Tuesday, August 07, 2007

More from Bannon on DNA

Another behind-the-scenes posting at Liestoppers from Brad Bannon, on the defense and DNA:

----------

1. On May 12, 2006, we received a report from DNA Security that appeared to us--and to every lawyer who has seen it & every expert but Brian Meehan who has reviewed it--to be a final written report that stated the results of all of its DNA testing, which included rape kit findings.

2. We consistently sought the underlying data for the testing, starting with general requests in May and June, and then with the specific requests filed in August, culminating in the argument and order of September 22, 2006, and the provision of underlying data that occurred on October 27 and November 1, 2006.

3. We consistently sought the substance of Brian Meehan’s statements to Mike Nifong & investigators during their meetings in April and May. Mike Nifong consistently represented, in pleadings and open-court statements to various courts, that we had received all of the information from those meetings that the law required.

4. Putting aside whether anyone on the defense team was or should have been surprised to discover that Mike Nifong’s repeated representations about the DNA were false (and/or that DNA Security had violated standard lab protocols, as well as its own lab’s protocols, by failing to report all of its DNA test results), we had no evidence which would support the request for an evidentiary hearing based on that premise until December. Put another way, the only “evidence” that may have existed to support that premise before my discovery in November was a “hunch,” and hunches are not grounds for evidentiary hearings based on the very serious accusation that an officer of the Court has intentionally & repeatedly lied to defense lawyers & multiple judges.

5. We received the DNA Security underlying data on October 27, 2006, and the SBI lab underlying data on November 1, 2006. Once the data from both labs was in our office, I began reviewing it. By the end of the month, I had completed my analysis and memorialized it in a 40-page memo. While I do not remotely deserve the “hero” label that some have given me for that work (it is, after all, my job), I do know that I reviewed the materials promptly & efficiently and that my approach to the work was (and was ultimately proved to be) absolutely correct. Simply put, no one lost time or money on my DNA work because of the manner in which I chose to approach it.

6. Despite what television & movies may lead some people to believe, and despite what some people might believe about the very experienced members of the defense team in the Duke case, we do not ordinarily engage in a detailed, scorched-earth analysis of every type or classification of evidence in a criminal case. That’s not because we’re na├»ve or incompetent or lazy. It’s because taking the same approach to such evidence in every case would be a waste of time & resources, whether the resources are your client’s (in the case of a retained case) or the State’s (in the case of an appointed case). Any good lawyer knows that each specific case calls for a case-specific approach to the evidence, no matter what type of evidence it is (e.g., “confessions,” eyewitness identification, witness statements, forensic evidence, scientific testimony, psychiatric testimony, etc.). And, as I have posted before, as any good criminal lawyer would know, and as is often the case with DNA evidence in particular, most criminal cases involve many issues & many types of evidence that are not contested, even if the charge itself is contested. The classic example for DNA testing is an allegation of acquaintance rape. If the defendant concedes sexual contact but maintains that it was consensual, you will readily concede the validity of DNA results that identify your client’s DNA on a vaginal swab. You are not going to waste your client’s money on extensive analysis of the DNA (by yourself or by an expert), and you are not going to waste your time focusing on DNA to the exclusion of, say, developing evidence & arguments to support the consent defense.

7. But there are obviously cases in which certain types of evidence, including DNA, may be “contested” issues. The legal teams for Collin and Reade had essentially decided that they would not be contesting DNA issues in the case. And, in fact, Joe & I had not decided whether we would be contesting DNA issues in the case on behalf of Dave. As many of you have noted, DNA Security reported that it found DNA from a single male source on the vaginal swab, indicating that there was not an “absence of evidence” in the rape kit. Regarding the fingernail conclusion, it’s not exactly mysterious that some of Dave’s DNA characteristics would appear on items recovered from his bathroom trash can using the most sensitive DNA testing known to man, which can sometimes identify DNA from less than a single human cell. So while there were reasons to embrace the DNA Security report and no real reasons to fear it, Joe & I still knew that the fingernail finding would be used by Mike Nifong not only to try to convict Dave Evans, but to argue the overall credibility of Crystal Mangum’s allegation (which involved a struggle with her attackers during which she lost her fake fingernails). Because of that, and because of the differential findings by the two labs about the fingernail mixture, we had reason to explore the reported findings further, and to look beyond the final written reports, which prompted the review of the underlying data from both labs.

