Guilty

Nifong afternoon testimony:

Nifong is a bit more subdued—perhaps because at the lunch break he saw ABC-11’s story that the US Attorney’s office is monitoring the contempt proceedings with the possibility of opening a criminal investigation.

On May 12: “He went over the findings”—particularly the last six pages of the report.

Never told Meehan to hide any information.

“I never really told him what to include, other than I wanted a summary report. I told him what that meant.” Knew of Meehan’s privacy concerns, but didn’t think it would be a problem in the report.

Possible that he spoke to Meehan about the report on the phone, but he doesn’t recall it being the case.

Recalls only a single conversation over the phone with Meehan—but has no memory of who originated the idea of a May 12 report.

Can’t say whether he was told before May 12 what would be in report, but doesn’t recall it.

Nifong: Meehan “told us what was on each page.”—doesn’t remember very much until they got to the page with Dave Evans (page 6)—asked Meehan what the 98 percent exclusion meant. On May 12, for first time, saw tests for Kevin Coleman and Mangum boyfriend Matthew Murchison (“confirming what we believed early on, that he was the most likely source” of the vaginal sperm DNA).

Q: Was there anything else said at that meeting, that you recall?

A: Might have been, but he doesn’t recall anything else. “But it’s not impossible.”

The meeting lasted 20-30 minutes at the most.

Nifong consistently mispronounces Reade Seligmann’s name, over and over again.

Nifong is now mimicking Brian Meehan—providing excruciating details over meaningless issues.

Initial packet—1271 pages—but he didn’t go through these documents and read them. “Some of it was stuff that was not particularly germane to my interests.” ‘I didn’t spend a whole lot of time with that information.”

[It’s nice to see that the lead investigator for the case casually admits to not reading the relevant documents.]

Q: Did you have any reason to go through discovery packet?

A: No—“we were going to turn over whatever they brought.”

“I sent my own investigator out directly to speak with the officers involved.”

“had assumed all along” that there would be a request for the underlying DNA data.

“Dr. Meehan did not have any objection to providing everything they asked for.” Nifong’s suggestion: Meehan was more open-minded than the SBI lab.

Q: When you got SBI and DSI reports, did you believe that you would be asked to turn over underlying data?

A: I knew that would be the case—request of Aug. 31 not a surprise. Made no objection, though did make a ‘smart-ass” statement. Hadn’t been commenting to the press—“but every time we gave a test results, the defense gave a press conference saying that the tests exonerated everybody.” Regrets doing so now—“but the press was in the courtroom.”

[What does any of this have to do with the Sept. 22 court hearing?]

Sept. 22 session—finally gets to the transcript:

“experts are a little different from other witnesses”—expert looking at evidence in a case that he doesn’t initially have a knowledge of

Two categories of information from Meehan:

1) report and anything that’s in it

2) technicalities of Y-STR—“short course in what that expert does”—what expert can say and can’t say—can have “my basic education” about field, but appropriately shouldn’t go into the report—this is not related specifically to the case—related to the subject matter

Might also go over trial strategy with an expert

Q; Did you discuss any of the facts of the case?

A: “The only facts that I recall discussing with him are when he said we think we have a match to one of the fingernails, and I said David Evans,” and then explained why.

[But, of course, Nifong never admitted to discussing this fact on Sept. 22, when he said he had discussed no facts of the case in any meeting with Meehan.]

Hadn’t gone back and read the DSI report before the 9-22 hearing. When he gave his remarks to the court on 9-22, he thought he was being truthful.

Q: When would you read, in detail, the reports?

A: “You read the reports as you need them.”

[Nifong, interestingly, most of the time speaks in the present tense—as if he’s still a prosecutor.]

“It’s not like I’m totally unaware of what’s in some of this stuff. We’ve discussed these things in general terms, but that’s not the same thing as going back and studying in detail what’s in these particular reports.”

“I had no idea” what the 3^rd motion would be—expected motion to suppress, motion to change venue.

“The motion basically said that we had conspired with Dr. Meehan to hide evidence.” [Of course, that isn’t what the motion had said.]

I couldn’t believe that they didn’t already have that, but then I realized that they did have it.” Eventually realized, though, “Thank God they found it.”

Then “pulled out Meehan report from May 12, and started going through it line by line, and I didn’t see any referenced to that, specifically, and didn’t really remember that it had ever come up again.”

“It was like, ‘How could I forget this?’”

“At that point, my feeling was the last thing we needed to be dealing with was public perception that we were concealing evidence.” Faxed him the motion, then called Meehan. Had no conversations with Meehan on what he should or should not say.

Q: Why didn’t you ask Dr. Meehan just to write another report?

A: “The problem that I had with the motion” was attempt to conceal suggested—“I wanted to dispel the taint that would be added to the case that we concealed evidence.”

Never concealed exculpatory evidence, never intentionally lied. “All the statements that I made to the court I believed to be true”—now understands that his statements “were not factually true,” but at the time, believed otherwise.

--

x-exam

“With regard to the case-specific facts,” believed he had said everything was in the report. “As it turns out, that was not the case.”

“I don’t recall” Himan testifying that Meehan told them on 4-21 that there were four unidentified male DNA—Himan said so yesterday in court!!

Q: Why didn’t you correct the record?

A: The defense already had this information anyway, no need to correct the record. “I thought that by calling Dr. Meehan it would make it very clear that there was no conspiracy.”

“I’m not sure that I believe I had misrepresented a material fact” on 9-22—just trying to fix the things that were wrong.

“In terms of the materiality of that fact, I’m not sure that I’m in a position to decide that.”

Meehan statement to Cooney “contradicted” other things he said on 12-15, so felt no reason to correct that record. “The testimony that Dr. Meehan made was in some ways self-contradictory.”

“Very sorry that I did that; apologize to the court at this time for anything I might have said that was incorrect.” But never intentionally lied.

Fourth description of Mangum as the “victim.”

“The fact is we did not discuss the facts of the case with Dr. Meehan”—even though, under x-exam, he just admitted that he had done so; Nifong—his statement “basically true” that he didn’t talk about the facts of the case to Meehan.

[This is a truly astonishing line of argument by Nifong—essentially delusional.]

Q: At the 9-22 hearing, why didn’t you just say you hadn’t read the report?

A: Thought he knew what was in the report [without, apparently, having read the report].

“I didn’t have any reason to go back and read the report.”

Defense omnibus motion of Aug. 31 dealt with Meehan meetings—yet Nifong didn’t take this opportunity to review the Meehan report.

“We never thought that the assault took 30 minutes.”

“Had there been ejaculation and had there not been something to prevent the ejaculate from getting on Ms. Mangum,” would not have expected DNA.

“She only knew that something was stuck in her from behind”—no reason to expect DNA.

“I wouldn’t say that the absence of evidence was unusual.”

“It is not at all uncommon for there to be no forensic evidence in rape cases.”

“I’m not even sure that I even thought of the unidentified DNA as a ‘fact of this case.’”

“The impression that I had was that this DNA didn’t have anything to do with this case.”

Defense got the evidence anyway—the case never got out of discovery phase—but clearly caused them no harm.

He and Meehan “talked about a lot of stuff”—but most dealt with the science.

“I did not consider the other DNA to be a case-specific fact.” “It was not something that was on my radar.”

‘What I was hoping for” was to get DNA on fingernail with DSI: [then why didn’t Nifong just send the fingernail, rather than the whole case file, to Meehan?]

“This case never got out of discovery”—the defense eventually just got everything.

Nifong consistently denies that the unidentified male DNA should have been considered exculpatory evidence.

June 22—Stephens order—for all test results; didn’t think he had to go back and check because was no specific timeframe on when the info had to be turned over.

Admits that he didn’t review his file in any way when he went before Judge Smith on Sept. 22

--

Closing statements, starting at 4.43:

Glover:

Statements “were not literally accurate, they were not literally true.” But not willfully or intentionally lies.

