Wednesday, January 03, 2007

The DNA Hoax

In our Hoax Within a Hoax series, we have detailed the various misleading statements and unethical actions that Durham County District Attorney Nifong has used throughout the case to spitefully prosecute three innocent young men. We now have another Hoax to add to the list, perhaps the most serious to date - the purposeful non-disclosure and misrepresentation of DNA test results and their evidentiary implications. The DNA chronology, when examined with dates and events in sequence, unambiguously demonstrates Mr. Nifong's, and others', intentional misconduct and abuse of power.

A recent motion by the defense attorneys contained new information from the much delayed discovery turned over to them by Nifong in late October. It has been a long and torturous process to have the unwilling prosecutor comply with the State of North Carolina’s Discovery rules. Several months later, he has still not fully complied. The prior two judges on this case, Ronald Stephens and Kenneth Titus, seemed content to unquestioningly accept Mr. Nifong's shallow excuses for his continuing delays in providing the mandated discovery. Showing no desire to move the matter along in a timely fashion, despite the repeated pleas of defense attorneys, the judges facilitated Nifong's stalling. Only now, many months later and with a neutral judge in charge, is it clear why the defense had to fight to obtain the information Nifong tried so hard to deny them.

DNA Securities and DA Nifong

At the December 15 hearing, Lab Director Dr. Brian Meehan of DNA Securities, whose private lab was hired by Nifong to perform additional DNA tests, testified under oath that he and DA Nifong had agreed to withhold part of the DNA lab results, including scientific evidence proving no DNA was found that matched the three defendants. Also, they agreed to purposefully withhold the evidence that DNA from multiple unknown males was found on the accuser's panties, around her genital area, and in her rectum. The illogical reason given for omitting this indisputably exculpatory information from the lab's official report, once it was discovered by the defense, was that it was of no probative value. Adding to that absurdity, both Meehan and Nifong also claimed that they were concerned about the privacy of the lacrosse team, which the tests totally exonerated.

The reality is that the sensitive YSTR tests proved that no lacrosse player sexually assaulted the accuser. DA Nifong admitted to the NY Times that he knew of those unreleased exculpatory results, yet did not inform the defense on May 18 when he offered the court a signed document swearing that the discovery information he was providing the defense was all that he had or knew of. To the Times he characterized this purposeful, self-serving lie as merely "a mistake." N&O

March 23 Non-Testimonial Order

On March 23 Superior Court Judge Ronald Stephens took the unprecedented and, in our opinion, unwarranted step of ordering DNA tests for the entire Duke lacrosse team, minus the one black player.
In that order submitted by Asst. DA David Saacks requesting DNA samples and photos of the players, it states:

"Medical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally. Furthermore, the SANE nurse stated the injuries and her behavior were consistent with a traumatic experience"

It also included this:
ATTACHMENT FOR APPLICATION FOR NONTESTIMONIAL IDENTIFICATION ORDER IV
Facts That Establish Reasonable Grounds
.
"The ' DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim" Motion to Suppress
Since then, it has been stated in motions, and confirmed by independent reporters who have examined the actual SANE Exam, that it did not make any conclusions as to rape, and the accuser did not have those injuries. Indeed, DA Nifong’s most recent admission, taken from his dismissal of rape charges, stated this:
“Since penetration of the vagina by a penis is one of the elements of this offense that the State must prove beyond a reasonable doubt, and since there is no scientific or other evidence independent of the victim’s testimony that would corroborate specifically penetration by a penis, the State is unable to meet its burden of proof with respect to this offense” N&O
Nifong, despite what his defenders have claimed for months, finally admitted in that dismissal there is no scientific or other evidence independent of the accuser's testimony that would corroborate specifically penetration by a penis. Thus, nothing from the SANE Exam forensic evidence backs her accusations. There was no justifiable reason for the DNA order, as it falsely presented what the SANE Exam showed. In truth, no DNA from any lacrosse player was found in those twice-tested samples. There is no forensic evidence of an assault and never was! There was no rape, only unfounded accusations! There should have never been such a far-reaching non-testimonial order, and certainly no indictments once the DNA results were known.
Again, that 23 March order states:

“The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim”

That was the very basis and justification of the unusually broad order, yet Nifong violated its stated purpose almost immediately. When the second set of tests once again completely cleared the entire lacrosse team, Nifong withheld those results. Yet they did find DNA of others! Did Nifong direct the DPD to follow up and find whose it was?

