Often the truth is hard to find and everyone on one side in a great struggle is not quite ivory pure and not everyone on the other side is evil, even though that would make life simple. To date, I do not have information that persuades me that DNA Security and its former director, Dr. Brian Meehan, were witting enablers.
LieStoppers message board member sdsgo: "We are faced with a situation where Dr. Meehan is accused of withholding information in a report in which he provided notice of that omission. Further, the defense noted his disclaimer and requested full disclosure, whereupon he provided that information in accordance with their request. Like it or not, the defense gave him a get out of jail free card when they requested the DNA background data dump on 31 August. Iím still looking for direct evidence of a conspiracy."
I'm still looking for persuasive evidence, direct or circumstantial, that the DNA Security Defendants were conspirators.
The persecution of the lacrosse players, especially the Duke Three, was abominable. That's reason to focus dispassionately on facts instead of jumping to unsubstantiated conclusions, not cause to vilify unwitting enablers.
In a Duke case article posted on May 24, 2006, I quoted an e-mailer who thought there might have been criminal activity by members of the 2005-2006 Duke University Men's Lacrosse Team during that ill-advised party in March of 2006, but not rape:
"As for the rape, I don't think there was enough time. But because of the trauma, beating, being drugged, etc. I think she mixed up this attack with the 1st time she was attacked, raped, way back when.
"I invite you to take 'the rape' out of that night, and see if you see evidence of another crime, just a mundane argument, robbery, assault and battery."
I responded: "I don't see that. But, whatever the truth is, it should come out."
As to the truth, that was then, is now and forever will be my position. (Yes, I protect sources and keep confidences, of course, but I want the whole truth to emerge and I disapprove of confidential settlements that conceal wrongdoing and apologists for such settlements.)
I also disapprove of stripper parties and underage drinking, but I refused to jettison the presumption of innocence and jump to the conclusion that there had been a gang rape and a cover up of it by team members and distinguished between those who arranged for the party and those who came because team members were expected to do that.
When KC Johnson was lauding Duke University President Richard Brodhead, I was urging that Crystal Gail Mangum be identified as an accuser instead of a victim and an erotic dancer instead of a dancer and calling attention to the Tawana Brawley case. (Having closely followed the Tawana Brawley case, I suspected America was experiencing Tawana Two, that is, a false interracial rape claim, and that proved to be true.)
When David Evans' statement to the police was made public after North Carolina Attorney General dramatically declared the Duke Three to be innocent and Ms. Mangum would not be prosecuted, I wrote about it. Four hundred dollars is not a fortune, but principles were involved.
That upset some player supporters, but Mr. Evans had provided the statement to the police and it is part of the story.
I pursued the question as to who had taken the false accuser's money in that small bathroom and ascertained and reported that one of the two persons who Mr. Evans had essentially identified to the police as suspects had not taken the money, in order to remove an undeserved cloud of suspicion.
Often the truth is hard to find and everyone on one side in a great struggle is not quite ivory pure and not everyone on the other side is evil, even though that would make life simple.
In the Duke case, in my opinion, rogue prosecutor Nifong willingly embraced evil and had enablers, witting and unwitting, help him try to frame innocent young men.
In my opinion, some, but not all, in both the Durham County District Attorney's Office and the Durham Police Department were witting enablers.
To date, I do not have information that persuades me that DNA Security and its former director, Dr. Brian Meehan, were witting enablers.
It is important to distinguish and not to treat the unwitting as witting.
I did not criticize DNA Security and Dr. Meehan until AFTER I read the defense's December 13, 2006 motion and erroneously accepted as true the defense claim that Dr. Meehan had opposed production of the underlying documentation for DNA Security's May 12, 2006 report.
I had reported the finding of multiple male DNA not attributable to any player three times, first in an article posted on June 20, 2006, and waited for the case to end soon.
