Sunday Hearing Round-Up

For those curious about how the forensics community reacted to Brian Meehan’s appearance at Friday’s hearing, Kathleen Eckelt at Forensics Talk has the answer. Brent Turvey heads Forensic Solutions LLC and has authored several forensics books and articles; he also has conducted lectures on forensic practices in China, Australia, dozens of state and university conferences in the United States.

Turvey strongly doubted that an innocent explanation existed for Meehan’s conduct, and he demanded an investigation of Meehan’s lab by its certifying agency. He ridiculed Meehan’s claim that the DNA Security director didn’t understand the workings of the “legal arena.” “State prosecutorial agencies, and those in their employ,” Turvey correctly noted, “have a duty to disclose ALL potentially exculpatory evidence to the defense, per Brady v. Maryland. What Dr. Meehan has admitted to, under oath, is that he personally conspired with prosecutors to conceal actual exculpatory findings from the defense. He has further testified that this is a violation of his own lab’s policies - policies that he would have written. There is no good reason for such conduct, and there can be no excuses for such conduct. Moreover, Dr. Meehan has admitted to contaminating suspect samples with his own DNA. In other words, his house is not in order from a scientific perspective.”

Turvey believes that his day in court effectively ended Meehan’s future usefulness to law enforcement. “Dr. Meehan’s conduct in this case has single-handedly demonstrated that privately funded and operated forensic labs are just as easily influenced by zealous prosecutors as their government lab counterparts. And to the question ‘Have you ever willfully conspired with the prosecution to conceal evidence that you to be exculpatory?’ - he must forever answer yes, while under oath in future cases. For many in the forensic science community, this would be a career headshot.”

I first became involved in this case because the actions of the Group of 88 represented an embarrassment to my profession. Turvey responded similarly to Meehan’s behavior. “Those in the forensics field,” he told Eckelt, “don’t appreciate having a profession they take pride in being placed in an unfair light or subjected to scorn and ridicule because a small number choose to forget what professionalism is all about.”

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Yesterday’s N&O, under the joint bylines of Joseph Neff, Ben Niolet, and Anne Blythe, offered the best summary of the high points of Meehan’s testimony, while also providing two significant out-of-court items.

The first came from Duke law professor Jim Coleman, Nifong’s most eloquent and influential critic. “I tell you,” said Coleman, “the more you hear about [Nifong’s] missteps, the more you have to question whether it’s purely a matter of incompetence or worse.”

The second came from Nifong himself. In court, in a direct statement to Judge Osmond Smith, Nifong affirmed, “The first I had heard of this particular situation [Meehan’s non-reporting of exculpatory evidence] was when I was served with this particular motion” on Wednesday.

Meehan’s testimony directly contradicted Nifong’s assertion, and the district attorney thereafter backtracked. After the court session, Nifong admitted that he had known about the DNA results, but claimed that he and Meehan simply wanted to protect the privacy of the lacrosse players (or, as Nifong termed them on another occasion, the “hooligans”). Stated Nifong, “We were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud.”

If it took months for this material to come to public light, continued Nifong, the defense was to blame: Meehan’s “report made it clear that all the information was available if they wanted it and they have every word of it.”

On November 1, Creative Loafing’s Tara Servatius noted an “epic legal battle” that most in the media were ignoring—“over basic information about what happened the night of the alleged rape, evidence a 2004 open-file discovery law says the defense has a right to and should have received months ago. At the moment,” she observed, “Durham prosecutor Mike Nifong is making an utter mockery of that law, and a game of legal ‘chicken’ is quietly unfolding in which those in the know hold their breath, waiting to see if someone, anyone, will—or can—rein him in.”

Friday’s hearing made Servatius’ highlighting Nifong’s flouting of the Open Discovery Law appear prophetic.

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By this point, we’ve become accustomed to impressive journalism from the N&O. National newspapers, however, have performed poorly. Perhaps fortunately, neither the Washington Post nor the New York Times sent reporters to Friday’s hearing, and instead relied on the AP for coverage. The L.A. Times, however, produced a strong article by David Zucchino.

