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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  November 8, 2007
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Duke Case: DNA Security, Liable or Not?

I also note a four-letter word used by Dr. Meehan in the second sentence of his answer: "just." Apparently Mr. Nifong told Dr. Meehan to do what Dr. Meehan mistakenly thought he should do.

I count DNA Security's eventual acknowledgment of the multiple male DNA found on false accuser Crystal Gail Mangum's panties as a very good thing and regret that acknowledgment was not made in the DNA Security report issued on May 12, 2006.

That said, I don't presume that DNA Security or any of its employees tried to frame the Duke Three. The Three have the burden of proof in the pending civil case. My position is unchanged: let the truth prevail, whatever it is.

Having closely read the transcripts of the Duke case hearings held on September 22, 2006 and December 15, 2006, I remain distressed that DNA Security violated its own protocol and failed to report information that anyone familiar with the details of Ms. Mangum’s false story would recognize as the stuff with which to discredit her (since she had claimed not to have had sexual relations with anyone except her boyfriend for some time before her fabricated gang rape).

But I do NOT assume that DNA was notified of those details or suggest that DNA Security violated the terms of the court order issued by Judge Ronald L. Stephens on April 5, 2006 in response to a petition submitted that day by then Assistant District Attorney David J. Saacks on behalf of then District Attorney Michael B. Nifong. That order directed the delivery of "the oral, anal, vaginal, and underwear swabs taken from the victim's rape kit in this case, along with the 46 cheek swabbings taken from the group containing the suspects," to DNA Security "for the purpose of Y STR DNA analysis" and specified only that "if any male positive results are found the victim's swabs," DNA Security was "to compare the DNA to the 46 cheek swabbings to determine if an identification can be made." The order did not call for a complete report on all test results. The district attorney's office and Judge Stephens each had determined (falsely) that the false accuser was a "victim" and apparently they were seeking inculpatory evidence, not exculpatory evidence.

DNA Security determined and then reported that none of the 46 could be identified. It also reported that "[i]ndividual DNA profiles for non-probative evidence specimens and suspect reference specimens are being retained...pending notification of the client." ("Non-probative" meant non-probative of an identification being sought, not necessarily irrelevant.) But, DNA Security did not report that it had found multiple male DNA not attributable to any of the 46 and, the terms of the court order notwithstanding, I believe that it should have done so.

It is also noteworthy that the claim that DNA Security opposed the defense’s request for additional discovery (a claim I previously accepted as true) is NOT supported by the transcripts and that's a factor in DNA Security's favor.

At the December 15, 2006 hearing in the Duke case, Reade Seligmann attorney Brad Bannon explained the defense’s completely understandable dissatisfaction with the DNA Security report: it “did not fully disclose what I believe anybody who is involved in criminal law and rape prosecution would find to be exculpatory evidence in the sense of multiple male characteristic DNA that did not match any of the defendants in this case.”

Agreed as to any lawyer familiar with the details of Ms. Mangum's story, but not necessarily a DNA tester not familiar with them.

Mr. Bannon asserted at that December 15, 2006 hearing that “Dr. Meehan at DNA Security...sent a letter to Mr. Nifong and Mr. Nifong read to the Court that essentially objected to the provision of those materials based on financial concerns and privacy concerns.”

That's NOT a fair characterization of Dr. Meehan’s letter.

Dr. Meehan did not take a position on whether there should be additional disclosure and probably was looking forward to collecting a fee for services that otherwise would not be collected. Dr. Meehan stated that the additional disclosure could be made available in a week, without overtime, and would cost $4,035. The privacy concerns that he also expressed in the letter were concerns that the Court and Mr. Bannon shared.

Dr. Meehan’s letter read:

”Dear Mr. Nifong,

“We have received a request for additional documents for defense discovery related to the Duke case. The list of items requested is considerably more extensive than what we are usually asked to produce for discovery. We have to recover this added cost. Our standard fee for this type of request is $500 plus a $185 per hour. Typically, discovery documentation takes one hour or less to compile, so request can be fulfilled for around $685.