“How we misperceive things when we look at them in reverse.”—the issue is what was Nifong’s state of mind as of 9-22

“words taken out of context or without context have a meaning . . . that’s something entirely different than what was said.”

1) Meehan’s statement to Cooney;

2) Meehan discussion with Nifong about what should go in report—Meehan and Nifong had very different conceptions of what a report is. [In other words, it’s all Meehan’s fault.]

Have to put exculpatory evidence in context of facts of the case [this, of course, is the precise issue here—since the only physical evidence was “diffuse edema of the vaginal walls,” and Mangum had said she had no sexual contact the week before the party except with Murchison, the other DNA is highly relevant.]

These DNA results meant “nothing” to Nifong—and Nifong was right—these meant nothing in the context of the case.

Meehan material (the DNA from multiple unidentified males in the rape kit) is “evidence you’re going to find on every human being” (!!!!!)

Nifong was under no statutory or court obligation to reduce his comments to Meehan to writing.

Other male DNA was “insignificant”; “had nothing to do with the case”—and no reason he should have noticed this fact.

Glover is now suggesting that the question asked by Smith on 9-22 was unfair—not possible that the report could have recorded everything that was said between Meehan and Nifong.

Nifong wasn’t lying—take his comments in context. “He couldn’t have lied; he had no reason to lie.” “Why would he lie about that [information]? Where does it get him? What could he possibly have in mind?”

Nifong knew that defense was going to get this info—no intentionally made false statements.

--

Davis closing:

Nifong admitted that these statements given on 9-22 were false.

2 prongs: 1) Did report encompass everything? Nifong said it did.

2) Were there any statements made by Meehan to Nifong? Nifong said “no other statements made to me.”

Clear that there were conversations between Meehan and Nifong—just look at the conversations recalled by Himan and Meehan with Nifong. Clear that these were “conversations.”

Judge Stephens order of June 22—made clear Nifong was supposed to turn over all tests and results.

But then—Nifong in his Jan. 16 response to Bar, claimed that defense never asked for it. In response to Bar on Dec. 28, Nifong conceded that he knew of this info from Meehan.

Daniel Webster: “An eminent lawyer cannot be a dishonest man.” Warren Burger: lawyers who don’t tell truth or have moral compass, even if they know the law, are “menace to society.”

Have to keep in mind the real victims here—the three falsely accused players. What if their parents hadn’t the money to hire great defense lawyers? What if Bannon hadn’t uncovered the DNA conspiracy?

-

[During the closing statements, ADA Jan Paul was enthusiastically nodding as Glover stated that Nifong always turned over all evidence. And Judge Marcia Morey had darted back into the courtroom to lend moral support.

It’s quite remarkable that—after everything—there are still elements of the Durham legal establishment who appear not to believe that Nifong did anything wrong.]

--

Judge Smith:

Findings of fact:

1) In capacity as DA, Nifong appeared before Court on 9-22-06, in response to specific inquiries by court, represented that Meehan report included all statements made by Meehan to Nifong regarding all DNA tests.

2) Such representations by Nifong were false at the time they were made given existence of multiple unidentified male DNA.

At time of Nifong statements 9-22, he was aware of Meehan statements. He was aware that Meehan report didn’t contain these statements. And he was aware he hadn’t provided such information to defendants.

4.) These items material, exculpatory, and impeachment evidence, to which defendants were entitled.

In making such statements, Nifong willfully and intentionally made false statements of material fact to the Court. Nifong thereby failed to disclose exculpatory and impeachment evidence.

This behavior is in violation of NC criminal contempt statutes. Nifong’s act “is willfully contemptuous.”

Nifong is guilty, announced 5.32.

Nifong character witness: Judge Ron Stephens.

Born and raised in Durham County—has known Nifong for almost 30 years. “He was always straightforward.” Talking about Nifong in the “pre-lacrosse setting.” A “victim-friendly” prosecutor, concerned with “victims’ rights.” Developed and became a better trial lawyer over the course of his career.

“middle of the road style”—always right down the middle. “Always felt like his word was his bond.” Believes that this was the same view among most people in the Bar.

Nifong “not a real cuddly kind of guy.” ‘I relied on him to enforce my rules” when Stephens was DA. “He was the enforcer; he enforced my rules.”

“If he told a lawyer something, I never had a complaint.”—might have been a complaint about the way in which it was told.

Nifong “never had a problem with the discovery process.” Nifong “a good lawyer, a real good lawyer.”

Lots of people didn’t want to try against Nifong because he would win close cases. But did it the right way.

Nifong was a good mentor—“a lot of positive things that he did in the office to assist in the criminal justice system”—Nifong smart, a “legal resource”—helped new prosecutors “how to do things right.” “Almost a joke in the office” to “run this past Nifong.” Other people relied on Nifong to assist them and tell them right way to behave.

‘It has always been a thumbs-up to Mike Nifong, as far as I’m concerned.”

Nifong had to be “encouraged” to take DA job—“at that point in time, it was all a thumbs-up for Mike Nifong.” Nothing in Nifong background to suggest he wouldn’t do a great job.

Nifong the “appropriate choice at that time to do that job.” Stephens near tears by the end of his remarks.

--

Davis:

Previously served on Judicial Standards Commission and Disciplinary Hearing Commission. Not enjoyable positions—but something that had to be done.

Felt like he had a duty to serve as special prosecutor even though would have preferred not to do so.

Two reasons for punishment:

1) Punish the person who’s been convicted of the crime.

2) Just as important is “to act as a deterrent to someone else who might be thinking of doing the same kind of thing.”

Nifong does need to be punished. “When you start saying things to the court that aren’t true, you are taking a jackhammer and trying to tear at the very foundation, the rock on which our court system is built.”

If you can’t rely on officers of court, and DA’s and ADA’s aren’t honest and truthful, then “our court system is gone.”

--

Smith:

Concerns arose in his mind on 12-15-2006; has kept an open mind from then until today.

In findings, no evidence of conspiracy between Nifong and Meehan; until this trial, not sure what Nifong’s response was going to be.

Nifong could have been heard on 12-15 as to his explanation, but didn’t ask to be heard.

Still concerned as pertaining to actions of counsel—but felt it would be inappropriate for him to initiate actions while State Bar and proceedings of lacrosse case were still ongoing.

What this proceeding is not about:

--prosecution of falsely accused;

--not about possible sanctions;

--not about statements to media or press conferences;

--not about politics or public office, or State Bar

“And it’s not just about Michael B. Nifong.”

“matters essential to the Court’s existence and orderly administration of justice.”

This “about protecting and preserving the integrity of the court”—about candor, accuracy, and truthfulness in representations to court, especially in important matters where people’s lives are at stake.

Court must be able to rely on representations to court by attorneys.

“strong sense of setting a deterrent”

Stephens testimony “strong mitigation” as to the offense committed

Nifong sentenced to one day in jail.

Morning in Wonderland

Even in the Wonderland that is Durham, this morning’s session was surreal.

A sitting judge served as a de facto character witness for a district attorney who was forced to resign his office after being disbarred.

A sitting ADA testified as the Durham equivalent of Sgt. Schultz, suggesting that he “knew nothing”—or at least as close to nothing as absolutely possible—about how the case was prosecuted.

Mr. Obfuscation was in rare form—with Dr. Brian Meehan suggesting at one point that he’d speak “two ways” about his own company’s protocols(!)—but finally admitted that Mike Nifong’s Sept. 22 statement to the court was “false,” and that, in fact, that none of the conversations between Nifong and him were memorialized in the report.

And then there was the ex-DA himself. Nifong acted as if he were addressing a seminar of young prosecutors, giving his recommendations on how to prosecute a case.

He evidenced no awareness of the fact that no crime occurred in this case.

He reminisced that when he took over the case on March 24, “no one had been identified as a suspect at that time” [except, of course, for the 46 lacrosse players listed in the non-testimonial order as suspects].

Nifong thrice referred to Mangum as “the victim.” (His attorney did so another two times.)

