Tuesday, July 31, 2007

Cooney & Bannon on DNA

At the Liestoppers forum, Jim Cooney and Brad Bannon have offered some additional insights on DNA and the case, which I’m reproducing. Cooney began:

I have dealt with DNA before, and in fact litigated one of the early DNA cases involving PCR testing in this State. My experience in DNA is that honest labs will report on what they find and everything that they find. The issue in DNA is often what the meaning of the material found may be (in terms of either the power of the identification based on population genetics or the finding itself in terms of the power of the genetic material left behind), whether the sample was complete or potentially contaminated, and whether lab protocols were followed. Put simply, I did not suspect - - and no one suspected - - that the DNA lab would fail to report on results that it had found. I have never seen a lab, let alone a commercial lab, do something like this. Consequently, when I received a report that talked about what was found, who it belonged to (or might have belonged to), that was written in final terms, I operated on the assumption that these were all the results. While it is certainly appropriate to assume that other men’s DNA would have been found on Precious, the report indicated that this had not happened - - that none of the boys’ DNA was on her and that her boyfriend’s DNA was identified.

The report was important as written - - there is no way that these three boys could have raped Precious and left nothing behind. The fact that her boyfriend’s DNA had been found showed that other DNA was present and how sensitive the test had been. In other words, I had no reason to think that this lab would violate its own protocols and deliberately fail to report on the results of all of its testing.

What Brad was doing was precisely what I do with physical evidence, whether I am appointed or retained. You have to inventory every item collected and then, using crime scene reports and lab reports, follow that evidence as it is processed and analyzed. During this process, the evidence can be split, combined, and will certainly be assigned new numbers. Brad was attempting to trace the testing and processing of this evidence when he stumbled across handwritten notations at the top of the electropherogram indicating that the samples found did not match a range of reference numbers - - those numbers turned out to be the players and our clients (and her boyfriend and her driver). The electropherogram did not tell you that, it was the technician’s handwritten note at the top which could only be deciphered if you had done the grunt work necessary to follow the trace evidence. In my experience, this type of grunt work has to be done by the attorneys - - experts cannot be expected to do it nor could they do it without literally dumping all of the discovery (not just the DNA testing) on the expert.

Any attorney who would have taken the 2000 pages we received in late October and dumped them on an expert and said tell me what it says is (1) not much of an attorney, and (2) would have looked like an absolute idiot in trying to cross-examine Dr. Meehan.

Finally, and yes, we were shocked by what happened. When Brad found the testing data, I immediately suspected Nifong - - but we had no proof. When Nifong claimed in chambers that he did not know, yes, we believed him. It was not until Dr. Meehan admitted to an agreement to withhold those results that the enormity of what Nifong had done, and the lengths that he was willing to go to, became apparent. No matter how hostile or pernicious a DA may be, I was not willing to believe that he would lie and risk his license and career for an advantage in this case.

If Brad had followed the advice of some of the posters, we never would have exposed Nifong and Meehan.

Lord knows in 25 years I have made a lot of mistakes, many of them in the courtroom. This case, however, was one of the few cases in which I have participated that everyone of our strategic decisions was proven to be correct. Many of you will remember how we were accused of coddling the prosecutors and being part of a corrupt system when we agreed to postpone the suppression hearing and give the AG a lengthy extension. We were pummeled worse than Nifong by many. However, we decided to go for a home run—a declaration of innocence—because the case had now changed. We thought it was a very long shot, but it was worth the chance for our kids. During the 3 month delay, many people lost faith with us, and our clients got desperate. Some of that desperation was fueled by comments on the blogs ridiculing the delay and accusing us of incompetence (or worse) for agreeing to it.

In the end it was absolutely the right thing to do - - this despite the fact that at the time many thought we were wrong. The DNA evidence is the same. We were right and our approach worked. But no one tipped us off, no one told us where to look, and no one told us how to do our jobs (until after the fact).

For those who want to believe differently, you diminish not our accomplishments, but instead obscure a central truth which Bill Anderson and others have repeated throughout this past year. This was as much a matter of happenstance as good lawyering and, by changing only slightly one or two facts, the case ends very differently. In states with no open file, as Bill has pointed out, what happened here may very well be happening on a regular basis. But each time someone gripes that it would have been found anyway and it was not that remarkable, you diminish not only Nifong’s wrongdoing (in conspiracy with others) but you make the system sound like it always reaches the right result and that the right result is inevitable.

Justice is never inevitable. Like freedom, it has to be earned and fought for, sometimes day by day. That is all that happened in this case.

