Topic category:  Other/General

KC Johnson's first Duke case post appeared on April 16, 2006. While critical (rightly, of course) of some Duke faculty, KC praised Duke University President Richard Brodhead as one of "two that have performed about as well as possible...under current circumstances." According to KC, (1) Mr. Brodhead "quite appropriately...suspended and then cancelled the lacrosse season"; (2) "based on the most benign interpretations of their actions, many of the lacrosse players were guilty of conduct unbecoming university students and gravely embarrassing the school"; and (3) Mr. Brodhead "avoided any rush to judgment."

Fortunately, KC proved not to be incorrigible when it came to the Brodhead-is-admirable myth. His flip-flop (in my opinion, not all racists are white and not all flip-flops are bad) on Mr. Brodhead was as praiseworthy as Mr. Brodhead was blameworthy. Yet KC's rush last September to praise Mr. Brodhead's carefully crafted speech containing a limited apology for not being privately supportive of the wrongly vilified Duke scholar-athletes and their families as a "powerful and emotional address, one that touched on several important points in an impressive fashion," suggests a predisposition to not only praise Mr. Brodhead, but to give him the benefit of any doubt, and that contrasts sharply with KC's apparent inability to conceive of even the possibility that DNA Security might not be liable in the pending civil case. A key lesson of the Duke case should be the realization that such close-mindedness is foolish as well as potentially harmful and ferreting out all the pertinent facts is what is needed.

I believe that it was apparent long before April 16, 2006 that Mr. Brodhead had suffered a "moral meltdown," as Stuart Taylor, Jr. and KC put it. In their book, Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Case, they reported, "In a March 24 faculty meeting, professors demanded that Brodhead order all the the lacrosse players to talk to police--never mind their constitutional rights--and disband the team." Those professors were the ones out of control and Mr. Brodhead failed to criticize them. To me, Mr. Brodhead's decision to cancel the lacrosse team's season was part of what Mr. Taylor and KC called in their book the "special pains" Mr. Brodhead and Duke University Chairman Robert Steel took "to avoid offending Duke's leftist professors and Durham's black leaders and populace." Mr. Taylor, in his latest National Journal article ("Academia's Pervasive PC Rot"), noted that "[a]t no point during or since the rape hoax has Duke President Richard Brodhead...even hinted at rebuking Lubiano, Farred, or the other unrepentant faculty persecutors of lacrosse players." The man is shameless.

Pleasing "activists" was Mr. Brodhead's way before March of 2006.

Example: in 2004, despite a petition by more than 92,000 Duke students, alumni and others, Mr. Brodhead gave the Palestinian Solidarity Movement permission to hold a conference at Duke and praised himself for upholding "a foundational principle of American life that all ideas should have an equal opportunity to be expressed".

Fortunately, KC eventually realized he was very wrong about Mr. Brodhead.

But since strong evidence of that was a matter of public record before KC's first Duke case article, his early failure to appreciate it is...strange.

In Until Proven Innocent, the co-authors stated, "on April 5, Brodhead ....faced his ultimate test of courage," suffered "an extraordinary moral meltdown," "threw in his lot with the mob," "[k]pwtow[ed] to faculty extremists" and issued a "letter to the Duke community" that "could have been scripted by Houston Baker" and "implicitly but unmistakably associated the lacrosse players with rape and 'dehumanization,' with 'memories of the systematic racial oppression we had hoped to have left behind us,' and 'inequalities of wealth, privilege, and opportunity...and the attitudes of superiority those inequalities breed.'"

Exactly!

But eleven days later KC lauded Mr. Brodhead. THAT is strange.

Recently KC described as "strange" an article on mine opposing a rush to judgment against DNA Security and its former director, Dr. Brian Meehan, in the pending civil case and pointing out that the defense in a joint motion to compel and attorney Brad Bannon at the December 15, 2006 hearing had misdescribed a letter by Dr. Meehan, thereby creating the impression that DNA Security and Dr. Meehan were averse to producing the documentation underlying DNA Security's May 12, 2006 report.

Since KC was wrong in concluding that Mr. Brodhead's actions with respect to the Duke case up to April 16, 2006 were praiseworthy, perhaps he could be wrong about DNA Security and Dr. Meehan too.

"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." John Adams, Argument in Defense of the Soldiers in the Boston Massacre Trials, December 1770.

