The great accomplishment of the defense team was getting Mr. Nifong to agree to a judge who proceeded to order him to turn over the underlying documentation despite his vigorous opposition and making sure the documentation finally produced was the actual documentation. That was the ball game.
If Durham is Wonderland, is Brad Bannon Columbus or Columbo? Columbus, financed by wealthy monarchs, discovered America while looking for the East Indies and not expecting to find. Colombo is the fictional detective who solved murders in brilliant, if unorthodox ways. Mr. Bannon swore that he did not expect to find multiple-male DNA evidence, but he was reviewing the documents anyway and there was the proof.
Mr. Bannon on the LieStoppers forum:
"Regarding the comments about the 'story' of my DNA work being 'misplayed to some extent for dramatic effect,' while I agree that far too much emphasis has been placed on my DNA work (to the exclusion of equal focus on the more important contributions of the rest of the defense team), it has not been 'misplayed for dramatic effect.' The truth is that no one was focused on the DNA except me, for the reasons I stated under oath at the State Bar hearing and that Jim Cooney has mentioned here in these threads. While I did not know much about DNA when we got this case, I knew a lot about representing criminal defendants at trial, and I knew about trying criminal cases where expert testimony & subject matter is involved. So I knew that you simply cannot dump a bunch of documents on an expert, say 'Tell me what I need to know about these materials,' and wash your hands of your responsibility to provide context & know the science yourself. You must provide your expert with context related to the facts & procedure of the specific case. You must also review the materials yourself, because (a) you have knowledge about the law that an expert does not have when he or she is reviewing materials, and (b) you may catch things an expert would miss. Most importantly, as it turned out in this particular case, you have a duty to learn about the science & the complexities of the area of expertise yourself; otherwise, you will not be able to effectively deal with experts in the courtroom (whether it's cross examining the prosecution expert or presenting your own).
"Say, for example, a prosecutor walks into a courtroom one day and, without notice, presents an expert for testimony, and this will be the only opportunity you have to cross-examine that expert. If you had not taken the time to learn about all of the underlying documents & the rudimentary scientific concepts necessary to interpret them (if, in other words, you had taken the approach of sending materials to an expert and saying 'Tell me what I need to know about these materials'), you would not remotely be ready to cross-examine that expert extemporaneously, especially if that expert (a) initially attempted to deny the premise of your scientific conclusion, or (b) became very difficult & erratic under questioning. By contrast, learning about the materials & the science gives you both the scientific & legal knowledge necessary to effectively get that expert witness under control and lead him to the truth."
First, while it adds drama to the story to say that no one else focused on the DNA, it is not true.
Only last month Mr. Bannon e-mailed as follows: "Mike, I understand why you may have written on June 30, 2006, that 'DNA found inside the accuser [in the Duke case] was determined not to have come from any of the Duke lacrosse players….' After all, we announced on May 12 that the DNA Security report (provided that day) stated that the lab had found DNA from one identified male, Matthew Murchison, on the vaginal swab from the rape kit. What I don’t understand is why you ended that sentence with '…but from several other males.' What was your source of information on June 30, 2006, that DNA from 'several other males' had been identified in the rape kit? --Brad"
"First: NOT 'may,' Brad It's definite. I wrote that first in an article posted on June 20 and repeated it in articles posted on June 30 and Sept. 8 (all available in my archives at www.renewamerica.us). As Stuart Taylor told me, I buried the lead, but I consider myself a commentator, not a reporter, and put it where I thought it best fit in my commentary. I was using a fact, not trying to break news.
"Second: Your testimony during the Nifong trial that you did not think you would find such results shocked me. I accept it, but why you would have not have expected such results remains a mystery to me. You found out soon enough what Crystal was:an ex-convict stripper with out-of-wedlock children and drug and mental problems who was very active sexually (I put it that way to avoid moral judgment), not exactly the admirable hard working single mom who was stripping for the first time in order to feed her children while studying to get a better job and earning 'grades high enough to qualify for the Golden Key International Honour Society.' Stuart stated at a public meeting that she was a prostitute.
As for trusting Nifong not to conceal exculpatory material, given what he did in the case that I learned about and you know about, well, it mystifies me.
"My June report was NOT based on your May 12 announcement. The suggestion that I 'extrapolated' from your announcement is...let me just say unwarranted. It wasn't one of my typos either.
"Sometimes the simplest explanation is correct: I ended that sentence that way because I had reliable information that it was true.
"My source was a who, not a what. I protect my sources, especially Durham sources. You may ask, but I won't tell.