Tests at SBI labs

In North Carolina, when accusations of a multiple rape are made, all SANE kits are sent to NC SBI Laboratories, the governmental lab responsible for assisting LE investigations. The technicians there are agents of the State of North Carolina. The first testing procedure is to look for semen, blood, and saliva in swabs. It is a simple test and the results are immediate.
From the Defense Motion 13 December, Page 3, Paragraph 7:

"On March 28, 2006, Agent Winn examined the vaginal swabs and smears, oral swabs and smears, rectal swabs and smears, and panties from the rape kit, none of which showed the presence of semen, blood, or saliva. She did not forward any of those items to the DNA Section for further testings. She did, however, forward the swabs containing the DNA reference samples from the lacrosse players." DNA Motion

So while the press was reporting stories of team behaviour, such as drinking and urinating on lawns, and the town gown racial upset, unbeknownst to everyone outside of a small group of LE and DA representatives, and eventually Judge Ronald Stephens, the investigation had been dealt a serious blow. There wasn’t any semen, blood, or saliva detected. Indeed, Agent Winn didn’t even send those samples for STR DNA sampling. There was no testing possible for DNA by SBI labs in those swabs taken on or in the accuser's vagina, anus, mouth and clothes using STR. If the accuser had been assaulted in the manner she described, DNA would have been found in STR testing.

April 5 Order to transfer samples

We know by April 5 Judge Stephens was aware that this investigation was in serious trouble when he signed the order submitted by ADA Saacks for the transfer of the rape kit items to DNA Security for Y-chromosome DNA testing.
From the DNA Motion, Page 8, Paragraph 13:

"On April 5, 2006, the Durham County District Attorney's Office sought and obtained an order from Judge Ronald Stephens to allow it. In doing so, the State informed the Court:

“Tests conducted by the S.B.I. laboratory failed to reveal the presence of semen on swabs from the rape kit or the victim's underwear. In cases without semen present, it is sometimes possible to extract useful DNA samples for comparison purposes using a technique known as Y STR. This technique isolates cells containing a Y chromosome from the entire sample, which must have been contributed by a male person. The S.B.I. laboratory is not equipped to conduct Y STR DNA analysis. DNA Security is a private laboratory in Burlington, North Carolina that can conduct Y STR DNA analysis and has agreed to undertake this analysis in an expedited manner.”

Stephens, an experienced judge & former DA, should never have invaded the privacy rights of the lacrosse team in the first place. There was scant evidence; only an accusation by an accuser who had twice failed to identify anyone. Ordering 46 DNA tests was far too over-reaching. Judge Stephens has prosecuted cases of rape and presided over rape trials. He cannot claim ignorance of police procedure, lab techniques, and DNA tests.

Why did Judge Stephens sign that order? Why weren’t those samples at least examined and tested before subjecting the entire team to DNA testing and the accompanying public notoriety? Imagine the difference in this case if that had been done? Did Judge Stephens ever ask to see those medical records and proof the "victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally?” Clearly, there is no evidence of it. Those questions remain unanswered to this day.

McFadyen E-mail Release

Also on April 5, Judge Ronald Stephens released the previously sealed McFadyen e-mail. Why would Stephens have done that on the same day he should have understood the likelihood that no assault took place? McFadyen fits no description given by the accuser; he is 6’6” and weighs 225 lbs. It should also be noted that the source of that e-mail was claimed to be anonymous, and, according to defense attorney Joe Cheshire, the authorities failed to also release exculpatory e-mails along with the e-mail that was almost a verbatim reference to a passage in the book, American Psycho.

