WEBCommentary Contributor

Author: Michael J. Gaynor
Date:  March 10, 2007

Topic category:  Other/General

Duke Case: Mr. Nifong: No Reade Seligmann, Maybe Nuts

First, contrast the way Durham County, North Carolina District Attorney Michael B. Nifong has been behaving since the North Carolina State Bar Grievance Committee started to question him with the way Duke lacrosse star Reade Seligmann responded after he was indicted in the Duke case and then guess which one tried to hide something and which one didn't.

Second, ponder why Mr. Nifong suddenly would deny the April 10, 2006 meeting that he had acknowledged before in court and the three other meeting participants all have acknowledged and please tell me what you think explains it.

Mr. Seligmann and his bold attorney, Kirk Osborn, did much more than plead not guilty after Mr. Nifong had misled grand jurors indict Mr. Seligmann and teammate Collin Finnerty..

Fortunately, Mr. Seligmann had a demonstrable alibi that showed that it was impossible for him to have done what false accuser Crystal Gail Mangum had claimed that he had done.

In a hostile atmosphere fueled by inflammatory statements by Mr. Nifong and others (even Duke faculty members) and media treatment of the gang rape canard as true, Mr. Seligmann’s alibi was made public and subjected to intense public scrutiny.

That alibi withstood intense public scrutiny, because it was true AND readily confirmable. It included cell phone records, a videotaped Wachovia Bank withdrawal, and a (black) cab driver (Moez Elmostafa) whom Mr. Nifong had prosecuted, unsuccessfully, after he bravely confirmed Mr. Seligmann’s alibi.

As a result, Mr. Nifong revised the story presented to the grand jurors and the credibility of Ms. Mangum and the prosecution began to crumble.

It figured that the prosecution would collapse after all of the DNA tests results were reported, because the results not only did not implicate any (white) member of the 2005-2006 Duke University Men’s Lacrosse Team, but also contradicted Ms. Mangum’s claim that she had not recently been involved in sexual activity with anyone before she came to entertain at the team’s off-campus spring break party on March 13, 2006.

As a result of a defense motion seeking additional DNA discovery, Mr. Nifong produced Dr. Meehan to testify at the December 15, 2006 hearing in the Duke case and Dr. Meehan explained that the two of them had agreed to withhold test results favorable to the defense, even though that violated the DNA Security rules.

The December 15, 2006 News & Observer article by Joseph Neff, Benjamin Niolet and Ann Blythe, entitled “Head of DNA lab says he and Nifong agreed not to report results,” captured the significance of Dr. Meehan’s testimony.

The lead: “The head of a private DNA laboratory said under oath today that he and District Attorney Mike Nifong agreed not to report DNA results favorable to Duke lacrosse players charged with rape.”

The unreported results: DNA Securities “found DNA from unidentified men in the underwear, pubic hair and rectum of” Ms. Mangum.

The feeble explanation: “Meehan struggled to say why he didn’t include the favorable evidence in a report dated May 12, almost a month after Seligmann and Finnerty had been indicted. He cited concerns about the privacy of the lacrosse players, his discussions at several meetings with Nifong, and the fact that he didn’t know whose DNA it was.”

Mr. Nifong’s problem:

“Did Nifong and his investigators know the results of all the DNA tests? Cooney asked.

“’I believe so,’ Meehan said.

“’Did they know the test results excluded Reade Seligmann?’ Cooney asked.

“’I believe so,’ Meehan said.

“Was the failure to report these results the intentional decision of you and the district attorney? Cooney asked.

“’Yes,’ Meehan replied.”

Before Dr. Meehan’s startling testimony. Mr. Nifong had told Judge Osmond Smith, “The first I had heard of this particular situation was when I was served with this particular motion” on Wednesday.

After, Mr. Nifong admitted he knew about the DNA results, but insisted, “we were trying to, just as Dr. Meehan said, trying to avoid dragging any names through the mud but at the same time his report made it clear that all the information was available if they wanted it and they have every word of it.”

BUT, at the September 22, 2006 hearing, Mr. Nifong had opposed a defense motion for the underlying documentation!