8. So that is where there review began, but it obviously did not end there. If I had put on blinders to everything but the fake fingernail findings, I would have never made the rape kit discovery. Also, if you read the December 13 Motion, we raised other issues about deficiencies in DNA Security’s work that I discovered when reviewing all of the data. Also, we made several other helpful discoveries that, thankfully, never had to see the light of a trial day.

9. We did send the data to an expert when we received it. The purpose of my work in November was to narrow the issues we would focus our expert on. Again, any good lawyer would do it that way, and any good expert would want it done that way (as opposed to a document dump on an expert with a general request of “Tell me about this”). Finally, any client would want it done that way, because--despite suggestions to the contrary in some posts--that approach ultimately serves the twin goals of saving time & money while making sure the lawyer knows everything he needs to know to deal with the issues if or when they arise in the courtroom. When our focus was appropriately narrowed (and the issues appropriately defined) by my work in November, we provided my memo to the expert, and we met with him in early December to talk about all issues, only one of which was the unreported male DNA in the rape kit. In fact, if we had gone to trial, we would have highlighted significant additional points related to the DNA testing in this case that would not have been as explosive as the rape kit DNA discovery (including the agreement not to put it in the report), but would have dealt with similar issues about the subjective analysis & reporting decisions made by DNA Security (especially in light of the lab’s protocols).

10. IMPORTANT FINAL POINT: suspicions & hunches & Michael Gaynor’s couple of sentences aside, there was no PROOF of DNA Security’s failure to report the exculpatory DNA findings until we analyzed the underlying data we received on October 27, 2006, and there was no proof of the intentional agreement to omit those findings from DNA Security’s final report until December 15, 2006. Regardless of the standards that exist (or do not exist) in the blogosphere or other realms of commentary for making serious accusations of wrongdoing, there are standards in courtrooms that must be met before a responsible and ethical officer of the court should do so. Responsible and ethical officers of the court who know they will be litigating many issues in front of a judge before a case is finally over do not make accusations without having bullet proof supporting evidence. In fact, such supporting evidence is often called an “offer of proof.” And standing up and saying, “We know Nifong is lying, because, well, just look at him, and think about all the bad stuff he said to the press, and we just know Crystal Mangum is a prostitute rather than a dancer or performer, and there’s no way that she only had her boyfriend’s DNA in her…” well, that’s not an offer of proof. That’s an offer of suspicion & hunch. When we reviewed the materials that were provided in late October and early November, we finally had the basis of a substantial offer of proof regarding the unreported exculpatory DNA in the rape kit (whether that finding surprised us or not). We basically presented that offer of proof in the form of our December 13 Motion, and we nailed the coffin shut at the hearing on December 15.

39 comments:

Anonymous said...

Are people actually suggesting that the defense team was just dragging out the case to earn more fees? The defense team ought not to have to even respond to such ridiculous notions. They know how hard they worked on this and how lucky their clients were to end up having hard evidence to prove their innocence and Nifong's bad acts.

Anonymous said...

About Brad not considering himself a hero. Well, I disagree. I think he does look good wearing that Superman Cape.

Pouring through 1800 of detailed DNA information is no easy task and he deserves all the praise and credit for what he did. What happened Dec 15 will go down for what it was, a masterpiece of legal hard work which condensed into a witness examination which destroyed Nifong's Case.

And that's a fact Jack!

Baldo

JeffM said...

There is an amazing NEW comment under the Jim Cooney post basically asserting that Evans really was guilty on the basis of the DNA evidence.

I have not followed the DNA probabilities closely, but it is my impression that this person has them entirely wrong. Can anyone say for sure?

Anonymous said...

The dificulty of pouring through some 1800 pages of what is a very technical report, a foreign language of sorts, was purposeful. It was meant to hide evidence in "plain view" so to speak. There are honorable lawyers in the world, and I am so proud of these guys. Thanks.

Anonymous said...

Brad - Why answer to those dopes at LS? They are just looking to be mean to folk - including you. Let them stew in their own juice. You and most of the defense lawyers have put faith back in attorneys. Best of luck to you and the team.

Mike lee said...

If only the Durham police Department or Duke University had a Brad Bannon or two on staff.