"FYI: I thought you had received or would receive the same information, from the same or other sources. Apparently that did not happen, making it all the more wrong for me to 'out' my source(s)."
Second, all that was necessary in the first instance was to turn over the documentation to a reputable DNA expert and ask whether there was evidence of multiple-male DNA.
Third, the great accomplishment of the defense team was getting Mr. Nifong to agree to a judge who proceeded to order him to turn over the underlying documentation despite his vigorous opposition and making sure the documentation finally produced was the actual documentation. That was the ball game.
Thus, in "As expected, persecution proof detected," posted on December 14, 2006, I wrote:
"'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.'
"What does THAT mean?
"It means that false accuser Crystal Gail Mangum's story of her sexual history in the days before the lacrosse team party last March is as false as her gang-rape claim.
"It means that the joint defense team did some great work.
"It ALSO means that the prosecution did not voluntarily turn over exculpatory evidence, as required under the United States Constitution and North Carolina law.
"That exculpatory evidence was buried in the documentation of the private lab that Durham County, North Carolina District Attorney Michael B. Nifong retained to assist him in prosecuting the Duke case.
"Significantly, in my view, Mr. Nifong and the lab fought hard NOT to provide that massive underlying documentation.
"But, Judge Osmond Smith properly ordered that the documentation be produced and the defense carefully 'mined' it and struck 'gold' that exonerates the Duke Three and exposes Mr. Nifong as the opposite of the 'fair and impartial minister of justice' that a district attorney is supposed to be...."
On January 24, 1941, the Secretary of the Navy sent to the Secretary of War a letter stating in part:
"The security of the U.S. Pacific Fleet while in Pearl Harbor, and of the Pearly Harbor Naval Base itself, has been under renewed study by the Navy Department and forces afloat for the past several weeks. This examination has been, in part, prompted by the increased gravity of the situation with respect to Japan, and by reports from abroad of successful bombing and torpedo plane attacks on ships while in bases. If war eventuates with Japan, it is believed easily possible that hostilities would be initiated by a surprise attack upon the Fleet or the Naval Base at Pearl Harbor.
"In my opinion, the inherent possibilities of a major disaster to the fleet or naval base warrant taking every step, as rapidly as can be done, that will increase the joint readiness of the Army and Navy to withstand a raid of the character mentioned above.
"The dangers envisaged in their order of importance and probability are considered to be: (1) Air bombing attack...."
On December 7, 1941, many Americans were shocked by the attack on Pearl Harbor. President Franklin Delano Roosevelt claimed not to have anticipated it. But that Secretary of the Navy must have been dismayed that his warning had not been taken seriously enough instead of surprised.
In "Mike Nifong Makes Newsweek Look Great," posted on June 20, 2006, 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."
In "Duke case: Does the prosecutor need prosecuting," posted on June 30, 2006, I reiterated: "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."
In "Will '60 Minutes' judge the Duke case judges," posted on September 8, 2006," I emphasized:
"On June 30, in "Duke case: Does the prosecutor need prosecuting," I suspected the answer is yes:
'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 — they are not — but whether Mr. Nifong is reckless and stubborn, or worse.
'Mr. Nifong should be polygraphed. Ironically, he may be one who should be prosecuted.'"
Frankly, I was shocked when Mr. Bannon testified that he did not expect to find evidence of multiple-male DNA not attributable to lacrosse players when the defense was seeking the underlying documentation in the face of opposition by both former Durham County, North Carolina District Attorney Michael N. Nifong and Dr. Brian Meehan, the head of the private laboratory he retained to do more DNA testing when the results from the state lab disappointed him. Did Mr. Bannon think Mr. Nifong was just trying to hold down state expenditures instead of suppressing pertinent evidence?
Also, I thought the defense was following the blogs much better than it may have been.
My statements had been unqualified and unambiguous, but Mr. Bannon either did not notice or chose to believe Mr. Nifong's assurances instead (but still sought that underlying documentation).
DNA is its own language. The usual procedure that a lawyer follows when he or she needs to read a document written in a foreign language is to have the document translated by a reputable translator. That's much cheaper than the lawyer learning that language, but if the client is ready, willing and able to pay to have the lawyer translate the document himself or herself, I would not fault the lawyer for accommodating that eccentricity.
If anyone wanted to pay Mr. Bannon to personally confirm what a DNA expert could have confirmed relatively quickly, especially if told what to look for, so be it.
As far as I'm concerned, Mr. Nifong should have been ordered to pay for it.
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.