He twice stated that a mixture from which Dave Evans’ DNA (and that of two percent of the males in the United States) could not be excluded constituted a DNA “match” that was consistent with Mangum’s myriad stories.

When the negative results came from SBI, he simply changed his theory of the crime: “It was evident to me,” Nifong told the court, “that this had been a non-ejaculatory event.” Therefore, it became an eyewitness ID case (in which he would order the DPD, the very next day, to violate their own procedures and run a suspects-only lineup).

One problem: his own “victim” had explicitly said that it was an “ejaculatory event.”

His “primary interest” in going to DSI was “ferreting out” fingernail mixture—suggesting that this evidence was the key to the case. (He went out of his way to name Dave Evans in his testimony.)

On April 21, maybe Ben Himan did hear Meehan say that the DNA from at least four unidentified males had been found in the rape kit, but the remark passed over Nifong’s head: “At that meeting, the focus was almost exclusively on the findings on that particular sample.”

Anyhow, these males could have been anyone, likely someone unconnected with the case. Nifong had previously suggested that the unidentified male DNA might have come from the police car(!). Today, in a perfectly rational tone, the former “minister of justice” of Durham County stated that it was possible that one of the unidentified males whose DNA was found on Mangum’s rectal, vaginal, oral swabs, and panties could have been her 6 or 7 year old son.

Only in Wonderland.

Morning Session II

Nifong testimony:

Opens with discussion of his education and career in the Durham DA’s office, and his tradition of open-file discovery. Dealt with SBI in his time as an ADA. Only “occasionally” had conversations with SBI people in dealing with their analyses. Was never asked about what should or should not be in SBI reports.

His open-file approach was more efficient—defendant would have “knowing basis” of how to proceed; “the right thing to do”

“No reason not to” turn over everything.

This policy allowed him not to worry about what was important to a defendant and what was not.

“I ended up getting rid of one person” almost immediately (Freda Black); first six or seven months as DA were devoted to getting the office fully staffed.

Had never heard of an NTO that dealt with more than one person; “struck me that this was going to be a case that was going to get a lot of media attention in Durham”

“saw it as a case that would get a lot of attention”—called up Capt. Lamb and told him that all matters should go through him.

Calls Mangum “the victim”—three times; his lawyer does so twice.

When he took over, “no one had been identified as a suspect at that time” [except, of course, for the 46 lacrosse players listed in the non-testimonial order as suspects]

Conversations with SBI people lead to suggestion for Y-STR tests

Names the lacrosse players, however, even as Mangum was the “victim”

SBI reports never contained summaries of the conversations between him and SBI technicians.

When negative results came from SBI, “It was evident to me that this had been a non-ejaculatory events”—therefore, it became an eyewitness ID case. [Of course, his “victim” had said that it was an “ejaculatory event.”]

“primary interest” in going to DSI was “ferreting out” fingernail mixture; but felt that he had no choice but to give DSI everything—“didn’t worry too much” about specifics—“I figured they would know.”

Q: what else was he doing at this time as DA?

A: 1) Running the office—had to answer calls, correspondence, conversations with attorneys.

2.) In a “contested primary” for DA; in April 2006, most night after work, he was involved in something involved with the campaign.

3.) some of his time—“entirely too much of it”—taken up with the media; “spent way too much time in talking with the media”

Had never run a campaign before, had never been a DA before, had never dealt with a case of this magnitude before; April 2006 “very possibly the busiest month of my life”—with things he wasn’t accustomed to dealing with

Still only has “specific recollection” of two meetings; but concedes that the third meeting occurred and he was present.

His recollection of April 10 meeting: knew nothing about YSTR testing; part of purpose was to give him a sense of what YSTR testing was.

Meehan says they had tested all the items from the rape kit; no matches to any lacrosse players; confirmed that there was no semen on any of these items; also said that there was male DNA on some of the items that didn’t match any of the Duke lacrosse players.

Meehan showed them some of the test results that he had completed; said that the results were “quite preliminary” Only one clear match—old sperm; the rest seemed inconsequential.

April 10: Meehan basically tells him that they did the same tests SBI did with more specificity, finding the same thing—found no relevant semen or sperm

Were these Meehan findings consistent with the facts of the case?

Nifong was aware that Mangum had told police officers that last sexual contact was with boyfriend 3-5 days.

At one point, recalled asking Meehan asking whether sperm-fraction is necessarily sperm. Meehan says no. understanding was that Meehan would do further testing—didn’t receive everything from SBI: “my primary interest was to get the fingernails tested”

Focus of first meeting was to allow him to determine what YSTR testing was; also talked abt transference.

“would almost be unusual and unexpected” for a person—male could be anyone; couldn’t say—might have come from her son(!!)—we’re talking, again, about DNA withdrawn from Mangum’s rectal, vaginal, oral swabs, and panties. It could have come from her son??

Meehan did express some concern at some point about privacy issueà that leads to discussion of report.

Negative info (no matches to a player) needn’t be contained in Meehan report.

Seligmann and Finnerty were not indicted on the basis of DNA evidence; therefore wasn’t paying much attention to issue of DNA matches.

NTO people “were entitled to have the results of the test”—but complicated with 46 people.

Goal was to send written report, not oral report; didn’t have any reason to turn things over abt Meehan

Nifong attorney: “we’re using written report and final report interchangeably”—Nifong: yes. So Nifong is now saying May 12 report was final??

April 21 meeting: said that they had obtained YSTR fingernail tests. Nifong guessed it would be Evans. “At that meeting, the focus was almost exclusively on the findings on that particular sample.”

[Himan reported that Meehan said then about four unidentified males.]

“pretty clear from conversations that he was still doing testing”

Morning Session I--Meehan: Nifong Statement to Court "False"

The morning session resumed with Dr. Brian Meehan returning to the stand. Perhaps on order from the owner of his lab, he was wearing a suit today, rather than his outfit of yesterday, a short-sleeved shirt with “DNA Security” custom embroidery.

Meehan: received no instructions about what to appear.

“Let me clarify something”—“we did talk about not including the DNA profiles of players for which there were no matches.”

“I didn’t document the exact time of those discussions.”

Glover is—if possible—speaking in more of a monotone than he was yesterday, as he and Meehan establish a timeline of Meehan’s testing activity.

Glover, as he did yesterday, is liberal with his use of the lacrosse players’ names, even as he refers to Crystal Mangum as the “alleged victim.”

The number of spectators is much less than yesterday—perhaps people were driven away by Glover’s “bore-the-court” strategy.

Around five minutes into his testimony, Meehan asks for water.

Meehan: “We went through everything in the report.” “We did go over each section . . . when we got to the result sections, we went through those in detail.”

‘We definitely touched upon again that the reference samples were not included” [for privacy reasons]

“And we did go through this one item that was important to me that some reference items that we considered non-probative were not included in this report.”

“We didn’t spend a lot of time on that. It was important for me in issuing this report that everybody understood that there was more information” than what was in the report.

Didn’t see anything improper in discovery request by defense.

Glover—now suggesting that Meehan expected the request to come, therefore why would Nifong have been trying to hide anything?

Nifong asked Meehan to put in writing his concerns about cost and privacy in turning over the underlying DNA data.

After releasing the underlying data, the next communication he had with Nifong was phone call of Dec. 13 based on defense motion.

Nifong tells Meehan that Dec. 13 motion “didn’t shed a nice light on the lab.”

Judge Marcia Morey, as she was yesterday, has come by to express her solidarity for Nifong. She wins the “Kendra Montgomery-Blinn Award” for undermining confidence in the judiciary.

Meehan: defense discovery request “a pain the butt for us”—but concedes the request was appropriate.

Glover is now suggesting that the defense were likely to turn over the underlying data to experts, and therefore couldn’t have been reason to conceal things.

Glover: How long would it have taken an expert to go through this case?

Meehan: could have gone through the case file in 10-20 hours.