I take Bannon at his word and that combined with the evidence leads me to believe he's no hero. Don't get me wrong, I think Bannon is fantastic, but as he said he did his job. He's just a smart, honest, hard working guy, who stands for truth, justice, and integrity.

It's clear there aren't too many Bannon's to go around in North Carolina. Unfortunately there seem to plenty of Kim Curtis' and Mark Gottlieb's in the Tar Heel State. So many in fact that grade retaliation and manufacturing false evidence don't even warrant a pink slip. No wonder the 88 call Carolina home.

Glad I live a few states away.

Anonymous said...

Brad please, no more explaining or apologies are needed. You were dealing with scum, and you, the cream of the crop, rose to the top!
KUDOS to you!

Anonymous said...

7:33 right on Sister or Brother.

Anonymous said...

They are such scum, they are stalking Nurse Levicy. Who would want to be associated with those people.

Anonymous said...

Mr. Lee,

There are MANY great people in NC that you have obviously not had the occasion to meet. For one, I am offended by your generalizations of incompetence and lack of integrity. Each state has had its own embarassments from unworthy individuals. But I do not think we need your condescension in North Carolina. We are not all Nifongs, nor are all our police like those currently in Durham.

Frankly, I am also glad you live a few states away, and hope you choose to keep it that way.

The North Carolina mess will be dealt with by North Carolina authorities. We have a long history in this state of resenting people who look down their snobby noses at us.

Be careful. Whichever state you are now in may produce its own embarassments any time now.

Try to stick to the Duke case, as representative of a sickness that is much larger than just North Carolina. The group of 88 could be from ANY university.

I am offended by your self-righteous and narrow slam on my fair state. My forebearers came here in the late 1600s, and we have had a continuous presence since then.

I lived in Durham when I went to Duke, and two of my children were born there.

It is crazy now.

But not ALL of North Carolina is crazy.

Please confine your remarks to the issue at hand, which is the Duke Hoax. It might have even happened in YOUR home town.

dsl

hman said...

Re: Gaynors posturing.
A while back, I had a fair amount of contact with the world of Rock & Roll. One thing I learned was that even fairly normal people routinely got weird when they were around any working R&R band you have ever heard of. Typically they get insanely protective and jealous of any slight, tenuous connection they might have with the band.
The Duke Rape case must be far and away the biggest story that someone like M. Gaynor has ever been next to. So he has gone a little bit insane. He MUST assert a close association with a key part o this saga or promptly go into withdrawal from the main high of his life.
Trust me on this. It is well beaten path.
When a band really breaks thru into the Big Time, what happens next is always very, very cruel. Many are called but few are chosen.
In this case B. Bannon turns out to be a K. Richards level super-star. People like Gaynor are standing in the cheap seats looking on. It is just the way it happens; but it still makes the losers razy every time.
Stalking Levicy? Bullshit. She is in hiding and will never be taken seriously again.
Welcome to oblivion, stupid wannabe feminist hero.

Anonymous said...

8:02, good point .. In Texas, we have Ronnie Earle.

mac said...

Hman 8:13
"Stalking Levicy? Bullshit..."

I agree. If I never hear or see her name again, I'll be relieved.

But still I have to say...
On an earlier thread, soneone expressed doubt about using my quotes on Luvicy, the "Luv Nurse" who ought to pair up with the "Luv Doctor," Michael Hardt. I believe MOO Gregory was having fun when he stated that my "infamous" quotes on Luvicy could be used.

"All I wanna be..."

No they can't! They're mine, mine, mine, all mine! (just kidding.)

Bannon rocks. You can quote me on that.

Anonymous said...

Levicy neither lost her license, had discipline action taken against her or lost her job. As all you bashers perdicted. You are sore losers. The NCBoard did nottake the amatuers who reported her seriously. Don't worry about her.In hiding - no - moving on. She has been tracked down to NH-now thats stalking.

gwallan said...

Anonymous 9:25 PM said...
Levicy neither lost her license, had discipline action taken against her or lost her job. As all you bashers perdicted. You are sore losers. The NCBoard did nottake the amatuers who reported her seriously. Don't worry about her.In hiding - no - moving on. She has been tracked down to NH-now thats stalking.

More correctly it's a defensive act. If Levicy continues working in the SANE field and continues to place her ideology ahead of her professional responsibility then injustice is likely to follow. Everybody threatened by her ideology - effectively every male alive - has a right to know where she is operating.

inman said...

