Bannon on the DNA Process

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

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

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

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

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

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