“However, in addition to the extensive list of items requested, the case file for this case is in excess of 1000 pages. It is more than 50 times larger than an average case file. The cost to produce the documentation requested for defense discovery will be $4035. This price is based on our standard fees, which includes 11 hours of time, $2035, and copies and binding of 3000 pages, $1500.

“When requesting documents for discovery, it may be important to consider the privacy of all of the individuals that were included in DNA testing for this case. As you know, we performed DNA testing on all lacrosse team players and a number of other persons with suspected links to this case. In an effort to protect the privacy of these individuals in a very high-profile case, we limited our formal reports to the evidence items and only the persons tested that could be linked to the evidence through the DNA testing results.

“A blanket discovery of the entire case file, including all records and related materials, could jeopardize the privacy of these same individuals. We at DSI feel that this matter should be considered. Without incurring overtime costs, we can gather this material in one week. Will that meet your needs?

”Sincerely,

“Brian W. Meehan, Ph. D.”

As to those privacy concerns:

The Court: “Do you feel an appropriate protective order could be in place to protect –“

Mr. Bannon: “Absolutely. The privacy issues are -- absolutely, Your Honor...."

The Court: “The Court grants the defense request. Reasonable cost of providing such information to be paid by the state. And this is conditioned upon an appropriate protective order to safeguard privacy rights. You all can get together on the wording and such. I’ll be glad to see what you’ve approved.”

Oddly (to me), even though Dr. Meehan had assured that the documents could be available by the end of September, without overtime, the Court chose October 20 and the defense actually received the documents a week after that.

My primary problem with the incomplete DNA Security report was that it did not disclose the discovery of multiple male DNA of unidentified males and that omission shocks me.

My primary problem with doubting Dr. Meehan's testimony and concluding that he conspired with Mr. Nifong is that he obviously had not been prepared for confrontational testimony when he came to court on December 15, 2006; Mr. Bannon easily obtained Dr. Meehan’s admissions that (1) multiple male DNA had been found and (2) its disclosure actually could have been made without infringing privacy concerns; and Dr. Meehan seemed to have been focused on format and oblivious to the fact that the critical disclosure could have been made without infringing privacy before he was asked the question.

Mr. Bannon asked Dr. Meehan how it would violate anyone’s privacy to report that DNA Security had uncovered multiple male DNA characteristics on multiple rape kit items that did not match any of the people who are being prosecuted or any of the suspects that have been submitted in reference samples.

Mr. Bannon: “Okay. Let me ask you, whose privacy would it have violated if you had simply reported the male DNA characteristics found on multiple rape kit items from multiple different males who you didn’t have reference swabs for? Whose privacy would it violate?"

Dr. Meehan: “That, that wouldn’t have violated anybody’s privacy.”

Right!

So why wasn’t it reported?

Dr. Meehan: “…it got enveloped into that whole process of just limiting the report to those matches….”

That makes sense to me.

Who’s to blame for that: Mr. Nifong? DNA Security? Both?

Dr. Meehan described the assignment he was given this way: “…we were asked to look at the items submitted to us, see if we can obtain any male DNA. That was the first thing that we were asked to do. When we determined that we could identify some male DNA characteristics, I think it was some time after that that Mr. Nfong began submitting the reference specimen from the people in this case. And we were asked to determine if any of the evidence items match any of the reference specimens or really, can we exclude any of these reference? Who can we exclude in this reference group. That’s what we do? We exclude suspects, That’s the best way to approach this work. And that’s what we were asked to do, to find out if we can exclude everybody or offer anybody match.”

Justice demands that exculpatory evidence be disclosed, and prosecutors should be insisting on it being reported instead of encouraging, agreeing to or even tolerating its suppression.

Dr. Meehan took responsibility for the way the DNA Security report was written, while confirming that Mr. Nifong had agreed to it.

