Jim Cooney on the Dec. 15 Hearing

A fascinating post from Jim Cooney at the Liestoppers forum, discussing the defense attorneys' mindset in the weeks running up to the Dec. 15 hearing:

There appears to be an almost obsessive focus on a single tree now, as opposed to what the forest looked like in December.

From Reade Seligmann's perspective, in December this case was about an alibi which proved he could not have committed this (or any crime) against Precious. The elements to this were his timeline as established by photographs, ATM data, Elmostafa's cab ride with Rob Wellington, his dorm card reader and Jason Bissey's observations. While the timeline as a whole was as close to airtight as you can get (Alan Gell to one side who was actually in jail at the time of the crime), the individual elements each comprised a separate moving piece. In particular, the photographs of the party presented a very difficult chain of custody issue because the photographs needed to be introduced as substantive evidence in order to make the MetaData admissible - - the actual chain of custody left a lot to be desired and required a significant amount of work to establish not only the authenticity of the pictures but that the metadata had not been disturbed.

Against this backdrop, the DNA report from DNASI showed that there was no DNA from Reade, but that there was DNA from Precious' boyfriend. This showed (1) there was DNA to be found, (2) that it was not Reade and (3) how sensitive the test was since, if you believe Precious, she had not had sex for a week. Under these circumstances, as I am proving that Reade could not have committed the crime because of his alibi, DNA is only one piece of a number of other pieces. In the physical evidence, the lack of DNA simply matched up with the lack of fingerprints, hairs, fibers or any other trace evidence connecting Reade to the bathroom or to Precious. I had lined up two experts in crime scene analysis and trace evidence to testify that it would have been impossible for this rape to have occurred this way without leaving any trace evidence whatsoever.

Moreover, my clients (as well as Brad/Joe's and Wade's) were suffering greatly and we as a team had placed a priority on gaining a dismissal of these charges. Since there is no such thing as a pretrial motion to dismiss under NC criminal law, we focused on the suppression motion as essentially a motion to dismiss - - since this was the only evidence. We reasoned that if we could get the Powerpoint ID thrown out, and then bar Precious from a hysterical in-court ID, the case was over.

Against this backdrop, searching through the DNA data in order to see if Meehan and Nifong were lying was not a priority as of December - - the DNA we had did nothing but help us and we frankly had bigger issues to focus on.

My point on how close we were deals with the reason we were even looking at the DNA in November and December. The only marginally inculpatory finding in the report was the fingernail mixture - - though I still do not believe that finding DNA on something that was in Dave Evans' own wastebasket is inculpatory. This is what led us to assign the DNA to Brad, while I dealt with Reade's alibi and the Motion to Suppress (and Change of Venue). Wade and Doug had their hands full with establishing Collin's alibi and dealing with Levicy and the other physicians at Duke (as a way of trying to blunt where we believed Nifong would go - - that she was "acting" like a rape victim). In addition, I had the tasks of consulting with Dr. Burgess on rape trauma syndrome and dealing with the forensic psychiatrist we retained - - part of my job was to analyze the mental health records and then have them reviewed by Dr. Burgess and our forensic psychiatrist.

In terms of priorities, until Brad stumbled across these additional DNA findings, our central priority was the Motion to Suppress hearing at which we anticipated essentially putting on most of our defense and all of our forensic psychiatric testimony and testimony from Dr. Burgess. As with all things in this case, we needed to do this to let the public know exactly how disturbed this woman was as a way of undermining both her identification and, ultimately, her claims.

The DNA was simply not an issue for Reade or Collin and was only a marginal issue as of December for Dave (though it seemed to be an important issue for Nifong so Brad and Joe rightly prioritized their review).

In retrospect, the DNA transformed this case - - none of us knew this in early November when we formulated our plan and began to implement it. Had it not been for the fingernails, we would simply not have reviewed the DNA material until much closer to trial.

Bottom line is that the big picture in November and December was that we were taking the position that the report's finding of no DNA was exculpatory and was simply one more piece of a number of pieces establishing alibis and the lack of any crime. At that time and with that perspective, there was simply no reason for us to pour through the data on the assumption that Meehan and Nifong were hiding something and misleading us about it.

When Brad discovered what had happened, the significance was threefold. First, it obviously showed that other DNA could be harvested, which strengthened our position that this crime could not happen without leaving DNA. Second, it showed the world what we knew about Precious the "part-time" dancer (and showed her to be lying in her statement to police, which we already knew). Finally, and most importantly to the ending of the case, it showed that Nifong knew he had no case and had resorted to lying and cheating to try to avoid the truth. This last point is what blew up the case - - that Nifong was exposed.

While many now say that they knew this all along (and some of them might be telling the truth), the fact is that the DNA was all exculpatory from the beginning and we had no reason to think that there was even more that we were not being told. As to those attorneys who may now be claiming that they were advising anyone on the defense team that there was more to the DNA than we were seeing, that is just simply not true - - and appears to be part of an orchestrated campaign on behalf of at least one person to try to claim credit for this result and discovery when he is entitled to none.

Would we have found it anyway? Who knows. If we win on February 5 - - and I believe that we would have - - the answer is no. If we go to trial, we probably would have found it as we were cleaning up the details of the case, but in being totally truthful with myself, it might have been very late in the game (ie, within a few days of Meehan's testimony).

The December 15th hearing was the most remarkable day in court that I have experienced in 25 years of law practice - - and that includes the day that a jury declared Alan Gell innocent and a lot of criminal defendants who were given life at death penalty trials. It was an extraordinary day and watching it unfold was surreal. Brad was magnificent and deserves all of the credit that he received - - it took cojones the size of watermelons to take on a DNA expert cold in front of the world's media and Brad did not flinch.