Joseph Neff has an excellent summary of the motion here. Neff's article makes it clear that DNA Security, the private lab that did the testing, violated its own policies by failing to turn over all material to the defense. Instead, it removed all mention of matches with multiple other (unidentified) males from its report.
"This is strong evidence of innocence in a case in which the accuser denied engaging in any sexual activity in the days before the alleged assault, told police she last had consensual sexual intercourse a week before the assault, and claimed that her attackers did not use condoms and ejaculated," said the motion.
The DNA Security document appears to be the medical equivalent of the Gottlieb report, a transparently fraudulent and procedurally suspect document designed to paper over the chasms in the state's case. Himan's notes needed to be undermined: enter Gottlieb. The SBI's findings of no DNA matches needed to be undermined: enter DNA Security.
In recent months, Mike Nifong has frequently complained about how busy he is managing the district attorney's office. He has used this argument to rationalize his snail-like pace of turning discovery material over to the defense and his refusing to respond to any of the defense motions.
Yet this remarkably busy man made the time, twice, to personally travel from Durham to Burlington, a 90-minute round trip. The purpose: to discuss the contents of the DNA testing with DNA Security director Brian Meehan. The defense motion today suggests that Meehan is either grossly incompetent, in that he failed to include large amounts of material in the report he produced for Nifong; or, far more likely, malevolent, in that he deliberately manipulated evidence, withholding obviously exculpatory material.
Did Nifong make these personal trips to Burlington to he could strategize with Meehan on how Meehan could produce a report that withheld this evidence? And, in September, why did Nifong resist so strenuously the turning over of all the DNA files to the defense if he had nothing to hide?
These issues, it seems to me, are ones that federal investigators could legitimately explore at this point in time.
90 comments:
KC you sound really happy tonight.
from an non-lawyer: will the judge in the Friday hearing act on this motion or will the snail's pace continue? It is often said that the cover-up is often the nail in the coffin of wrongdoers. Will Nifong and Meehan spin this and conspire even at this moment? Or will Meehan dump Nifong in order to save himself?
Hey KC, I was wondering if you were up on this and had seen the comments in your 'I'm ouuta here tonight' entry.
So the AV shall heretofore be refereed to as that spunky mother of two, honor student, Navy Vet, yada yada yada, right? ;>)
As a lawyer, I would expect the judge to take the lawyers in chambers and tell Nifong that this has to stop, do what you can to save your ass now, or, if left to me, you are toast.
to 727 from the non-lawyer:
with regard to the conference in chambers, are you suggesting that (a) the judge will say no more monkey business and speed up discovery; or (b)drop the case.
INDICT MEEHAN NOW!!!!
INDICT MEEHAN NOW!!!
He found his own DNA. Nifong should spring to action!
WINDBAG
PS: It looks like Meehan and Nifong really deserve each other. Good work, guys!
Kaboom! Deconstruct that, Brodhead and Company! sic semper tyrannis
Stunning. Nothing would suprise me at this point at what Nifong will do to keep this going. He did this this with purpose and intent, he is pure evil to do this to 3 innocent young men he knew from day one they were innocent. I hope this man rots in hell.
I think the judge will HAVE to take this seriously since it involves non-disclosure of exculpatory evidence. Nifong and Meehan are in one hell of a mess. I'd like to see the defense get Meehan on the stand under oath regarding his various meetings with Nifong. I doubt he's going to fall on his sword for Nifong's benefit.
As for Nifong himself, I hope he winds up in a jail cell at the end of this.
Looks like Dr. Meehan sold DNASI recently:
"Meehan sold his company after considering several financing options."
http://triad.bizjournals.com/triad/stories/2006/11/13/smallb1.html
I'm not suggesting that I'm clairvoyant......well, perhaps a little........
......but this Nifong urchin produced a skin-crawling effect in me from the very beginning. Especially when he gyrated around on national television like an excited fool trying to show how old "Precious" was taken from behind.
What a scumbag this man is.
And I recall so well that when I vehemently criticized him a few lily-livered, knee-jerk Liberals played the race card just as he did.
What the hell would two-digit IQ Liberals like Nifong do if they didn't have that outdated game to play?
Well.......all of America is about to find out.
One thing is for sure......this declasse, evil, and butt-ugly man will never make it to heaven.......as long as there is one more place open in hell.
I hope this creep fries!
Debrah Correll
I will admit to having been a skeptic regarding the opening of the feds. As one who has written a number of articles on federal criminal law, I could not see how the feds could get involved without stretching the law past where it has been stretched before.
Well, now we have two very likely crimes having been commited: (1) obstruction of justice, and (2) criminal conspiracy. Usually, the feds will bring obstruction of justice charges when no real crime has occurred, but they still want to bring charges. However, in this situation, we have a real live incident of obstruction of justice.
If the feds are serious, they will go after Meehan first, and offer him a plea bargain if he gives up Nifong. They will not go after Nifong first if they can get a shot at Meehan. That is because Meehan is the small fry, and the feds move from small fry to big catch.
Now, the feds might have ignored Rep. Jones before today, but it will be impossible to be quiet now. This involves the criminal withholding of exculpatory evidence, false public statements (not a crime if the DA utters them, unfortunately), and an attempt to circumvent justice.
Over the years, I have been very critical of federal prosecutors, believing them to be overreaching. In this one, I do not think they are reaching far enough.
Debrah get off your high-horse about liberals,democrats and politics in general.This is about the TRUTH. I too hope Nifong rots in jail, then HELL, over this. And I agree, you are FAR from being clairvoyant. But I do like your comment of the Nifong choke hold on Precious being taken from behind,while recently discovered DNA evidence proves she had rectal penetration!