Critically—given his non-local audience—he provided background:

Black community leaders, backed by some Duke professors, seized on the case as a symbol of enduring white privilege and racism at an elite Southern university. Nifong joined in, publicly condemning the lacrosse players as “a bunch of hooligans” who had victimized a struggling young black woman. He said the alleged rape indicated a “deep racial motivation,” with the players showing “contempt for the victim, based on her race.”

Zucchino obtained commentary from a major law professor, NYU’s Stephen Gillers, who heretofore hadn’t spoken out about the case. Gillers noted that Nifong “seemed to rush to indict” while ignoring offers from defense attorneys to consider exculpatory evidence. “That’s simply incomprehensible,” he said. “They might persuade you and save you a lot of grief.”

Zucchino’s article captured both the tone—desperate—and the content—devastating—of Meehan’s testimony. And he painted a brilliant picture of the reaction between witness and procecutor: “Asked by a defense attorney how lab results clearing all 46 players would violate their privacy, Meehan fumbled for an answer as Nifong sat with his head lowered, staring at documents.”

The New York Times should take notice: national papers can cover the case according to high journalistic standards, provided they’re willing to do so.

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The fireworks associated with the Meehan testimony overshadowed three other items of considerable relevance.

1.) Brad Bannon asked Meehan to discuss the concept of “transference.” Meehan feigned ignorance, so Bannon explained how the transference of one or two cells—from, say, intermingling in a trashcan, or through a spec of dandruff—can lead to finding a partial match of someone’s DNA on an item.

The example he cited: Meehan’s own DNA, which was found on one of the items in the rape kit. Meehan conceded that this discovery (which he didn’t include in his initial “report”) undermined his lab’s credibility. And, of course, the theory offers the likely explanation for the partial match to Dave Evans’ DNA, on a fingernail that was in a trashcan in Evans’ bathroom.

2.) Nifong wasn’t the only Durham employee present at the April 10 Burlington meeting, when Meehan stated that while no DNA matches existed to those the D.A. would seek to indict two days later, DNA from multiple males was discovered in the rape kit.

Sgt. Mark Gottlieb attended as well. So Gottlieb as well as Nifong has opened himself up to civil suits under Sections 1983 and 1985 of the U.S. Civil Code.

3.) Finnerty attorney Doug Kingsbery asked only a few questions at the end of Meehan’s testimony, but elicited one significant response. Meehan admitted that in addition to Nifong’s three personal visits to the Burlington lab, he spoke to Nifong an unspecified number of times on the telephone. It’s my understanding that no record of these phone calls previously had existed. Meehan couldn’t say how many times he and Nifong spoke by phone, because his lab—incredibly—keeps no communications logs. He did add that no e-mail correspondence (which would, of course, have been documented) occurred between the two.

Meehan’s admission raises an intriguing question: if Nifong and Meehan felt comfortable discussing case-related matters over the phone, what motivated Nifong to make so many personal journeys to Burlington?

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The contrast between the professionalism of the two courtroom tables was striking. The defense table was all business: on two or three occasions, Bannon stopped questioning Meehan to confer with his co-counsel. The binders containing Meehan’s underlying data were spread out on the table, and regularly consulted by Bannon during his examination.

The prosecution table, on the other hand, looked like amateur hour. Nifong sat stonefaced through most of the hearing, occasionally yawning, rubbing his temples, or shuffling a few documents in front of him. He took few, if any, notes, and rarely objected to Bannon’s questioning. Next to him, Inv. B.W. Himan appeared not to move for nearly two hours. Remarkably, the case’s new “lead investigator” took no notes during Meehan’s testimony, and didn’t appear to consult once with Nifong.

To Himan’s left was Nifong’s chief investigator, Linwood Wilson, who arrived late to the hearing. A rotund man, Wilson spent the hearing with his chair pushed back from the table, his legs spread out on the side. Like Himan, he took no notes. Behind this trio sat Nifong citizens’ committee co-chair Victoria Peterson, the woman who previously had explained away the DNA results that Meehan discussed as “tampered with” by Duke University hospital. Though Peterson lacks legal training, she chatted with Nifong before the hearing and during the break. She also ignored court rules by bringing in a bag of Lays’ potato chips and a soda.