Bannon added,

As usual, Jim Cooney said all of this much better than I did or could. I would only like to add to the sentiment quoted above. As Jim does, Joe Cheshire & I do a significant amount of court-appointed work. Joe was appointed to represent Alan Gell at Alan’s second trial, and Jim Cooney & I assisted him & Mary Pollard pro bono. Jim worked harder on that case pro bono than I have ever seen a lawyer work to learn & develop complicated scientific & expert testimony about issues related to time of death & body decomposition. The first case I ever worked as a lawyer with Joe Cheshire, Joe was appointed to represent a man charged with killing four children (the State was seeking the death penalty), and Joe worked very hard to learn & develop complicated scientific & expert testimony about fire investigation. When Joe & I represented Tim Johnson in the NC State tailgate shooting trial in the summer of 2005 (another appointed case where our client was facing the death penalty), I worked very hard to learn & develop complicated expert testimony regarding forensic psychiatry & psychology.

We use that approach in all of our cases, appointed or retained, because we believe that is the only way you can truly & effectively represent your client when expert testimony is key to the prosecution’s theory or the defense’s theory. It does not matter if the client can afford to pay you or cannot. It is the right thing to do in either case.

On a final note, I completely agree with Jim’s observation that justice does not come into being on its own. There is a speech in one of my favorite movies where the character, a prosecutor, is giving an argument to the jury, and he says this:

Going back to when we were children, I think most of us in this courtroom thought justice came automatically. That virtue was its own reward. That good triumphs over evil. But as we get older, we know this just isn’t true. Individual human beings have to create justice, and this is not easy, because the truth often poses a threat to power, and one often has to fight power at great risk to themselves.

As the discussion was going on, Michael Gaynor posted a bizarre item suggesting that Bannon had not been entirely forthcoming, generating a response:

If Michael Gaynor wrote that I knew of “another case” where Mike Nifong withheld evidence or lied about it, that is not true. I never had a case with Mike Nifong before I represented Dave Evans, and I have no knowledge of any case in which Nifong was accused of withholding evidence before this case.

I am not sure what Don Yeager and Mike Pressler meant when they wrote that I had a “hunch” about the DNA. To a person, anyone who has ever asked me about the DNA process has received the same explanation as I have posted here & explained during my State Bar testimony. That is because it’s the truth.

As far as the relative trust I would give to a report from a private lab vs. a state-run lab, I can only say that, like we generally rely on officers of the court to tell the truth, we rely on laboratories to produce full & accurate reports that follow industry practices & their own standard protocols. That said, we have a duty to verify the accuracy of those reports when any type of red flag is raised (whether the flag is raised by information we receive from our client, information contained in other lab reports, or the existence of apparently contradictory physical evidence). In this case, the contradictory findings of the SBI lab and DNA Security regarding the fingernail mixture raised such a red flag for me, which is what initially prompted the thorough review of the underlying data. In short, I wanted to know why DNA Security made the call of Dave’s DNA being in the fake fingernail mixture, while the SBI lab did not.

What did not raise a red flag for me was the “non-probative” clause. It is ridiculous to suggest that the use of that phrase is “industry practice” to notify defense lawyers or other officers of the court that there is additional exculpatory evidence (or even any relevant evidence) that the lab has not reported. It is laughable to suggest that exclusionary & exculpatory DNA findings would ever honestly be characterized by anyone involved in the analysis & presentation of forensic evidence in sexual assault cases as “non-probative evidence.” And if use of that phrase was “industry practice”--or even DNA Security practice--Dr. Meehan would not have written all of us a letter on January 10 apologizing for the use of that language & recognizing that it was inappropriate. If that was the case, his lab would not have a protocol in place requiring it to report the results of all of its tests (a protocol he admitted under oath on December 15 that he violated when he produced the May 12 report in this case); instead, it would have a protocol allowing the lab to report whatever results it chooses, so long as it throws in a sentence about how non-probative evidence is being retained pending notification of the client, whatever that means.

Also, I got a good laugh from your presumption that Joe & I have not done any rape cases before this one. Reminds me of a similar comment Mike Nifong made in court during the hearing on June 22, 2006. In fact, Joe & I have been involved, separately & together, in many cases of alleged sexual assault over the years. The difference in those cases (and others we have done where DNA was involved) was that DNA was never remotely a contested issue.

Finally, this morning, Bannon offered some additional insights:

There were several evidentiary items that had unidentified male DNA, the existence of which had been reported by either the SBI lab or DNA Security or both: the while towel found outside Bathroom A, the material swabbed from the floor in Bathroom B, and, of course, the fake fingernail mixture. Procedurally, under our law, we never had a forum to question the police or Nifong or the Durham Police Department about the post-indictment acquisition of DNA reference samples, though it is something we would have certainly explored at trial, and I imagine it is something the Whichard Commission may explore when studying the investigation.