[Glover, in short, appears to be returning to the “no harm, no foul” defense.]

Meehan: “I was pretty upset with what was in that document, and I expressed it to Mr. Nifong.”

“company decision that I do go and clarify”—his initial inclination was not to appear.

Bannon: “some things that they didn’t understand completely, that they basically got wrong.”—everything was there (Meehan doesn’t say what Bannon got wrong.)

Glover: Meehan had “little time to prepare”

Meehan: showed up at Nifong’s office on the 15^th—“I was greeted by a detective.” (Actually it was Linwood Wilson—but he had a badge . . .)

Didn’t have a discussion with Nifong before his court appearance.

Meehan now explaining what his answer meant on Dec. 15^th: “The answer to that question then and now is still yes because it’s a broad question.”

“The intention of Mr. Cooney—“

Objection; sustained.

Meehan is now claiming that he thought Cooney was referring to the non-reporting of the reference profiles.

Meehan: he wasn’t “allowed”(!) to explain himself at the Dec. 15 hearing. [Of course, Nifong cross-examined him.]

[Glover is again steering very clear of the Sept. 22 hearing.]

“I wasn’t concerned with anything being left out of that report” because he hadn’t left anything out of the report(!). [except, of course, all the exculpatory evidence]

Glover then rests.

--

Charles Davis begins cross-examination.

“We don’t include narratives of discussions in any of our reports.”

Meehan: ‘We did’ discuss all the test results with Nifong.”

“The specific profiles of those reports and the details of those results were not included in the report.”

“I intended to include everything”

“What I left out of the report were specific profiles.”

Meehan: Nifong statement in court was “true” [Meehan is basically lying.]

Then, Meehan concedes that “there’s nothing in that report that includes details of discussions” with Nifong.

Meehan: Nifong’s statement “would be false.” “We don’t include narratives of discussions in any report.”

Concedes “there is no reference to it [May 12] report being an interim report.”

Meehan: received additional reference samples after May 12, did test results, and Meehan told Himan that they had done the additional testing.

Himan—“every occasion, he told Mr. Nifong, and Mr. Nifong told him there was no need to provide a report.”

Davis: How, then, were defense attorneys to have received the information?

Meehan: “This is the first time we’ve ever issued an interim report.”

Meehan: Nifong never used “interim” report. But was discussed this wasn’t a report for the trial.

Amended report “attempted to help clarify some of the shortcomings of the [May 12] report.”

[This has not been a good cross-examination for Nifong, at all.]

Concedes that amended report eliminated word “non-probative.”

Between the Dec. 15 and Jan. 10 report, “there were complaints made with our accrediting agency.” Concedes that “the terminology used [in the May 12 report] was not appropriate and did not convey my intent.”

DSI protocols have nine items that must be included in all reports. Meehan again concedes that report didn’t meet protocols.

Meehan: “I’ll go both ways here” in interpreting his lab’s protocols as they apply to the May 12 report.

Concedes he had never before issued a report that didn’t list results of all tests.

“I can’t answer your question”

“We have never issued an interim report.”—Mr. Obfuscation in action, refusing to answer the questions, or rephrasing the questions as he preferred.

“We’ve been through a lot of inspections” in last eight months.

“We would have been more than happy to issue a final report”—but not his responsibility to issue a final report, was Nifong’s responsibility. Concedes, however, that no one asked for amended report in Jan. 2007.

“Individuals from our accrediting agency and other advisors” told him to issue the Jan. 2007 report.

Meehan seems to blame the defense attorneys—they should have just called him up and asked him about the report(!!).

Jan. 10 document: “an amended report to the report.”

Glover has no redirect questions.

--

Judge Marcia Morey is now called—has been a district court judge in Durham since 1999, had been an ADA in Durham before then.

Morey: Nifong as ADA was an advocate of turning everything over to the defense.

Nifong an advocate of “equal playing field”

[This line of argument by Glover is an odd one: essentially, he’s saying that Nifong had a practice of turning over everything. If so, that makes his decision not to do so in this case all the more striking.]

Morey: don’t have luxury to read all documents when you have 100 or other cases. [But, of course, Nifong had no other cases at the time of the Sept. 22 hearing.]

--

X-exam, by Boyd Sturgis

Gets Morey to concede that turning over incomplete report would be misleading, and contrary to Nifong usual practice.

Morey: hypothetically, a lawyer saying there was nothing in discussions beyond what was in the report, and learning later that the report didn’t contain everything, would be less-than-candor—but “makes a difference” if not in a trial stage(!).

[She wasn’t very helpful to Nifong.]

--

David Saacks now testifies on Nifong’s behalf.

15-year employee, ADA in Durham, person who signed off on Tracey Cline’s non-testimonial order.

Glover now introduces the March 23 NTO—a document that should have been recognized as fraudulent at the time, and is demonstrably untrue now.

Saacks: Nifong had open-file discovery policy; his approach—if you have something to hide, probably shouldn’t prosecute the case.

x-exam:

Saacks went out of his way in the x-exam to distance himself from the case. He reiterated—as first came out at the Bar trial—that ADA Tracey Cline was prepared to assist Nifong in the case.

Avoiding the Issue

Nifong attorney Jim Glover might be seeking to seize from Dr. Brian Meehan the title of “Mr. Obfuscation.” In an entire day of questioning and arguments yesterday, Glover never once specifically referenced Nifong’s remarks in the September 22 court session, for which he’s on trial.

Those remarks, once again:

Judge Smith: So his report [Meehan’s May 12 report] encompasses it all?

Mr. Nifong: His report encompasses ever -- because we didn’t -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that’s just, that would be counterproductive. It did not happen here.

Judge Smith: So you represent there are no other statements from Dr. Meehan?

Mr. Nifong: No other statements. No other statements made to me.

Mr. Bannon: Just so I’m clear, Mr. Nifong is representing that the facts of the case weren’t discussed in those meetings.

Mr. Nifong: That is correct. The facts of the case, other than the fact that we were seeking a, the male fraction DNA.

Yesterday, Ben Himan testified that Meehan told Nifong and him—on April 21—that there was DNA in the evidence items from at least four unidentified males. In his meandering testimony, Meehan recalled that he and Nifong agreed—after a discussion—to produce a report that respected so-called “privacy” concerns.

Both of those items would surely constitute “other statements from Dr. Meehan” made to Nifong. No wonder Glover doesn't want to talk about them.

Hearing Highlights

Nifong attorney Jim Glover had no discernible defense strategy, instead changing arguments on the fly and without warning, often in ways that contradicted his previous remarks.

During the day, Glover pursued at least seven separate approaches to the Nifong defense:

1) The Irrelevancy Argument: Nifong didn’t lie to the court on September 22 because the unidentified male DNA was of little consequence, given that Nifong already had turned over test results showing no DNA matches to the lacrosse players.

2) The “Something Happened” Argument: A reverse of (1), Nifong was actually doing the defense a favor by not reporting the items, since, Glover darkly hinted, how could the defense have been sure they weren’t matches to the lacrosse players? (Actually, because Meehan had said so, but why let the facts get in the way?)

3) The “Revise History” Argument: The sole purpose of involving Dr. Meehan in this case, suggested Glover, was to test the DNA mixture on Crystal Mangum’s false fingernails. Glover also made a bizarre objection to Brad Bannon reading from the Dec. 15 transcript, as if he could deny Meehan and Nifong said what they did on that occasion.

4) The “Something Happened, II” Argument: Glover consistently referred to Crystal Mangum as the “alleged victim.” Alleged by whom, actually? Meanwhile, he went out of his way to mention Dave Evans’ name as a “match” to the false fingernails.

5) The “Bore-the-Court” Argument: Under this approach, Glover asked wild, unconnected questions, speaking in a low monotone, apparently with the purpose of putting everyone to sleep. Perhaps, he reasoned, the judge would want to stop the torture and dismiss the case.

