"Bannon's DNA work while important was less important for the cases of NC v. Evans, Finnerty and Seligman. It was already determined that there no DNA link between the accused and Mangum. It was already determined that there was DNA of others on the clothing of Mangum."

No, I must respectfully disagree. If there had been no open discovery law in North Carolina, if Nifong's withholding of that DNA evidence had merely been an acceptable prosecution tactic, the DNA evidence itself would still be tremendously significant. There is no way to distinguish between "there was no DNA to find" and "the methods we used to try and find DNA didn't find any". When the results are completely negative, true negatives and false negatives cannot be told apart. But when your results are not "no DNA" but "DNA from five different men, none of whom are the players", the plausibility of false negatives is far weaker. Obviously the methods being used to find DNA are finding DNA and thus the fact that they didn't find the DNA of and lacrosse players is correspondingly more significant.

Anonymous said...

Is Meeham a Communist?

Anonymous said...

I think we can asume the change of benue motion would have succeeded. A trial, not held in Durham, would be a different story. Nifong never intended to go to trial. As of April, 07, there was still no trial date. As the NC Supreme Court ruled earlier, four years was not to long to wait for trial. He would have kept this going foreve. Now that bloggers are writing like thirty years was a sure thing, like the Alamo, this will grow like a mushroom.
I think Nifong, the News and Observer, the 88 and talking heads got and kept this thing going.

Anonymous said...

Jonathan - You will find that most of us voted for the BloggersChoice Award. The award ceremony will be held in Las Vegas in October. We, can only hope KC wins and attends the ceremony. glad you like the blog. You might want to read the Posting for the last thirteen months.

becket03 said...

debrah -

yes he's done some damage, but only temporary, as you say....he's an interesting case: flashes of brilliance interspersed with howls at the moon.


Anonymous said...

I hadn't realized that D.C.'s Williams & Conolly was involved in assisting the DNA evaluation. That is a very heavyweight criminal defense firm indeed.

That they had to be involved to assist emphasizes even more how stacked the deck was against the defendants.

Anonymous said...

TO Beckett--

Well stated.


Anonymous said...

I have new respect for Defense Lawyers because of you! And your team.