This revelation brings into question every other case DNA Security lab reports may have influenced. It merits closure of the firm and, I hope, prosecution.
Bill,
Don't you think the obstruction of justice charge is a state rather than a federal crime? The criminal conspiracy to violate civil rights sounds right, though.
Meehan has to roll over on Nifong. He has to be anxious to figure out who to go to for negotiating immunity.
Nifong is like Macbeth, he can't stop marching on -
"I am in blood
Stepped in so far that, should I wade no more,
Returning were as tedious as go o'er."
Think Butner, Debrah, and not low security ....
To 9:33 PM---
Ha!
If we're lucky, we'll be treated to a Nifong meltdown......complete with collapse into fetal position....a...la Jim Bakker......just before he was sent to Butner.
:>)
Debrah
To 9:24--
Sorry, I had two ponies as a child....and I like riding high.
However, I do sympathize with the fact that so many people who have supported Nifong until almost the end.....(swinging low with regard to his glaring, multiple abuses).....
.....just hovering around in the wings to see which way the comfortable wind would blow.....
.....just happen to be Liberals. Where is Congressman David Price right now? HUH?
It will always bear repeating as some of us took the hits early on because of this urchin Nifong's behavior.....and were glad to do it......as this travesty could have happened to any of us.
This will be very sweet justice for three innocent men.
Debrah
To Duke Parent 09:
The issue of the feds could be tricky, but federal criminal statutes are broad -- actually, too broad in my opinion.
I have written much on federal criminal law in popular press (Reason Magazine) and some academic journals, and hold that much of it is unconstitutional and certainly contrived. Thus, I am not eager to call for the feds because they can make a case out of it.
However, I do think that because of Nifong's race-baiting statements, one can make a civil rights case from this. Furthermore, one then can throw in conspiracy, fraud, and obstruction of justice, with those three ancillary crimes tied to the attempt to deprive the defendants of their civil rights.
At the same time, Nifong's antics well might get him tried in state court. I just do not think we can underestimate the effect this latest revelation is going to have on a number of people who to this point have been standing on the sidelines.
First, many of the people who have supported him are going to have to run for cover. He has lost Cash Michaels for good, and it will be interesting to see what Irving Joyner has to say.
You see, with the latest revelations, Nifong would have to claim that the Duke 3 raped the accuser while wearing space suits. At this point, the entire thing becomes ridiculous.
Second, before this latest bit of news, people could say that the process needed to "run its course." However, with Nifong and Meehan obviously trying to change the course through crooked means, people simply are not going to have any confidence that this is anything but a rigged process.
Officials no longer can cover for Nifong; what he did here was in such bad faith, and so dishonest that only the diehard supporters can stand behind him. Now, I am sure that Victoria Peterson will try to come up with something, but no one is going to listen to her, anyway.
We shall see where this goes. Of course, Judge Smith could shock all of us and claim that everything is just fine, and that we can have a trial to be held in Durham this coming spring. But I don't think that Smith can cover for this guy either.
Also, if the feds do get involved, they will put the squeeze on junior people in the DA's office, and from the Durham PD. With this latest nonsense, they will be much easier targets for the feds, who are not going to have to worry about being called racists any longer, should they investigate.
Wonder if Precious & Meehan spent some time together earlier that night and he left some .... ummm DNA material with her? Nah .....
Just a prediction but watch the "community" throw Nifong under the wheels of the bus.
Let's hope this case gets tossed NOW so Reade and Colin can resume classes in January.
10:48 PM said...
Let's hope this case gets tossed NOW so Reade and Colin can resume classes in January.
If I were them, I'd transfer the heck away from Duke...Brodhead, Gang of 88, treatment from their own classmates ('wanted' posters, anyone?)...
Bill,
I hope you're right on all of this. I hope we're not all so close to the case that we see this latest revelation as more important than the judge or federal prosecutors or NC State Bar will see it.
All of the other elements of Nifong's misconduct could be explained as bumbling but righteous efforts of a zealous prosecutor (I don't believe that of course). But I can't think of any explanation except a deliberate attempt to withhold exculpatory evidence from the defense. Everybody connected with law or with a passing familiarity with criminal law knows that is unethical at the very least.
To me this is huge, both for the clear evidence of Nifong's misconduct and the exculpatory evidence itself.
I just read the defense's motion 17-page pdf from WRAL's website). These lawyers have written a clear and compelling account.
DNA Security appears to have made a series of grievous breaches of procedure in performing DNA analyses, and in compiling and writing up the results. Given D.A. Nifong's close supervision of the DNA-analysis part of the case, it is natural to wonder if some of these errors were less than innocent.
A couple of minor points.
(1) The State Bureau of Investigation analyzed the rape kit samples prior to the involvement of DNA Security. The motion says that the SBI lab failed to find likely material on the rape kit samples, and didn't proceed to extract DNA from them (e.g. panties or pubic hair combings). The focus of the SBI's analyses were the fingernail extensions found in the bathroom trash, and semen found on a towel and elsewhere. The search was two days after the party--the extenders were the A.V.'s, but it is hard to connect any of the DNA analysis of these items to a narrative of the purported crime.
I don't understand why the SBI declined to try extracting DNA from the rape kit materials--there not being enough stuff to see doesn't mean there isn't enough for an autosomal analysis.