Dear Brad Bannon,

Are you and your firm available on a retainer basis to represent clients who are not yet charged but who fear that in the future they may be charged with bogus crimes?

My son is a Division 1 lacrosse player who goes to a prestigious liberal arts college. Last year, as a freshman, he played and was a factor in every game. He was recently notified that he will be assigned to an off campus apartment as a sophomore, an apartment across the street and to the east of the campus. His apartment is adjacent to the "lacrosse house" known for its parties. He is also white, anglo-saxon and of very good stock, although it strains credulity to call him "privileged".

I am tremulous at the obvious parallel.

I think I need counsel who can arrive at a moment's notice in our "mental health friendly" and "angry studies" world.

Also, in this public forum, let me suggest that the probability of any child being subjected to criminal indictment a la the Hoax is diminimus, but the effect if incurred are horrendous. This is a classic case in which 'insurance' is a solution, with the small premiums of many indemnifying the potential loss of a few.

Would your firm consider a retainer arrangement that incorporated that concept? I'd be willing to pay, say $1000 per year, as insurance against a false claim against my son. Surely there are 100's or 1000's of other's who would do the same.

For your consideration, and for which I tender a thank you, I am an admirer of your work and results and am with,

Best regards,

Tom Inman

Anonymous said...

What is your answer to the lack of license loss, job loss, discipline action or civil suit against this nurse??

Anonymous said...

JLS says....,

1. I sure do wonder what the additional issue were that would have come out at trial but THANKSFULLY DID NOT HAVE TO.

2. I agree 100% with point 10. I certainly was suspicious that a street walking hooker like Mangum had DNA other than her "boyfriend's" ie pimp in/on her. Still I knew my hunch was not evidence.

3. We did not know that Mangum was in Raleigh turning tricks based on her driver's statement so that could have been raised prior to discovering the hidden evidence, but that by itself does not prove more DNA had to be on her.

4. This post again shows that hiding some DNA evidence was more important in the case of NC Bar v. Nifong than NC v. Evans, Finnerty and Seligmann.

Anonymous said...

well - THe AG complimented the exam done by Dr Manly assisted by Nurse Levicy and said "it exonerated the defendents". She helped them. Threat to mem - right - only the weak kneeded ones.

mac said...

10:04
Get a life. You're boring and bothersome, and you don't have anything new to add. We heard you already.

Anonymous said...

JLS say ...,

re anon 7:15

5. Yeah I forgot this one. These attorneys do not need to answer those idiots at LS. I tried there twice for a short time before I figure out there was little intelligent life on that board. They need to figure this out and start ignoring the rabble there. They would do better to post here.

inman said...

As an addendum to my prior post and for the benefit of all the entreprenurial attorneys out there,...

NCAA rules probably prohibit a "protective" payment for any single athlete...but I'd be willing to bet that the rules allow for payments covering an entire group of athletes, such as "all male and female athletes at XYZ University"....God thank title IX. What a Godsend! A University could fund such a program to protect the poor and unprotected.

(Perhaps, it should be extended to all students... not just athletes.)

An insurance contract to indemnify all athletes against criminal claims, with the proviso that if claims are proved, and after appeal, then the athlete becomes responsible for cost and fees. Of course, funds for payment may not be available, but at least there would be some deterant against frivolous claims against the policy.

Surely there are statistics on which the actuaries can chew and on which they can set a price.

Anonymous said...

I'm so looking forward to reading the forthcoming** book by Brad et al. Beyond the facts of a given case there are issues of standards, duty, judgement, and (dare I say it) ethics. I can't think of anyone better suited to discuss that, and certainly no one more interesting to read!

**optimistic speculation, alas.

Anonymous said...

Mac - Still have not got an answer on why all the Levicy bashers dreams were shattered. Do you have an answer to the questions? 10:04

mac said...

No one gives a crap about Luvicy.
No one is out hunting her down.

(Looks like you've learned how to spell better in this post, though!:)

Anonymous said...

10:04

This Levicy bashing is irrational.

She collected the data that exonerated the players.

She must remind the bashers of some girl who refused to date them in high school. It's sick.

mac said...

STFU about Luvicy, ok Polanski?

Anonymous said...