Dr. Meehan: “I don’t think [Mr. Nifong] told me specifically to write it that way. I think we were in agreement that the alternative would have been, as I said earlier, to produce names and profiles of everybody in the case. And I do believe it initiated with me, not with Mr. Nifong, the concern that – we had evidence coming in, reference specimens. I had no idea who these people were, where they were coming from. They could have been the bus driver, okay. And so my concern was that that’s going to come out and get available to the media and just being associated by name and that a DNA profile was done, I expressed that concern. And Mr. Nifong agreed with me that it was okay to do this.”

But Mr, Nifong was the Durham County, North Carolina District Attorney and, under North Carolina law, was supposed to be a fair and objective minister of justice whose job was to exonerate the innocent as well as to convict the guilty.

If Mr. Nifong agreed, he should NOT have agreed.

Also, in my opinion, Dr. Meehan should not have violated a DNA Security protocol without explicitly stating in the report that he was doing so and why.

Mr. Bannon: “And you violated this protocol of your own lab?

Dr. Meehan: “That’s correct.”

Mr. Bannon: “And you violated this protocol of your own lab because the district attorney told you to; is that correct?

Dr. Meehan:

”No. It’s not just because the district attorney told me to. And, you know, I don’t know a better way to say this. You know, we, we legitimately – and it may not hold any weight in your legal arena, but we were legitimately concerned about a report that could become explosive if it had overly detailed all those profiles from all those players in it, okay.

“Now, as we agreed with Mr. Nifong that we would report just the stuff that matched so that it would, so the report was limited in its scope. However, it’s not a – and by the letter of the law, by the letter of the wording of the standard, you’re absolutely correct. It diverges from the letter of the standard. Okay. But we do indicate on the report that there is additional information. We would be glad to provide this information if you would like.

“But at this point on this report, it was limited. This, I don’t have another explanation for it.”

I think I do. I think that Mr. Nifong never mentioned that Ms. Mangum had claimed, in essence, that there was no multiple male DNA to be found from other than white members of the 2005-2006 Duke University Men’s Lacrosse Team and such a finding would undermine her credibility and therefore constitute exculpatory evidence to which the defense was constitutionally entitled and Dr. Meehan is not a lawyer as well as a scientist.

I also note a four-letter word used by Dr. Meehan in the second sentence of his answer: "just." Apparently Mr. Nifong told Dr. Meehan to do what Dr. Meehan mistakenly thought he should do.

But some criticism of Dr. Meehan (mine included) is contradicted by documentary evidence and Dr. Meehan did not begin his testimony with a lie.

Read the December 15, 2006 transcript and the defense motion to compel discovery: Mr. Bannon asked a very broad and ambiguous question and Dr. Meehan's no answer was understandable in the circumstances.

Mr. Bannon: "Page 5, paragraph 18. Does that paragraph accurately reflect the testing that was done on those particular items in this case?”

Dr. Meehan: “I have to read it. No.”

This is what Dr. Meehan read: ”18. On April 8, 9, and 10, 2006, DNA Security analyzed the DNA profiles extracted from the cheek scrapings, oral swabs, vaginal swabs, rectal swabs, and panties from the rape kit items taken from the accuser at Duke Hospital in the early morning hours of March 14. While DNA Security’s final report would not reflect the findings from that analysis, underlying documents provided to the Defendants on October 27, 2006, reflect that DNA from multiple male sources was discovered on the rectal swabs and panties from the rape kit; it was all compared to the known reference samples from the lacrosse players; and none of it matched any of the players."

This text was followed by detailed Y-chromosome DNA profiles of 5 numbered items.

I had reported in June 2006 that “DNA tests showed that the accuser had sex with several men but no DNA of even one Duke lacrosse player was found.”

Instead of asking whether that was true, Mr. Bannon asked the question he asked.

The big problem with that is that paragraph 18 is not entirely accurate.

Only one of the five items specified in paragraph 18 involved rectal swabs and the other four items involved panties. Unlike the Y-chromosome DNA profiles of the other four items, the Y-chromosome DNA profile for the rectal swabs did NOT refer to “multiple male contributors” and paragraph 18 nevertheless alleged that “DNA from multiple male sources was discovered on the rectal swabs and panties from the rape kit.”