See this excerpt from Brooklyn College History Professor Robert K.C. Johnson’s “The D.A.’s Tough Day,” posted the day after the hearing:

”Defense lawyers want complete information about the second round of DNA testing, with a suggestion that there might be additional matches to people other than lacrosse players (no matches with the accuser) and the accuser’s three admitted sexual partners in the week before the party (one match, of three). If additional DNA exists, and that DNA belongs to someone not yet tested, then the accuser concealed information about her number of sexual partners in the days before the party.

“Nifong’s objection to the evidence? Its $4035 pricetag. This sudden burst of frugality seems particularly rich given the nearly $23,000 that Nifong already spent to conduct a highly unusual second round of DNA tests—a fact that Brad Bannon pointed out yesterday. The judge, of course, ordered the D.A. to supply the material by October 20, so we'll soon see specifically what Nifong didn't want to turn over.

“For the first time in this case, it seems, we have a judge who's not going to tolerate Nifong's shenanigans. If so, that leaves a question of not will the D.A.'s case will unravel, but when will it do so.”

Now it is Mr. Nifong in the dock and in need of an alibi, a provable alibi, for where he was on April 10, 2006.

Mr. Nifong has denied that he met with Dr. Meehan, Sergeant Gottlieb and Investigator Himan on that day.

Each of them has stated the contrary.

So did Mr. Nifong, at the June 22, 2006 hearing in the Duke case, as LieStoppers noted (devastatingly), as follows:

"Item number eight, a report of the meeting on April 10, 2006, among you, referring to me, Investigator Himan, Sergeant Gottlieb, and Brian Meehan of DNA Security, Inc. At this particular meeting, Your Honor, we were given copies of the DNA Security report, which has previously been furnished to the defense team, and we discussed how we would be using those items and that report and that investigation at trial. Those items are not discoverable, no report has been generated. The report itself they have. The discussions are not available." - Defendant Nifong responding to discovery motion at June 22, 2006 Hoax hearing. (Hearing transcript page 16, lines 14-25)

"As far as eight and nine, there's similar arguments I would like to make to the Court. I understand what Mr. Nifong said about eight and that is the report of a meeting on April 10th among Mr. Nifong, Investigator Himan, Sergeant Gottlieb, and Brian Meehan, and as I understand what he says, there was no discussion at all that wasn't attorney work product at that meeting." - Joe Cheshire at June 22, 2006 Hoax hearing. (Hearing transcript page 20, lines 17-24)

"That's pretty much correct, Your Honor. We received the reports, which he has received, and we talked about how we would likely use that, and that's what we did." - Defendant Nifong responding to Cheshire's request for clarification of the Defendant's prior assertion regarding the April 10, 2006 meeting (Hearing transcript page 20, line 25 to page 21, line 3)

Is Mr. Nifong campaigning for a revisionist historian award or creating an insanity defense?

Where are the people who know where Mr. Nifong was on April 10, 2006?

Surely people know.

There must be employees of the Durham County, North Carolina District Attorney’s Office who know.

Surely there are records.

What do Mr. Nifong’s phone records show?

What do his credit card statements show?

Reade Seligmann would produce the records.

Why not Mr. Nifong?

In the amended ethics complaint against him, Mr. Nifong is charged with meeting with Dr. Brian Meehan, the Director of DNA Securities, in April of 2006 and “agree[ing] with Dr. Meehan that the report to be produced concerning DSI’s tests and examinations would only include tests for which DNA found on specific evidence items matched or was consistent with DNA from known reference specimens, the so-called ‘positive results.’”

Why has Mr. Nifong denied the April 10, 2006 meeting (except when he admitted it in his January 16, 2007 letter, set forth below, in what may have been a Freudian slip or a typo)?

The North Carolina State Bar Grievance Committee wisely posed questions to Mr. Nifong as part of its investigation of complaints against him.