Regarding comments critical of the defense or anything I have said, I would first echo what Jim said: we’re grown-ups, we’re fans of open debate, and we’re certainly used to being attacked and having our work criticized as criminal defense lawyers. Second, I distinguish beween legitimate inquiries or criticism of our strategy or actions and unsupported attacks on our honesty. I personally think most of the questions & comments here fall into the former category, but a few approach the latter. For instance, there has not been an “evolving” explanation of our approach to the DNA. That suggestion takes a shot at our honesty, is wrong, and is unsupported by the record.

I believe many of the factual inquiries about our (defense) approach to the DNA in this case have been answered at this point. I have answered the question of why I was the person on the defense team primarily focused on the DNA. I have answered the question of why I initially focused on the underlying data. I have answered the question of why the “non-probative” language was insufficient to put anyone on notice on May 12 that the State was deliberately concealing the results of tests which were then, for several months, repeatedly represented by Mike Nifong (to us & to judges) to have been completely provided to the defense. I have answered the question of why it then surprised me to discover the unidentified male DNA in the rape kit (not so much because I couldn’t believe Crystal Mangum would have such DNA on or in her, but because I couldn’t believe DNA Security would leave that out of its report, and I couldn’t believe Mike Nifong would have deliberately & repeatedly misrepresented that to multiple judges). I have answered the question of why I chose to educate myself & absorb the underlying data myself, before approaching our expert to verify my initial analysis & ask additional questions. (For those who complain that my approach significantly delayed the process, I will reiterate that it took about six weeks to accomplish, from the receipt of the 1,844 pages of underlying data on October 27, to the completion of my analysis memo on November 30, to my meeting with Hal Deadman & Rob Cary on December 8, to the drafting & filing of the motion on December 13, to the hearing on December 15. And during that time, I even managed visit my Mom for Thanksgiving and to go see Tenacious D in concert at Madison Square Garden.) Finally, I have answered the question of why we declined to make any direct accusations against anyone for intentionally withholding the exculpatory DNA evidence before we had a clear record (based on the December 15 revelations & subsequent comments by Mike Nifong) to do so.

Those answers may not satisfy those who would have done things or perceived things differently. They may not satisfy those who find it hard to believe that I was not a DNA expert before this case. They may not satisfy those who actually think a lawyer is doing his duty when he delegates his ethical responsibilities to experts. They may not satisfy those who find it hard to believe that, but for the simple fact of differential findings by two separate labs about the same type of evidentiary DNA analysis, this case might have come out much differently. Nevertheless, those answers are honest, truthful, and factual. And, for that reason, they will never change.

60 comments:

Anonymous said...

Without going over to Liestoppers and seeing for myself, I have to wonder what idiots are questioning the approach of these lawyers and their honesty.

Anonymous said...

Jim and Brad are brilliant. Gracious southern gentleman. Who else would answer those dope posters, who are "know it alls."

Anonymous said...

Perhaps this statement by Mr. bannon presents a good lesson for President Broadhead. "Those answers are honest, truthful, and factual and for that reason they wil lnever change."

Remember President Broadhead, facts don't change.

Teach1975 said...

I love that Jim Cooney refers to CGM as "Precious" throughout his posts. For some reason this cracks me up.

Maybe since there is a little down time (at least until the next Fong trial etc.) some are getting anxious

Michael said...

I am just beginning to read this post BUT I wanted
to quickly say that I have read the Gaynor blog entry
in question and I thought it was unneccessarily
disrespectful to Bannon. Gaynor was quite egotistical
in this particular blog entry.

All I can say to Gaynor is: you're no KC Johnson! :)

The point that Gaynor misses is that, while the defense attorneys
didn't trust Nifong, it did not occur
them that Nifong would be able to convince a DNA
lab to withhold information, that the head of a
DNA lab would actually be complicit in the withholding
of exculpatory evidence.

I am still amazed at the number of people who
were willing to lie to help Nifong -- I still don't get it.
Remember Meehan initially denied that DNA from
four males that were not Lacrosse players was found,
on Ms Mangum, on the witness stand!

Anonymous said...

2:09 The usual suspects, of course.

duke09parent said...

Cooney said: "It was not until Dr. Meehan admitted to an agreement to withhold those results that the enormity of what Nifong had done, and the lengths that he was willing to go to, became apparent. No matter how hostile or pernicious a DA may be, I was not willing to believe that he would lie and risk his license and career for an advantage in this case."