John Adams, a trial lawyer who became a Founder and then a President of the United States, was right, of course.

Rogue former prosecutor Mike Nifong's ignoring the facts and pretending something else was true is precisely what I held against him.

Doing that may make a story more politically helpful, or exciting, but, on this, I am emphatic: no matter who does it, it is...wrong, for anyone, not just Mike Nifong.

In an article posted on June 20, 2006, I first noted the critically important multiple male DNA and criticized the despicable former Durham County District Attorney, Michael D. Nifong, but NOT DNA Security or Dr. Meehan. I wrote: "Let's be real, Mr. Nifong. You seemed to believe that DNA tests would make your case, but DNA tests showed that the accuser had sex with several men but no DNA of even one Duke lacrosse player was found. The players were not 'completely exonerated' solely by the test results, but the totality of the circumstances completely exonerates them and constitutes reason for you to move to dismiss the indictments and to investigate the accuser. If you are desperate to indict for rape, based on some type of physical evidence, indict that vibrator? It does not have feelings, family and friends. It does not have a life to live, a college education to complete, a personal reputation to maintain."

Ten days later, I reiterated that multiple male DNA had been found and even suggested that Mr. Nifong should be prosecuted, not prosecuting. I wrote: "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."

Again, I did not target DNA Security or Dr. Meehan.

The same is true with respect to my September 8, 2006 article quoting from my June 30, 2006 article.

Frankly, as when I reported that "60 Minutes" was on the case and that Judge Kenneth Titus's July 17, 2006 order was an unconstitutional gag order, I was writing for the public and not thinking that I was writing something that would be news to the defense.

I did not criticize DNA Security and Dr. Meehan until AFTER the defense stated in motion papers made public that Dr. Meehan had objected to the production of the underlying documentation.

THAT alleged objection, I found reprehensible. (Getting that documentation, intact, was key to exposing Mr. Nifong and exonerating the innocent defendants.)

Upon reading the September 22, 2006 hearing transcript recently, I became distressed that the letter the defense had characterized the letter as a "letter of objection" when it was not. (The defense alleged in paragraph 45 of its motion to compel dated December 13, 2006: "On September 22, 2006, through District Attorney Mike Nifong, Dr. Meehan objected to production of these materials, citing cost and privacy concerns. Mr. Nifong read into the record Dr. Meehan's letter of objection.")

Mischaracterization is wrong, whether it is done by the prosecution, or the defense, or an apologist for either side.

I wrote "Duke Case: DNA Security, Liable or Not?" to make that letter readily available.

KC Johnson's November 9, 2007 Durham-in-Wonderland update focused primarily on that article, but ignored the letter.

Fortunately, facts are stubborn things.

Perhaps KC's perception would have been different if he was an attorney and had experiences like mine in preparing a scientist to testify at deposition and trial.

KC: "...a strange column from Michael Gaynor suggest[ed] that because Dr. Meehan was not 'familiar with the details of Ms. Mangum's story,' his failure to record all the test results in his report might be excusable, and might even suggest that DNA Security shouldn't be held liable for its misconduct. (Of course, both his own lab's protocols and state law governing non-testimonial orders required Meehan to report all test results, whatever the details of Mangum's story.)

KC's insinuation that there's no need for a trial is reminiscent of the approach of Lewis Carroll’s Red Queen in “Alice in Wonderland": "verdict first, trial later." So much for keeping an open mind and being fair and objective.

In addition, KC indulged in the straw man fallacy by simply ignoring my actual position and substituting a misrepresented version of my position. A straw man argument may succeed in persuading people, but it is a misleading fallacy.

Did I opine that the DNA Security report might be excusable, as KC asserted?

No.

I reviewed Dr. Meehan's professed concerns and concluded that he had not provided "a justification for the limited report DNA Security issued with respect to the Duke case."

That said, despite my personal disapproval of and disappointment with DNA Security and Dr. Meehan, I submit that it is much too early to conclude that DNA Security and/or Dr. Meehan are liable in the pending civil case, since they have not yet answered or moved to dismiss.

Lest a reader have blind faith in KC, I note the following non-excusing statements in my article:

"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."

"Dr. Meehan's failure to report....perplexes me."

"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."

"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).

That's NOT excusing the DNA Security report.