Mr. Nifong’s answers in his January 16, 2007 letter to the North Carolina State Bar Grievance Committee to six follow-up questions posed in its January 5, 2007 letter to him and prompted by Mr. Nifong’s statements in his December 28, 2006 letter not only failed to prevent the filing of an amended ethics complaint, but made Mr. Nifong’s denial of an April 10, 2006 meeting with Dr. Brian Meeting, then Director of DNA Securities, all the more dubious/

Mr. Nifong’s response deserves a close reading:

“1. I was aware at the time that I furnished the DNA Securities, Inc. report that it was a summary report, which I would define as a report that states what tests were performed and either lists all positive results (i.e., those in which something is revealed) or states that there are no positive results. By implication, such a summary report would not have included the specific results of tests that produced negative results; those negative results would be inferred from the absence of positive results to those tests. The specific fact that the May 12 report from DNA Securities did not contain any information about the presence of partial DNA profiles of males who were not members of the Duke lacrosse team (which would not be a negative result), however, failed to register with me at all at the time I received the report for a number of reasons which are set out in more detail in answer 3, below. Consequently, I first became aware that this was being raised as an issue when I received the defendants’ December 13, 2006, motion. By that time, of course, the defendants had been in possession of the entire DNA Securities file. which contained all the underlying data from the testing they had performed,. for more than six weeks (since October 27).

“2. In my 28+ years as a prosecutor. the reports that we have furnished in initial discovery have always (to the best of my recollection) been summary reports, because that is what the SBI lab (until recently, almost exclusively the agency that performed forensic tests on behalf of the State) has furnished. Since the 1992 decision of the N.C. Court of Appeals in State v Ounningham , 108 N.C. App. 185, the underlying data from any such forensic tests have been available to any defendant who filed a motion requesting them, but, absent such a request, the District Attorney’s Office has not routinely attempted to obtain that data. Such a request was included in the Joint Omnibus Motion to Compel Discovery filed on behalf of all three. defendants in this case on August 31. 2006 (see Attachment M-67 through M-83, previously furnished, at pages M-77 and M-78). That motion was heard on September 22, 2006, and an Order was entered directing the production of that evidence (see Attachment O- 1 through O~6, previously furnished) and that evidence was provided to each defendant on October 27, 2006 (see Attachment R-5, previously furnished).

"In other words, my failure to provide the date underlying the test results initially was based on the fact that the defendants had not yet asked for It. Once they did so, in their August 31 motion, it became my responsibility to secure it lot them, and I then took the steps necessary to fulfill that responsibility and reported those steps to the Court on September 22. [I would also note that I took exactly the same approach with respect to the underlying data from the tests performed by the SBI lab as with the underlying data from the tests performed by DNA Securities.] Upon my compliance (on October 27) with Judge Smith’s Discovery Order, I believed that I had provided every item contained In the DNA Securities files regarding this case until December 15, 2006, when Dr. Meehan presented me with 50 additional pages of documents which he stated that he had inadvertently failed to include in his initial response to Judge Smith’s order (which comprised discovery pages 2584 through 4398), I Immediately provided these additional pages to each defendant as discovery pages 4926 through 4975 (see Attachment R-8, previously furnished). Subsequent review of the discovery materials, however, revealed that those 50 pages actually had been furnished to each defendant on October 27 as discovery pages 2587 through 2636. In short, ‘all underlying data from all tests DSI performed’ were, in fact, discovered on October 27, 2006.

“3. I met with Dr. Meehan at DNA Securities, Inc. in Burlington, NC, on two occasions that I recall. On each of those occasions, I was accompanied by investigator Ben Himan and Sergeant Mark Gottlieb of the Durham Police Department, who transported me to Burlington by automobile, [I am aware that Inv. Himan has written in his report that I was also present at a meeting at DNA Securities on April 10, 2006 (see Attachments B1, C1). I can only report that I have no recollection of that meeting and that I have no documentation or other evidence that I ever attended such a meeting. Sgt. Gottlieb’s narrative mentions that an April 10 meeting occurred at DNA Securities, but does not state who was present (see Attachment A1),]

