Cooney & Bannon on DNA

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

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

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

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

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

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

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

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

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

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

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

Bannon added,

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

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

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

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

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

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

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

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

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

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

Finally, this morning, Bannon offered some additional insights:

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

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

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

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