Yesterday’s post looked at portions of the Nifong deposition involving the police, the pretrial statements, and the April 4 lineup. Today’s will focus on Nifong’s dealings with DNA, Dr. Brian Meehan, and SANE nurse-in-training Tara Levicy. Tomorrow’s will explore aspects of Nifong’s personal life and character that the deposition revealed.
The deposition showed a prosecutor who readily admitted that he didn’t read reports, unapologetically stated that his quest was for evidence that would harm the lacrosse players, and never really asked whether a crime occurred in the first place.
The deposition also suggested that Nifong had developed a good working relationship with Tara Levicy—who joined Mark Gottlieb as the only other person (including, remarkably, his wife, Cy Gurney and the now-departed Linwood Wilson) to which the DA consistently referred by a first-name basis.
Nifong offered yet another interpretation of the April 10 meeting with Dr. Meehan—at which, according to Meehan and Officer Ben Himan, the lab director told Nifong that his tests had revealed the presence of multiple unidentified male DNA on Crystal Mangum’s rape kit.
In his deposition, Nifong explained that he didn’t remember anything about the meeting. Why? He suggested to Doug Brocker that “it would probably just have been an introductory meeting and nothing about the case would have been discussed.”
As for the May 12 report, Nifong claimed that Meehan didn’t even go over it with him at the May 12 meeting—an assertion denied both by Meehan and by Gottlieb.
The Role of DNA in the Case
Nifong admitted that—at some point—Meehan told him about the multiple unidentified male DNA, but added that “I was not thinking of that in terms of having much relevance to the night in question . . . I really wasn’t thinking of that as having a whole lot of relevance.”
Bar attorney Doug Brocker pressed on this point, asking the obvious question:
Brocker: At the time did it occur to you odd or unusual that they were able to recover DNA on some of these rape kit items from a single cell, but there was no DNA remaining from an alleged gang rape that had happened that same night?In other words, Nifong didn’t consider it odd that Meehan’s tests suggested that the “victim” might have picked up stray DNA from the cars in which she traveled to and from the party, but had no DNA on her from anyone who attacked her in a 30-minute violent assault.
Nifong: Not specifically, because as I said, the SBI lab had said that there was no ejaculation from that . . . I was aware that the victim that night had been in—she came in one car. She left in a separate car. She was in a police car. She was at the access center. She was at Duke Hospital. There were a lot of places where a fractional amount of DNA could be picked up from something that she was sitting on.
But I really, as I indicated, wasn't thinking very strongly about the possibility of that particular—those particular results having anything at all to do with the assault. And, you know, certainly in retrospect I believe that I probably should have paid more attention to that. I didn't at the time, and I think that led to some of the issues that resulted from, you know, my not having made notes and having paid more attention to it.
The next day, Brocker followed up on the point, in more explicit terms, producing a rationalization for the lack of DNA from Nifong that would have been comical were the subject not so serious:
Brocker: There was nothing in Ms. Mangum’s statement that prior to December 21st that ever talked about being assaulted with anything other than a private part, I think is how she generally referred to it; is that right?
Nifong: That’s how she referred to it. But just as I indicated, when I was talking about victims not always knowing whether condoms are used, victims don't always know what body parts are inserted either.
Indeed, Nifong all but conceded another ethical violation (involving the duty of a prosecutor to evaluate all the evidence, including that which did not support his case) in this exchange with Brocker:
Nifong: I will concede that I made a real mistake in not going over the report more carefully. I should have done that. But had I done so, I’m not certain that I would have necessarily noted everything because I really wasn’t thinking about our previous discussion in terms of other items at the time. But I did not give the report the attention that I probably should have at the time I received it.
Nifong: My primary concern was to get the report back to Durham, make copies, and get it out to the lawyers, because it was late in the afternoon on a Friday.
Brocker: Do I take it from your last answers that when you received that May 12th report that you believed or assumed that it included the information that unidentified male DNA had been found on evidence items that didn’t match the lacrosse players?
Nifong: Well, actually I think what I’m saying is that I wasn’t really thinking about that particular topic in terms of that. I don’t know that that even crossed my mind. [emphasis added]
In general, Nifong argued, the unidentified male DNA was unimportant. “It neither showed that these defendants did not do it,” he remarked, “or that somebody else did do what was alleged in this.”
When Nifong tried making this argument in the DHC hearing, Lane Williamson had little difficulty disposing of it. Surely, the DHC chair noted, not all evidence has to be a “smoking gun” to be relevant to the case? Nifong conceded the point.
An Interim or Final Report?
Nifong gave so many excuses for not turning over the DNA data that it was often difficult to keep track. Meehan, meanwhile, eventually fell back on the claim that the May 12 report was not a “final” report, and therefore Nifong couldn’t violated any discovery requirements. The lab director repeated this argument in the Nifong ethics trial, the DA's attorneys didn't challenge the testimony, and when presented with an opportunity by Lane Williamson to characterize the May 12 report as a “final” report, Nifong declined to do so.