In my article posted on June 30, 2006, I even raised the possibility of prosecuting Mr. Nifong:
"Mr. Nifong should have wondered about the credibility of the accuser when the DNA samples were eagerly provided, or at least when the DNA found inside the accuser was determined not to have come from any of the Duke lacrosse players but from several other males.
"And the DNA results should have led Mr. Nifong to conclude that the indictments should be dismissed.
"But, Mr. Nifong, for whom the black vote was decisive in his Democrat primary win last April, still has to face the voters in November, and pretending that he has a case may seem preferable to admitting an egregious mistake.
"The key question now is not whether any of the Duke Three are guilty of any of the charges against them ó they are not ó but whether Mr. Nifong is reckless and stubborn, or worse.
"Mr. Nifong should be polygraphed. Ironically, he may be one who should be prosecuted."
I continued to wait patiently for "60 Minutes" or the defense to explode the Duke case, preferably immediately and surely before Election Day 2006.
I was disappointed by the delay, but delighted with the defense's December 13, 2006 motion to compel further DNA discovery.
In "Duke case: As expected, persecution proof detected," posted on December 14, 2006, I (1) quoted the defense allegation in that motion that
"[o]n September 22, 2006, through District Attorney Mike Nifong, Dr. Meehan objected to production of those materials, citing cost and privacy concerns"; (2) opined, "What was buried in the documentation that Mr. Nifong fought hard NOT to provide not only strongly supports the defense, but is more than sufficient reason to investigate Mr. Nifong and the private lab of his choice in order to ascertain whether he and/or a person or persons with the lab concealed exculpatory evidence"; and (3) set forth this exhortation: "TO THE PEOPLE IN THE PRIVATE LAB AND IN THE DURHAM COUNTY DISTRICT ATTORNEY'S OFFICE AND THE DURHAM POLICE DEPARTMENT: PUT TRUTH AND JUSTICE FIRST! DO WHAT IS RIGHT INSTEAD OF BEING PARALYZED BY FRIGHT."
I also wrote: "Significantly, in my view, Mr. Nifong and the lab fought hard NOT to provide that massive underlying documentation."
I regret part of that sentence. Unfortunately, as to Dr. Meehan, that was untrue. My trust in the defense to fairly characterize Dr. Meehan's letter proved to be undeserved.
After reading the letter and the entire September 22, 2006 hearing transcript, I wrote an article on DNA Security's alleged civil liability to the Duke Three that KC found "strange," I noted that the defense characterization of the letter by Dr. Meehan with respect to the production of documentation underlying DNA Security's May 12, 2006 report as a "letter of objection" was a mischaracterization and set forth the entire letter so that readers could judge for themselves.
Here's the letter:
"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?
"Brian W. Meehan, Ph. D."
Dr. Meehan was hardly alone in being concerned with privacy considerations and was not objecting to production based on them, but suggesting suitable safeguards.
The Court: "Do you feel an appropriate protective order could be in place to protect ó "
Mr. Bannon: "Absolutely. The privacy issues are ó 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."
The defense lawyers ignored the absence of the word object or any synonym for it in any form in Dr. Meehan's letter and arbitrarily choose to treat the letter as a "letter of objection." But, as Abraham Lincoln said, "calling a tail a leg don't make it a leg."
On November 20, 2007, KC took notice of a LieStoppers message board thread on Dr. Meehan and posted this on his DIW blog: "On the Liestoppers board, Michael Gaynor continues his peculiar defense of Dr. Brian Meehan, whose failure to produce a report that listed all his test results (as he was required to do under both North Carolina law and his own lab's protocols) was concealed for seven months. Writes Gaynor, 'I see a scientist who had not been prepared by a lawyer or a legal team to testify being precise and a lawyer proceeding with his questions in a clever, but hardly straightforward, way.' What I saw, in the courtroom on Dec. 15, was an arrogant scientist (at least for the first 15 minutes or so of the questioning, after which he increasingly slumped forward and desperately looked at Nifong to object) attempting to bluff his way through an examination without revealing what he had done; and a defense team that--even though they had not expected Meehan to appear for the hearing--eventually obtaining from the lab director an admission of the full scope of the results and of what he had agreed with Nifong not to report."