Finally, at the side of Nifong’s table was his administrative assistant (and a campaign contributor) Candy Clark. I make no claim to being a fashion expert. But given that Nifong’s prosecution has been attacked as amateurish, did Clark showing up for court in a leopard-spot sweater with matching leopard-spot shoes send the right message?

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The head of a private lab admitted to having conspired with the prosecutor not to report exculpatory evidence. What did Herald-Sun readers see as Bob Ashley’s Saturday op-ed? “Double Dose of Good News for Durham,” in which Ashley stated that “for a community that often worries about its image, Durham had a double-barrelled [sic] good week last week.” I’d hate to see what would constitute a bad week for Durham.

John Stevenson, meanwhile, offered his own unique brand of coverage of the Meehan hearing. Meehan, according to Stevenson’s summary, “denied a deliberate cover-up was involved.” Actually, Meehan repeatedly stated that he and Nifong had “agreed” that his report would exclude exculpatory evidence—even as Nifong denounced as a “witch-hunt” defense attempts to obtain the underlying data that exposed this agreement. Most people would consider that record a “cover-up.”

[Update, 8.43am: In the Sunday paper, Stevenson lays out the pro-Nifong spin on the venue change motion, under a headline of "venue change requests are rare." Stevenson notes that the change-of-venue motion cited Nifong's myriad inflammatory statements. "But," he adds, "Nifong soon clammed up, admitting he had made a mistake and saying he would avoid the national media if he could begin the case over again." Apparently the fact that Nifong allegedly admitted "he made a mistake" means that his procedurally improper statements should be ignored.]

For some good background on the dilapidated state of the Herald-Sun, see this article from the National Press Photographers Association. With a cost-cutting approach to journalism, the H-S looks to guarantee copy by reflecting the party line. It has become the Pravda of what Ruth Sheehan has termed the People’s Republic of Durham.

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At a press conference after the hearing, attorney Joseph Cheshire praised the support shown for the players targeted by Nifong. At least six current members of the Duke men’s lacrosse team came to the hearing. So did current coach John Danowski. So did one of the genuine heroes of this affair, women’s lacrosse coach Kerstin Kimel—the first Duke employee to publicly defend the character of the men’s team—and her two assistant coaches.

Former coach Mike Pressler and his wife Sue also attended. After the hearing, Pressler said, “It’s all about support. It’s all about being there for them, and that's where we’re going with it.”

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This hearing provided the first real opportunity to evaluate the fairness of Judge Osmond Smith. He passed with flying colors.

First, he opened the session by announcing that he had turned over at least some of the accuser’s medical file to the defense. This was the correct decision, of course, but it’s hard to imagine a pro-Nifong judge such as Ronald Stephens making it.

Second, Smith gave the defense sufficient leeway to examine Meehan, a critical point as Meehan wasn’t the most forthcoming witness. This decision, too, proved justified. After Bannon laid the foundation, Jim Cooney extracted from Meehan unequivocal admissions that he and Nifong had intentionally acted not to report exculpatory evidence; and that he had specifically decided to exclude from his report any notation that DNA evidence did not link either Reade Seligmann or Collin Finnerty to any crime.

In a pre-election article in the New York Times, Stephens gushed about Nifong. (The article, reflecting the Times’ biases, never mentioned that Stephens presided over the initial actions in the lacrosse case.) Smith, on the other hand, appears to be loyal to the law, not to either side in the case. That approach is just what this case needs.

Nifong and the Naïf

Perhaps the quality of the defense bar in Burlington, North Carolina, is unusually low. It appeared yesterday as if DNA Security head Brian Meehan had never before faced a challenging cross-examination: over a 90-minute period, he withered under questioning from Brad Bannon and Jim Cooney.

Mike Nifong gambled and lost: confronting a defense motion strongly suggesting that DNA Security, for a reason or reasons unknown, had withheld obviously exculpatory evidence, he decided to produce, without notice, Meehan for cross-examination. The advantage: he might catch the defense unprepared for questioning. The disadvantage: he obviously didn’t have time to prep Meehan.