With the release of the e-mail, a failing investigation got a huge PR boost by enraging the community. Duke immediately cancelled the lacrosse team's season, fired the coach, and suspended McFadyen. The eventual defendants, their identities unknown even to the defense at that time, would be seriously harmed by Judge Stephen's decision for no apparent reason, as they were not the source of what is admittedly a disgusting satire with no probative value to this case. However, it was used nightly on newscasts across America to falsley show the mindset of these players, and imply that the unsupported accusations were likely to be true. As we have seen previously, the misconduct in the dissemination of false and misleading statements leads one to question the motivations behind this release, along with just who was pushing for it.

The Results of the DNA Securities Tests

Meanwhile, the nation and the inflamed Durham community waited for the DNA test results, promised within a week. Many of us wondered why their release was taking so long, especially as Nifong got the SBI to expedite them and put them first in line, causing protests from other NC prosecutors whose evidence had languished there untested for months. Now we know the truth. The tests were basically done and the results were known, but DA Nifong didn’t like what they showed.

So, on April 4, at Nifong's direction, DPD Officer Soucie learned from Dr. Meehan of DNA Securities that the turn around time for the YSTR testing was 3-5 days. On April 6, 2006, the rape kit items (Including the oral, vaginal, and rectal swabs; the cheek scrapings; and the panties), known blood sample, and the lacrosse players' reference DNA swabs were all transferred from Agent Leyn back to DPD/CSI Ashby, who transferred them to DNA Security. True enough, the 3-5 days turn around time was correct, and on April 8, 9, and 10 DNA Securities analyzed those results.

From the DNA Motion, Page 4 Paragraph 15:

"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."

Page 6 Paragraphs 19 & 20:

"Thus, by April 10, 2006, DNA Security analysts had apparently discovered multiple male source DNA on the rectal swabs and panties from the rape kit; had compared it to the lacrosse players' DNA; and had concluded that none of it matched the lacrosse players, including the Defendants. However, none of those findings would be included In DNA Security's final report."

That same day, in late afternoon, Nifong finally released the results of DNA tests from SBI, but not the DNA Securities results which he had just discussed with Dr. Meehan. Unbelievably, after just learning there was no YSTR DNA from any lacrosse player and that multiple DNA samples from other unknown men were found, Nifong said:

"I believe a sexual assault took place. I'm not saying it's over. If that's what they expect, they will be sadly disappointed." FOX News

The First Grand Jury – April 17

As we have reported in an earlier article, Nifong refused to meet with defense attorneys prior to the April 17 grand jury. They were trying to show him exculpatory data and were at a loss as to why he wouldn’t meet with them. Little did they realize DA Nifong himself was sitting on what should have been case-ending exculpatory evidence! We revealed that Durham PD Officers Gottlieb & Himan were the only witnesses appearing before the grand jury that indicted Reade Seligmann & Collin Finnerty on April 17. Gottlieb & Himan accompanied DA Nifong on April 10 to his visit with Dr Meehan in which they went over the DNA results. No transcripts exist showing what Gottlieb & Himan told the grand jurors, but it is pretty obvious they withheld Dr. Meehan's finding the complete lack of DNA evidence against the players and the finding of other DNA from five other unknown sources. LS

DNA Motion, Page 9 Paragraph 28

Thus, by April 20, 2006, DNA Security analysts had discovered DNA from multiple male sources on the rectal swabs, pubic hair combing, and panties from the rape kit; had compared it to the lacrosse players' DNA; and had concluded that none of It matched the lacrosse players, including the Defendants. They had also apparently discovered possible contamination in the testing of at least one item in this case. However, none of those findings would be induced in DNA Security's final report.

Several questions remain. Why were Reade Seligmann, Collin Finnerty, and Dave Evans indicted at all? Why would an accredited DNA lab purposely withhold obviously exculpatory evidence in a police investigation? Why would a DA withhold exculpatory evidence and file a court document he knew was a lie? Why would any DA interested in evidence and truth refuse a rare golden opportunity to view the defense's evidence? What did Officer Gottlieb & Himan say to the grand jury? Did they knowingly lie or mislead them? Were they instructed to do so? Why were so many falsehoods spread by so many?
Baldo

26 comments:

bill anderson said...

I am not sure if I have read a more comprehensive analysis of how this sorry case began. Furthermore, it now is clear that the case could not have gone farther without the help of Judge Ronald Stephens, whose actions need to be publicized so that people can see that either (1) he was honest but misguided, (2) he conspired with his good friend and former colleague Michael Nifong to create a criminal case where none existed.

