Topic category:  Other/General

Will the federal civil suit finally brought last year by the Duke Three (David Evans, Collin Finnerty and Reade Seligmann) against the City of Durham, Michael B. Nifong and the DNA Security Defendants (DNA Security, Inc., Dr. Richard Clark and Dr. Brian Meehan), among others, be dismissed as against the DNA Security Defendants?

The Duke Three alleged in the suit that the DNA Security Defendants had violated their civil rights and were liable for malicious prosecution, obstruction of justice, intentional infliction of emotional distress and negligence.

The brief submitted on behalf of DNA Security, Inc. and Dr. Clark on January 15, 2008 (Brief) forcefully argued for dismissal of every cause of action alleged against the DNA Security Defendants.

The Brief listed the following as admissions by the Duke Three: (1) "DSI accurately conducted testing that established that no DNA evidence existed to support the claims of the alleged rape victim...against Plaintiffs"; (2) "DSI accurately conducted testing that contradicted Mangum's claim that she had not had sexual intercourse with anyone other than Plaintiffs in the days leading up to the alleged rape": (3) "DSI and Meehan reported all of the results of the DNA testing to Nifong and the police"; (4) "Meehan prepared a written report, as directed by Nifong, regarding any matches between the rape kit samples and the DNA samples provided by the lacrosse players": (5) "DSI produced to Nifong, who then produced to the criminal defendants, all of the underlying, raw data from the DNA sampling"; and (6) "Meehan truthfully testified in court about how the DNA testing and reporting occurred".

The Brief acknowledged that the Duke Thre had described Dr. Meehan's May 12, 2006 report as "false and misleading," but noted that they had not cited "any statements in the report that they contend were not true" instead "apparently contend that the report was 'false' because it did not contain every opinion formed by DSI."

Alas, (1) DNA Security, Inc. was retained by Mr. Nifong, not the Duke Three; (2) Dr. Meehan was Mr. Nifong's expert witness, not the expert witness of any of the Duke Three; and (3)in North Carolina (and elsewhere), expert witnesses apparently have absolute immunity against suits like the Duke Three's federal civil suit instead of a duty to report directly to prospective criminal defendants or criminal defendants and a liability for failing to do so.

If North Carolina wants expert witnesses to have a duty to prospective criminal defendants or criminal defendants, it apparently needs to create one, by statute, and spell it out clearly, and prospectively, not retroactively.

The problem was that Mr. Nifong "misrepresented to defense counsel and the court that the [May 12, 2006] written report contained all of DSI's conclusions," and the DNA Securities Defendants are not responsible for what Mr. Nifong did and did not do.

The law is based on the assumption that prosecutors are righteous persons, not rogues, and therefore does not provide a civil remedy for every wrong.

Unfortunately for the Duke Three, the law is not as helpful to them as they (and many others) want it to be.

Brief: ""[I]n this case as in every other, the prosecutor alone was constitutionally charged with disclosing any exculpatory evidence. The Constitution imposes no duty on non-prosecutorial parties, especially expert witnesses, to disclose potentially exculpatory evidence to a criminal defendant. Indeed, at most, those witnesses should disclose potentially exculpatory information to the prosecutor, whose duty it becomes to determine, in the exercise of legal judgment, whether disclosure is warranted."

I believe that a witness who appreciates that he or she is dealing with a rogue prosecutor should do more, but the brief makes a persuasive case that neither the Constitution, nor federal law, nor North Carolina law obligates a witness to do so and the Duke Three now need to rebut it, if they can.

Fortunately, Dr. Meehan's May 12, 2006 report signaled that not all results had been included in it and the defense appreciated it, sought the underlying documentation promptly, finally obtained it, ascertained that multiple male DNA from others had been found and used that to expose former Durham County, North Carolina Nifong as a despicable liar, resulting in his removal from the case, disbar and jailing for a day and the exoneration of the wrongly and wrongfully indicted Duke Three.

The factual allegations of the Duke Three will be taken as true on the motion to dismiss, but, the brief asserted, "[t]here is no allegation that the DSI Defendants had any involvement with [Mr. Nifong's] misrepresentations."

That would be a fatal flaw, if true.

Dismissal is appropriate if a complaint does not "allege all of the elements of a cause of action or facts sufficient to support such elements" (324 F.3d at 765) or "the face of the complaint clearly reveals the existence of a meritorious affirmative defense" (85 F.3d at 181).

As the United States Supreme Court put it, a complaint should be dismissed unless it includes "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action...." (127 S. Ct. at 1965).