Mac - that is still not an answer to why all of your predictions for Nurse Levicy did not come true.

mac said...

I made no predictions: you did not answer the questions about the Levicy Report.
Then again, the bottlerum gotli
a smarb. Then.

Gary Packwood said...

JeffM 6:47 said...

...There is an amazing NEW comment under the Jim Cooney post basically asserting that Evans really was guilty on the basis of the DNA evidence.
...I have not followed the DNA probabilities closely, but it is my impression that this person has them entirely wrong. Can anyone say for sure?
::
I read that twice and decide the following.

1. JeffM has JeffM's DNA in his bathroom wastebasket.
2. Evans has Evans' DNA in his bathroom wastebasket.
3. GP has GP's DNA in his bathroom wastebasket.

You get anything else out of that? Did I miss something?
::
GP

Gary Packwood said...

inman 9:53 said...
...Dear Brad Bannon,
...Are you and your firm available on a retainer basis to represent clients who are not yet charged but who fear that in the future they may be charged with bogus crimes?
...My son is a Division 1 lacrosse player who goes to a prestigious liberal arts college. Last year, as a freshman, he played and was a factor in every game. He was recently notified that he will be assigned to an off campus apartment as a sophomore, an apartment across the street and to the east of the campus. His apartment is adjacent to the "lacrosse house" known for its parties. He is also white, anglo-saxon and of very good stock, although it strains credulity to call him "privileged".
...I am tremulous at the obvious parallel.
...I think I need counsel who can arrive at a moment's notice in our "mental health friendly" and "angry studies" world.
...Also, in this public forum, let me suggest that the probability of any child being subjected to criminal indictment a la the Hoax is diminimus, but the effect if incurred are horrendous. This is a classic case in which 'insurance' is a solution, with the small premiums of many indemnifying the potential loss of a few.
...Would your firm consider a retainer arrangement that incorporated that concept? I'd be willing to pay, say $1000 per year, as insurance against a false claim against my son. Surely there are 100's or 1000's of other's who would do the same.
...For your consideration, and for which I tender a thank you, I am an admirer of your work and results and am with,
...Best regards,
...Tom Inman
::
I think this insurance product would be well received and I suggest you move forward with the idea.

Excellent.
::
GP

Anonymous said...

Brad - Thanks for the commentary - loved the serious accusssation of wrongdoing in the blogesphere is different that standards in the courtroom. A lot of Posters do not know that and think they are Joe Cheshire, Jim and you,
Well she "looked mean and like a bully."

Carolyn said...

"What happened Dec 15 will go down for what it was, a masterpiece of legal hard work which condensed into a witness examination which destroyed Nifong's Case."

Baldo, you took the words right out of my mouth!

mac said...

11:50
Yup. Like the bully that kept saying - with regard to the young men's innocence:
"rape is not about about ejaculation, but about power."

Yup...her power to attempt to convict three innocent young men. Talk about bullies!

But then, nrolling nmy mbuoature- acussations btytjrythum!

Anonymous said...

I can't figure out why there is such anger at Michael Gaynor.
He stated in his blog several times there was additional DNA on CGM.
He just kept on being ignored.

Anonymous said...

Rape is about power - just goggle "rape" and read what the experts have written about rape.
Agree 6:47

mac said...

The Luv Nurse "wanted to clarify her statement about rape being about power because in some cases it could be consensual."
(January 16, addendum to Levicy Statement January 10 in a phone call to dpd.)

Luvicy is about power, not justice or fairness.
Except when she's being consensual.

Anonymous said...

I used to read Gaynor early on in the case, but his 119-word-long paragraphs (which were also sentences) turned me off. And there was the sloppy grammar and spelling. If I had seen the reference to multiple DNA specimens, I would have thought it was more (a) sloppy thinking, or (b) sloppy writing.

I also noted that Gaynor used the word "credit" about 50,000 times in his article saying he didn't want to take any credit. I appreciate that he wrote about the case, but he didn't cross Meehan. Also, it wasn't like he was transmitting a coded message to Britain from Vichy France. Put it in the dog-gone headline.

Finally, it is good to see that Liestoppers has finally aborted this descent into madness. Goodness folks, shoot into the OTHER team's net!

Anonymous said...

Why is anyone still talking about Michael Gaynor?

It's like talking about Liza Minelli's series of gay husbands.

And?



Debrah