Our Collective Voice: Part II: The Allegations that Duke University Medical Records were altered by Levicy
Initial SBI Test Results Highly Exculpatory
623. Upon information and belief, on March 28, 2006, Himan notified Nifong and the Durham Police Supervising Defendants that the SBI Lab tests would produce no DNA match between Mangum’s rape kit and any member of the lacrosse team.
624. On March 28, 2006, at 10:40 p.m., Himan spoke with Mangum about the case and, upon information and belief, about the negative DNA test results. Himan concealed the fact of this conversation by not reporting the existence of it in his investigative notes. Upon information and belief, Himan told Mangum that there would be no match and the obvious consequences that fact had upon the viability of the case.(623-624. Ekstrand amended complaint -McFadyen et al v. Duke at al)
Levicy Changes Medical Records
Around March 30, 2006 Durham DA Nifong received a second report from the SBI that again showed no DNA from any of the lacrosse players on the accuser Crystal Mangum’s rape kit or clothing, but did show DNA on a towel found in the house. The Cooper lawsuit (Carrington et al v. Duke et al) states, “… the DNA finding from the towel was communicated to Levicy, who (as recounted below) later doctored her SANE exam report to include an allegation that the alleged rapists ‘wiped [Mangum] off with a rag’ “ (C 311).
After the second report of DNA results came back negative, the next day (March 31) Nifong started suggesting in public statements that condoms may have been used (C 331). Duke University Medical Center (DUMC) officials and Levicy knew this was false from Mangum’s repeated statements that condoms were not used, yet they did not correct this false impression. Indeed, Levicy later altered her account of Mangum’s story to allow for the possibility of condoms (C 313).
This is just one example of the fact that, as the Cooper lawsuit points out, “by March 31, in addition to critical evidence of the players’ innocence, Duke had abundant information revealing that the rape investigation of Nifong and Durham police authorities was not proceeding in good faith against its students“ (C 332).
Duke and DUMC had in their hands by that time Duke Police Officer Day’s report that the Durham investigating officers on March 13-14 did not find Mangum’s allegations credible; from Duke’s medical records, it was clear that no physical evidence supported the rape allegations, use of condoms, or choking or strangling of the accuser; and the DNA evidence contradicted a violent vaginal, oral and anal rape without the use of condoms.
Yet Levicy, DUMC and Duke University withheld the exculpatory evidence it had, including Mangum’s medical records showing no objective signs of rape and the reports of Officer Day and other Duke police questioning Mangum’s credibility.
Furthermore, Theresa Arico, the SANE program director and Levicy’s supervisor, gave an interview to the Herald Sun on April 1. In the interview, Arico, who was not present at Mangum’s exam, said, “you can say with a high degree of certainty that there was a certain amount of blunt force trauma to create injury” (E 783). She noted that “blunt force trauma” is diagnosed using a colposcope during a pelvic exam. However, Mangum was not examined by Dr. Manly with a colposcope. “Arico thus knew or should have known that Levicy had not herself performed the exam, that a colposcope had not been used, and that the exam report contained no finding or physical or medical evidence of “blunt force trauma” to Mangum” (C 335).
In the same interview, Arico also stated, “I can reasonably say these injuries are consistent with the stories she told” (C 336). KC Johnson commented;” In the article, Arico left unclear whether she was talking about Mangum specifically or about sexual assault patients in general. According to a memorandum of law penned by its chief attorney, Al McSurely, and posted on its website last August, the state NAACP interpreted the statement as referring to Mangum. Arico appears to have taken no steps to remove the information if she considered it false…” (10)
Rather than correcting the false statements by Levicy suggesting there was medical evidence of a sexual assault in Duke’s possession, these published comments by Arico promoted Levicy’s false claims to Durham police and prosecutors about Mangum’s exam.
On April 5, Duke University Hospital finally produced Mangum’s medical records to Nifong, although DUMC had been served with a subpoena back on March 21. Prior to April 5, all of Nifong’s comments about medical evidence in the case had solely been based on Levicy’s misleading statements to the Durham police since he did not have access to the actual medical records. The reason for the delay in delivering the records is not known, but the delay allowed Levicy to allegedly make certain changes in the SANE report.
“In the intervening time, Levicy re-created those portions of the SAER that were not completed on March 14th after the SAE was abandoned,” according to the Ekstrand suit (E 785).
Levicy was reported to have improperly made a number of changes and additions to the history part of the SANE report to make Mangum’s story as presented in the report consistent with new information obtained by the police after March 14, and also to conform to Mangum’s written statement to the police on April 6.
