Atmosphere

The atmosphere for this hearing differed considerably from the October version. In light of the bombshell defense motions of the past couple of days—dealing with DNA and with suppression of the photo lineup—the room was filled to capacity by 8.35 for a 9.30 hearing.

The media contingent had expanded dramatically: the last hearing attracted the contingent of reporters from the N&O, the Duke Chronicle, and a Nifong scribe from the Herald-Sun, but no national correspondents.

The hearing room contained a number of other lacrosse players and their families, as well as several people from the Recall Nifong-Vote Cheek effort; Nifong, as he looked through his peripheral vision, got to see a row of lacrosse players. This turnout reflected the the balance of sentiment among anyone who has followed the case. A plurality of Durham residents, it appears, might have been willing to vote for Nifong, but only Victoria Peterson was willing to show up on his behalf.

The hearing opened with judge calling all attorneys into chambers. Linwood Wilson came late to the hearing. The hearing started around 10am—the preconference dealt with medical evidence from the accuser, with the judge ordering material to be handed over to both sides.

Susan Filan of MSNBC positioned herself behind Nifong’s table and eagerly chatted with his assistants.

Best line of the day went to Jim Cooney. Before the session started, defense gave material in a box to Nifong, who awkwardly attempted to joke about its being appropriate for the season. After Cooney explained the contents of the box, Nifong tried to joke again, “This has your fingerprints all over it.” Cooney’s clever response: “But does it have my DNA on it?” When Nifong, again half a step too slow, replied, “I’ll let you know,” Cooney, walking away, got the last word: “Just make sure we get it in writing.”

[Corrected last p’graph after getting information from those sitting nearer to the exchange.

Jones the Prophet

Congressman Walter Jones called for a federal intervention earlier this week.

The repeated refrain from DNA Security head Brian Meehan: “we agreed.” Over and over again, the embattled witness admitted that he and Nifong coordinated an effort to avoid turning over exculpatory information to the defense. In layman’s terms, this would seem to constitute an admission of conspiracy.

A reminder of a couple of the relevant statutes:

18 U.S.C. § 371

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

As the Justice Department’s manual for U.S. attorneys states, acts that “make wrongful use of a governmental instrumentality”—i.e., a prosecutor’s power, misused for the purpose of winning an election—can be constructed as seeking to “defraud the United States under 18 U.S.C. § 371.”

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18 U.S.C. § 241

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.

Meehan in court today:

“We [Nifong and Meehan] were in agreement that the alternative would have been to produce names and profiles of everybody in the case.”

The lab didn’t report a rectal swab containing the DNA of other males because the DNA was “not probative evidence.”

“This report was a specific report on request from Mr. Nifong reference reports that matched evidence items.”

The summary: Nifong knew there were male DNA other than that of the lacrosse players before indicting, and acted anyway--and, in technical terms, he entered into a conspiracy with Meehan to prevent this information from coming to light.

Meehan: DSI Doesn't Follow Its Own Policies

Under questioning from Brad Bannon, Brian Meehan was asked about the standards for reports at DNA Security. Item #4 states, "Reports shall include results for each DNA test.”

Bannon read his own lab's protocols to to Meehan. His response, "By the letter of the standard, it diverges from the letter of that standard.”

Meehan added: "I don’t have a legal justification or a reason—I was just trying to do the right thing.”

He conceded that his handling of the lacrosse case violated his own lab’s protocol--but, he stressed, “not just because the district attorney told me to.” [emphasis added]

The decision, he conceded, “might not hold any weight in your legal arena,” raising the question of for whom Meehan thought he was working. He was expected to produce a report, after all, for the "legal arena."

At one point, an obviously exasperated Brad Bannon queried Meehan as to whether the DNA Security official understood the definition of exculpatory. It was clear, based on his response, that Meehan didn't have a clear understanding of the concept.

More from Meehan

At DNA Security, the motto apparently is that DNA evidence doesn't really have that much importance.

The fact that no DNA evidence was found implicating Reade Seligmann or Collin Finnerty? Meehan offered the following analogy: "A person can rob a bank and never leave a fingerprint; it doesn’t mean they didn’t rob a bank.”

Quite a comparison: I hadn't realized that robbing a bank involved the type of physical contact normally associated with a rape. But Meehan is the "expert."

More Meehan

Under questioning from Collin Finnerty's attorneys, Brian Meehan admitted that he and Nifong had several (he didn't disclose how many) phone calls about the case. Previously, we only had known that Nifong did the personal journey to Burlington on two different occasions to talk with Meehan about the case. Meehan admitted under questioning today that he took no notes about this meeting.

In a peculiar slip, Meehan repeatedly called Nifong his client—where, of course, the state of North Carolina was his client.

Nifong's only questions--did anyone, asked the D.A., tell you to lie, or conceal anything?

Meehan: No.

As he had explained in great detail over the previous two hours, Meehan didn't need to be asked directly.

The Perry Mason Moment

Seligmann attorney Jim Cooney: “Was the exclusion of material the result of a specific agreement between you and representatives of the state of North Carolina?”

DNA Security director Brian Meehan: Yes.

DSI

DNA Security seems like quite the professional outfit.