“The first of these occasions was April 21, 2006. Inv. Himan, Sgt. Gottlieb and I arrived at around 1:00 p.m. We were greeted by Dr. Meehan, who introduced himself and some of his employees to us. The three of us were taken to a conference room where we all sat at a large table across from Dr. Meehan. It is my recollection that there was another employee of DNA Securities present for at least part of the meeting, but I do not recall that he actually participated in our discussion. I do not recall his name. [Prior to the time the meeting began, I had been made aware that the only items on which testing had been completed up until that point included the rape kit samples taken from the victim and the buccal swabs collected from each of the 46 Duke lacrosse players who had submitted to the non-testimonial evidence collection procedures. I believe that the source of this information was Sgt. Gottlieb, who had spoken with Dr. Meehan by telephone either that morning or on the previous day.] Dr. Meehan began the discussion by giving us a brief and non-technical description of how Y-STR testing worked. He then showed us some of the profile charts that had been prepared and explained to us how to interpret them (examples of such charts can be found in the materials previously furnished at pages M-26 through M-41). Following this introduction, Dr. Meehan told us the following results of the testing to date: 1) there was DNA from more than one male present on the items collected from the victim during the sexual assault kit collection protocol; 2) there was a sufficient quantity of DNA from what he described as 'old’ (i.e., deposited 48-72 hours prior to collection) sperm to establish a complete DNA profile for one contributor, and that profile did not match the profile of any of the 46 lacrosse players tested; 30 there was other male DNA present that was insufficient in quantity to establish a complete profile or profiles (according to Dr. Meehan, that suggested that only a single cell or less than a single cell was present), but which did not match the profile of any of the 46 lacrosse players tested. [It is important to note that while defendants Finnerty and Seligmann had been indicted on April 17 based on the victim’s identification of each of them as one of her assailants, we did not yet have a conclusive identification of the third assailant. My focus for this meeting was whether there was evidence that either directly implicated or specifically exonerated anyone. While these results could conceivably be viewed in hindsight as exculpatory, I saw them a simply non-probative on the issues of whether a sexual assault had occurred and who might have committed it. Moreover, I saw them as only preliminary: I knew that testing had not yet been completed on other evidence items, such as the false fingernails worn by the victim on the night of the incident, and that not all buccal swabs of persons with potential links to the case, including the victim’s boyfriend, had yet been collected. I also knew that all test results, and the underlying data from those tests, would be provided to anyone who was indicted as a defendant in this case upon request, as was in fact done on October 27.]

“On this occasion, Dr. Meehan did raise his personal concerns about privacy issues in this case. Specifically, he was concerned about the prospect of releasing such sensitive material as the DNA profiles of every player to each of the players even though their personal interests in the protection of that information may later diverge. I told Dr. Meehan that a summary report, as I have described that term in answer 1, would be all that I needed. Dr. Meehan was never told to ‘conceal’ anything, and none of the conversation we had made me think that he had construed what I was saying in that way. This was the only discussion Dr. Meehan and I had about what information would be included in the DNA Securities report.

“I would estimate that the meeting lasted 40-45 minutes.

“The second occasion on which I spoke to Dr. Meehan was the afternoon of May 12, 2006. In addition to Dr. Meehan, Inv. Himan, Sgt. Gottlieb, and myself, there was another person from DNA Security present whose name I do not recall. On that date Dr. Meehan gave us copies of the report that appears in the previously furnishing material as pages M-43 through M-52. He also discussed with us the results of the tests he had performed since our April 10, 2006 meeting. Specifically, he told us that: 1) DNA from the victim and DNA consistent with that of Kevin Coleman and not consistent with that of any of the 45 other lacrosse players sampled was found on the unpainted false fingernail recovered from the scene of the alleged assault; 3) the male DNA described previously as having come from ‘old’ sperm was consistent with that of the victim’s boyfriend. I do not recall giving the actual written report much more than a cursory inspection at this time. I was instead particularly focused on the finding of DNA consistent with that of David Evans on the painted false fingernail because 1) the victim’s statement to police had indicated that these fingernails were broken off when she had struggled with the assailant who had initially grabbed her from behind, and 2) from photographs of the lacrosse players she had identified thast assailant as David Evans to a certainty of 90%.

“I would estimate that this meeting took approximately 20-25 minutes. Following the meeting, I returned to my office and gave the report to my Administrative Assistant for copying and distribution to the attorneys for the players who had submitted to the non-testimonial procedure.