According to the Cooper lawsuit, “Levicy had deliberately falsified the version of the SANE report that Duke Hospital produced to Nifong on April 5. The doctored version she produced,” the suit alleges,“ … included multiple strike-outs and addenda that attempted to render her report inculpatory in light of what Levicy understood to the evidence at the time. For example, in the notation about whether the alleged rapists had sought to conceal evidence, Levicy had initially entered ‘no.’ In the version produced on April 5, however, this was crossed out, and ‘yes’ was indicated, with a handwritten notation ‘wiped her off with a rag’.” (C 341).
These changes in the SANE report were improper for at least 3 reasons. First, normally no late alterations in the SAER are allowed; after preparation on the day of the exam, the report is usually sealed in an envelope and delivered to law enforcement. Second, any changes in nursing records of any kind are required to be dated and initialed. Finally, changing a SANE report to fit new versions of an accuser’s story is highly unethical and potentially illegal (alteration of evidence in a criminal case).
SANE are supposed to be neutral collectors of evidence; police and courts rely on their objectivity. Experienced SANEs have commented that late changes in an SAER and accompanying nursing notes are “staggering” and beyond normal SANE policies and procedures.
Levicy and Duke Bolster Nifong’s False Prosecution
As the exculpatory DNA evidence became public, Nifong and the Durham police investigators kept insisting that there was medical evidence supporting the rape allegations. This reliance on the false conclusions of Levicy played an important role in the indictment of lacrosse players Reade Seligmann and Collin Finnerty on April 17. Sgt. Gottlieb testified before the grand jury that Mangum’s exam at Duke confirmed the rape allegations. Later, referring to his grand jury appearance, Gottlieb stated: “I believe there was corroborating evidence. Meaning the SANE nurse said the victim’s accounts of the attack were consistent with the sexual assault… You have a SANE nurse who is backing up that person’s (Mangum) statements” (C398). Later, on May 15, Dave Evans, was also indicted by the grand jury based on testimony by Inv. Ben Himan.
According to KC Johnson: “After the three indictments, Levicy remained the key medical figure in the case. As Nifong continued to ignore Manly, on June 9, Levicy and Arico traveled to the district attorney’s office for a 9.00 a.m. private meeting to discuss the case. Much like his conversations with [DNA lab director] Dr. Brian Meehan, Nifong produced no memorandum of this.”
“Arico’s presence suggested that even as massive evidence of innocence had emerged—Mangum’s changing stories, the exclusion of all lacrosse players’ DNA from the rape kit—Duke hospital was standing firmly behind Levicy’s work .” (10)
However, no DUMC lawyers were present at the meeting between Levicy, Arico and Nifong, consistent with a lack of supervision by DUMC of its employees involved in what had already become a controversial, publicized legal matter.
As the months went by and Nifong vowed to continue the prosecution of the indicted lacrosse players, even more evidence accumulated that Mangum was lying and that there had not been any sexual assault.
It was revealed that Mangum had previously made unsubstantiated rape allegations against 3 men, that she had been discharged less than honorably from the military, that she had been hospitalized for mental illness, that she had a behavior pattern of falling down and becoming unresponsive under stress, that she worked as a stripper at a men’s club both before and after the lacrosse party, and that she had performed sex acts for pay, including with a vibrator, the weekend before the Monday night lacrosse party.
Furthermore, both Reade Seligmann and Collin Finnerty had verifiable alibis that placed them away from the lacrosse house during the time of the alleged assault. Dave Evans remained at the house but had witnesses could verify his activities for the entire time.
As Nifong’s case began to fall apart, he continued to insist that the SANE report suggested there had, in fact, been an assault. The North Carolina Bar in its December ethics complaint against Nifong noted, “Nifong stated to a representative of the news media that a rape examination of the victim done at Duke Medical Center the morning of the alleged assault revealed evidence of bruising consistent with a brutal sexual assault,’ with the most likely place that it happened at the lacrosse team party’” (C 459).
According to the Cooper lawsuit, “Levicy actively conspired with the Durham Investigators to prop and to prolong the investigation. She met or conversed multiple times with the Durham Investigators in the ensuing weeks and months, repeatedly adjusting or elaborating her testimony to rebut mounting evidence of innocence as it emerged. Upon information and belief, she conferred with prosecutors and/or police at least seven times during the course of the rape hoax crisis” (C 190).