Still, I support due process and fairness, so I also stated:

"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."

"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."

I'll stay a supporter of the presumption of innocence in criminal cases, the need for a trial with evidence to meet the burden of proof in civil cases and complete truthfulness.

KC: "Criticism of Meehan, Gaynor suggests, was caused by 'Reade Seligmann [note: my mistake, should be David Evans] attorney Brad Bannon' having 'asked a very broad and ambiguous question' to open the cross-examination. It was this question (which few, if any, people in the courtroom on Dec. 15 considered ambiguous) to which Meehan--falsely--answered no, as part of an apparent strategy of bluffing his way through the court appearance without revealing the exculpatory tests."

First, I did NOT suggest that "[c]riticism of [Dr.] Meehan...was caused by" Mr. Bannon having "'asked a very broad and ambiguous question' to open the cross-examination." I stated that Mr. Bannon's characterization of a letter by Dr. Meehan that I had quoted in full (so readers could judge for themselves) was "NOT a fair characterization." KC ignored that letter instead of trying (futilely) to rebut my assertion that it had been mischaracterized and instead pretended that I was suggesting that the DNA Security report might be excusable.

Second, in my view, Mr. Bannon's question (and the error in paragraph 19 of the defense motion to compel) caused confusion. Based on the transcript and my sources, I do not believe that "[Dr.] Meehan--falsely--answered no, as part of an apparent strategy of bluffing his way through the court appearance without revealing the exculpatory tests."

In Until Proven Innocent, Stuart Taylor, Jr. and KC stated: "When Bannon asked Meehan to confirm the accuracy of the defense motion's central assertions about the multiple males' DNA, the answer was "No."

It's an awesome book, as I have said repeatedly, but the best evidence of the exchange is the certified transcript of the December 15, 2006 hearing and the account of the hearing is flawed.

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."

What Dr. Meehan read was about a page long.

It 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."

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

What Mr. Bannon referred to as "DNA Security's final report" and erroneously said at the December 15, 2006 hearing was completed and provided to the defense on April 12, 2006 is dated May 12, 2006. It noted that "[i]ndividual DNA profiles for non-probative evidence specimens and suspect reference specimens are being retained at DSI pending notification of the client" and, Dr. Bannon testified, was NOT what he "would consider a final conclusive report of the case." Dr. Meehan further testified that had Mr. Nifong or, through him, the defense, requested the additional information referred to in the May 12, 2006 report, "we would gladly supply it," and I am not aware of any evidence that DNA Security would not have done so. It would have been senseless for DNA Security to have mentioned the additional specimens in its May 12, 2006 report if it wanted to conceal their existence.

Dr. Meehan's no answer is not false, since allegation 18 is NOT entirely accurate: multiple male DNA was NOT discovered on the rectal swabs from the rape kit.

If Mr. Bannon had asked whether multiple male DNA was found on the false accuser's panties, I believe he would have gotten a yes instead of a no and bad motivation would not have been attributed to the way Dr. Meehan testified.

I would have preferred that Dr. Meehan responded, "That paragraph is not entirely accurate." But the question appeared to call for a yes or no and the defense error in allegation 18 made that allegation inaccurate in part. Don't blame the witness for the question.

Until Proven Innocent continued: "Soldiering on, the young lawyer asked if Meehan had examined the attachments to the DNA motion."

WRONG! The transcript shows that the co-authors reversed the sequence: first, Mr. Bannon asked Dr. Meehan whether he had read the attachments and Dr. Meehan answered, "No. You just handed them to me." THEN Mr. Bannon asked Dr. Meehan about paragraph 18 of the motion.

More importantly, after apparently stunning Mr. Bannon by testifying that he had read paragraph 18 and it was not accurate, Mr. Bannon uttered the words "It does not" and paused. Dr. Meehan then promptly elaborated on his no answer, as follows: "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 was denying that multiple male DNA had been found on BOTH the rectal swabs and the panties, NOT that multiple male DNA had been found.

Referring to Mr. Bannon's examination of Dr. Meehan, the co-authors of Until Proven Innocent reported, "Courtroom spectators had trouble following all this."