(2) For DNA Security's multiple analyses, the predominant impression the reader of the defense motion gets is of erratic and sloppy record-keeping. This is probably not that far from standards at many academic molecular biology labs, where honesty is presumed, and where, the majority of the time, it doesn't matter very much if a particular test is run wrong. An alert student or postdoc will notice, and run the test again. I'd sometimes tape in a photo of a 'bad' gel with a caption like, "oops, I must have mixed up the sample numbers." Then, taking greater care, I'd repeat the assay, and (assuming the 'mystery' was cleared up), tape the 'good' photo on the next page of my notebook. For most intermediate steps, there's a lot of material from the last few steps to go back to in the event something goes wrong.
Incompletely documented experiments and casual record-keeping are unacceptable in an environment where "Good Laboratory Practices" or "Good Manufacturing Practices" must be used, e.g. pharma companies, much contract-lab work, or any setting where results will be submitted to the FDA or used to support the development of a human therapeutic. In fact, moving from academics to GLP or GMP setting is a big culture shock for most scientists.
My impression (till now!) was that forensics was as strict as GMP, and in some respects stricter. These are, obviously, high stakes--if "mixed-up samples" could lead to guilty parties going free or the innocent being imprisoned.
The "lab culture" that the defense motion depicts is just not consistent with the sorts of procedures that, I assume, are required for accreditation as a forensics lab. For example, in a GMP lab, every significant step is governed by an SOP (standard operating procedure), and every deviation from protocol has to be written down, attached to the batch or production record, and evaluated by a supervisor. If the defense motion is accurate, there's just no way that DNA Security personnel were correctly following the forensic world's equivalent to SOPs.
duke09parent 10:59pm --
What you write emphasizes the scope of the prosecution's problem. Nifong's defense might be, "I'm no DNA specialist and had no idea that DNA Security was incompetent, and that this incompetence misled my investigators and me!"
In fact, it's the only excuse I can think of.
But that invites the DNA forensics community and the accrediting organization in particular to put DNA Security under the spotlight. Dr. Meehan is going to have to answer questions like, "why did you omit potentially exculpatory material from your report?", and "why did you fail to write down the existance and agenda of the two meetings you had with DA Nifong in the course of the analysis, as is required practice to maintain your accreditation?"
Nifong would be asking a lot for Meehan and the other DNA Security employees to take a bullet for the team. Getting a number of people to perjure themselves under the spotlight--in a consistent fashion--seems to be a very tall order.
Debrah
How many $$$ have you contibuted to the Duke lacrosse defense fund? Action speak louder than word's! Are you a MONK in sheep clothing?
There is a letter from the lab that I can't find at the momment that was sent to Nifong, when they had to come-up with a price for all of the copying and things like that.
In the letter the lab stated that they didn't want to hand over all of what they had because it had to do with more than just the mens lax team and Collin, David and Reade.
Maybe the reason they put this line in the letter to Nifong is because Meehan knew his DNA profile came up a match and didn't want the defense to know about it.
I think you can find the letter on the wral on the documents section, if they still have it up and running.
As all of you know, I have been a hard-core skeptic from the beginning, as I have watched prosecutors get away with about every crime in the books. That is why I have seemed overly pessimistic.
However, I will say now that I think Nifong is in what George H.W. Bush would say was "deep doo-doo." As I have said before, as long as it looked as though Nifong were operating in some bounds of "good faith," there was no reason to stop the process.
That situation no longer exists. With this lab business being front-and-center, now everything else that Nifong has done will come under much more scrutiny. For example, the line-up procedures will now be more widely recognized as being sinister and illegal. Beforehand, only those of us who have been writing and blogging were willing to go on record as attacking the procedures.
I could go on and on, but I really must finish making out a final exam in statistics that I have to give at 11 a.m. tomorrow. I'm too excited to sleep much tonight, and no doubt will awaken at about 5. That is five more hours of sleep than Nifong will get tonight....
As all of you know, I have been a hard-core skeptic from the beginning, as I have watched prosecutors get away with about every crime in the books. That is why I have seemed overly pessimistic.
However, I will say now that I think Nifong is in what George H.W. Bush would say was "deep doo-doo." As I have said before, as long as it looked as though Nifong were operating in some bounds of "good faith," there was no reason to stop the process.
That situation no longer exists. With this lab business being front-and-center, now everything else that Nifong has done will come under much more scrutiny. For example, the line-up procedures will now be more widely recognized as being sinister and illegal. Beforehand, only those of us who have been writing and blogging were willing to go on record as attacking the procedures.
I could go on and on, but I really must finish making out a final exam in statistics that I have to give at 11 a.m. tomorrow. I'm too excited to sleep much tonight, and no doubt will awaken at about 5. That is five more hours of sleep than Nifong will get tonight....
I can't resist one more comment. First, AMAC knows his stuff, and there is no way that Nifong can buffalo him. Great posts, AMAC!
Because we are looking at coverups and obstruction of justice, Meehan is going to be in trouble. I guarantee you the guy is asking himself why they hell he gave Nifong a discount, only to lose all his money hiring a damned lawyer, which is what is going to have to happen.
I also can guarantee you that he and Nifong did not discuss the weather or where the Durham Bulls were in the standings. Me thinks that FBI investigators are going to be very interested in the substance of those conversations.
Again, I could be wrong, but I think this is a very important break in this case. It is not so much about the DNA evidence itself, but rather that someone on Nifong's side tried to hide it. We already knew there was nothing linking the Duke 3 to the accuser, and we figured she had the DNA of half of Durham somewhere on her person.
However, with Nifong trying to hide that fact, we now slip into the netherworld of bad faith, and I can assure you that judges do not look kindly upon that. Now, North Carolina judges are willing to swallow a lot of crap, but they really do have to respond when someone directly lies to them. I hope that on Friday, Judge Smith does what he needs to do.
