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.

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

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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.”

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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.

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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.

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

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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.

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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.