KC previously had taken notice of my article on the alleged liability of DNA Security, ignored Dr. Meehan's letter and declared my article "strange" in an earlier DIW update.
I promptly submitted a rebuttal comment to DIW that was not obscene, or vituperative, or...posted. Comments on DIW are "moderated" (which sounds much better than censored).
Then I wrote an article rebutting KC that forensic nurse extraordinaire and Heroine of the Hoax Kathleen Eckelt praised in an e-mail to me and then posted the article on her website site.
KC's latest update referring to me lacked full context.
On a LieStoppers message board thread on Dr. Meehan, I explained that the right answer to the question that Mr. Bannon asked Dr. Meehan about paragraph 18 of that December 13, 2006 motion to compel was no.
If either Mr. Bannon or Dr. Meehan was clever, it was Mr. Bannon. Mr. Bannon asked whether paragraph 18 "accurately reflect[s] the testing that was done on those particular items in this case," signifying the five items listed in paragraph 18 but not other items testified. Only one of those items involved rectal swabs and the item showed DNA from only one male, so the paragraph accurately stated that multiple males sources was discovered on the rectal swabs [NOT LIMITED TO ITEM 15776] and panties from the rape kit" that did not match any of the players. BUT, instead of asking whether THAT statement was true, Mr. Bannon asked a question that called for a no--whether the five items listed in paragraph 18 showed multiple male DNA in BOTH panties and rectal swabs.
The dramatic story enjoyed by player supporters (and once by me as well) is that the defense was blindsided by Mr. Nifong springing Dr. Meehan on them at the December 15, 2006 hearing. That would suggest that Mr. Bannon did not have had the time to craft a clever question to elicit a no from Dr. Meehan and then be able to elicit testimony that there was
multiple male DNA finding and have the fact that the no was appropriate lost in the excitement.
Please play close attention.
The transcript shows that Mr. Bannon directed Dr. Meehan to paragraph 18 and asked whether "that paragraph accurately reflect[s] the testing that was done on those particular items in this case."
"Those particular items" are five. Four involve panties and the fifth involved rectal swabs.
Paragraph 18, about a page long and mostly single-spaced, began: "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.'"
Detailed descriptions of the five items followed, with each of the panties items described as "indicating multiple male contributors, but not the rectal swabs item.
Mr. Bannon did NOT ask whether ALL the test results supported the conclusion that "DNA from multiple male sources was discovered on the rectal swabs and panties from the rape kit."
Instead, Mr. Bannon asked whether paragraph 18 "accurately reflect[s] the testing that was done on" the five items.
Why is it important whether or not that the statement is supported by those five items if it is supported by ALL the test results?
Dr. Meehan responded, "I have to read it" and later added, "No."
Mr. Bannon uttered, "I does not --"
Before Mr. Bannon asked a follow up question, Dr. Meehan elaborated on his "No," as follows: "I don't think it does, on the surface. Now, again, I haven't had 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 shouldn't be blamed for the "strange' or "peculiar" question. What really mattered was not whether multiple male DNA was found on the rectal swabs item (Item 15776), but, as the defense stated in paragraph 18, that "DNA from multiple male sources was discovered on the rectal swabs and panties from the rape kit."
Of course, Mr. Bannon was entitled to ask the question he asked, but Dr. Meehan's answer strikes me as typical of a scientist focusing on and answering a precise question and phrases like "unless I'm reading it incorrectly" don't strike me as arrogant. Of course, it is all too human to see what one wants to see, hear what one wants to hear and write what sources want written.
To the assertion that Dr. Meehan "failed to acknowledge what he clearly knew was the thrust of the defense complaint -- there were unreported profiles of multiple males" (quoting a Liestoppers poster), I respond that Dr. Meehan was not asked about "the thrust of the defense complaint," but whether paragraph 18 was accurate/ It appears to me that he was right that it was not completely accurate.