And to Victim in Massachusetts, email me tonight. I will check before I go to bed. I'm going to my other computer to fire off a question or two on the stats test.
A letter to this deepy dishonest DNA lab's accreditation agency:
bill.marbaker@mshp.dps.mo.gov
meehanb@dnasi.com
--------------
Msrs Marbaker and Keaton:
DNA Security, Inc, a privately held ASCLD-LAB-inspected laboratory in Burlington NC, appears to have filed a substantially inaccurate (and possibly deliberately misleading and fraudulent) report in the so-called "Duke lacrosse" case.
As detailed in the publicly released brief below:
http://www.newsobserver.com/content/news/crime_safety/duke_lacrosse/20061213_dukelacrosse.pdf
DNA Securities appears to have performed sloppy,
unethical and dishonest work, in many, many respects.
This would seem to reflect poorly on ASCLD-LAB's certification procedures. To that end:
1. Has DNA Security, Inc been inspected by ASCLD-LAB
and did it receive certification?
2. What are the criteria used for inspection of DNA
laboratories by ASCLD-LAB. Are there mandatory reporting requirements? If not, why not?
3. Are the inspection reports by ASCLD publicly
available? Where can they be obtained.
4. Does ASCLD-LAB require ongoing proficiency testing,
and/or reaccreditation. If so, when is DNA Securities
up for renewal?
I think we all agree that accrediting poor and/or sloppy labs does no one any good. It reflects poorly on the already abysmal reputation of DNA forensic laboratories.
So many ironies here--not the least of which is that while the AA community fretted about fraudulent forensics work, we did not even give the possibility the slightest consideration. Lesson learned.
Don't we all wish we were going to Durham? Can't wait to hear what happens at the hearing.
Observer
Chicago writes:
This seems like a small issue in light of the bombshell, but keep in mind Nifong spent $26,000 of Durham tax dollars to work with Meehan.
Hmmmm.
So how did this very sensitive information come out? I'd guess that either an employee communicated with the defense attorneys or perhaps the new owners found out and did so instead.
I also wonder about civil liabilities that Meehan has to worry about. Not the liability of trying to frame three LAX players. But the liability of selling a company to the new owners without properly disclosing what he'd done in this case. A liability that could end up closing the DNASI company's doors permanently.
What an amazingly bizzare case.
ed
I agree with those who argue that Nifong knew full well that there were several sexual contacts by CGM in the several days before the Hoax.
And that he knows who they are. Which is why he won't speak with her.
Several insiders in Durham have long intimated to me that the reason for the volatile public reaction of several prominent Durham politicians in the first days of the Hoax was related to the fact that they knew CGM quite well.
Nifong knows who to swab...and I suspect before it is over so will the public.
Chicago writes:
Not that they would want to, but I wonder if Reade and Collin would be able to rejoin the Duke Lacrosse team as soon as the start of second semester should the case be dropped Friday. I wonder how that works with the NCAA and with Duke. Knowing Broadhead he would raise some issues.
I have been surfing the cable news channels this week and although I may have missed something, I seem to never see any coverage (this week) of the Duke case on MSNBC nor on CNN or Court TV News. Fox News is doing a great job with segments on Greta, Studio B and O'Reilly often. I saw one short segment on HNN daytime. Is there some reason why the other three channels are boycotting the case or am I just missing it? Thanks for any answers.
Thanks to KC for all your efforts. You are priceless.
Meehan is toast.
1. He'll get a suit from the defendant's for damages.
2. He'll have lots of costs from his criminal defense when the FEDs or NC come after him.
3. He's going to be deposed and in court for EVERY DNA case the firm ever did for anyone or any expert testimony he ever provided.
4. The new owners of the now failed business will come after him.
5. His professional accredidation agency is going to want to talk
6. He has NO earning power doing what he has been doing for anyone.
the complete report was given to the defense in oct in the oct evidence dump. no one withheld anything as it was given in discovery when it became available. dream on with your fantasies about destroying the victim and nifong. the defense have known this for a while and are releasing the info publicly before the hearing because that is when the real bombshell comes out. nifong has a witness at the party who has turned states evidence and is on the updated witness list. the news is all over durham.
5:04 AM
Cry "FIRE" in a crowded theatre.
Your "rumor" is absurd. And if it is "all over Durham", then it is only being circulated among the fools and other conspiracy theorists who refuse to admit their shame for having been duped by Nifong in the beginning of this travesty.
There is no "mystery witness" prepared to turn "states evidence".
I need some help please.
Is it okay to lobby our media contacts right now to bring AG Alberto Gonzales to the microphone, to the press, to respond to Rep. Walter Jones requests? Or is that like asking the AG to do to Nifong what Nifong has done to the Duke Three? We need to keep working. Who is a good prospective voice to put on primetime news to act on these injustices? An interview with a Durham area FBI agent? An interview with a representative from the NC Bar? An interview with the governor? Our primetime news anchors need to be booking these public servants and calling them to answer to the injustices of Nifong. Obviously, we are going to have to hold their hand since they do not have a clue what to do next. Somebody please give me some ideas and I can get my own media contacts to book some interviews. Anything. Thanks! I will check back regularly.
I was wondering when Nifong's enablers were going to try to spin this one. You see, the nature of these DNA findings tell us that there simply was not contact between the people charged and the accuser. None.
Tell me, 5:04, are you trying to say that Reade, Collin, and Dave raped CGM while wearing space suits? The science tells us that there was nothing to witness, so you can stop laying on the lies here.