Yes, that's why for me, as a lawyer, the Dec. 15th hearing was such a "holy s***" moment.

Anonymous said...

It is easy today to lose perspective and patience. When you consider the unprecedented nature of the results - a DA disbarred while in office, and a declaration of complete "innocence" in a pretrial motion - it is the bottom line that counts.

PERSPECTIVE: We all know that Precious was all about encouraging the free flow of DNA. But, we really learned that from Brad Bannon and Jim Cooney. We first learned about Precious from the N&O, which described her as a dancer new to the biz. In Mangum's statements, she only acknowledged a vibrator show and no sex w/in 7 days of the party.

Jarriel Johnson's witness statement mentioned appointments, but did not mention DNA going from point "A" to either points "B," "C" or "D." What the Duke boys saw, and what they presumably told their attorneys, was that she came to the house to dance. I believe they could not imagine Mangum being paid for sex. Moreover, there is no mention of solicitation by the girls in any of the boys' statements.

Then, we learned from the SBI that there was DNA from Mangum's boyfriend (and no matches to the boys). If you recall SBI agent Jennifer Leyn testifying at Nifong's Bar Hearing, you were probably impressed with her competence.

Why would anyone expect the SBI of hiding evidence? As far as I know, they did not have a reputation for cheating or incompetence.

Additionally, there was the very real possibility that Mangum had brushed her teeth (at least once) or taken a bath or shower since she last played underneath the semen hydrant. In fact, one witness statement mentioned Mangum taking a shower before the party, then changing into her evening gown.

PATIENCE: One of the most underrated virtues in our society is patience. On Law & Order, the case is solved in an hour. That cannot happen when all the Judges (save one), the entire local media (save one reporter), all of the politicians (save maybe one City Council member), the largest employer in the area (save economics professors, a women's lax coach and an astounding Law Professor), the local police department (save one honest cop), and an expert witness, who is willing to lie, have either implicitly or explicitly joined forces with a corrupt District Attorney to hide the facts.

Also, the defense attorneys faced at least 2, and probably at least 4, smart professionals who worked hard to specifically HIDE THAT EVIDENCE.

What some people don't realize is that the scene-changing noise you hear on "Law & Order" - the "DUN, dun" sound - usually signifies the passage of time. It is so you don't have to watch the TV lawyers reading text books or researching on the internet. That part would be boring on TV.

__________________

"K.C. has been a benevolent king, a sculptor of renown, a ground-breaking scientist and a best-selling writer, but he is especially fond of his time spent with the Sunshine Band." From - K.C. & Me (J.K. Rowling, 1999). MOO! Gregory

Anonymous said...

KC: "As the discussion was going on, Michael Gaynor posted a bizarre item suggesting that Bannon had not been entirely forthcoming, generating a response:

If Michael Gaynor wrote that I knew of 'another case' where Mike Nifong withheld evidence or lied about it, that is not true. I never had a case with Mike Nifong before I represented Dave Evans, and I have no knowledge of any case in which Nifong was accused of withholding evidence before this case."

Set up straw man; knock down straw man.

First, I write articles and did not post any "item" on the LieStoppers Board during the discussion. I never have registered to post there, much less posted there.

Second, I did not refer to another case. A poster mischaracterized what I written in an e-mail to Mr. Bannon, which was this: "As for trusting Nifong not to conceal exculpatory material, given what he did in the case that I learned about and you know about, well, it mystifies me"--

"The case" was the Duke case, not another.

I told Mr. Bannon that he mystified me, not that he "had not been entirely forthcoming."

I thought Mr. Bannon was much more insightful about Mr. Nifong than his testimony suggested and if he did not suspect he would find evidence of multiple male DNA, that is unfortunate in more than one respect.

After closely observing
"Wonderland" for more than a year, perhaps the simple truth can seem bizarre.

What I found "bizarre" was "Based on his comments in the lacrosse case,...it appears that Joyner's personal preferences on criminal justice issues actually resemble the positions of not the national NAACP but of Clarence Thomas." Comparing a distinguished Supreme Court Justice who exhibits constitutional fidelity to a law professor who tried to led credibility to a baseless case in which the false accuser was black and her victims were white was...bizarre.

Michael J. Gaynor

Anonymous said...

Gregory - You are too much. Always enjoy your posts.

miramar said...

I have no idea who Tenacious D is, but it only seems appropriate that Brad Bannon would go see a band with that name.

Anonymous said...

What is the status of Meehan's lab?

Seems like it should be shut down.

Ralph Phelan said...