6) The “Mr. Obfuscation” Argument: Ask Dr. Meehan technical questions, generate incomprehensible answers, and imply to the court that Nifong couldn’t have been expected to understand Meehan when the lab director said he had found matches to four males’ DNA.

7) The “Ignorance-is-bliss” Argument: Nifong never reads reports, or any documents related to his cases. Therefore, he couldn’t have lied to the court about the contents of documents, since he didn’t know what these documents contained.

None of these arguments were persuasive. Also, the one thing from which Glover fervently stayed away: what Nifong said on Sept. 22, when he stated that he had no conversations with Dr. Meehan other than the matches profiled in the May 12 report.

--------

The highlight of the day—as in the Bar proceedings—came from Brad Bannon. Bannon eviscerated Glover’s claim that the multiple male DNA found by Meehan was “not significantly exculpatory.” Bannon responded, “That’s absolutely false.” He then paused before adding, “And you know it.”

Other emotional events: Kathryn Jean reading Nifong’s letter responding to the Bar grievance, in which Nifong effectively taunted Judge Smith for not sanctioning him on Dec. 15; and Ben Himan noting that (even while he didn’t understand DNA evidence that Meehan presented), he firmly understood Meehan telling Nifong and him that the tests revealed four unidentified males’ DNA.

---------

Two of Mike Nifong’s most prominent enablers absented themselves from yesterday’s hearing. First, former Nifong citizens’ committee co-chair Victoria Peterson was nowhere to be found. Second, the person who identified Peterson only as a “black activist from Durham”—Duff Wilson of the New York Times—also didn’t put in an appearance. Perhaps Wilson was still trying to track down the facts for his August 25, 2006 article. Or perhaps he was afraid that he might again get called out from the witness stand by Brad Bannon.

-----------

Today: Mike Nifong takes the stand.

Schedule

Post up around 1.00am.

Afternoon Session

Kathryn Jean is the first witness after lunch.

Appearing under subpoena with the State Bar file dealing with Nifong grievance.

Begins by discussing her grievance notice to Nifong re DNA—December 19, 2006 letter of notice and substance of grievance; and Nifong’s wild Dec. 28, 2006 response. A long pause ensues while Nifong attorney Jim Glover reads (for the first time?) the Dec. 28 letter.

Nifong response, as read by Kathryn Jean: in that, Nifong conceded that Meehan had told him about the unidentified male DNA. Also reads from Nifong response to the Bar: Smith’s “failure” to sanction him showed that Smith believed he had not behaved unethically.

[Nifong is, in effect, being hoisted by his own words, ad his varying stories in his responses to the Bar.]

In his Jan. 16 response to the Bar, Nifong conceded that Meehan had told him about the multiple unidentified male DNA.

Glover has no x-examination of Jean.

--

State rests without calling Meehan.

Glover:

Statements weren’t literally true, but weren’t intentionally false. Nifong turned over all the relevant evidence—just didn’t turn over the additional evidence. But this wasn’t all that relevant, since defense attorneys already knew no matches existed.

[What does any of this have to do with what Nifong said on Sept. 22 to the court?]

Glover: Nifong’s statement to court result of unintentional negligence. ‘The evidence turned over had already establish conflicts with the victim’s story about how this sexual assault occurred.”

Smith: motion to dismiss denied.

--

Meehan called by defense, and Mr. Obfuscation takes the stand, wearing his “DNA Security” shirt. Glover wants to be able to treat Meehan as a hostile witness, subject to rules of x-exam. Smith denies the request.

Meehan gives bgrd educationally and work; allowed to testify as expert witness in forensic DNA testing.

Meehan: “I get pretty nervous. Can I get a drink of water?”

Glover: wants to talk about Meehan’s terms.: Were you contacted by an investigator with the DPD named “Soushie”? [Actually, her name was Soucie.]

Glover: contention is that the only reason Nifong went to Meehan was that the SBI had found some evidence on fingernail, but couldn’t take it further, and therefore needed more sensitive tests.

Glover: Is it the practice to keep notes? Meehan: No.

Glover: key issue was when DSI got the fingernail evidence, and DSI didn’t get the fingernail evidence right away.

--

April 10 meeting. Glover goal now seems to be to expose Meehan’s obfuscationist tendencies, to show that there’s no way Nifong could ever have understood what the lab director was saying. Meehan is using his customary bizarre analogies, comparing DNA work to putting a piece of paper in a copier machine and getting 500 copies. He doesn’t say why this comparison is relevant.

Smith: “speed it up.”

Meehan: “I’m not sure where your question is going.”

Glover AGAIN focuses in on the fingernail—suggesting AGAIN that the only purpose of Meehan’s testing was for the fingernail, despite the fact that Meehan tested on everything.

Meehan continuing with technicalities of DNA testing—again part of Glover’s “bore-the-court” strategy.

Now compares YSTR testing to surnames in the phonebook.

Meehan: If I have a Y chromosome profile, how likely is it that Mr. Bannon has that profile?”

Glover “Let me back up.” Glover is now moving through a borderline incomprehensible line of questioning. He appears to be confusing Meehan, who in turn is confusing him.

Meehan rebukes Glover’s question—not a correct premise on use of DNA.

“takes a long time, takes a lot of training” to understand the DNA process; DNA profiling can’t be done off the cuff, “and we don’t allow it to be done off the cuff.”

Meehan is continuing to ramble on about specific DNA protocols that have nothing specifically to do with the case.

Glover: “Please correct me if I’m wrong, because I’ll make all sorts of mistakes.”

Finally, after around 40 minutes, gets around to specifics of the case.

Meehan: Evans DNA was the “big match that we found”

Meehan states that his lab continues to do sexual assault cases(!)

Meehan: “If you don’t mind, I want to rephrase your question a little bit.”

Glover: “let me take you back to the facts of this case.” (at 4.15pm, when he took the stand at 3.20pm)

Glover is now speaking in even more of a monotone, as he and Meehan inch through the specifics of what DSI received.

Glover: “evidence on a fingernail . . . is how all this got started.” [an extraordinary misreading of this case in general and the role of DNA in this case specifically]

Has phone call with Nifong re unidentified male DNA—Nifong says “not easy to understand,” and they set up the first meeting.

Meehan: “That’s a great question” (re partial profiles and whether they matched any of the lacrosse players)

April 12—receive add’l information—public hair combing, fingernails

Now showing Meehan SBI report

Glover: “extracted DNA is ultimately what you profiled” in testing.

Also—suggests that Meehan was constantly getting new info to test; Nifong’s response therefore appropriate

April 21—focus of meeting was possible match to Dave Evans’ fingernail.

Meehan supplementary report—28 March 2007

While Glover constantly uses the name of the falsely accused—Dave Evans—he never uses the name of the false accuser—Crystal Mangum. She’s generally described as the “alleged victim.”

Glover is now referring to a Defendants’ Exhibit 2—which doesn’t exist.

Glover is now asking Meehan to speculate on what could have been discussed at April 21 meeting.

At each meeting, “we discussed what we had data on prior to that meeting”—recapped previous meetings, and then talked about new items.

Glover: in first two meetings, was there discussion of a report? Meehan: discussion about a report early on, perhaps even in phone calls. “we both agreed that that was a concern” (the privacy issue)

April 21^st—discussion of report in greater detail: “gist of the conversation was that Nifong wasn’t prepared a conclusive report on the case, but he did have a need” for report

Nifong said he didn’t need it right away, but that he would call before he needed report. His understanding was that it was one of a series of reports that would occur before trial.

Meehan: Most labs don’t report DNA profiles; his does, and he’s always done so.

Smith lectures Meehan: “When you hear an objection, stop talking.”

Meehan on why May 12 report was prepared: “I don’t know why I know it now, but I know it.”

Nifong “agreed” with his concerns—“he didn’t object to it.”

No agreement to withhold exculpatory evidence.

[But, of course, the decision to withhold on privacy grounds, in the context of this case, led to the withholding of exculpatory evidence.]