By the way, there is more to come from the defense side, my sources tell me. That may not "be all over Durham," but it will count.
Also, I re-read Neff's article today, and Nifong in September told the court that there was nothing else of interest with the evidence, knowing that Meehan was holding back an important document. We are dealing with obstruction of justice. Don't forget, this last document came because of the judge's order made in the September hearing.
So, no, the defense had not known about the extent of the tests and how much CGM had lied to the police. By the way, it was "all over Durham" just what a liar the accuser really was, and if 5:04 is part of the Durham crowd, then she already knew that CGM was lying, but has chosen to promote a lie for her own reasons.
So, 5:04, you and your friends can go back and believe whatever you wish, but your friend Nifong is in big trouble.
5:04 is just a troll trying to get a rise out of folks here.
this dna report is a great development, but i have grave doubts about whether it will move things forward any faster. the facts have been so clear for so long that i really don't believe that it will have the slightest bit of impact.
i have argued for some time that the evidence in this case is not relevant. this is a politically correct prosecution of politically acceptable defendants (white males). i don't think that nifong or the gang of 88 or any other supporter of the charges believes a rape happened. they just feel like flexing their muscle in a place where blacks carry significant political weight.
again, i urge the indictment of meehan. there is now at least some evidence against him and i think he's white so that is really all that is necessary.
meehan's real crime is conspiracy and obstruction of justice, but i'll settle for a rape conviction - he'll probably get more time. justice will be served b/c he is at least culpable for trying to railroad the lax players.
WINDBAG
Yep, there is more evidence tying Meehan to the rape than Reade, Collin, and Dave. Maybe HE is the surprise witness that Nifong is going to reveal!!
I've cut Nifong a lot of slack whenever the discussion has turned to civil suits or federal intervention, but this latest bit of info is too much. Nifong's conduct is criminal. And if there's not a law against it there should be.
As for a civil suit, prosecutorial immunity doesn't extend to a private police lab. On principal alone, I truly hope someone brings a large civil suit against them.
Nifong has played fast and loose with the Duke boys. This latest news is just more fuel for the corrupt fire that burns in the Durham Legal system under Nifongs bigoted self effacing leadership. Nifong used this case to promote his own agenda and has destroyed race relations in Durham and made North Carolina legal system the laughing stock of the country. Nifong should be thrown in a dungeon and the key thrown away!
From Liestoppers:
The motion details with impeccable precision all the information contained in the DNA reports, including all the information that was originally omitted and subsequently provided to the defense, ironically, only after a court order from Judge Smith. “Actually showing the reports,” and not just providing truncated summaries, required Nifong to reveal that the testing showed DNA from “multiple males in the accuser’s anus, in her pubic region, and on her panties.” None of these samples matched the DNA of any of the three accused players or any other members of the lacrosse team.
To briefly review the samples tested: There were (i) 5 stains on the accuser's panties; (ii) oral, cheek, *******, and rectal swabs; and (iii) a pubic hair comb. In many instances, the samples were a mixture, meaning multiple males deposited their DNA. The accuser’s boyfriend’s DNA matched the DNA recovered from the ******* swab, but not the DNA recovered from the panties, rectal swab, or public hair comb. All of this evidence suggests the escort service engagements of the accuser in the days leading up to the lacrosse party, documented in Jarriel Johnson’s statement, involved a bit more than companionship. The News & Observer reported back in August that on April 4th Investigator Michelle Soucie took the following notes after a meeting with the District Attorney:
“Mike Nifong stated that: Also need documentation on escort service and how they do business…Need to nail down what victim did on the day before arriving at 610 N. Buchanan so we can show that she did not receive trauma prior to the incident -- with witnesses." N&O
The defense motion reveals that the presence of all the samples documented above was known before the indictments of Reade Seligmann and Collin Finnerty. The DNA extractions from the panties’ stains, ******* swab, and rectal swab were performed on April 7th, and the DNA extractions from the pubic hair comb were performed on April 13th. What more evidence of the "how escort services do business" and the likely cause of the “trauma” (i.e, diffuse edema of the ******* walls) could one possibly have? How in the world can one justify going to the grand jury with a deeply flawed identification, inconsistent stories, weak medical evidence, and overwhelming DNA evidence suggesting the accused are innocent? Furthermore, how can one justify hiding the exculpatory DNA evidence from the accused after they have been indicted and expected to stand trial?
Can someone tell me if there is a chance Judge Smith will dismiss all the charges tomorrow? Thanks!
Who knows regarding Smith's dropping charges. Judges in North Carolina have swallowed a lot of crap from prosecutors, and until Smith actually pulls the trigger (if he does), I would have to say that he is going to allow this freak show to go on.
Now, the one wild card is the fact that Nifong pretty much lied during the September hearing. We shall see if Smith performs the legal version of oral sex on the prosecutor. Without DNA.
Fellow bloggers, if there really is prosecutorial misconduct of a criminal nature, I am scared that we will have to presume Nifong innocent until Special US Attorney Patrick Fitzgerald (or whoever) can try him before a jury of his peers and prove him guilty beyond a reasonable doubt. And until then, all these bad things happening to Collin, Reade, and Dave may continue. Because it has come down to Nifong being a criminal defendant who, he himself, will claim entitlement of presumption of innocence, right? He knew this all along, I bet. He knew it would come down to a stalemate where we cannot help the players until after Nifong goes to jail. This is beyond judicial terror. It is the scariest thing I have ever imagined.
to 833 from a non-lawyer. Surely if Nifong is the target of an investigation regarding his "alleged" misconduct, won't he have to remove himself from the pending rape allegations case or be removed by the judge? Wouldn't this create not just an appearance of a conflict of interest, but a real conflict of interest/
This case cannot get any more bizarre...if this story were a legal novel I would have quit reading it because it was too unbelievable...way too far-fetched.