" it did not occur
them that Nifong would be able to convince a DNA
lab to withhold information, that the head of a
DNA lab would actually be complicit in the withholding
of exculpatory evidence."

There have been lots of scandals in the news in the last decade concerning incompetence or dishonesty at labs both government (FBI labs, for example) and private. Somehow the incorrect or falsified results almost always wind up benefitting the prosecution side.

When police and prosecutors are your customers the incentive to tell them what they want to hear is pretty obvious. If I'm ever on a jury I'm going to be extremely skeptical of lab results, and if I'm ever on trial I'm going to spring for having the samples sent to be retested at a lab that I'm paying.

Anonymous said...

Gregory 3:13 - "Precious was all about encouraging The free flow of DNA". Haha!

I guess we must finally admit it: Precious was no choirgirl.

Anonymous said...

I'm really glad to read these comments by Cooney and Bannon. In a comment quite a while ago I mentioned how in the beginning (first 2 weeks or so) I thought the Duke lacrosse team had certainly done something. What started to irritate me was listening to Nifong and his followers. It seemed like they were fanning the coals of class, gender, and race. The minute the topic is changed to an agenda instead of sticking to the crime itself, it raises a big flag. I remember the OJ and Tawana case. When lawyers change the subject, there's something wrong with their facts.

There are 6 law enforcement officers in my extended family, including my husband. Coming from a small department, our circle of casual friends included ADAs, judges, lawyers,and investigators. Not all were seen as ethical, but never in a million years would you suspect that one of them would risk their professional life and freedom to lie the way Nifong and others have.

It seems as though many people now act like they "knew" all along that this whole thing was a hoax. I felt really awful that I had not seen it as well. As a non expert, I'm glad to hear them say that they just could not believe evidence would have been reported falsely.

This case saddly represent a loss of innocent for many of us.

Anonymous said...

I wish KC had provided more context here.

The defense lawyers seem rather defensive in their comments -- and maybe a little thin-skinned.

Exactly what accusations were made at Liestoppers that occasioned their response?

Gary Packwood said...

Anonymous 2:09 said...

...Without going over to Liestoppers and seeing for myself, I have to wonder what idiots are questioning the approach of these lawyers and their honesty.
::
Funny that you should ask!

USA Today is asking the same question about idiots who lurk around blogs.

http://www.usatoday.com/tech/webguide/internetlife/2007-07-30-cruel-web_N.htm
::
GP

Anonymous said...

Mr Gaynor - I am a fan of yours. Thanks for posting. Many of the posters at LD do not want to let this case go. THey will seize on anything to prolong the event. They are also under the delusion they stopped Nifong.

Michael said...

Ralph Phelan: You made some really excellent points
in your 4:31 post.

In fact, if you read Officer Himan's typed notes
during that period (posted at Liestoppers), there
was one entry about Meehan trying to get a hold
of him, leaving a msg about some important news
relative to the fingernail. This is exactly what you
were referring to -- Meehan was excited to have
something to tell them which he knew they wanted to hear.

I originally thought that Nifong had the idea on his
own to do more sensitive testing, betting that there
would surely be some transfer DNA and that he could obscure
things enough (like he did in David Evans' case) to
convince a jury that was like a real DNA match.

But did Meehan possibly come to Nifong? and plant
the idea in him -- that his lab's testing was so sensitive
that he would surely find some DNA of the boys on Ms Mangum
to help the case??

Anonymous said...

5:47 -- ironic... you're reading and posting on a blog ... that exclusively discusses the Duke case. Seems you have little room to talk about posters that "do not want to let this case go" and "seize on anyting to prolong the event."

The defense attorneys and MSM were avid readers of L/S. When L/S broke stories (which it did occasionally) reporters started calling for information. I don't think L/S or readers/posters at KC's site believe they stopped Nifong ,,,, but its hard to argue with the fact that the blogs helped expose this Hoax and perhaps helped the 47 families along the way.

Move along now .... certainly you have better things to do with your time than to continue reading and posting about this case.

Anonymous said...

5:59 -- I think the SBI told Nifong about additional testing that could be done and provided a list of labs they could call.

Anonymous said...

Yes they seem quite defensive.

It seems to me that an expert could have told the lawyers within hours that there was some extra DNA. That doesn't mean they'd rely solely on the expert.

hman said...

One of the worst things about Nifongs mis-behavior in this episode is that, by getting Meehan to lie about DNA evidence, a hole was created in the public perception that outside labs (and valid scientific evidence in general) can be trusted when someones life is on the line. How long before that is repaired? DNA testing is obviously a godsend to anyone who cares about actual truth in criminal justice. And now Nifong has managed to slime that as well.
To 5:26. You said you started off believing a crime had been committed. Surely you were aware that Nifonng had refused to hear alibi evidence and basically stopped all fact-gathering right after the DNA was a no match. Why did you trust him after that? I didn't.