“It was my opinion that he was concerned with the same thing that all of our clients are concerned with—whether or not those evidence items matched any suspects.”

[Again, Glover doesn’t seem to be dealing with the events of the Sept. 22 hearing at all.]

Meehan: “interim report”—usually conveyed verbally. “For whatever reason—it was unusual—Mr. Nifong needed the report in writing. He was my client.”

“I don’t think that the term ‘interim report’ ever came up.”

[Glover’s apparent strategy: suggesting that because Meehan is so boring, there’s no way Nifong could have remained awake during their meetings, explaining why Nifong couldn’t recall the conversations.]

Morning Session Highlights

Highlights of the morning session:

At times, the goal of Nifong attorney Jim Glover appeared to be to put everyone in the courtroom to sleep. "Wandering" is a charitable description of his questioning style. It didn't help that Brad Bannon knew the basic facts of the case so much better than Glover did.

In the most emotionally charged moment of the morning, Brad Bannon eviscerated Glover’s claim that the multiple male DNA found by Meehan was “not significantly exculpatory.”

Bannon responded, “That’s absolutely false.” He then paused before adding, “And you know it.”

A critical item from the Himan testimony: the officer offered much more clarity on the April 21 meeting between Nifong and Meehan than we previously have heard. Meehan told them, Himan remembered, that he had discovered DNA from four unidentified males.

This revelation would seem to have strongly damaged Glover’s other line of defense—that Nifong couldn’t have been expected to have remembered what Meehan told him, because he took no notes. Himan, it seems, had no trouble recalling this important fact.

There were at least two occasions in which Glover almost seemed to imply that Nifong never should have moved ahead with the case after the SBI returned its DNA findings, noting that the SBI lab showed that there was no semen evidence “to support this story that she told.”

Finally, Glover portrayed Nifong in such a way to provide a further reminder that this man never should have been a prosecutor:

Nifong, said Glover, “simply didn’t pay any attention(!)” to what was in the DNA Security report, since he had “developed a habit of not paying much attention to the details and specifics of what was in these reports.” Glover concluded, “What he did in this case was what he did in other cases.”

This statement was nothing short of astonishing.

Morning Session

Nifong, looking gaunt, arrived in the courtroom just after 9.00am. In an event that hardly gives people confidence in the Durham judicial system, he received a warm hug from Durham judge Marcia Morey.

Lead witness Brian Meehan—remarkably—wore his DNA Security shirt. You’d think that, in these circumstances, he’d want to downplay any connection to his company. But, as we know, Meehan seems to operate under his own rules.

--

Smith: case not about merits of Nifong’s decision to prosecute; narrowly drawn to deal with Nifong’s remarks on September 22, 2006.

--

Charles Davis—special prosecutor.

Nifong pleads not guilty.

Davis opening statement:

Promises evidence that Nifong met with Meehan three times, and on each occasion, Meehan discussed the results of all tests, well beyond what was contained in the May 12 report.

Nifong opening statement: Nifong’s attorney Jim Glover is hardly a dynamo—very dry, almost pained statement.

“rather strange procedure”; “everyone coming into this courtroom with feelings, opinions, attitudes” about the case.

Suggestion is that the only real purpose of the Meehan tests was to determine the DNA evidence on Mangum’s false fingernails.

Two things going on: prosecutions against Seligmann and Finnerty, but not against the third.

Real issue was written report about oral conversations that took place at DNA Security. ‘With hindsight, and with an examination of the report,” Nifong would have acted differently. Meehan report was “quite bizarre.”

Concedes that results from DNA testing not “explicitly” reported. Question whether Nifong statements were “willfully” false—clear that Nifong’s statements were false.

None of the participants at any meeting with Meehan made any record of what was said at Meehan meetings. Only became an issue of dispute in December—no way anyone could remember accurately what was said that long after the fact.

Nifong was used to SBI, didn’t notice DNA Security

Nifong “simply didn’t pay any attention” to what was in DNA Security report.

Nifong always gave over everything to defense—this was not the rule in the Durham DA’s office.

“developed a habit of not paying much attention to the details and specifics of what was in these reports”: “What he did in this case was what he did in other cases.”

[This is an astonishing line of defense.]

Nifong “immediately” tried to get exculpatory information to defense as soon as he learned that the exculpatory info wasn’t included in Meehan’s report.

“Although the statements were not literally true, they were not willfully or purposefully lies.”

--

Brad Bannon lead witness:

Goes through timeline of his involvement in case and his receipt of the Meehan report.

Bannon: May 12 report contained results of reports of “only three” of the DNA tests done by Meehan.

[The irony of Brad Bannon as the lead witness in the trial of Mike Nifong is particularly rich.]

Joint omnibus motion: sought information relating to DNA Security work:

1) underlying data from both DSI and SBI labs;

2) specifically asked for Meehan statements in meetings between Meehan, Nifong, and police.

Served on Nifong August 31; received no response until appeared in court Sept. 22. At this hearing, defense specifically asked for material relating to the conversations. Nifong specifically responded to this issue, and said that “we did not ask any questions.”

Smith accepted this representation.

Bannon then discusses discovery of DNA conspiracy by looking through Meehan material. As he went through the evidence, he discovered that DSI had found the multiple unidentified male DNA.

Took him most of the month of November to make these findings, leads to the Dec. 13 motion.

Primary desire was a full report from DSI, as required by NC law and DSI lab protocols. When Meehan appears as witness, basic goal was to ask Meehan if “we got it right” in the Dec. 13 motion.

Smith overrules Nifong objection effectively trying to withdraw concession that events of Dec, 15 hearing occurred as they were written.

Glover: standing objection to Bannon testifying from transcript. Smith overrules.

Quotes from Nifong questioning of Meehan Dec. 15—seems to concede that Meehan report “less than the full truth.”

Received amended report from Meehan on Jan. 10—confirms the results from Dec. 13 motion, plus three more rape kit items that contained unidentified male DNA.

[During the Bannon examination, Dr. Meehan appeared to occasionally nod off or give big yawns.]

Glover cross-examination of Bannon:

By April 10, defense knew—thanks to SBI report—that there was no semen found; suggesting that this was the critical finding, anything else really wasn’t relevant.

Questioning focusing on fingernail evidence. Bannon makes the critical comment that Meehan’s finding on Dave Evans’ possible DNA was of the same kind of tests that the SBI had said no matches.

[At various points in the Bannon x-exam, Glover appeared lost.]

Glover consistently argues that lack of semen matches suggests that Nifong could have been honest. Notes that defense attorneys held a press conference publicizing this fact and no DNA matches.

Notes that Meehan made one and perhaps two more reports for AG’s office once it took over the case.

Glover seems to be implying that the multiple unidentified male DNA could have belonged to the Duke lacrosse players; he doesn’t know the case, however, particularly well, leading to often torturous and confusing questions.

“Without the report saying” that DNA didn’t match Dave Evans, Glover suggesting that Bannon was able to know that DNA results—didn’t need complete results.

[Glover is repeatedly, and consistently, avoiding anything that Nifong said to the court on September 22—the entire purpose of the trial.]

[The cross-examination is painfully slow and wandering, moving in no apparent direction. An astute courtroom observer compared it to a death penalty case, seeking to delay the inevitable.]

Today’s Perry Mason moment: Glover suggests there were no other DNA alleles stronger than any that Meehan reported.

Bannon: No.

Glover appears to be stunned.

--

The cross-examination continues, with Glover struggling to find items from both the Dec. 15 transcript and the Meehan DNA tests.

The current thrust of the cross-exam is that none of the unreported matches were all that important.

Glover is now suggesting that Meehan had little notice at the Dec. 15 hearing.

[Again, how is this at all relevant to what Nifong told the court on Sept. 22?]

Glover is now back to suggesting that all of these unreported items were irrelevant.

Bannon hammers home—“we know that they found male DNA on all of them, and only reported one of them on May the 12^th.”