As for the judge...despite the overwhelming evidence that this should be absolutely, flat-out over, I don't think the judge will have the guts to throw this one out. I have seen too many in action...don't forget that they are politicians also.
WHY ARE THE GUYS GOING TO BE IN DURHAM??
WRAL reports:
"Attorneys for the accused are scheduled to be in court again on Friday when Nifong is expected to hand over more evidence in the case. He has already given the defense thousands of pages of documents.
WRAL has also learned that all three defendants are expected to be there. All three have maintained their innocence and have called the allegations lies."
The defense must know that major developments will occur Friday, or else why would Collin, Reade, and Dave go to Durham?
In case anyone cares, I noticed that Reade Seligman's part of the motion was signed by James P. Cooney, III from the firm Womble, Carlyle, Sandrich & Rice. His bio is below and it's really impressive.
http://www.wcsr.com/default.asp?id=86&objId=88
A couple things are noteworthy here. First, Womble Carlyle is one of the biggest (and most respected) firms in North Carolina, with 500+ attorneys and the resources, connections and respect that go along with that. Having them on board is a really good thing.
Second, Cooney was a clerk on the U.S. Court of Appeals for the Fourth Circuit [Getting one these clerkships is REALLY, REALLY prestigous and immediatly identifies Cooney as being very, very smart (even at harvard law you need to be near the top of your class)] and seems to be a very good appelate lawyer, who should be able to make some major contributions to the written motions of law from the defense. I wouldn't be surprised if we see something pretty extensive put togethor challenging the line-up / Photo ID.
I think we have reached the point where, in the movie A Few Good Men, Tom Cruise declares:
the witness has rights!
There really is more to come, believe me. People kept saying Nifong had the "smoking gun." Let me assure you that the guns and ammo all are on the sides of the defense.
Too bad Nifong burned his bridges with Cheshire and the others, since he might need a good lawyer in the future.
maybe the players are going to Durm tomorrow to visit with the two secert new prosecution witnesses that the Fong is planning on dragging up! LOL
this one is done! on to Nifong's trials
I can only imagine that Nifong is extremely desparate now. Remember that a cornered animal will attack.
a good posting on the Friends of Duke University web site by Jason T.
Nifong's had a "smoking gun" all along. Problem is, the gun has been pointing directly at him.
Does anyone else notice the amazing timing of this? This disclosure came just a few days too late to impact the DA's election bid! What a slimeball Nifong has repeatedly proven himself to be.
5:04 hear me and hear me well. If this "witness" does come forward and says anything that would mean that Nifong has something on that person and he is using that person to do his dirty work.
Now the feds can and should come in and that witness will be ordered to talk to them.
What ever deal Nifong cut with that "witness" will not up stand with the feds.
Even Nifong has shown all of america that he enjoys going back on his word.
Nifong will use this "witness" and then throw him under the bus with the rest of the rats in Durham.
One of the outrageous and fascinating aspects of this proceeding is the failure and unwillingness of Nifong to respond in writing to written motions. The enablers constantly refer to defense spin, defense version of events, suggesting that the defense is exagerating or fabricating. This reflexsive response, used by Nifong himself in, among other forums, his letter to Newsweek, is a blanket explanantion for the torrent of support for the Duke Lacrosse players.
However, virtually all the information presented in suppport of the Duke players is in written, signed, and properly supported motions. The attorneys who sign those motions are verifying that the motions have a good faith basis.
In all cases I have ever been involved in, parties oppose serious detailed motions with a written serious response. If the motions were full of spin and falsity, Nifong could put pen to paper and detail why the motions and assertions are false. He has chosen not to do so.
This is extremely significant. First, on the basic public level, the defense attorneys are not "spinning" but taking legal positions that make them personally accountable for false or misleading statements. So, the whole idea that we have only heard spin is simply false.
Second, on a procedural level, I don't understand why Nifong is not compelled to respond. In most courts (and I don't practice in North Carolina) failure to submit a brief is waiver.
Third, even if Nifong is not compelled to respond, capable attorneys with good arguments do so. Indeed, even if the argument opposing the motion is weak, but in good faith, most attorneys will make the argument.
Fourth, and this ties back to my third point, Nifong's refusal to respond except in court orally is calculated. Either he can't write or find a staff member to write, or he does not want to sign a pleading in court with his spin.
Finally, this is just another in a long line of open affronts to the legal system. While some of what Nifong has done is strategic and ethical, what has driven the outrage (mine included) is that his key decisions have been well outside the ethical rules and common practice--the false statements about DNA clearing the innocent, the line-ups, the false public statements, the delayed delivery of evidence, the concealment of evidence, and so forth. If any of these accusations were untrue, or even arguably untrue, it would have been a simple matter for Nifong to put pen to paper (or fingers to keyboard) and draft a response just as thousands of attorneys do every single day. That he has not done so does not mean that the Defendants have to wait until trial to find out, but instead that we already know that he did the things he is accused of doing.
streeeetwise
Chicago writes:
Even today's Herald Sun does not spin the truth too much. Perhaps the HS, like Cash is starting to see the light. The only thing that is slightly misleading in the HS is the headline is weak, but other than that, it paints a grim picture of Nifong.
***note-I just skimmed the article so it is possible I missed something.
bill anderson said...