Anonymous said...

6:11 I was addressing the posters who challanged Brad Bannon. I am with KC to the end. That does not mean endless comments of minute detail about the case. Sorry, you can not see the difference in DIW and LS.

Anonymous said...

Jim Cooney: No matter how hostile or pernicious a DA may be, I was not willing to believe that he [Nifong] would lie and risk his license and career for an advantage in this case.

I find this statement astonishing. After watching Nifong's race-baiting media jihad in March/April, I thought he was capable of anything. The man clearly had no moral compass.

Anonymous said...

Carolyn says:

I have spent the last few days reading the negative comments of a few people on LieStoppers' board in response to posts made by Brad Bannon and Jim Cooney. I was startled - then stunned at how disrespectful some of those comments were of the phenomenal work done by Brad and Jim - to the point where some of the comments implied that Brad and Jim were lying, etc. The negativity was so bad that several - including myself - felt compelled to issue personal apologies to Brad and Jim on the negative posters' behalf. Brad and Jim couldn't have been more gracious in saying it didn't bother them, that it went with the territory, etc. - but it sure bothered me.

The work of the LAX defense team has been phenomenal. These attorneys deserve the highest praise because they have earned it.

Anonymous said...

hman 6:33
I'm in CA and this happened about the time I was getting ready for our spring break. Then I was in Mexico for the week. Though the news had made headlines, I had not followed it. I teach 4 courses and had my hands full when I returned.

The point I wanted to make was that you now have a hard time trusting anything. It's not surprising that even though I've been called to jury duty many times, I have never been chosen. Maybe lawyers are right. Maybe we have a tendancy to believe law enforcement rather than lawyers. Statiscally,, lawyers are at the bottom of the repect ladder, somewhere near politicians and used car salesmen. It was not what the defense was saying that turned it for me, it was what Nofong was saying and reading some blogs.

Anonymous said...

anon 5:45 and hman ... as always, one and the same. Astonishing that KC still this person to comment!

Anonymous said...

6:11 Actually L/S did some excellent reporting on this case. Have you read the blog (not the board, the blog)? Stuart Taylor (coauthor of Until Proven Innocent) described a L/S article, written in response to horrible article written in the NYT by none other than Duff Wilson -- as "An amazing performance of journalism on the fly." L/S's article was posted before the print version of the NYT hit the first doorstep.

Chat boards might not be for everyone. I'm not a huge fan myself. But the L/S blog is one of the best.

Topher said...

I have a just-the-facts question I'd like someone to answer, since I've lost contact with the original impacts of the DNA flipflop.

I understand Nifong conspired with Meehan to withold details of the DNA testing (why Meehan isn't being brought up on obstruction of justice is unclear, but we'll save that for another post.) Here is my question:

a. What did Nifong reveal about the DNA testing in April/May, and how did he use it to bolster his case?

b. When the defense discovered the missing evidence, how did it help exonerate the accused?

Essentially, how was the case strenghtened by the coverup, and how was it hurt by Bannon's discovery?

Thanks.

Michael said...

I guess that I'm a little disappointed to see this kind of argument on Liestoppers but am glad that the defense lawyers straightened it out. I'll have to take a peek later tonight.

Anonymous said...

"Mr Gaynor - I am a fan of yours. Thanks for posting. Many of the posters at LD do not want to let this case go. THey will seize on anything to prolong the event. They are also under the delusion they stopped Nifong."

Well I do not know all who contributed to stopping Nifong, but Gaynor was certainly not one of them. He claims to have had an inside source, whose name he will not disclose, inform him last June that Meehan's lab had evidence of multiple male DNA not from the LAX team. I shall take Mr. Gaynor at his word that he indeed had this proof of innocence. In his great concern to see justice done, however, he did not bother to tell the defense attorneys about it, but let them struggle for months to get access to the very data that he already had access to. That too is his word. In short, he did not inform the people responsible for defending the boys about information critical to their defense. Here are Mr. Gaynor's own disgraceful words:

"Mr. Bannon swore during the Nifong trial that he did not expect [the revelation that Meehan had suppressed evidence] and he [Bannon] was NOT one of those to whom I had sent one or more of my articles reporting the multiple male DNA." The "NOT is capitalized in his own article. He seems quite proud of not having helped the defending attorneys.

JeffM

Anonymous said...