Dr. Meehan prompted elaborated on why he had answered no: “I don’t think it does, on the surface. Now, again, I haven’t read a chance to go back and review this in the file. But unless I’m reading it incorrectly, it says that DNA from multiple male sources was discovered on the rectal swabs, panties in the rape kit. And if that’s read to mean that each one of those specimens had DNA from multiple males, it would be incorrect. If it’s read to mean that some of those specimens, not all of those specimens, had DNA that could be from male, a single male source, then it is correct.”

Dr. Meehan later testified that the rectal swabs referred to in paragraph 18 did NOT reflect the existence of more than one male DNA characteristic, thereby buttressing his “no” answer.

Dr. Meehan added: “And that’s the point I was making earlier, that there are some that don’t have more than one.”

Dr. Meehan is responsible for his answers and should have reported the multiple male DNA from unidentified males in April 2006, but he's not responsible for the questions he was asked.

Dr. Meehan testified that finding multiple male DNA from multiple different sources on those rape kit items did not necessarily negate the guilt of the person charged with raping someone.

Dr. Meehan: “…we run across that fairly often. It is possible for a person to be raped and no semen left there, okay. So it doesn’t, by itself, it does not show that the person was not there. And it’s a CSI effect. We call it a CSI effect, okay. Just because a person doesn’t leave DNA at the scene, it doesn’t mean that he was not there….A person can rob a bank and never leave a fingerprint. It doesn’t mean they didn’t rob the bank.”

That’s true, but, in my opinion, hardly a justification for the limited report DNA Security issued with respect to the Duke case.

During Mr. Nifong’s ethics hearing, Mr. Bannon testified that on September 22, 2006 he did not think evidence of multiple male DNA would be found in Ms. Mangum’s rape kit.

Like Dr. Meehan's failure to report, Mr. Bannon's failure to expect perplexes me.

At that September 22, 2006 hearing, Collin Finnerty attorney Douglas Kingsbery made it crystal clear that he was looking for evidence of multiple male DNA in that rape kit.

Mr. Kingsbery:

”…Your Honor, with respect to paragraphs 35 and 36 dealing with the DNA testing, I just want to make sure that the discovery that we’re requesting is not being misconstrued and therefore limited in the state’s response. Obviously, since Collin Finnerty’s DNA did not appear anywhere on the alleged victim, we’re not seeking to challenge those DNA results. And I want to make sure the state understands our motion to compel discovery is not limited to some request for information to challenge those results.

“There was DNA found on the alleged victim. It was none of these defendants. And the reason that the state’s experts found that was because that perpetrator’s DNA was submitted by the state to these experts. There may be additional male DNA that was recovered and analyzed and found by these experts but they couldn’t match it with anyone because the state hasn’t given the identities to the DNA experts. (Emphasis added.)

“And this is my point: We’re seeking information of any additional DNA that was found on this alleged victim even though it doesn’t match any of these defendants. And I want to make sure that the state understands our request for discovery is not limited to simply things that have to do with these defendants or the list of individuals that the state provided to the experts.

“And I bring this up because I believe I heard Mr. Nifong say today that he’s got some correspondence or communication from his experts which limits what’s in the reports to the defendants and to those thought to be linked. And if there are additional male DNA present on this victim, I want to make sure that everyone understands that our discovery motion asks for that material, as well.” (Emphasis added.)

Fortunately, DNA Security finally acknowledged that multiple male DNA and the prosecution that was a persecution finally collapsed with a declaration of innocence that set the stage for the pending civil case.

Hopefully, justice will be done in that case, with all who really are liable are found liable and any who really are not liable found not liable.

God works in mysterious ways. Only God knows the whole truth about the Duke case, but DNA Security did not falsify its test results to help the prosecution's case and I think it's true that DNA Security was a Nifong victim too and but for DNA Security's work (and Mr. Nifong insisted on more sensitive DNA testing), Mr. Nifong would still be Durham County's district attorney and the State of North Carolina never would have acknowledged the innocence of the Duke Three.

Michael J. Gaynor

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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.


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