Topic category:  Other/General

Professor Robert KC Johnson became a zealous supporter of the Duke Three as well as a harsh critic of Duke's despicable Group of 88 and, eventually, Duke President Richard Brodhead.

That zeal extended beyond opposition to their persecution under the guise of prosecution by former Durham County, North Carolina District Attorney Michael B. Nifong to approval of their confidential settlement with Duke, even before a complaint was filed in court, to the pending civil suit brought by them last year.

As a lawyer, I was outraged by Mr. Nifong's pursuit of patently bogus charges for personal and political purposes and Duke's abandonment of all and even active abuse of some of the members of the 2005-2006 Duke University Men's Lacrosse Team and wrote extensively about it.

But I did not condone the stripper party or the taking back of money that had been paid in advance to the false accuser, since the law does not condone such self-help, or call for a civil suit against the DNA Security Defendants, since the reporting duty imposed on testing laboratories such as DNA Security under North Carolina law runs to the prosecution, not to defendants or prospective defendants and the May 12, 2006 report signaled the finding of multiple male DNA instead of completely disregarding it.

The DNA Security Defendants moved to dismiss, and KC read DNA Security's brief and lambasted what he described as "breathtaking descriptions of 'normal' law enforcement work."

KC: "DSI attorney Robert King appeared to assert that DNA Security was not obligated to produce a report that adhered either to its own company protocols or North Carolina state law regarding DNA tests resulting from an NTO. He equated the lacrosse players suing DSI for not following the law or its own protocols as merely a complaint that the plaintiffs 'do not like the way that the report was written.'"

North Carolina's deficiencies ARE breathtaking, but America is supposed to be about fair warning and not supposed to be about ex post facto punishment, KC.

Mr. King did NOT claim that DNA Security did not have those obligations.

Mr. King claimed that (1) DNA Security's protocols did not create an obligation to any of the Duke Three to "produce a report that adhered...to its own company protocols," since none of them contracted with DNA Security or was made a third-party beneficiary of DNA Security's contract for testing related to the Duke case and (2) the reporting duty imposed on DNA Security under North Carolina law extended only to the prosecution and not to any defendant or potential defendant or anyone else.

The law is what it is, not necessarily what we want it to be, KC.

Many wish it had been otherwise, but it appears to me that Mr. King is right on the facts, right on the law and right to zealously represent his clients.

In his first take on the DNA Security brief, KC Johnson lamented that it "touch[ed] 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."

KC: "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."

Yes and no.

As to the DNA Security Defendants, the brief in support of their motion to dismiss not only relied on witness immunity, but also on the absence of a duty to the Duke Three.

But the 49-page brief explained the applicable law on motions to dismiss, witness immunity and the various causes of action alleged against the DNA Security Defendants, as well as highlighted the admissions in the complaint.

The brief, among other things:

(1) relied upon a case that held that a "laboratory expert had absolute immunity under Section 1983 when, after discussions with prosecutors and officers, he failed to disclose that two tests for victim's blood on defendant's clothing were negative and instead testified that tests were positive";

(2) quoted a Ninth Circuit case as follows: "[A]llowing a plaintiff to circumvent...by alleging a conspiracy to present false testimony would undermine the purposes served by granting witnesses absolute immunity from damages liability under § 1983. Absolute witness immunity is based on the policy of protecting the judicial process and is 'necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation."..."Any other holding would eviscerate absolute immunity since a witness rarely prepares her testimony on her own." (201 F.3d at 1101-02); and

(3) cited an appellate North Carolina case (Sharp v. Miller, 121 N.C. App. 616) for the proposition that "the application of absolute immunity to claims about irregularities in expert witness reports was so well established as to justify...sanctions."

KC did not mention any of those three cases, but he implicitly recognized that the Duke Three may have a problem with the applicable law: "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.'"

KC then asked a logical question--"Why?" and again quoted the brief--“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.”

Unsurprisingly, KC supported the plaintiffs, railing: "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?"

KC, who is not a lawyer, apparently did not appreciate that there is not civil liability for every wrong and judges do not whimsically decide which witnesses should have immunity and which should not.

As explained in the brief, the duty to disclose to the defense was the duty of the prosecution, not the prosecution's expert witnesses.

In the absence of a breach of duty, there is no civil liability, even if KC and I (and virtually everyone else) wished Dr. Meehan had clearly described all results in his May 12, 2006 report.

Even if there is a breach of duty, there is no civil liability if there is immunity.

The laboratory expert in the case cited in the brief testified falsely, but nevertheless had absolute immunity.

Compared to THAT laboratory expert, Dr. Meehan was a Patrick Henry.

Prosecution for perjury of that laboratory expert seems to have been in order, but...no civil liability.

That's the law!

Taking the factual allegations of the Duke Three's complaint as true (which is required on a motion to dismiss), the DNA Security Defendants did not affirmatively lie, but concealed exculpatory information during the pre-trial phase of a case that never went to trial.

Bad as that would have been (or was, if true), it's obviously NOT as bad as what the laboratory expert in the case cited in the brief did.

The law is the law!

KC quoted the brief's summary of the Duke Three's claim against the DNA Security Defendants as follows: "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."

KC continued: "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.'"

Alas, DSI's protocols do not create a duty to any of the Duke Three or void witness immunity.

Likewise, neither the Constitution, nor federal law, nor North Carolina law imposes a duty on a laboratory (much less its officers or employees) to report to anyone other than the prosecution that retained it.

KC:

"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?"

As the law existed in 2006, the DNA Security Defendants did not have that obligation TO THE DUKE THREE.

It WOULD be helpful, in my opinion, if the North Carolina Legislature would pass a bill extending the duty to report to benefit defendants and potential defendants, but, like requiring transcripts of grand jury proceedings, it has not opted to do so.

KC also noted the brief's "interesting version of the origins of the May 12 report": "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)."

KC: "King...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."

Not so. What Mr. King wrote was that Mr. Nifong had directed that the report not discuss the DNA from any "non-reference" samples. That does not contradict Dr. Meehan's sworn testimony. The fact that someone does something that he or she suggested is not inconsistent with that person being directed to do so by his or her client. Even if it did, it would not create a duty to the Duke Three or void witness immunity.

KC:

"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.)"

But, neither North Carolina law or DSI protocols created a duty to the Duke Three and, as the Duke Three acknowledged, Dr. Meehan fully reported results to Mr. Nifong. Nothing imposed a duty on any of the DNA Security Defendants to report to the Duke Three.

Finally, KC found something good in the brief: "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.'"

Amen to that!

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.