When the LS chat blog poster killed off the disenters, there was no one left but each other.

Anonymous said...

Jeff - He published the information a couple of times. A NY lawyer has more contacts in Durham, NC than nine NC defense attornies? Hard to believe.
So many want to make this case the responsibility of everyone else but Nifong.

Anonymous said...

More like so many of us want all the Hoaxmen exposed and punished. Nifong didn't do this all by himself.

Anonymous said...

Mr. Gaynor's response is incredible! Is he considered an officer of the court? If so, could he justify the lies Nifong was saying and keep his mouth shut? How about the people Gaynor notified? And why did someone close to this case tell Gaynor and not the defense? Why did Gaynor not ask the person to notify the defense or at least release him from his pledge of secrecy? I want to take people at their word, but some days it's hard.

Mr. Gaynor's response really poses more doubts about everything he says.

Anonymous said...

@ 9:39

Gaynor may have published it on his blog or anywhere else, but he admits he did nothing to get it where it was needed. Sounds to me as though he was more part of the problem than of the solution.

I find the idea that the defense lawyers did a poor job ridiculous. And I find the idea that they were deliberately running the meter offensive.

JeffM

mac said...

I'm glad KC posted this, if for
one reason only:

I guess I believe that there's been a
kind of Slimfast mentality with regard to the pursuit
of justice in this case in the minds of some posters.

My advice?

Lesson # 1: If you want to get slim, it ain't fast.

Lesson #2: And if you want justice, it ain't fast, either.

There was a lot of impatience expressed by some posters, admittedly -
and that's a normal state in humankind:
when someone goes to a restaurant, for example,
and has to wait for their food,
they don't always see how much work
goes into the preparation;
it's easy to assume that someone in the kitchen is slacking.
The patron may become impatient. It happens.

Sometimes there is lethargy, admittedly, and sometimes there is complexity and novelty.

Meanwhile, the cooks may be very hard at work.

That goes for the prosecution of key elements
and figures in this case:
it doesn't mean it won't
happen; it means that the cooks
have to prepare the menu, one ingredient at a time.

If you cook with leftovers,
it may be different, but the attorneys involved in this
case had to break new ground -
such as having a DA and Lab expert
collaborate upon a lie.

New territory, new recipe: no
leftovers - (except for Miss Samples' many samples.)

Patience was in order, and the need for patience
will continue to be neccessary as the case winds up -
not down as some suppose.

It will likely be a hot September/October/November for
many of the Hoaxters.
And Santa will not be happy with
some of them come December 25.

Anonymous said...

I totally respect most of the defense lawyers, but were they not paid over three million to ferret out information as part of the defense of their clients?

Punditarian said...

The only thing that surprises me is Brad Bannon quoting Kevin Costner in his portrayal of Jim Garrison. Whew!

Anonymous said...

JLS says....,

1. Why in the world would these attorneys stoop to defending themselves on the idiot filled LS board???? They won all the gambles they took. There is nothing more to say. They are crazy to bring themselves down to that level.

2. I keep going back and forth whether Nifong hid this evidence in May because he only wanted an indictment to win the primary and did not really plan to see this case through but was trapped by the bar investigation into keeping it going or he is such a PC Dem believing Mangum and willing to do anything to convict?

3. I agree it is shocking the defense attorneys don't understand that DA would cheat to win. They really need to read up some on what Bill Anderson and others have written about various cases particularly the day child molestation cases.

4. Again as I have said over and over, the Meehan testimony was key to bringing down Nifong. As the attorneys said again in these posts, we already had:

A. No party attendee DNA on Mangum or her effects. [Other than the non-exclusion NON-MATCH of Evans DNA from a nail found in his trash can.]

B. DNA from another on/in Mangum.

C. DNA from other men on Mangum's effects.

Adding DNA from other men only marginally adds to doubt about her story. Basically, if you have the boyfriend DNA, no party attendee DNA and the discription of the alleged attack, then you know Mangum is lying. If you persist in believing Mangum despite that, the DNA of more males is not going to convince you. You can not be convinced.

But without this hiding evidence it is not clear that Nifong would have been disbarred. I suspect he still would have given the Bar committees recognition about Nifong's statements, fraud and the primary. But it would have been a closer call.

5. The two attorneys quoted are NC attorneys. They have had many dealings the the NC legal system and a history of trust. Many of us here don't have any other information about the NC legal system than following this case. So naturally there was and remains suspicion about various decision like not pressing the AG's special prosecutors by not opposing the delay in the February hearing nor Judge Smith to make rulings.

Anonymous said...

why the attack on the LS board JLS?

maybe because Newport handed you your ass there?

