More from Bannon on DNA

Another behind-the-scenes posting at Liestoppers from Brad Bannon, on the defense and DNA:

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1. On May 12, 2006, we received a report from DNA Security that appeared to us--and to every lawyer who has seen it & every expert but Brian Meehan who has reviewed it--to be a final written report that stated the results of all of its DNA testing, which included rape kit findings.

2. We consistently sought the underlying data for the testing, starting with general requests in May and June, and then with the specific requests filed in August, culminating in the argument and order of September 22, 2006, and the provision of underlying data that occurred on October 27 and November 1, 2006.

3. We consistently sought the substance of Brian Meehan’s statements to Mike Nifong & investigators during their meetings in April and May. Mike Nifong consistently represented, in pleadings and open-court statements to various courts, that we had received all of the information from those meetings that the law required.

4. Putting aside whether anyone on the defense team was or should have been surprised to discover that Mike Nifong’s repeated representations about the DNA were false (and/or that DNA Security had violated standard lab protocols, as well as its own lab’s protocols, by failing to report all of its DNA test results), we had no evidence which would support the request for an evidentiary hearing based on that premise until December. Put another way, the only “evidence” that may have existed to support that premise before my discovery in November was a “hunch,” and hunches are not grounds for evidentiary hearings based on the very serious accusation that an officer of the Court has intentionally & repeatedly lied to defense lawyers & multiple judges.

5. We received the DNA Security underlying data on October 27, 2006, and the SBI lab underlying data on November 1, 2006. Once the data from both labs was in our office, I began reviewing it. By the end of the month, I had completed my analysis and memorialized it in a 40-page memo. While I do not remotely deserve the “hero” label that some have given me for that work (it is, after all, my job), I do know that I reviewed the materials promptly & efficiently and that my approach to the work was (and was ultimately proved to be) absolutely correct. Simply put, no one lost time or money on my DNA work because of the manner in which I chose to approach it.

6. Despite what television & movies may lead some people to believe, and despite what some people might believe about the very experienced members of the defense team in the Duke case, we do not ordinarily engage in a detailed, scorched-earth analysis of every type or classification of evidence in a criminal case. That’s not because we’re naïve or incompetent or lazy. It’s because taking the same approach to such evidence in every case would be a waste of time & resources, whether the resources are your client’s (in the case of a retained case) or the State’s (in the case of an appointed case). Any good lawyer knows that each specific case calls for a case-specific approach to the evidence, no matter what type of evidence it is (e.g., “confessions,” eyewitness identification, witness statements, forensic evidence, scientific testimony, psychiatric testimony, etc.). And, as I have posted before, as any good criminal lawyer would know, and as is often the case with DNA evidence in particular, most criminal cases involve many issues & many types of evidence that are not contested, even if the charge itself is contested. The classic example for DNA testing is an allegation of acquaintance rape. If the defendant concedes sexual contact but maintains that it was consensual, you will readily concede the validity of DNA results that identify your client’s DNA on a vaginal swab. You are not going to waste your client’s money on extensive analysis of the DNA (by yourself or by an expert), and you are not going to waste your time focusing on DNA to the exclusion of, say, developing evidence & arguments to support the consent defense.

7. But there are obviously cases in which certain types of evidence, including DNA, may be “contested” issues. The legal teams for Collin and Reade had essentially decided that they would not be contesting DNA issues in the case. And, in fact, Joe & I had not decided whether we would be contesting DNA issues in the case on behalf of Dave. As many of you have noted, DNA Security reported that it found DNA from a single male source on the vaginal swab, indicating that there was not an “absence of evidence” in the rape kit. Regarding the fingernail conclusion, it’s not exactly mysterious that some of Dave’s DNA characteristics would appear on items recovered from his bathroom trash can using the most sensitive DNA testing known to man, which can sometimes identify DNA from less than a single human cell. So while there were reasons to embrace the DNA Security report and no real reasons to fear it, Joe & I still knew that the fingernail finding would be used by Mike Nifong not only to try to convict Dave Evans, but to argue the overall credibility of Crystal Mangum’s allegation (which involved a struggle with her attackers during which she lost her fake fingernails). Because of that, and because of the differential findings by the two labs about the fingernail mixture, we had reason to explore the reported findings further, and to look beyond the final written reports, which prompted the review of the underlying data from both labs.

8. So that is where there review began, but it obviously did not end there. If I had put on blinders to everything but the fake fingernail findings, I would have never made the rape kit discovery. Also, if you read the December 13 Motion, we raised other issues about deficiencies in DNA Security’s work that I discovered when reviewing all of the data. Also, we made several other helpful discoveries that, thankfully, never had to see the light of a trial day.

9. We did send the data to an expert when we received it. The purpose of my work in November was to narrow the issues we would focus our expert on. Again, any good lawyer would do it that way, and any good expert would want it done that way (as opposed to a document dump on an expert with a general request of “Tell me about this”). Finally, any client would want it done that way, because--despite suggestions to the contrary in some posts--that approach ultimately serves the twin goals of saving time & money while making sure the lawyer knows everything he needs to know to deal with the issues if or when they arise in the courtroom. When our focus was appropriately narrowed (and the issues appropriately defined) by my work in November, we provided my memo to the expert, and we met with him in early December to talk about all issues, only one of which was the unreported male DNA in the rape kit. In fact, if we had gone to trial, we would have highlighted significant additional points related to the DNA testing in this case that would not have been as explosive as the rape kit DNA discovery (including the agreement not to put it in the report), but would have dealt with similar issues about the subjective analysis & reporting decisions made by DNA Security (especially in light of the lab’s protocols).

10. IMPORTANT FINAL POINT: suspicions & hunches & Michael Gaynor’s couple of sentences aside, there was no PROOF of DNA Security’s failure to report the exculpatory DNA findings until we analyzed the underlying data we received on October 27, 2006, and there was no proof of the intentional agreement to omit those findings from DNA Security’s final report until December 15, 2006. Regardless of the standards that exist (or do not exist) in the blogosphere or other realms of commentary for making serious accusations of wrongdoing, there are standards in courtrooms that must be met before a responsible and ethical officer of the court should do so. Responsible and ethical officers of the court who know they will be litigating many issues in front of a judge before a case is finally over do not make accusations without having bullet proof supporting evidence. In fact, such supporting evidence is often called an “offer of proof.” And standing up and saying, “We know Nifong is lying, because, well, just look at him, and think about all the bad stuff he said to the press, and we just know Crystal Mangum is a prostitute rather than a dancer or performer, and there’s no way that she only had her boyfriend’s DNA in her…” well, that’s not an offer of proof. That’s an offer of suspicion & hunch. When we reviewed the materials that were provided in late October and early November, we finally had the basis of a substantial offer of proof regarding the unreported exculpatory DNA in the rape kit (whether that finding surprised us or not). We basically presented that offer of proof in the form of our December 13 Motion, and we nailed the coffin shut at the hearing on December 15.