Glover now appears to be suggesting that finding epithelial DNA in rape kit items is irrelevant to a rape investigation.

These are “nothing significantly exculpatory”

Bannon: “That’s absolutely false, and you know it.” [Smith sustains objection to second part of clause.]

Bannon re-direct:

Given nature of attack, extraordinary that no DNA matches given nature of attack. “What the breadth and scope of this DNA testing that was unreported showed there was plenty of DNA evidence left behind—and it was male DNA, and all this male DNA didn’t match any lacrosse players.”

Also showed that Mangum’s story of no sexual contact other than Murchinson was false.

Glover also notes (as a question!) that the SBI tests found no DNA, thereby “directly contradicting” Mangum’s story.

--

Glover didn’t touch Bannon in the cross-examination.

--

Himan next:

Establishing timeline; notes that he met with Meehan three times, with Nifong.

Testifies that at April 10 meeting, questions were asked by Nifong, and Meehan went over weak source material that was found.

Testifies that at April 21 meeting, Meehan told them about the multiple male unidentified DNA.

--

Cross-examination:

Glover stressing with Himan on false fingernails—suggests they were very impt to investigation.

Glover: DSI got involved not because of the rape kit but because of the fingernails. Never specifically asked to test rape kit; should have focused just on fingernails; suggests that Meehan might have assumed that Nifong and Himan were closely coordinated.

Glover: no semen evidence “to support this story that she told”—just an extraordinary statement coming from Nifong’s attorney.

Also—Nifong always knew he’d have to turn over Meehan’s evidence—therefore had no reason to hide it.

Conceded that Meehan report wasn’t like SBI report in structure.

Himan concedes he didn’t really understand DNA “stuff” Meehan was explaining.

Glover now suggesting that Nifong might not have understood Meehan—notes that Nifong never ordered Meehan to keep things out of his report.

Glover: no one took notes at the meeting—now blaming Meehan, suggesting that he kept the results out on his own initiative.

Glover: did you ask for the report?

Himan: No—Nifong did.

[Glover again is avoiding discussing what Nifong said in the Sept. 22 hearing.]

Glover—why didn’t Himan say something about Meehan not including the exculpatory material in the May 12 report?

Himan: “I looked at the report; he said, ‘This is the report.” That’s what I took it as.”

Glover: why didn’t Himan notice the failure to include non-match

Himan: “Mr. Nifong asked for the report. He looked over the report. I felt that if he” wanted something in report, “he should have asked for it.”

Himan: not his job to tell DSI to do the report.

The Contemptible Nifong, IV

Today in Durham, Mike Nifong faces a criminal contempt hearing before Judge Osmond Smith. (I’ll be live-blogging the event.) At issue, did he lie to the court on September 22, 2006?

Here’s Nifong on September 22, 2006:

Judge Smith: So his report [Meehan’s May 12 report] encompasses it all?

Mr. Nifong: His report encompasses ever -- because we didn’t -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that’s just, that would be counterproductive. It did not happen here.

Judge Smith: So you represent there are no other statements from Dr. Meehan?

Mr. Nifong: No other statements. No other statements made to me.

Mr. Bannon: Just so I’m clear, Mr. Nifong is representing that the facts of the case weren’t discussed in those meetings.

Mr. Nifong: That is correct. The facts of the case, other than the fact that we were seeking a, the male fraction DNA.

Here’s Nifong himself, at the DHC hearing, saying that, in fact, Meehan had told him about the multiple unidentified male DNA, but that he considered the item “non-inculpatory.” That rationalization, of course, wasn’t relevant to the question Smith had asked him on September 22.

Chronicle On Target, Again

For those who missed it, a great editorial in today's Chronicle about the suspension of the Whichard Committee inquiry.

The conclusion:

Although financial liability concerns may prevent City Council from continuing its external investigation of the lacrosse case, too much is at stake and too many questions remain unanswered for City Council to relent in its pursuit of the truth.

At the very least, the DPD's investigation procedures need to be examined independently. To lay this issue to rest without further examination of DPD is to willingly obliterate our already uneasy faith in our city's police department.

Read the entire piece here.

The Contemptible Nifong, III

Tomorrow I’ll be in Durham, Mike Nifong faces a criminal contempt hearing before Judge Osmond Smith. (I’ll be live-blogging the event.) At issue, did he lie to the court on September 22, 2006?

Here’s Nifong on September 22, 2006:

Judge Smith: So his report [Meehan’s May 12 report] encompasses it all?

Mr. Nifong: His report encompasses ever -- because we didn’t -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that’s just, that would be counterproductive. It did not happen here.

Judge Smith: So you represent there are no other statements from Dr. Meehan?

Mr. Nifong: No other statements. No other statements made to me.

Mr. Bannon: Just so I’m clear, Mr. Nifong is representing that the facts of the case weren’t discussed in those meetings.

Mr. Nifong: That is correct. The facts of the case, other than the fact that we were seeking a, the male fraction DNA.

Here are excerpts from Dr. Brian Meehan’s deposition before the State Bar:

At the April 10, 2006 meeting, Meehan said that “we very carefully went over this data,” which included results that the DNA of multiple unidentified males was found on Mangum’s rape kit. Meehan recalled going over the profiles “in detail” with Gottlieb, Nifong, and Himan. Since he considered this information “critical,” he was “absolutely” certain that he discussed it with Nifong on April 10.

Moreover, Meehan remembered that “Mr. Nifong and the two police investigators asked questions.” Indeed, “there were some general questions, to more complex questions. We spent a lot of time talking about it.” Meehan stated that Nifong asked him to try to work on the specimens with the unidentified male DNA to see if better resolution could be obtained. Meehan said that he felt “it was important that [Nifong] understood—and I believe he understood” that there were unidentified male DNA profiles.

And here was Dr. Meehan, at the DHC hearing, explaining what actually occurred in just the first of his three meetings with Nifong, on April 10, 2006:

The Contemptible Nifong, II

Tomorrow I’ll be in Durham, Mike Nifong faces a criminal contempt hearing before Judge Osmond Smith. (I’ll be live-blogging the event.) At issue, did he lie to the court on September 22, 2006?

Here’s Nifong on September 22, 2006:

Judge Smith: So his report [Meehan’s May 12 report] encompasses it all?

Mr. Nifong: His report encompasses ever -- because we didn’t -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that’s just, that would be counterproductive. It did not happen here.

Judge Smith: So you represent there are no other statements from Dr. Meehan?

Mr. Nifong: No other statements. No other statements made to me.

Mr. Bannon: Just so I’m clear, Mr. Nifong is representing that the facts of the case weren’t discussed in those meetings.

Mr. Nifong: That is correct. The facts of the case, other than the fact that we were seeking a, the male fraction DNA.

Here was Sgt. Mark Gottlieb, in his deposition to the Bar, revealing that, in fact, Dr. Meehan had a detailed discussion of his findings with Mike Nifong as early as April 10, 2006—including, of course, the revelation of the multiple unidentified males:

Mr. Brocker: Did Dr. Meehan sit down and actually go through the printouts or the results themselves during this initial meeting?

Sgt. Gottlieb: Yeah, and I was completely lost. He was talking well above my head.

Mr. Brocker: But he did sit down with you all and go through, specifically, the documentation that he had up to that point, and tried to explain the results of it?

Sgt. Gottlieb: I believe so.

Gottlieb’s struggles to understand what Meehan told him doesn’t exactly speak well as to how the DPD evaluates evidence more generally.

Editorial Page Extremists

Two truly astonishing editorials today.

In Durham, the Herald-Sun writes that “there’s no choice now but to shut [the Whichard Committee] down. Reality can be a difficult pill, and this is no time for the city to lose its insurance company. Even without the committee, we know enough to realize that a bad crash is probably unavoidable. Now we’re just bracing ourselves.”