What we are seeing is the unfolding of a criminal conspiracy that is massive in its results. Thank you, Liestoppers, for this analysis, and you can bet that I will get this to a large number of people. While I doubt that Ronald Stephens will be brought to the bar of justice, at least the world can see just what he has done.

newport said...

Baldo, you rule!

Excellent post. Stephens is very responsible as an enabler of the hoax, and you have done an excellent job of laying out his nefarious dealings.

nylawguy said...

I think one of the next areas for bloggers to delve into is the actions, words and rulings of Stephens and Titus. We need to take the time to look at everything, every ruling.. to understand if this is the just Old Boy Network or something more sinister.

Anonymous said...

In all respects this is criminal behavior on the part of Nifong. Are there any statutes in NC specifically addressing this behavior and if so, can Nifong be charged by the attorney general or SBI for his part in the hoax? This man belongs in jail.

Anonymous said...

We know that Stephens was Durham's DA before he became a judge. We also know that as DA, Stephens supervised assistant DA Nifong. So Nifong learned at least some of what he knows about being a prosecutor from Stephens. Given those facts, no one should be surprised that Stephens acted as he did. The corruption in the Durham DA's office appears to be widespread and of long duration. That entire office needs to be fully investigated, and soon, before any more damage is done to innocent victims.

Victim in Massachusetts said...

Liestoppers if you don't have them listed on your site yet can you somehow get copies of all the hearing that judge Stephens and Titus did so we can look at them?

Stephen made some pretty bad rulings againts the defends. Stephens pretty much helped Nifong tell the defense how to run its case, and so did Titus.

Remember Titus issued a forced gag orded on the demands of the NAACP, to shut up the defense.

bill anderson said...

I cannot emphasize enough that both Stephens and Titus have involvement in this case that is more than just being naive. They saw the "evidence," and they knew what they were doing.

This is one of the most frightening cases I ever have seen, in which prosecutors, judges, the major media, and a university literally have actively sought to promote a story that was so blatently false that anyone with any sense at all could have understood. If this is the face of "justice" in the United States, then perhaps some other country needs to invade us in order to "impose" a decent judicial system. (Just kidding, of course, but from what I am seeing in Durham -- as well as the lack of will by authorities to do anything about this travesty -- that one can only conclude that the people in this country entrusted with "justice" and "trust" really are no better than a criminal gang.)

Anonymous said...

Is it normal for a Grand Jury proceeding to not have a transcript? If there is not any record of the testimony there is no check on its truthfulness.

Victim in Massachusetts said...

Anon 8:59 a.m. Only the state of NC Grand Jury don't record there hearings. All other states do.

The reason the other state do is just because of what we see here in NC. Now we need to force a change in there laws, so they come into the 21 centry, with the rest of the country.

Anonymous said...

"With the release of the [American Psycho] e-mail, a failing investigation got a huge PR boost by enraging the community."

I hope this irony is not lost - that presumably 'American Psycho' eminated from the reading list(s) of an "88" professor.

That this crude 'pop' writing is promoted as literature by the very mind-set of the Group of 88 is bewildering.

It so horrified Barney "Brodhead" Fife - the guy who hires/retains the 88, that he a) fired a guy who probably never heaard of the book, and b) trashed the kids who were instructed to read it.

Duke truly is UPSIDE DOWN.

TW

Anonymous said...

8:59,

no Grand Jury transcript is available in NC. We could simply call the NC Grand Jury process as the DA's best ally.

bill anderson said...

Unfortunately, in North Carolina the prosecutor is ALWAYS held to be telling the truth, and nothing but the truth. It is very, very difficult to be able to dislodge prosecutors and the "justice" system of that state from the lies.

In my articles, I have written about a number of cases in which prosecutorial misconduct led to wrongful convictions, and how no one but the innocents were punished. One thing that is extraordinary in this case has been the willingness of the NC Bar Association AND the other prosecutors in the state to come out against Nifong, even before the case has been adjudicated.