Brian Meehan was, among other things, remarkably unprepared.

He admitted that he hadn’t thoroughly reviewed the defense motion, nor had he looked at any of the attachments.

He repeatedly called Nifong “Nee-fong.”

He said that “it was the “custom and practice” of DNA Security to “intermingle” material from multiple cases on the same worksheet. These entries might have come from people in other cases DNA Security, we were informed, keeps no communication logs. Company officials “don’t necessarily keep notes on every meeting”; it doesn’t keep meeting logs, or keep phone logs, and doesn’t think that he exchanged emails relating to the case.

Meehan, Nifong, and Exculpatory

DNA security director Brian Meehan, under vigorous examination, admitted in today's hearing that Mike Nifong knew that the report the company produced failed to include critical exculpatory evidence--namely, that multiple DNA samples from men were found in the rape kit.

Meehan's assertion: that privacy concerns trumped his obligation to follow both the law and his own company's protocols.

More to come; here's Joe Neff's take.

Change of Venue Motion

The defense has filed a powerful motion on the change-of-venue issue, laying out in chilling detail the poisoning of the jury pool in Durham. “There exists,” the motion states, “within this County among a significant percentage of residents so great a prejudice against the Defendants that they cannot obtain a fair and impartial trial and that a Jury selected from this County will be unable to deliberate on the evidence presented in the courtroom, free from outside influence.”

If this case doesn’t demand a change of venue, then the protection might as well be abandoned entirely. As the motion explains, under the Constitution, the defendants are entitled to “a trial in a community which has not been polarized by pretrial publicity or torn apart by the circumstances of these cases,” and copious evidence exists that Durham is not such a community.

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What caused this extraordinary polarization? The motion cites four primary suspects.

1.) Mike Nifong’s statements during his pre-primary publicity barrage demonstrate why the State Bar created Rule 3.8(f), which

A good summary of these procedurally improper statements can be found on Liestoppers’ board. A particularly effective defense paragraph on this point:

The District Attorney made multiple comments on the evidence, first indicating that DNA would plainly identify the perpetrators, then arguing that DNA evidence meant nothing in exonerating those under suspicion. He speculated that condoms were use when the medical records - - which he claimed to have been consistent with rape - - clearly revealed that no condoms were used and that at least one, and likely more, of the assailants ejaculated. He contended that the accuser broke her fingernails when scratching one of the attackers and then asserted that the attackers were wearing long sleeves or jackets, despite photographic evidence showing the opposite.

Nifong’s statements, the motion notes, appeared to be “designed to create substantial prejudice in the community against the Defendants and, indeed, to inflame members of this community.”

2.) Community polarization makes a trial in Durham inherently unfair.

In particular, the motion cites the consistent pattern of highly prejudicial statements among the African-American community, both from average citizens and from leaders of groups like the local NAACP.

All who have followed the case would, of course, be familiar with these developments. The motion cites a particularly troubling event, convened by the NAACP shortly after the arrests of Reade Seligmann and Collin Finnerty. The meeting concluded, according to a Herald-Sun article, with a request for “even-handed justice.” The response? “Laughter and giggles.”

3.) The biased coverage of Durham’s own Herald-Sun. The motion explains, “In its editorial positions, the Herald-Sun has relentlessly condemned the Duke Lacrosse team and encouraged a prosecution of the Defendants in these cases.” It has done so through nearly 300 articles, 20 unsigned editorials, and dozens more op-eds or guest columns.

A few specific examples from the motion:
--“In its first significant editorial on these cases, the Herald-Sun stated that not only had a crime occurred, but that those present during the crime were guilty of an additional ‘outrage’ by not confessing to the crime.”
--Repeated claims “that the District Attorney must have compelling evidence that has not yet been revealed, evidence that justifies its positions.”
--A pattern of having “consistently and openly mocked any claim of innocence made by the Defendants and repeatedly claimed they are privileged persons with expensive lawyers.’
--Editorial suggestions that “it is up to the Defendants to prove their innocence.”

As important, the motion notes, the H-S has provided no pretense of balance, stacking its op-ed columns with extremist critics of the lacrosse players.

4.) Employees of the county’s largest employer have repeatedly, publicly, and viciously condemned the players. Those employees? Professors of Duke University.

The Group of 88’s statement, appropriately, is cited as an example of the Duke faculty acting to poison community sentiment against the lacrosse players. Also highlighted are efforts in this regard by Karla Holloway, Peter Wood, Grant Farred, and Orin Starn.

That the institution’s own faculty could be cited in a change-of-venue motion should deeply shame Duke.

As the motion points out, Nifong’s own comments—made in the context of the election—confirm the facts presented by the defense.

In an interview with the Associated Press on October 30, 2006, the District Attorney observed that while he could make these cases “go away pretty easily . . . with the stroke of a pen. But that does nothing to address the underlying divisions that have been revealed. My personal feeling is the first step to addressing those divisions is addressing this case.” Earlier, in a campaign appearance before the Rotary and Kiwanis Club, the District Attorney declared: “If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself is an indication that a case needs to be tried.”

In short, this was yet another in a string of extraordinary defense motions.