In deciding a motion to dismiss, the court need not accept as true "unwarranted inferences, unreasonable conclusions, or arguments" (213 F.3d at 180).

As the United States Supreme Court wrote, on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation."

The Brief essentially argued for dismissal as against the DNA Security Defendants as follows: "Ultimately, Plaintiffs' allegations as to the DSI Defendants come down to this. Even though the criminal defendants were given both a report and all of the raw data generated by DSI, and even though the DNA testing performed by DSI was accurate and exonerated Plaintiffs, Plaintiffs do not like the way the report was written (because it did not include information about DNA from males other than the lacrosse players), and Plaintiffs object to the fact that the DNA raw data was voluminous and difficult for the criminal defense attorneys to understand (although the defense attorneys did understand the data after some effort.... Contorting those facts--taken at face value at this stage of the proceedings--into a lawsuit against the DSI Defendants is inappropriate. For...multiple reasons.... the claims against DSI and Clark should be dismissed."

Have the Duke Three overreached?

The DNA Security Defendants say yes, because "expert witnesses are absolutely immune from suit," none owed a duty to the Duke Three and "Plaintiffs do not allege that any of the DSI Defendants: (1) fabricated evidence; (2) destroyed evidence; (3) made any false statements to the criminal defendants; or (4) made any false statements to any court.

Brief:

"Under long-established precedent, the DSI Defendants are entitled to absolute immunity from all of Plaintiffs' claims , which arise from Meehan's conduct (as the laboratory director for DSI) as an expert witness for the State in the Criminal Action. A witness in a criminal proceeding--whether a private citizen or a public official--has absolute immunity from subsequent damages based on the witness's testimony."

"Absolute witness immunity encompasses not just activity at trial but also actions preliminary to trial and, indeed, prior to the initiation of a prosecution. A witness has broad immunity for actions taken 'in preparation for providing expert witness testimony in the "due course of a judicial proceeding."'"

"The justice system's interest in ascertaining the complete truth of matters in dispute necessitates such a broad grant of immunity to potential witnesses not only for their trial testimony, but also for their participation in pretrial analysis."

Believe it or not, the Brief cited an appellate North Carolina case (Sharp v. Miller, 121 N.C. App. 616) for the proposition that "the application of absolute immunity to claims about irregularities in expert witness reports was so well established as to justify...sanctions"!

Did the Duke Three avoid the immunity problem by alleging a conspiracy?

A Ninth Circuit case indicates that the answer is no: "[A]llowing a plaintiff to circumvent...by alleging a conspiracy to present false testimony would undermine the purposes served by granting witnesses absolute immunity from damages liability under § 1983. Absolute witness immunity is based on the policy of protecting the judicial process and is 'necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation."..."Any other holding would eviscerate absolute immunity since a witness rarely prepares her testimony on her own." (201 F.3d at 1101-02)

Allowing immunity might strike us as outrageous in a certain case, but the law is the law and in one case cited in the brief it was held that a "laboratory expert had absolute immunity under Section 1983 when, after discussions with prosecutors and officers, he failed to disclose that two tests for victim's blood on defendant's clothing were negative and instead testified that tests were positive."

The Duke Three have not claimed that the DNA Security Defendants affirmatively lied.

Did Dr. Meehan with Mr. Nifong and Durham police officers involve an actionable conspiracy?

Brief: "Defendants' participation in a conspiracy is precisely the sort of interaction between witness and prosecutor that is fully protected by absolute witness immunity."

In addition, the Brief stated, "PLAINTIFFS' SECTION 1983 CLAIMS FAIL BECAUSE THEY ARE NOT PREMISED ON ANY DUTY OWED BY THE DSI DEFENDANTS," and elaborated: "Even if one assumes that failing to discuss evidence in an expert report is tantamount to withholding that evidence (even if that evidence is later produced prior to trial), neither the Constitution nor state law imposes any duty on the DSI Defendants to disclose potentially exculpatory information directly to Plaintiffs. Under settled law, that duty belongs to the prosecutor alone."

This is not a situation peculiar to North Carolina. As the Second Circuit held in Walker v. City of New York, cited in the Brief, in dismissing Section 1983 claims against a police department, witnesses have no "obligation with respect to exculpatory evidence beyond disclosing that evidence to the prosecutor."

Bottom line: Ironically, Dr. Meehan apparently did MORE than the law required HIM and the other DNA Security Defendants to do as well as less than the Duke Three (and their supporters) very understandably would have preferred.

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.