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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 27, 2007
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Topic category:  Other/General

Duke Case: Dr. Meehan, Witting or Unwitting Accomplice?

In a state where there is no statute requiring a transcript of grand jury proceedings even now, is it a shock that a statute might be held by a federal court not to be sufficient to impose liability as a matter of procedural due process?

The "Meehan out of a job" LieStoppers board thread happily begun on November 13, 2006 became the most replied to and viewed thread in a long time.

WRAL had reported:

"The head of a private laboratory where DNA evidence in the Duke lacrosse case was tested no longer works there.

"The move comes less than a month after the former defendants filed a federal civil rights lawsuit against Dr. Brian Meehan, former District Attorney Mike Nifong and several others involved in the investigation.

"Civil attorneys allege they were part of a 'DNA conspiracy' and purposely withheld potentially exculpatory evidence that could have been used to clear their clients of the criminal charges against them."

The WRAL report did not mention that the complaint alleged negligence as well as conspiracy against Dr. Brian Meehan, a founder of DNA Security and itsdirector during the Duke case.

Was Dr. Meehan conspiratorial, or negligent, or neither?

Did Dr. Meehan's acts and/or omissions constitute a basis or bases for imposing criminal liability and/or civil liability upon him and/or DNA Security?

WRAL included in the same report a statement that "[a] lawyer representing DNA Security said the company plans to file a motion to dismiss the complaint.

Dr. Meehan has his own counsel.

Will DNA Security move to dismiss on the ground that Dr. Meehan acted outside the scope of his employment, so it should not be held liable in the circumstances, or on one or more other grounds?

Will Dr. Meehan also move to dismiss?

LieStopper "Baldo" posted pertinent information about Dr. Meehan: "Prior to founding DNA Security, Inc., Dr. Meehan served at the Director level of three major corporations in the field of DNA Identity Testing. He developed one of the first integrated laboratory robotics and Laboratory Information Management System (LIMS) for Chemiluminescent Detection of DNA fragments and PCR technology. At DSI, Dr. Meehan has applied his past experience and expertise to create a state of the art forensic laboratory accredited by ASCLD/LAB. He has qualified as an expert witness for courtroom testimony in six different states/jurisdictions including North Carolina, Michigan, West Virginia, Wisconsin, Wyoming and Pennsylvania."

"Locomotive Breath" acknowledged that Dr. Meehan "found the DNA properly" and "could have faked the lab work but didn't."

I agree.

"Locomotive Breath" added: "He then agreed with Nifong to withhold the accurate lab work. That's where he screwed up. He should have insisted on disclosing what he found and he'd be in the clear."

Dr. Meehan admittedly agreed with the rogue prosecutor to limit the May 12, 2006 report instead of reporting all test results. But he apparently did report all the test results to Mr. Nifong and Mr. Nifong approved the limited report.

Did Dr. Meehan fulfill his duty by reporting all results to Mr. Nifong?

If Dr. Meehan knew that Mr. Nifong was trying to frame the Duke Three, then I would say no. In that case, Dr. Meehan would be a witting accomplice or a conspirator.

But, did he know that?

If he didn't know it, but reasonably should have in the circumstances, was he negligent?

As I recently posted on the thread:

"Let's examine the relevant statute.

"The statute involved reads as follows:

§ 15A‑282. Copy of results to person involved.

A person who has been the subject of nontestimonial identification procedures or his attorney must be provided with a copy of any reports of test results as soon as the reports are available. (1973, c. 1286, s. 1.)

"Perhaps a court will hold that Dr. Meehan did not violate the statute because any duty of DNA Security was satisfied by oral disclosure to Nifong and Nifong's failure to share with the defense cannot be attributed to the DNA Security Defendants.

"But...does the statute say who must do the providing?

"NO!

"Is that constitutionally adequate notice to laboratories?

"Is it sufficient to impose liability on any of the DNA Security Defendants under the circumstances?

"Or is the statute facially deficient for the purpose of imposing liability on the DNA Security Defendants?

"Dr. Meehan has been criticized (rightly, in my view) for not being clearer in his report.