Apparently so. But the transcript does NOT support the claims that "after well over an hour, Meehan had eaten every particle of that initial, evasive no many times over" and Mr. Bannon "pull[ed] the truth out of Meehan page by page, exhibit by exhibit, fingernail by fingernail, with a surgeon's precision, until finally the witness was stripped naked..." (although it makes for great reading).

KC: "What should Bannon have done? He should have quoted from a June 2006 column from Gaynor(!), and asked Meehan about that."

Nonsense. That's not what I said, or would have done, but the substance of what I wrote should have been the subject of the opening question.

What I had written in the article KC purported to find "strange" is as follows:

"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 question that I think Mr. Bannon should have opened with is, "Did your DNA tests show that the accuser had sex with several men but no DNA of even one Duke lacrosse player was found in or on the accuser or her panties?"

I THINK THE ANSWER WOULD HAVE BEEN YES.

As I wrote in "Duke case: As expected, persecution proof detected," posted on December 14, 2006 (the day BEFORE Dr. Meehan testified): "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."

Based on the defense mischaracterization, I had added DNA Security to my suspect list and accepted as true the defense representation in paragraph 45 of the motion to compel that "[o]n September 22, 2006, through District Attorney Mike Nifong, Dr. Meehan objected to production of those materials, citing cost and privacy concerns. Mr. Nifong read into the record Dr. Meehan's letter of objection."

I did not have the text of that letter then and believed that the defense would not misrepresent it in their motion. But I subsequently read it and it is NOT a "letter of objection."

Based on that erroneous belief, I also wrote in my December 14, 2006 article: "Significantly, in my view, Mr. Nifong and the lab fought hard NOT to provide that massive underlying documentation."

Insofar as the lab was concerned, I was misled and mistaken.

KC: "Gaynor's conclusion: 'DNA Security was a Nifong victim too.'"

That's my conclusion, based on what Stuart Taylor might refer to as "the available evidence."

KC: "Based on Meehan's sudden departure from the lab director's position, it seems that even DNA Security disagrees with that analysis."

It does not follow from Dr. Meehan's replacement that DNA Security has a different view. I doubt that it does and expect that will be evident next month.

In any case, the Meehan-as-co-conspirator notion currently strikes me as not only unpersuasive and unsupported, but unsupportable.

First, Dr. Meehan, as director of Raleigh-based DNA Security, an independent laboratory, was not under Mr. Nifong's control. Admittedly Dr. Meehan considered Mr. Nifong his client (or his client's principal), but I have no reason to believe that he would have behave so dishonorably and foolishly as to conspire to frame innocent persons (even without considering that these innocent persons had the will and the means to resist being framed). If anyone does, please let me know. One point in favor of the Duke Three is that no one else came forward and accused them of any sexual misbehavior (unlike the acquitted William Kennedy Smith). If anyone has accused Dr. Meehan of doing anything criminal and/or unethical with respect to any other matter, I missed it.

Second, if Dr, Meehan had been so contemptible as to have conspired with Mr. Nifong to frame the innocent Duke Three, I doubt that he would have reported that no DNA of theirs was found in or on Ms. Mangum or her panties or referred to "non-probative evidence specimens" in the May 12, 2006 report. The way to frame would have been to plant false evidence and/or falsify test results and not to record any exculpatory evidence, not to issue the May 12, 2006 report and include a reference in it to exculpatory evidence (at least a reference that should have been read as leaving open the possibility of exculpatory evidence and prompted appropriate inquiry) for the defense team (and others) to read.

Third, even a cursory review of the transcript of the December 15, 2006 hearing shows that DR. MEEHAN WAS NOT PREPARED BY MR. NIFONG OR ANY OTHER LAWYER (OR NON-LAWYER) TO TESTIFY. If Dr. Meehan had been a friendly co-conspirator, Mr. Nifong would have given him a full set of the papers in support of the defense's motion to compel discovery and prepared him for what to expect. Dr. Meehan's lack of preparation suggests that Mr. Nifong did not believe that Dr. Meehan was the type of person who would conspire with him. Also, if there had been an evil alliance between the two of them that had collapsed, Dr. Meehan surely would have testified very differently.

Fourth, if Dr. Meehan had appreciated that DNA Security and/or he might be shown to be liable as a result of his testimony, he and DNA Security would have had independent legal representation instead of none at the December 15, 2006 hearing in the Duke case. (Mr. Nifong did not represent either of them.)

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.