Even the newspapers, which helped greatly to enable the hoax at the beginning, have changed their tunes. But even given this level of public outrage, we see that Nifong literally has run into no barriers at all that have kept his behavior in check. He lies, withholds evidence, and yet there was a judge willing and ready to swear him in as though everything were just fine.

One hopes that the State of North Carolina will find a way to hold these liars in check and to punish them when they do lie. We shall see what happens. Until justice is done, however, it is our job to keep banging on the pots.

Anonymous said...

Somebody should take a closer look at the qualifications of the judges who sat stupidly in their robes and let Nifong run amok in their courts.

Anonymous said...

Excellent piece of work!! Can't you submit this to a MSM publication so more people will see it. Unfortunately not everyone has been reading the blogs!! This also needs to be forwarded to the NC Bar. I am sure they are interested in having such a concise work to help them prepare more charges to add to the growing list of complaints about Nifong!!

duke2009mom

Jerri Lynn Ward, J.D. said...

Perhaps someone should make a complaint with the North Carolina Judicial Standards Commission.

Here is the North Carolina Code of Judicial Conduct..

I don't know enough about the proceedings to know if any of the Canons has been violated.

Anonymous said...

This is an amazing post guys...You have done such a good job throughout this case. Thank you.

Anonymous said...

Very well written Baldo. I am glad someone is focusing in on the conduct of Judge Stephens. In hindsight, his early rulings were a travesty.

Neon

AL atty said...

This information should be shared with the Feds. As you know theUS Dep't of Justice Civil Rights Div. is revuiewing this case.

Anonymous said...

Can the individual members of the grand jury be subpeoned for their story on what testimony was given? Just a thought, but it would help fill-in a lot of unknown facts.

Anonymous said...

This post exemplifies why the blogosphere is the best instrument for getting the truth out. Hayek and Von Mises would not be surprised. I trust that the defense lawyers read this blog!

bill anderson said...

Indeed, Mises and Hayek would very much have approved of this blog. I gave a speech last year at the Mises Institute on the mainstream press and its relationship to government, and mentioned in passing the role of the blogs.

As I wrote in an earlier Lew Rockwell piece, I underestimated the power of the blogs and of the Net. No more.

You can bet that I will tackle this end of the case in the future. I wrote my doctoral dissertation on using economic analysis to examine the media, and it looks as though my analysis needs to be redone!

Victim in Massachusetts said...

For anyone who as not seen it yet Collin and Reade have just been let back into Duke if they choose to go back. Bill Anderson call me.

here is the link.

http://www.abclocal.go.com/wtvd/story?section=triangle&id=4902218

Guy Fox said...

This case is and has been shocking from almost the beginning. At first, I was willing to keep an open mind about this case. After all, there are legitimate rape victims, and as with any case, I choose to think and get more evidence before I form and state an opinion. Sometimes, this is the matter of months. However, as soon as evidence started coming out, it slowly became obvious what was going on. I reached some of the same conclusions you did, though your analysis has been much more exhaustive, and, frankly, I've used your site as a source in forming my opinions. This is some of the most complete analysis of what has happened in this case, and outlines the type of prosecutorial and judicial abuses that have characterized this case from the beginning.

Anonymous said...

OUTSTANDING!!! Your careful and thorough analysis here is precisely what the NC bar needs at its disposal for round 2, when it files the second of potentially three complaints against Nifong. This is immense. You have distinguished yourself from the New York Times and the Washington Post -- they aren't looking for this because they have no investigative reporters who want to write it and their audience doesn't want to read it. Send it to Easley, send it to the NC Bar, and send it to the US DOJ. Then send it to Paul Craig Roberts. The implications are we are dealing with a full-blown, criminal conspiracy, not simple incompetence. Nifong, Gottlieb, Stephens, the accuser, this is scary!

BRAVO!!!

Anonymous said...

We must all remeber Cstyal started is travesty. We must continue to be pot bangers until her justice is served too!

Congrats to Colin and Reade. What ever choice you make about returning to Duke is the right choice. Everyone will support them what ever they decide to do!

Anonymous said...

The implications are we are dealing with a full-blown, criminal conspiracy !!!