"Was the North Carolina Legislature sufficiently clear, or not?

"In a state where there is no statute requiring a transcript of grand jury proceedings even now, is it a shock that a statute might be held by a federal court not to be sufficient to impose liability as a matter of procedural due process?"

"sdsgo" promptly posted these other pertinent North Carolina statutes:

§ 15A 903. Disclosure of evidence by the State – Information subject to disclosure.

(2) Give notice to the defendant of any expert witnesses that the State reasonably expects to call as a witness at trial. Each such witness shall prepare, and the State shall furnish to the defendant, a report of the results of any examinations or tests conducted by the expert. The State shall also furnish to the defendant the expert's curriculum vitae, the expert's opinion, and the underlying basis for that opinion. The State shall give the notice and furnish the materials required by this subsection within a reasonable time prior to trial, as specified by the court.

§ 15A 910. Regulation of discovery – Failure to comply.

(a)If at any time during the course of the proceedings the court determines that a party has failed to comply with this Article or with an order issued pursuant to this Article, the court in addition to exercising its contempt powers may(1) Order the party to permit the discovery or inspection, or(2) Grant a continuance or recess, or(3) Prohibit the party from introducing evidence not disclosed, or(3a) Declare a mistrial, or(3b) Dismiss the charge, with or without prejudice, or(4) Enter other appropriate orders.

(b) Prior to finding any sanctions appropriate, the court shall consider both the materiality of the subject matter and the totality of the circumstances surrounding an alleged failure to comply with this Article or an order issued pursuant to this Article.

"sdsgo" further commented:

"...Judge Smith’s statement, 'In my findings in this case, I did not find evidence of a conspiracy between Mr. Nifong and Dr. Meehan to withhold disclosure of this information', was based on his authority to 'enter other appropriate orders' under 15A-910(a) in addition to his contempt powers under 5A-11(a) after 'considering the materiality of the subject matter and the totality of the circumstances."

"P.S. We should also note that Dr. Meehan was not responsible for the DA missing the 20 October full report delivery date. According to a note from Bannon to Nifong late in the day of 19 October, the SBI would not deliver their portion of the materials to Nifong for delivery to the defense without a signed order from Judge Smith."

I doubt that motions to dismiss by any of the DNA Security Defendants will be considered frivolous by the court.

Admittedly, the report violated lab protocol.

But the District Attorney was DNA Security's client, he approved that and it is far from clear to me that North Carolina law clearly imposed upon any of the DNA Security Defendants a reporting duty to its client's adversary, the defense.

"Quasimodo": "Whenever did a DA leave his office to visit a private DNA lab in another city? Do DA's have that much time on their hands? Isn't a telephone or a fax sufficient to get test results?"

Where discussing Mr. Nifong, not a typical district attorney, fighting for his job. Since the Duke case was his key to an upset victory in the May 2, 2006 Democrat primary, his personal interest strikes me as understandable. In itself, it doesn't make either Mr. Nifong or Dr. Meehan a conspirator.

As for May 12, 2006, I think Mr. Nifong's trip to the lab in Burlington, North Carolina is explained by a desire on Mr. Nifong's part to review the written report before it was issued. I doubt Mr. Nifong wanted a draft faxed, in case he wanted to suggest changes.

I am very interested in whether any changes were suggested.

Also, I am very interested in what these underscored words under "Results of DNA Analysis" on page 5 of the 10-page report meant to both men: "Individual DNA profiles for non-probative evidence specimens and suspect reference specimens are being retained at DSI pending notification of the client."

That sentence is not buried in the report or included as "boilerplate."

It's right at the beginning.

I read it to mean that DNA from non-suspects had been found and treating as non-probative under a court order that directed that "if any male positive results are found among the victim's swabs," then "compare the DNA to the 46 cheek swabbings to determine if an identification can be made."

I think Dr. Meehan used "non-probative" to mean not tending to show that any of the players could be identified.

What was "non-probative" in that sense could be exculpatory, of course, especially since the false accuser had claimed not to have sex with anyone except her boyfriend for some time prior to the party.