“I did not take any notes during the course of either of these meeting, nor, to the best of my recollection, did anyone else present. I also did not subsequently record any recollections of either meeting. The narrative report of Inv. Sgt. Gottlieb, furnished to the defendants in discovery, does not contain any details of the April 21 meeting other than the fact that it occurred (his narrative indicates, however, that it occurred on April 20; see Attachment A2); his narrative also fails to mention the May 12 meeting at all (see Attachment A3). The typewritten notes and narrative report of Inv. Himan, furnished to the defendants in discovery, each contain a single sentence of details of the April 21 meeting (see Attachments B2, C2); his notes and narrative contain no details of the May 12 meeting other than that he attended it (see Attachments B3, C3). Dr. Meehan testified on December 22 that his file contained no notes regarding these meetings.

“My only other communication with Dr. Meehan involving this case occurred after I received defendants’ December 13 motion. I faxed a copy of the motion (without attachments) to Dr. Meehan on the same day and then called him on December 14, to find out whether he would be available to testify on December 15. I did not discuss the subject matter of the motion with him at any time prior to his testimony.

“4. I would dispute that what Dr. Meehan was asked to report is accurately reflected in this statement.

“On the same page of the December 15, 2006, transcript, when asked whether he had written a report about ‘only…some of these pieces of evidence…because Mr. Nifong told you to write the report that way’ (Transcript page 60, lines 11-17). On the following page, in response to the question whether I asked him ‘to create a report that didn’t show [that there were male DNA characteristics on some of the rape kit items that did not match reference swabs],’ he answered. ‘Well, those weren’t his words. He didn’t ask me specifically to exclude those, okay. And I think that, we’re splitting hairs and you’re looking for language. He did not, Mr. Nifong did not request that I exclude data from evidence specimens specifically’ (Transcript page 61, lines 7-17).

“A fair reading of the totality of Dr. Meehan’s testimony reveals that the concern over privacy matter originated with him, that he sought to provide a report that would both meet the State’s needs and allay those concerns, and that the way he balanced those competing interests was not dictated by my instructions. Certainly, to the extent that I failed to make clear to Dr. Meehan precisely what his report needed to contain, then I am at least partly to blame for that failure, but that is a very different matter from directing that test results be willfully concealed.

“5. I do dispute the quoted testimony. I chose not to make a further issue of this response at the time it was made because it seemed to me to be clearly contradicted by Dr. Meehan’s previous testimony as discussed in answer 4 above.

“6. I did not tell Dr. Meehan ‘to publish only the results in which he made a positive comparison between the items of evidence and DNA samples from known donors.’ What I asked him to provide was a summary report as I have described in answer 1 above. Such a report is not only the type of report with which I have always dealt in cases involving forensic testing, but it also seemed to me that such a report would not likely result in the kinds of privacy violations about which Dr. Meehan had expressed concern, since it would not require the revelation of either the individual DNA profiles (which would be part of the underlying data) or the names of any ‘innocent’ persons involved in the tests (since negative reports would be reported only by implication).”

Mr. Nifong's responses reveal that he wanted inculpatory evidence, but not exculpatory evidence, proof that he was not fit to serve as a fair and impartial minister of justice.

His explanation of the "summary report" practice confesses as much: "a summary report...states what tests were performed and either lists all positive results (i.e., those in which something is revealed) or states that there are no positive results.”

Perhaps Mr. Nifong was setting up an incompetence defense (incompetence being much better than malice). Example: “the specific fact that the May 12 report from DNA Securities did not contain any information about the presence of partial DNA profiles who were not members of the Duke lacrosse team (which would not be a negative result)...failed to register with me at all at the time I received the report.”

Perhaps most astonishingly, Mr. Nifong grumbled about the advantages of hindsight and explained that he was so focused on finding a third team member to have indicted that he was oblivious to the implications of the test results being exculpatory, yet, having vigorously OPPOSED the defense motion for the underlying documentation of the DNA Security tests, still insisted that he knew back on April 21, 2006 "all test results, and the underlying data from those tests, would be provided to anyone who was indicted as a defendant in this case upon request.”

Upon request to Judge Osmond Smith, yes, but not upon request to Mr. Nifong.

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.

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