Too bad Nifong burned his bridges with Cheshire and the others, since he might need a good lawyer in the future.
*****************************
I believe that Woody Vann is still available and he did a pretty good job for Precious a few years back. He has been very careful in his statements regarding Nifong. Maybe he was expecting to be able to participate in the future.
KC-
Is there any connection between Nifong and Meehan before this case? Where is Meehan from?
Has anyone thought to alert the District Attorney for the Burlington, NC area. I believe it is District 15A. If there was a conspiracy to prevent the defense access to the exculpatory evidence some or all of it had to have been conducted during the meetings in Burlington. Shouldn't the DA there be interested in rooting out criminal activity that occurred there. Looks like someone there should be investigating this.
The local NBC affiliate in D.C. carried the story of the motion in a two or three sentence report but missed the true import of the newly released info. The station said the new information was that the lab results on the DNA found matches to multiple males who were not any of the lacrosse players. They failed to mention that this was known to the lab and the DA no later than May but not released to the defense until late October.
duke09parent said...
They failed to mention that this was known to the lab and the DA no later than May but not released to the defense until late October.
Going beyond that:
That the report provided by the Lab and the DA to the Court and Defense withheld the exculpatory information in violation of SOP, ethics, law and the constitution.
Further, the evidence of this coverup only came after the Defense fought and won access to the raw files that the Lab and DA said weren't important.
Finally, a review of the "complete file" seems to reveal that there are other samples, and other date (e.g. communications log) that are missing.
Neff's updated story in the N&O this morning includes this chronology:
"On April 8, 9 and 10, DNA Security found DNA from men on the panties and rectal swab from the rape kit; none matched the lacrosse players. The motion was unclear about how many different DNA profiles the samples included.
On April 10, Meehan met in his office with Nifong and the two lead investigators, Sgt. Mark Gottlieb and Investigator Benjamin Himan.
Finnerty and Seligmann were indicted April 17, based on the accuser's identification of them from an April 4 photo lineup.
On April 18 and 19, DNA Security ran tests on pubic hair from the rape kit. Male DNA was found that did not match the players or any other sample taken by police, the motion said.
On April 20 or 21, Meehan again met with Nifong and the investigators in his Burlington office. Nifong later said in court that at the first meeting he discussed only whether Meehan's lab could do the tests. Nifong said that at the later meeting he got test results, which he gave to defense lawyers the same day. He said he did not ask Meehan questions about the evidence because all the information was in a summary Meehan gave him."
If the chronology is right and Nifong made those statments in court, he flat out lied to the court. His first meeting with Meehan occurred after some of the tests were completed.
Wanna bet that Meehan called Nifong on April 9th or 10th and Nifong jumped in a car to go meet with Meehan?
For the most part, news outlets are missing the real story. It is NOT the DNA, as we already knew from the state lab that there was no DNA match for the young men charged (or anyone else on the lacrosse team). This only amplifies what we already knew, and adds a few more facts and wrinkles.
The real story is the withholding of evidence, lying, and possible collusion (conspiracy) between Nifong, the police, and the lab. This is much more serious and opens the door for criminal investigations into Nifong's actions. This alone is grounds for dismissing ALL charges against Collin, Dave, and Reade. And I think there is going to be more to come.
Alot of people are tossing around claims of prosecutorial misconduct in response to these seemingly suspicious DNA developments.
What most fail to realize is that Mr. Nifong did not make his two trips down to Burlington to discuss the facts of the case with Mr. Meehan. These conversations with him were purely about Mr. Meehan and his kids. Furthermore, no more than 15 words could have been spoken during the exchange.
When does the university administration and group of 88 start to backpedal?
Where's Jesse Jackson? Is he still going to give her a scholarship?
Where are the safe sex advocates?
I'm local and am planning to attend tomorrow's hearing. So look at the court calendar...
http://www1.aoc.state.nc.us/www/calendars/Criminal.jsp?county=DURHAM
The have last Friday's calendar. They have Thursday's calendar (i.e. today). They have Monday's calendar.
They don't have Friday's calendar. On top of everything else they apparently have secret trials.
Since this trial has been assigned to a special judge, it has not been on the 'normal' court calendar. The hearing is at 9:30 in the Grand Jury room.
You'd think with the level of security at DNA Security they would at least produce accurate, honest results.
Hahahaha
http://www.dnasi.com/laboratory.htm
BA, have u written Laurance Tribe? tribe@law.harvard.edu
lawyers, please write!
he's a heavyweight whose input could be devastating to nifong--and he knows how to write constitutional amendments, something the facts of this case may generate--most importantly, tribe could get an op-ed in NY Times, and his voice would be heard at DOJ
to 5:52am: great question: how do we lobby media? i presume u mean mainstream media (MM)
think the story should be framed as PROSECUTORIAL TERRORISM, akin to Scottsboro, though i don't think it's a good idea to overplay the racial angle at this point
re MM: if u find someone with half a pair, you're ahead of the game
William F. Buckley Jr. should be contacted. he's a helluva nice guy--and he's connected. the Times would be forced to take his op-ed
john stossel should be contacted
all of the following could be helpful:
esquire magazine; salon.com; the new yorker; brian lehrer radio show (WNYC am); bill maher; the village voice (CONTACT NAT HENTOFF--he's a sweetheart); the nation; 20/20; sports illustrated; mike lupica (i'll call him--went to boston college with him); contact arthur browne (editorial editor of NY Daily news); heather mac donald: contact her at Manhattan Institute--that's a start
great post windbag--always good to hear u
re "hooligan": as an irishman, i consider that a slur--lawyers, can anything be deon with this?
jc
to 5:52am
Sir Walter Scott said it best: Oh what a tangled web we weave when first we practice to deceive. The AV, Nifong, Gottlieb and Meehan. The list goes on and on. It is hard to believe that this travesty of justice is being played out in the public eye and yet the judge has not stepped forward to end it. Just what does it take to get justice in Durham?