But...did Dr. Meehan know that?

"MikeZPU" "firmly believe[s] that Nifong said to Meehan IMO: can't you at least give me something to go on? You supposedly have highly sensitive DNA testing, and yet you can't detect ANY DNA from the guy whose trash can these things were found in?"

Is that wishful thinking or supportable by admissible evidence?

Hero of the Hoax Bill Anderson: "Meehan has no one to blame but himself. First, he made it known to Nifong that he WANTED to do the lacrosse case lab work and was willing to cut a deal for it. Second, he participated in obstruction of justice."

First, Dr. Meehan may have Mr. Nifong to blame. Under North Carolina, if Dr. Meehan was not a witting accomplice, his oral report to Mr. Nifong may have sufficed.

Second, wanting business and reducing fees to get it is not proof of wrongdoing.

Third, while I agree that Dr. Meehan "participated in obstruction of justice," I don't have evidence that he knowingly did anything with criminal or malicious intent."skeptical" linked to an article of mine in the thread and deemed me "a Meehan apologist" and my article "rambling" because I had written that "the Meehan-as-co-conspirator notion currently strikes me as not only unpersuasive and unsupported, but unsupportable."

I responded that "I remain an independent commentator interested in due process for all and no one's apologist."

But, on the LieStoppers message board, some appear to have a double standard or a blind spot.

I also noted that, contrary to defense claims in its December 13, 2006 motion to compel further DNA discovery and at the December 15, 2006 hearing, Dr. Meehan had not objected to producing the documentation underlying the May 12, 2006 report.

I had accepted the defense mischaracterization. When I recently read the September 22, 2006 hearing transcript and came upon the entire text of that letter, it was obvious to me that the letter was not a "letter of objection," but a letter that addressed the subject of cost and mentioned legitimate privacy concerns that the Court acknowledged by conditioning production upon the entry of an appropriate protective order." Read the letter.

It was only after I had read the mischaracterization in the defense motion that I criticized DNA Security and I did that because I believed that it had no business objecting and inferred something nefarious from the claimed objection.

Unlike some, I am willing to reconsider my position in light of new evidence.

"LTC8K6" referred to a report of an ABC News interview of Dr. Meehan on or about May 15, 2006 and opined, "There is no explanation except that he is going along with the frame".

His or her evidence:

"A DNA link is not clear cut with the type of test used in this case, DNA experts told ABC News. ABC News spoke with DNA analysts, including Brian Meehan, head of DNA Security, the Burlington, N.C. laboratory that conducted the set of tests used in the case. All of the analysts agreed that the most one could say about a specific person -- the alleged third attacker in the Duke rape investigation -- was that he could not be ruled out, but also could not be definitively ruled in."

"As a general rule, Meehan -- whose lab produced the DNA report -- agrees the absence of DNA does not kill a prosecutor's case.

"'It's not necessarily true that no DNA means no crime,' Meehan said."

Assuming the report is accurate (and with the media there's a question), to put it gently, Dr. Meehan's statements do not strike me as conspiratorial.

I posted my opinion that "if Dr. Meehan really was conspiring, there would not have been a disclosure of those 'non-probative evidence specimens' in the report."

"skeptical" (of whom readers should be skeptical) responded: "Gaynor seems to forget that the NC Bar Disciplinary Hearing Commission (DHC) specifically found Nifong guilty of hiding exculpatory DNA evidence. The only way Nifong could do this was by an agreement with Meehan."

I reported in June 2006 that multiple male DNA from non-players had been found and the prosecution was bogus, and I was not a surprised by reports that Mr. Nifong had lied to defense counsel and even the court, but Mr. Nifong's lies were his, not Dr. Meehan's, and Dr. Meehan's report referred to the additional DNA profiles and his underlying documentation included it, so I don't leap from Dr, Meehan agreed to limit the results reported in the May 12, 2006 report to the results called for in the court order to he agreed to hide the results. You don't disclose the existence and retention of the additional DNA profiles and produce the underlying documentation evidencing it if you are hiding it.

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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