IF Dr. Meehan had falsely testified that the items did not completely support the proposition, that would have been significant to be (like a mischaracterization of his letter).
In addition, although it appears to me that Dr. Meehan was not prepared by any lawyer to testify on December 15, 2006, it is undisputed that he had testified many times before and it is standard for lawyers to tell a prospective witness to listen to the question and then answer the question asked. I think that's precisely what Dr. Meehan did and I refuse to read an ulterior purpose into his answer.
In addition, I take into consideration that DNA Security's May 12, 2006 report disclosed under "Results of DNA analysis" (top of page 5 of the 10-page report): "Individual DNA profiles for non-probative evidence specimens and suspect reference specimens are being retained at DSI pending notification of the client."
That disclosure strikes me as inconsistent with a conspiracy to conceal. I take it as much more nearly an invitation to the defense to ask for the underlying documentation than an escape hatch to accompany an effort to conceal.
I believe that by "non-probative," Dr. Meehan meant not matching any of the suspects.
The court had ordered DNA Security "to compare the DNA to the 46 cheek swabbings to determine if an identification can be made.
LieStoppers message board member sdsgo offered this thoughtful perspective:
"Both Nifong and Himan stated under oath at the 30-31 August 2007 hearing that Dr. Meehan fully reported the DNA results to them during their April 2006 meetings. When asked for a written document to provide to the court, Dr. Meehan raised his privacy concerns with the DA who subsequently authorized the limited report. At that point, the DA took on the legal responsibility to notify the court of his decision.
"The DNA report presents many complex legal issues. Some involve the partiesí contractual obligations and others the veracity of their representations.... Understandably, Dr. Meehanís poor judgment has ruined his professional reputation and cost him his job. Just donít confuse honest mistakes with bad actions."
"...before all testing was completed, Mr. Nifong requested that DNASI provide a report to be turned over to the defendants. Dr. Meehan was unsure of the reportís specific requirements and scope, and he had legitimate privacy concerns about making all the information public. He expressed his concerns to Mr. Nifong and asked for clarification. In situations such as these, where requirements are vague, ambiguous, or simply unstated, government policy dictates that contractors use standard industry practices and make inquiry to the contract officials for clarification. Clarifications and additional specifications provided by the government would take precedence over general policy.
"... Interestingly, the same page in DNASIís policies and procedures manual covers both their privacy and reporting policies. Privacy is listed first, and reporting is listed second. From this, we can reasonably deduce that DNASI considers privacy at least equal to, if not greater than, reporting. Conversely, we cannot say policy is considered less important than reporting. So, obviously, Dr. Meehan had to give careful consideration to both issues when constructing the requested document.
"...According to reports, Mr. Nifong responded to Dr. Meehanís questions with something close to the following: 'I didnít say, "Include this, donít include this," Ö I said, you know, "Publish the positive results," in other words, publish what you found. If you make a connection with something, if the evidence seems to be probative, thatís what should be in the report.' Dr. Meehan took this as direction to provide a summary report that only highlighted matches between evidentiary (rape kit) DNA and the playersí specimens. On a plain reading, Mr. Nifongís direction is consistent with Judge Stephensí order to search for evidence and identify matches. Therefore, in an effort to satisfy both Mr. Nifongís guidance and DNASIís policies, Dr. Meehan wrote a ten page summary focusing on what he believed to be probative Ė positive matches to the players Ė and included a notice to the reader that there were additional non-probative Ė non-matching Ė DNA results available upon request."
"The duties of Mr. Nifong and those of Dr. Meehan were markedly different. Dr. Meehan had an obligation to provide a clear and unambiguous warning that he had deviated from standard reporting procedures. A judge must determine whether 'non-probative' was sufficiently descriptive of the material in question. Itís not important what Dr. Meehan thought the term meant; all that matters is what someone not privy to the Nifong-Meehan discussion would think. Mr. Nifong, on the other hand, had an obligation to review the report and ensure that it met his stated requirements. In addition, Mr. Nifong also had the responsibility to turn over any exculpatory material without undue delay. He chose to rely on Meehanís summary report to fulfill that obligation, but he was not obligated to do so. He could simply have made a notation on the document or added an addendum to provide any missing information.