In the deposition, however, Nifong conceded that he did consider the May 12 document to be a final report.
Brocker: What you’re saying in your answer is that . . . at the time you produced the data on October 27th, you didn’t do that with the intent of providing them with the remaining results because you’re saying you thought---
Nifong: (interposing) Yes, sir.
Brocker: ---they had it?
Nifong: That is correct. That is correct . . .
Brocker: So—and I’m just trying to make certain I understand—it’s not your position that you intended to provide them with certain results and a written report on May 12th and then provide them with the remaining results intentionally on October 27th?
Nifong: That is correct . . . My position is that I thought that I’d given them the full thing on May the 12th and that we gave them all the underlying data, which contained the other items that are referenced here, at that time, but that it was not with the intention of hoping they wouldn’t discover it. I just didn’t realize it hadn’t been produced till December 13th . . .
Brocker: At the time you got the May 12th report from DSI, was it your understanding that that was the final written report that you expected them to produce on the tests?
Nifong: I think that’s a fair statement, yes, sir.
Meehan and the Dec. 15 Hearing
Nifong struggled mightily to explain the December 15 hearing—at which Dr. Meehan admitted, in response to a question from Jim Cooney, that he and the DA had entered into an intentional agreement not to report all the results.
Would he agree, Brocker asked the DA, that other than proffering Dr.Meehan to testify—with no advance warning to defense attorneys—that he did not make any “affirmative statements to the Court” that the May 12 Meehan report was incomplete? “That is true,” Nifong conceded, adding that he “did not make such a statement specifically.”
Asked about his expectations for the hearing, Nifong remarked that it never occurred to him “that somebody might testify to something that's not the truth, you know, that somebody that I would—that would be a witness, like Dr. Meehan in this case, that he would—it would never have occurred to me that he wouldn’t have said the exact truth as he recalled it.” Was he, Brocker wondered, suggesting that Meehan hadn’t told the truth?
Nifong hedged. “For the most part,” he remarked, “I think that Dr. Meehan testified to what he believed to be true.” The exception? “There was one question . . . from Mr. Cooney . . . where he asked for an answer that seemed to contradict Dr. Meehan’s earlier testimony.” Nifong didn’t say why, on that question, Meehan suddenly stopped telling the truth.
Nifong unconvincingly asserted that he didn’t cross-examine Dr. Meehan on this crucial point because Meehan had implied elsewhere, earlier in the hearing, that no intentional agreement had been reached.
The deposition included a discussion of a heretofore unrevealed conversation between Nifong and SANE nurse-in-training Tara Levicy—who Nifong repeatedly termed “Tara,” rather than Nurse Levicy or Ms. Levicy, in his notes.
Despite Nifong’s stated open file discovery policy—as well as the statutory requirements of the state—the DA conceded that it appeared he had not turned over the notes of this conversation with the defense. (He did turn over the notes to the attorney general’s office.) And, unlike his multiple meetings with Dr. Brian Meehan, Nifong did take (very detailed) handwritten notes of his chat with Levicy.
The DA claimed that he could not recall when this conversation occurred, but believed it was a phone call. There also was a June meeting between Levicy, Duke Hospital SANE director Teresa Arico, and Nifong, notes for which were never produced.
The notes produced in the deposition offered a glimpse of how Nifong and Levicy, in the event of a trial, intended to get around the fact that Dr. Julie Manly performed the key parts of the exam—and that Manly came to have grave doubts as to whether a rape occurred.
“Tara actually guided her [Manly] through technique,” claimed Nifong. Only in Durham could a DA have tried to argue that a then-uncertified SANE nurse knew more about medical procedures than a fourth-year resident M.D. While Manly was not routinely involved in sexual assault exams at Duke, she told defense attorneys that she had performed around 30 pelvic exams in her previous position, in Idaho.
Other aspects of the Levicy/Nifong conversation dealt with the subjective evaluations in which Levicy (who later claimed to have never encountered a woman who lied about rape) specialized. Mangum’s behavior, according to Levicy, was “consistent with sexual assault emotionally and physically,” indeed of someone suffering from “rape trauma syndrome.” Levicy denied that Mangum showed any signs of intoxication (despite what Mangum herself would tell UNC doctors the next day), and recorded that Mangum offered “consistent responses” combined with “periods of crying, deep sadness.”
When Brocker asked about the January interview between Linwood Wilson and Levicy—in which Levicy radically changed her story, in ways convenient to the prosecution’s case—Nifong’s memory suddenly grew hazy. He said that he couldn’t “specifically recall the circumstances under which that came about”—indeed, he couldn’t even “recall” asking Wilson to chat with Levicy.
It was just a coincidence, apparently, that “Tara” was willing to help him out one last time.