Richard said...
Sir Walter Scott said it best: Oh what a tangled web we weave when first we practice to deceive.
Or paraphrasing from the Watergate era.
"It's always the coverup that gets them, not the crime."
Ask Nixon or Capone :)
11:00 AM anon
Thanks - I'll be there.
Still, seems to me that all court dates should be published especially the "special" ones.
Lesser mortals have understood from the outset that this is a hoax and have been outraged at the injustice suffered by the wrongfully accused
There has certainly been criminal behavior in this matter but that behavior has come from those in position of authority who have shown themselves to be corrupt, or at a minimum, unconcerned about the miscarriage of justice and its effect on the lives of the obviously innocent young men and their families.
Call them all: the Governor,Mike Easley at 919 733 4240 ; NC Atty Gen, Roy Cooper at 919 716 6400 ;NCBar Assn President, Tom Lunsford at919 828 4620 , your Congressmen, Senator Dole 202 224 6342; Senator Burr at 202 224 3154; US AG Alberto Gonzales at 202 353 1555. Let them hear from you. Annoy them. This whole thing is and has been a disgrace and is shameful.
If those in position to influence these proceedings would have been people of courage and character, this matter could have ended long ago, sparing the innocent hundreds of thousands of dollars, indescribable torment, and irrepairable harm.
This is the perfect time to speak up! Do it! It is our government, our Constitution and these people serve at our pleasure. Hold them accountable. It is unconscionable that NOT ONE OF THE ABOVE has been willing to state the obvious: Something is wrong here and it needs to be addressed.
What a mess!
to jc 11:18
by lobby the media, I am using 'lobby' loosely - like to pressure, follow-up, pressure some more, influence them with our efforts to get them to amplify our findings from this webpage to 2 million primetime viewers around the world until that one perfect genius mind that can do away with this tragedy at its earliest convinience does. I am dreaming. I want to see Bill O'Reilly and Larry King and Dan Abrams host live primetime interviews tonight with attorney general Alberto Gonzales as he answers to the requests of Rep. Walter Jones. I want that interview followed by an interview with a representative from the NC Bar. Then the next interview will be with a guest who is a Special Agent for the Durham area FBI office. Then, I want to see Pres. Bush 41 on Greta Van Susteren talking about this case for at least 10 minutes and Special Prosecutor Patrick Fitzgerald appearing on AC360 tonight talking about this case.
Is it ok to do this or is that doing to Nifong what Nifong did to the Duke Three? Can we try Nifong in the media like he did with the lacrosse team?
I feel there is an answer that can put an end to this sooner better than later. Before next spring at least. We must be vocal. We must amplify our message. The media will help us. What do you think?
good points
i'm gonna spend less time posting, more on emails and phone calls
the letter to DOJ is important; we should capitalize on it by getting more media, pundits, and law professors involved--people like laurance tribe
jc
1:45p.m. if you write the DOJ send that letter registed and make someone sign for it. That is what I did, so I know they got mine.
Keep it right on point, only put in the only the worse points of miscounduct.
thanks, but i was referring to a previous post which urges people to email laurance tribe of harvard law school--and get him to write to DOJ
jc
To 11:16 PM-(last evening)---
When you address me with such obnoxious ire, please have the guts not to post without a name.
Are you afraid to ask personal questions to pick fights using your name? Obviously so.
What I or anyone else does with our money is certainly not the business of a cowardly "anonymous" person as yourself.
If you want to be childish and try to pick a fight with someone, use your real name.
Otherwise, one might wonder if you are just a yellow Liberal, dissing someone while hiding in a safe closet....a...la.....Mike Nifong.
Believe this, I couldn't care less what people like you have going on inside your idle minds.
I must concur....ACTIONS do speak much louder than mere WORDS. You must have learned something, eh? LOL!!!
And no, I am most certainly not a Monks supporter. Nor am I a conservative; however, you have shown how trashy a coward on an internet can be.
Happy with yourself?
Good.
Debrah
Debrah,
i of my more amusing aliases, A Proud Black Grandmother, said it weeks ago:
"My lovely Precious only has anal now'days: vaginal's just fah birthin'"
"dem dam lacrosse playahs gots me in all 3 orifices"--Precious to Mike Nifong
jc
JC--
I signed off early last night to watch a film and then checked in tonight to read this little doughnut posting like a coward.
You see, this poster (Anonymous 11:16) from last evening is a priceless example of the way Nifong supporters have conducted themselves.
People who feed at the public trough will never take personal responsibility for their words or actions.
They are so tethered to the "GOV-a-MINT".
I shouldn't be so hard on poor (Anonymous 11:16). Being an obnoxious coward is obviously in his / her D...N...A.
LIS!
Debrah
Also, the poster needs a few pointers and more than a few lessons in grammar.
Oh, well........he / she is a drive-by attacker (anonymously).
No doubt a Mike Nifong worshipper.
Strange, that.
Debrah
Boycott DNA Security and other businesses owned by Brian Meehan.
Most of us would never use a DNA testing service, but perhaps with some pressure, law enforcement can be persuaded to never use DNA security again.
A good first step, email North Carolina cops an prosecutors and tell them as a potential juror, you would never accept "evidence" from Brian Meehan or DNA Security after tihs news.
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