Anonymous said...

JLS - "Why in the world would these attorneys stoop to defending themselves on the idiot filled LS board????"

Perhaps the fact that several of the defense attorneys read L/S daily means they didn't look at it as an 'idiot filled" board.

Just like MSM, you weed through the garbage to find the treasures. They've said as much themselves.

Anonymous said...

jeffm at 10

If Gaynor had published the information, kc would have read it as he has said before that he has a google alert that he reads basically anything to do with the case. Now it's possible that kc may not get to every article, but Gaynor is not an obscure person, so kc would certainly have read anything he wrote. Especially since Gaynor claims to have written about it several times. I would sure like to see a link to these articles. I've not read one single person who had this information before it was stated by the defense.

Anonymous said...

Excellent KC!

When are you going to bring Kingsberry and his famous deposition of Levicy back?

Keep up the good work.

Anonymous said...

JLS says....,

re: anon 11:08

That is a reason to read. That is not a reason to defend themselves there.

re: anon 11:07

As I have said before the LS board harmed the case of the Duke Lacrosse players by giving skeptics a bunch of idiots to point to. I am still waiting for anyone to come up with something that Levicy did that was criminal or a tort.

Anonymous said...

@ 11:26

Are you misinterpreting my two posts at 7:57 and 10:00 as praising Gaynor?

I find the issue of whether he truly had this information months before anyone else completely irrelevant. He asserts that he did and that he failed to notify the defense. If he did not have what he asserts to have had, he has lied. If he did have what he asserts to have had, he helped keep the hoax alive for months. Whichever is the truth, Mr. Gaynor comes across as pretty despicable.

JeffM

Anonymous said...

Bannon looks good; LS looks Bad.

Anonymous said...

Not only is there nothing criminal in Levicy's behavior, she still has a nursing license, employed at DUMC and no civil suits. Obviously, neither the NC Board or DUMC agree with the claims made against Levicy. The proof is in the pudding.
Since Kingsbury's Levicy expose, he has been out of sight. As have the nurses who libeled her character and skills.
Newport has been out of sight since Brad handed him his head this morning.

Ralph Phelan said...

hman sez:
"One of the worst things about Nifongs mis-behavior in this episode is that, by getting Meehan to lie about DNA evidence, a hole was created in the public perception that outside labs (and valid scientific evidence in general) can be trusted when someones life is on the line."

That's only a bad thing if that trust was deserved in the first place. How often do labs bend the truth for customers? How would we ever know?

Ralph Phelan said...

" I agree it is shocking the defense attorneys don't understand that DA would cheat to win."

It's not that they didn't expect cheating, it's that they didn't expect this particular high-risk low-payoff move to be made. They thought they were dealing with a competent villain.

Anonymous said...

Wow! Best post ever! Such a brilliant defense team! Hope these brilliant defenders put out a book soon. I would love to purchase it. Truly fascinating.

Ralph Phelan said...

hman, re: lost trust in forensic science.

Check out this thread.

If defense lawyers, judges and juries start to routinely entertain the possibility that the DA is lying and the lab is lying too, that's a good thing.

Anonymous said...

I doubt the defense team, particulary Joe Cheshire, was fooled by Nifong for a second. As Cooney said " putting his law license and career in jeopardy for a advantage was unlikely." paraphasing

Anonymous said...

Aug 1, 2007 12:15:00 AM said:

"Bannon looks good; LS looks Bad"

I strongly disagree. The thread over on Liestoppers, that KC writes about, is exactly what makes LS an excellent discussion board with forum leaders (moderators) who have continually shown an exceptional degree of fairness and tolerance.

Anonymous said...

I have been very preoccupied by a parent's health crisis and have not read the LS Board for a couple of weeks. But the performance of the defense team throughout the case has been dazzling. I very much appreciate reading whatever they would like to share with us about the case. Maybe I will get a chance to catch up with what is on the LS Board at some point, but, regardless of what is said there, this case will almost certainly find its way into the history books (and absolutely into the law school textbooks) along with the names of the defense team and acknowledgment of their exceptionally expert handling of this case and its extraordinary outcome.

Observer

Anonymous said...

LS is fine - good writing and thought - it is some of those quack posters - but they do give a laugh.

Anonymous said...

Michael Gaynor must feel like a jack@ss now!!! When good blogs go bad!!

Anonymous said...

1"32 You could be right but I doubt it.

Anonymous said...

Whoops.

Apparently Gaynor did what he said and the defense won even though his reports "fell between the cracks."

http://www.renewamerica.us/columns/gaynor/070803

Oh well, it was a bizarre case.