To the extent that he displayed any strategy at all, Meehan’s goal seemed to be to stall as much as possible, looking expectantly at Nifong (who was seen to be frequently yawning by those with a head-on view of him) after each question. Unfortunately, the judge, Osmond Smith, didn’t shut down the questioning, and Meehan was eventually forced to concede the obvious. So an appearance that should have lasted 10 minutes stretched into nearly two hours.

The most charitable interpretation of Meehan would see him as remarkably naïve, a scientist who didn’t realize that those doing work for law enforcement have to follow standard procedures, rather than making up their own rules. Those less inclined toward the charity of the season might suggest that Meehan willfully joined in a conspiracy with Mike Nifong to withhold exculpatory evidence, because he wanted business for his lab.

Meehan got off to a bad start. Less than 10 questions into a session with Bannon, he challenged a defense assertion that the underlying DNA test results—the results that he and Nifong had mutually agreed would be excluded from his report to the D.A.—showed DNA from multiple men on the material from the accuser’s rape kit. Since the accuser had claimed to have had no sexual intercourse for a week prior to the lacrosse party, this evidence would seem to undercut what remains of her credibility.

Meehan’s denial triggered a detailed walk-through, lasting around 40 minutes, in which Bannon took the DNA Security head through each piece of rape kit evidence. By the end of the exchange, Meehan had confirmed the defense interpretation. His tests showed evidence of DNA from multiple males, none of whom were on the lacrosse team.

Bannon concluded by asking Meehan whether the lab head understood the definition of “exculpatory.” It quickly emerged that Meehan seemed to believe that he wasn’t obligated to follow the law. Instead, he would make up whatever definition of “exculpatory” he found convenient, and produce a report that reflected his personal definition.

(It’s worth remembering that the Open Discovery Law was supposed to avoid this very debate: prosecutors in North Carolina do not have the right to decide whether evidence might or might not be exculpatory: they must turn over all evidence in their file to the defense. Nifong and Meehan apparently conspired to get around the law’s requirements by producing a report that wouldn’t reveal key exculpatory evidence, and hope that the defense wouldn’t ask for the underlying data.)

What motivated Meehan? As Joseph Neff’s article from today’s N&O nicely summarizes, the lab director justified his actions through an ever-changing array of reasons, several of which were transparently absurd.

1.) He wanted to protect the privacy of the other lacrosse players.

He approached the issue, said Meehan, as if he were a parent of one of the unindicted players.

Meehan never explained, however, how he would impinge upon the other 43 players’ privacy by producing a report that (a) conclusively stated that no DNA matches existed between the unindicted players and the accuser and (b) matches did exist between five other males and the accuser.

Here’s how the L.A. Times described the scene: "Asked by a defense attorney how lab results clearing all 46 players would violate their privacy, Meehan fumbled for an answer as Nifong sat with his head lowered, staring at documents."

Another revelation from the hearing, meanwhile, cast strong doubt upon Meehan’s self-proclaimed position as an ardent privacy-rights advocate. He admitted that in one document turned over to the state, his lab included the names of three other men who were subjects of another case. Concern for their privacy appears not to have formed a major priority of the lab director.

2.) The May 12 report was not a “final conclusive report on the case,” and Meehan would have supplied additional information had local authorities requested he do so.

The Meehan Model would represent a novel approach to law enforcement. Experts could produce reports tailored as the prosecution desires. These reports, in turn, could be presented in such a way that any reasonable person would consider the document to be comprehensive. But, when caught withholding exculpatory information, experts could claim that their report was only an ‘interim” document, with a finalized version to be produced at a later date.

3.) Meehan wanted to “do the right thing.”

“I don’t have a legal justification or a reason,” said Meehan at one point, “I was just trying to do the right thing.”

This line of argument generated an exasperated question from defense attorney Jim Cooney, who wondered if Meehan was familiar with the laws of North Carolina.

Agencies contracted to do work for the state, of course, don’t get to make up their own rules: they must follow state laws. Meehan, however, \ didn’t even follow the protocols of his own company—which call for producing a report of all DNA examined. “By the letter of the standard,” he noted, his report “diverges from the letter of that standard.” That the head of the company appears to see no problem in flouting his own regulations raises questions how seriously DNA Security takes the principle of due process.