"Letís stop a moment and see how easy this would be. Change 'Individual DNA profiles for non-probative evidence specimens and suspect references are being retained at DSI pending notification of the client.'to 'Individual DNA profiles for non-probative evidence specimens (8-10 unidentified male DNA fragments) and suspect references are being retained at DSI pending notification of the client.' Such a simple change would have removed any ambiguity in the term 'non-probative'. Has this been done, I have no doubt that within minutes of release the phones would have been ringing off the hook in the DAís office." PIf either Mr. Bannon or Dr. Meehan was clever, it was Mr. Bannon. He asked whether paragraph 18 "accurately reflect[s] the testing that was done on those particular items in this case," signifying the five items listed in paragraph 18 but not other items testified. Only one of those items involved rectal swabs and the item showed DNA from only one male, so the paragraph was right that "DNA from multiple males sources was discovered on the rectal swabs [NOT LIMITED TO ITEM 15776] and panties from the rape kit" that did not match any of the players. But instead of asking whether that statement was true, Mr. Bannon asked a question that called for a no--whether the five items listed in paragraph 18 showed multiple male DNA in BOTH panties and rectal swabs. The dramatic story is that the defense was blindsided by Mr. Nifong springing Dr. Meehan on them at the December 15, 2006 hearing, which would suggest that Mr. Bannon would not have had the time to craft such a clever question that would elicit a no from Dr. Meehan and then be able to show the multiple male DNA finding and have the fact that the no was appropriate lost in the excitement."
"P.S. Fellow Blog Hooligans, there may well have been a conspiracy to hide evidence, but with the information currently available, there is simply no way to overcome Judge Smithís finding that he 'saw no evidence of a conspiracy to withhold exculpatory information.' The meetings between Nifong and DNASI were not only required but laudable. The State wants these people to meet and talk. It frequently puts incentives in the contract to encourage such behavior. How different this whole case would have been had Nifong conducted such meetings with Crystal, Dr. Manly, or Sergeant Shelton to get to the bottom of their testimony! Without direct evidence to the contrary, judges simply cannot infer nefarious motives from desirable activities. The questions regarding the adequacy of Meehanís notice or the impact of any harm that may have arisen will command the full attention of some of the best attorneys in the country at considerable cost Ė all for the want of a few words."
The evidence can be circumstantial as well as direct, and the burden of proof in a civil case is the preponderance of the evidence. But nefarious motives are not supposed to be arbitrarily inferred.
I'm not prepared to conclude that either DNA Security or Dr. Meehan is liable or not liable.
I agree that Dr. Meehan's judgment was wrong, "honest mistakes" should not be transformed into crimes and DNA Security and Dr. Meehan should not be presumed guilty instead of innocent.
I wonder whether Mr. Nifong's failure to disclose all the test results orally reported to him by Dr. Meehan will be held to excuse the DNA Security Defendants from liability to the Duke Three.
Will the court issue a decision that will prompt independent labs retained by the prosecution to communicate simultaneously with the prosecution and the defense attorney after a defense attorney appears and keep tapes disclosing prior interaction with the prosecution to provide to the defense attorney upon appearance, lest the labs risk being held liable to victims of a rogue prosecutor if the independent lab becomes an UNwitting enabler?
If the DNA Security Defendants are witting enablers, they surely deserved to be sued and deserve to lose the case.
If the DNA Security Defendants were UNwitting enablers manipulated by Mr. Nifong, then HIS failure to report the results orally reported to him by Mr. Nifong may be an intervening cause that means that any negligence by or attributable to the DNA Security Defendants was not the proximate causes of damage to the Duke Three.
The civil case is not as simple as the criminal case, where the truth was clear early to all not blinded by passion or utterly obtuse.
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.