Postscript: Durham Officials, DNA Security

The lawsuit responses of both Durham officials (Steve Chalmers, Ron Hodge, other police supervisors, and former City Manager Patrick Baker) and DNA Security touch on themes that by this point are familiar: everything bad was done by Mike Nifong and Nifong alone; and if anyone else did anything which violated the lacrosse players' civil rights, the defendants have immunity from a civil suit.

That said, both responses exhibit some notable instances of selective memory.

For instance, attorney Patricia P. Kerner, representing Chalmers, Hodge, and Baker, contends,

Deliberate indifference on the part of a supervisor may not be established “by pointing to a single incident or isolated incidents, . . . for a supervisor cannot be expected to promulgate rules and procedures covering every conceivable occurrence within the area of his responsibilities.” Nor may it be alleged absent facts that “support a finding of deliberate indifference”; bare assertions will not do. “Deliberate indifference is a very high standard—a showing of mere negligence will not meet it. A claim of deliberate indifference implies at a minimum that defendants were plainly placed on notice of a danger and chose to ignore the danger notwithstanding the notice.”

It seems that Kerner is unfamiliar with the behavior of her clients. The conduct of former chief Steve (“perpetually absent”) Chalmers certainly rises to this standard: beginning in mid-April 2006, defense attorneys repeatedly and publicly maintained that the DPD’s performance was violating all standards of due process. Chalmers—who, as chief of police, bears ultimate responsibility for supervising his department, “chose to ignore the danger notwithstanding the notice.” Indeed, that Cpl. David Addison was promoted and Sgt. Mark Gottlieb remains in the DPD’s employ suggests that the department still has “chose[n] to ignore the danger notwithstanding the notice.”

Another Kerner clause suggests a lack of familiarity with the facts of the case. She writes,

There is no allegation as why the City Manager, or any one of these particular members of Durham Police Department would have been in a position to personally know of a pervasive risk of constitutional violations by these specific investigators.

Really? This is the same Patrick Baker who, on May 10, 2006, gave an interview to the N&O, in which he asserted, “I’ve had a lot of conversations with the investigators in this case and with officials at Duke, and at no time did anyone indicate [Crystal Mangum] changed her story. If that were true, I’m sure someone would have mentioned it to me.”

In short, Baker, by his own admission, placed himself “in a position to personally know of a pervasive risk of constitutional violations by these specific investigators,” because, by his own admission, he “had a lot of conversations with the investigators in this case.”

Kerner also excuses the DPD’s performance in the April 4, 2006 photo array. After maintaining that the lineup doesn’t rise to the level of a constitutional violation, she maintains,

Even if Plaintiffs could establish a constitutional violation arising out of the “April Photo Array,” and causally relate it to either Baker or Chalmers, Defendants are protected by qualified immunity. Plaintiffs expressly allege that Prosecutor Nifong “designed” this identification process. Thus, they are immune from any claim that could arise out of this procedure.

Indeed Nifong did “design” the procedure—which, it would seem, contradicts a central assertion in the City of Durham’s response, namely, that Nifong wasn’t delegated command and control of the police investigation. Kerner doesn’t address the apparent contradiction.

Robert King, who represents DSI and DSI president Richard Clark (and whose argument also applied to DSI’s former lab director, Brian Meehan) maintained that DSI was “absolutely immune from suit and that none of the DSI Defendants owed a duty to Plaintiffs.” [emphasis in original] He then spent 50 pages justifying DSI’s conduct.

King added that “Under long-established precedent, the DSI Defendants are entitled to absolute immunity from all of Plaintiffs’ claims, which arise from Meehan’s conduct (as the laboratory director for DSI) as an expert witness for the State in the Criminal Action.”

Why? “The justice system’s interest in ascertaining the complete truth of matters in dispute necessitates such a broad grant of immunity to potential witnesses not only for their trial testimony, but also for their participation in pretrial analysis.”

This statement turns logic on its head—can King seriously maintain that an interest in “the complete truth of matters in dispute” necessitates granting Meehan immunity from the consequences of entering into an intentional agreement with a representative of the state to produce a report that excluded exculpatory evidence?

Here’s how King describes the players’ claim against DSI:

Ultimately, Plaintiffs’ allegations as to the DSI Defendants come down to this: Even though the criminal defendants were given both a report and all of the raw data generated by DSI, and even though the DNA testing performed by DSI was accurate and exonerated Plaintiffs, Plaintiffs do not like the way that the report was written (because it did not include information about DNA from males other than the lacrosse players), and Plaintiffs object to the fact that the DNA raw data was voluminous and difficult for the criminal defense attorneys to understand (although the defense attorneys did understand the data after some effort.

So: an expectation that DSI follow its own protocols (which require the written reporting of all test results) and North Carolina state law (which requires the written reporting of all test results that come from a non-testimonial order) is, in King’s opinion, nothing more than a complaint that the “Plaintiffs do not like the way that the report was written.”

King does concede that Nifong and Meehan met three times before the report was prepared. What occurred at these meetings? “Precisely the sort of ordinary and expected interaction between witness and prosecutor that is protected by absolute witness immunity.”

Meetings at which Nifong and Meehan discussed producing a report that didn’t include all results are “precisely the sort of ordinary and expected interaction between witness and prosecutor,” according to DSI? King adds, “DSI fully satisfied any possible obligation it might have had when it informed Nifong of the results of its DNA testing.”

This assertion raises questions: since King appears to be saying that DSI had no “obligation” to either follow its own protocols or relevant North Carolina law, how often does DSI withhold test results from its reports at prosecutors’ behest?

May 12 report

King presents an interesting version of the origins of the May 12 report. He writes,

On May 12, 2006, as directed by Nifong¸ Meehan provided Nifong with a written report (“the May 12 Report”) of DSI’s findings on the issue of whether any matches were found between the rape kit samples (i.e., the samples from Mangum) and the “reference” samples (the 46 lacrosse players and Mangum’s boyfriend). Per Nifong’s directions, the report did not discuss the DNA from any “non-reference” samples (i.e., persons other than the lacrosse players and Mangum’s boyfriend).

King, therefore, has offered a completely new interpretation of the report. In court on December 15, 2006, Meehan asserted that the report resulted from an agreement between Nifong and him. In his testimony (under oath) in the Nifong ethics hearing, “Mr. Obfuscation” appeared to assert that the incomplete reporting was his idea and his alone. King is now asserting that the incomplete report had nothing to do with Meehan or DSI but was solely the work of Nifong. To make the claim, however he has to assert that Meehan lied under oath not once but twice.

What, by the way, is the worst that can be said about what Meehan did? According to King, it was “the failure of an expert to include all opinions in a report, and the failure to summarize raw data for a third party.”

But Meehan didn’t just exclude opinions: he failed to include all results of his tests, as both his lab’s protocol and state law required. (In his 50 pages, King not even once mentions either North Carolina law on NTO reporting or DSI protocols on writing reports.)

King’s memorandum does include one intriguing item: he presents a far different view of Durham’s legal liability than does the City’s memorandum of law. He concludes, “Assuming—as the Court must at this stage—that Plaintiffs’ allegations have some merit, it is perhaps not surprising that Plaintiffs have brought suit against some or all of the Non-DSI Defendants.”

I’m sure the Durham attorneys were delighted to see that conclusion.