Meanwhile, according to Meehan, state law could be trumped by his definition of what constituted “the right thing.” His decision, the lab director told Bannon, “might not hold any weight in your legal arena.” This statement made no sense: Meehan was producing a report for the “legal arena.” If he wants to change North Carolina’s evidence laws, he should lobby the legislature.

The “protect-the-players” argument was transparently absurd. The “non-final report” claim was little more than a word game. And the “do the right thing” contention portrayed Meehan as a naïve scientist who didn’t understand the intimidating world of criminal justice.

I suspect that not even all four of the figures seated at the prosecution’s table found these arguments credible, leaving the likeliest alternative:

4.) Meehan and Nifong conspired to violate the lacrosse players’ civil rights.

Before the hearing, Nifong would have done well to have reminded Meehan of the 5^th amendment: on several occasions, the lab director essentially admitted to a conspiracy with Nifong.

Meehan remarks about this issue included:

• Nifong “specifically wanted to know: does any reference specimen match any of the profiles we gave?”
• Before indictments, Nifong knew that there was no match to Reade Seligmann and Collin Finnerty but that matches to other unidentified males existed.
• The match to unidentified males from the rectal swab not reported because it was “not probative evidence,” an approach on which “we agreed.”
• “This report was a specific report on a request from Mr. Nifong.”
• “We were in agreement that the alternative would have been to produce names and profiles of everybody in the case.”
• “We would be glad to provide a more thorough report upon the request of our client.” [Meehan repeatedly referred to Nifong as the “client.”]
• Had Nifong said, “‘I want a report on everything,’ that’s what we would produce.”
• Violated his own lab’s protocol, but “not just because the district attorney told me to.”

And, the killer question: Was the failure to report these results the intentional decision of you and the district attorney?

Meehan: Yes.

Over and over again, Meehan informed the court that he and Nifong conspired to deny the civil rights of the three accused players and quite possibly the entire team. The 5^th amendment is made for such occasions; the posture as a naïf about the affairs of the law seems unlikely to carry much weight.

What To Watch For

Given the bombshell motions of the past two days, I suppose anything is possible in today's hearing, although the ostensible subject matter is actually quite limited.

One item that's definitely scheduled to be resolved: the extent of defense access to the accuser's medical records. Defense attorneys hinted at the records' significance in yesterday's motion, noting that the motion could be amended if the judge turns over records that reveal more about the accuser's mental condition.

As I've noted previously, at least some of these early records (the 2005 hospitalization; anything to suggest why UNC doctors considered the accuser at risk for addiction to drugs) would seem relevant.

It's unclear to what extent (if at all) the issue of DNA Security and Brian Meehan will come up, and whether we will have any more light shed on Mike Nifong's two mysterious trips to the Burlington lab. As of 12.01am this morning, however, the DNA Security website was down. Perhaps the case won't be the boon for business Meehan clearly desired.

Meanwhile, the Herald-Sun spin machine is going full blast. From the article on the DNA motion: "The documents show that the firm conducted more tests than it noted in a May 12 report that said analysts found Evans' DNA on a fake fingernail belonging to the accuser that police discovered in a trash basket at the scene of the alleged crime, a bathroom in 610 N. Buchanan Blvd. . . . Save for the positives reported on May 12 for Evans, Murchison and Coleman, none of the DNA tested has matched that taken from the accuser, defense lawyers said."

Bob Ashley might want to believe the statements in the above paragraph are true, but these statements certainly didn't appear in the defense motion. Nowhere in the motion does the defense state that the tests confirmed Evans' DNA--the tests only showed that Evans' DNA couldn't be ruled out. And equating a finding of Murchison's semen DNA with a possible finding of Evans' DNA on a fake fingernail in a trashcan, as the closing sentence does, is why the H-S is bringing daily journalism to a new low in the paper's coverage of the case.

Finally, it will be interesting to see if Nifong attempts to garner sympathy for the accuser by noting the recent birth of her third child. This development, like so much else in the case, contradicts Nifong's theories: the accuser, supposedly "too trauamatized" to speak about the case on April 11, was pole dancing in a limber fashion and engaging in sexual intercourse well before the supposedly trauamtic conference.
I'll be posting on any significant new motions, or other hearing-related material, throughout the day.