The Bob Ashley-led editorial page laments that the falsely accused “students and their families have retained some of the highest profile lawyers in the nation to punish the city and its Police Department . . . The players’ attorneys for this round of blood-letting include Barry Sheck, who helped represent O.J. Simpson.” (Actually, the attorney’s name is Barry Scheck, and he’s much better known for his work with the Innocence Project, which the H-S conveniently fails to mention.) Playing the race and class card so common to H-S editorials over the past 18 months, the paper notes, “We may also wish that the players would refrain from demanding a huge settlement that will only hurt Durham taxpayers who played no part in putting them through what, admittedly, was a long nightmare.”

Ashley et al. then outdo themselves:

The City of Durham is in a tough spot because, as they say, mistakes were made. We already know that a police lineup in which an exotic dancer identified the three lacrosse players violated police procedures. We can wish, in retrospect, that someone inside the department had stood up and screamed that the lineup was wrong and the case was a sham, but that didn’t happen.

The details of the lineup were publicly known less than a month after the first two arrests. Here was Jim Coleman, in the N&O, on June 14, 2006—in a statement ignored by the Herald-Sun editorial staff:

The circumstances under which the alleged victim identified the three defendants is typical. An assumption has been that Nifong and the Durham police merely botched the procedures under which the alleged victim identified the three members of the lacrosse team whom she claims raped her. According to the police account of the identification, however, the police officer who presided over the proceedings told the alleged victim at the outset that he wanted her to look at people the police had reason to believe attended the party. Thus, the police not only failed to include people they knew were not suspects among the photographs shown the woman, they told the witness in effect that there would be no such "fillers" among the photographs she would see.

This strongly suggests that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice. The prosecutor would not care if the pre-trial identification was subsequently thrown out by the court. The accuser would identify them at trial by pointing to the three defendants seated in front of her as the three men who assaulted her. The prosecutor would argue that she had an independent basis (independent of the identifications thrown out) for doing so.

Durham taxpayers can wish, in retrospect, that the city’s only newspaper had stood up and screamed that the lineup was wrong, but that didn’t happen.

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It’s not easy to make the Bob Ashley-led editorial board look moderate, but Group of 88 member Kathy Rudy was more than up to the task. Writing in today’s Atlanta Journal-Constitution, Rudy (an extremist even among the Group of 88) states that she finds “what’s happening with [Michael] Vick, who pleaded guilty Monday to a felony charge, alarming.” Alarming not because Vick admitted to a collective effort executing through drowning and hanging some of his dogs (Rudy euphemistically observes only that “Vick treated his dogs very cruelly”) but because . . . you guessed it:

"Vick is black, and most of the folks in charge of the other activities [rodeos, horse racing, dog racing, and the “billions of creatures we torture in factory farms for our food”] are white."

For Rudy, what’s the lesson of the case? Of course, white racism:

Animal advocates must start building coalitions with other social movements and non-white minorities if we hope to bring about widespread change for animals.

If we want to build a better world for animals, the animal rights movement must examine its own racial politics and figure out ways to put minority concerns on its agenda.

Kathy Rudy and Bob Ashley. Still playing the racial card—because, it appears, they have no other card to play.

The Contemptible Nifong, I

Tomorrow in Durham, Mike Nifong faces a criminal contempt hearing before Judge Osmond Smith. (I am heading down to Durham later today and will be live-blogging the event.) At issue, did he lie to the court on September 22, 2006?

Here’s Nifong on September 22, 2006:

Judge Smith: So his report [Meehan’s May 12 report] encompasses it all?

Mr. Nifong: His report encompasses ever -- because we didn’t -- they apparently think that everybody I speak to about, I talk about the facts of the case. And that’s just, that would be counterproductive. It did not happen here.

Judge Smith: So you represent there are no other statements from Dr. Meehan?

Mr. Nifong: No other statements. No other statements made to me.

Mr. Bannon: Just so I’m clear, Mr. Nifong is representing that the facts of the case weren’t discussed in those meetings.

Mr. Nifong: That is correct. The facts of the case, other than the fact that we were seeking a, the male fraction DNA.

Here’s Nifong in an impromptu press conference, after the December 15, 2006 court session, saying that he did know about the unidentified male DNA, but consented to its non-reporting for privacy concerns:

And we were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud but at the same time his report made it clear that all the information was available if they wanted it and they have every word of it.

And here’s Nifong in his deposition before the Bar, conceding that—at some point—Meehan told him about the multiple unidentified male DNA, but 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:

Mr. 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?

Mr. 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 [sic] 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.

In addition to proving Nifong lied to the court in September, this statement represents a bizarre analysis of DNA evidence. Did Nifong really believe that Mangum could have picked up DNA from unidentified males by sitting in a police car?

Item re Scott Kaufman

I received a note from Scott Kaufman stating that he had been signed up, without his consent, from seventy-odd conservative listservs. He was signed up via the address listed on his blog, but which he doesn't himself use, suggesting that people were signing him up for the listservs maliciously.

It seems to me that impersonating someone else is unacceptable behavior (such conduct, it's worth remembering, prompted one commenter to be permanently banned from DIW).

Gene Upshaw; On the Schedule

National Football League Players Association executive director Gene Upshaw, on Until Proven Innocent:

This is a tale of grace and disgrace, researched in detail and clearly written. All of us face adversity in our lives, but thankfully very few face the adversity of national press coverage, being abandoned by those who should have defended us, and the possibility of a 30 year prison term for something which was a transparent lie. The Duke lacrosse hoax is fundamentally a tale of incredible courage and integrity on the part of the falsely indicted players, their families, their defense team, a few of their faculty (particularly Professor James Coleman), and the entire Duke lacrosse team, including their current and former coach. Theirs is a tale of incredible grace under searing pressure.

People in positions of power and authority-such as prosecutors, police, and university leaders—carry the responsibility to find and defend the truth. Unfortunately, their tale is one of disgrace—and they are the authors of that disgrace. Stuart Taylor and KC Johnson have written a great book which chronicles a tale as old as humanity—the difficult but always worthwhile triumph of honesty and integrity over those who abuse power.

As for scheduling items:

I’ll keep this item updated as events come in, and provide reminders as specific dates draw near.

Tomorrow, for readers in the Pittsburgh area, I’ll be on 93.7/The Zone with John Steigerwald, at 9.20am.

On September 11, I’ll be speaking at Duke, 7pm at Page Auditorium. I was invited by the Program on Values and Ethics in the Marketplace and by the newly created Duke Students for an Ethical Duke.

On September 28, I’ll be part of a panel at a two-day conference at Duke Law School, entitled, “The Court of Public Opinion.”

On October 2, I’ll be speaking at the Harvard Club of Boston, 5.30pm.

On October 4, I’ll be part of a panel at the Society of Professional Journalists conference, in Washington, DC.

Butler on Brodhead

The incomparable Kristin Butler is back from a summer hiatus with a Chronicle op-ed on President Brodhead's future.

"Like most students," she writes,

I quickly came to appreciate Brodhead's irrepressible charisma and obvious warmth of spirit when interacting with students. For that and other reasons, I delighted in Brodhead's early successes-persuading Coach K to stay, successfully negotiating the Palestine Solidarity Movement controversy that followed soon after-which were impressive. But that faith was strained in April 2006 when our community trusted Brodhead to marshal the skill and delicacy that defined his previous conduct.

What we got instead was a series of administrative blunders-one more scandalous than the next-that have done more long-term damage to our university than the media frenzy ever could have. As we continue to move forward, I wonder at Brodhead's reluctance to acknowledge those missteps and learn from them.

Indeed, what does it say about our university that 12 months after credible accusations surfaced that Durham police officers were disproportionately targeting Duke students, no Brodhead administration official has reassured us we're safe?

What are we to think when four months after the University settled former lacrosse player Kyle Dowd's grade-retaliation suit, administrators have done nothing to address this serious breach of trust? And five months after the Campus Culture Initiative presented its fatally flawed report, what effort has been made to reinvigorate the once-strong student interest in confronting Duke's deep social rifts?

Read her entire column here.