Blogger KC Johnson stated: “Over the course of the case, Levicy had no fewer than four meetings and three telephone calls with Durham police officers or representatives of the district attorney’s office.” (10)
Notes from Durham District Attorney Mike Nifong confirmed that he had spoken with “Tara” who told him that Mangum’s findings “were consistent with sexual assault emotionally and physically” and with “rape trauma syndrome.” (C 191).
During these months after the indictments, Levicy, Arico, and their superiors at DUMC had to have known, because of the intense media coverage, that the Durham Police and Nifong were using her mischaracterizations of the SANE exam as one of the main rationalizations for their on-going prosecution.
However, not only did Levicy and her superiors fail to come forward to correct her misleading SANE conclusions, Levicy actually sought to bolster the prosecution case as Mangum’s stories changed, as there were new theories of the crime, and as new evidence developed.
As noted above, Levicy improperly amended the SANE report to include mention of a towel that she implied had allegedly been used to wipe Mangum; Levicy had not known on March 14 when the SANE report was filled out that the police had recovered a towel from the party house (which had DNA from Dave Evans and a female not related to the case).
A later episode where Levicy tried to prop up the prosecution is described by Joe Neff in his April 18 News & Examiner article (9):
“On Jan. 10, Wilson and Himan met with Nifong's other critical witness in the case: Tara Levicy, the Duke Hospital nurse who helped examine Mangum in the Duke emergency room the morning after the lacrosse party. Levicy had received special training to become a sexual assault nurse examiner to collect evidence in sexual assault cases. She would have been Nifong's chief witness in corroborating Mangum's claim that a rape had occurred.
In March 2006, Levicy told police she found evidence "consistent with a sexual assault."
The Jan. 10 interview focused on the absence of the players' DNA in the rape kit. Levicy had written in her March 14 report -- shortly after the party -- that no condoms were used. On Jan. 10, she hedged, according to Wilson's report: "Ms. Levicy stated she asked if condoms were used and Ms. Mangum said 'no' but wasn't really sure. Ms. Levicy stated that it was her opinion as a [sexual assault nurse examiner] that 'victims can never be sure if condoms are used because if they can't see them how would they know for sure. You can't feel them so you have to realize there is always a possibility that a condom could have been used.' "
Even though forensic nurses make medical observations and not legal judgments, Levicy also put forward a second theory: "I wasn't surprised when I heard no DNA was found because rape is not about passion or ejaculation but about power."
A few days later, Levicy called Wilson with second thoughts. She wanted to clarify her statement about rape and power. "Ms. Levicy stated that there are numerous reason [sic] why semen is not found in a victim and include: 1) condoms were used; 2) No ejaculation; 3) It didn't happen."
(Levicy’s “second thoughts” coincided with Nifong’s recusal from the case and its transfer to the NC Attorney General’s office).
Levicy’s speculation in the January 10, 2007 meeting with Wilson and Himan that condoms might have been used contradicted the written records that Mangum denied at least 3 times condoms were involved. Later in the NC Bar hearings against him, Nifong justified his own comments about condoms as “being consistent with the opinion of the SANE nurse who examined the victim the night of the alleged attack” (C 463).
She also misunderstood that DNA identification does not require the presence of semen—any male cells, such as skin cells shed by physical contact, can produce a positive match because the DNA tests are so sensitive. Thus ejaculation is not required for positive DNA tests. This is such basic factual information about DNA testing that any nurse, let alone a SANE, would be expected to understand.
The Special Prosecutors Become Involved
On January 12, 2007 Nifong recused himself from the case because of the NC Bar ethics charges. Attorney General Roy Cooper appointed James Coman and Mary Winstead as Special Prosecutors. Over a 3 month period, the Special Prosecutors exhaustively investigated Mangum charges.
Speaking to representatives of the Special Prosecutors, Levicy again altered her opinions about what happened at the party.
“Soon after Nifong was removed from the case, Levicy met with investigators from the North Carolina Attorney General’s office and conceded, for the first time that it was possible that ‘no attack had occurred.’” (C 466)
On April ll, 2007 Attorney General Cooper dismissed all charges against Evans, Finnerty, and Seligmann and stated that “these three individuals are innocent of these charges.” (2)
A written report later that month blasted Levicy’s conclusions about the SANE exam. The Special Prosecutors had access to all of the medical records in the case. The Attorney General’s report stated, “No medical evidence confirmed [the accuser’s] stories. The SANE based her opinion that the exam was consistent with what the accusing witness was reporting largely on the accusing witness’s demeanor and complaints of pain rather than on objective evidence.” (2)
This statement implies three things. First, the objective findings on Mangum’s physical exam (minor leg scratches from a previous injury and diffuse vaginal swelling) were not suggestive of a brutal rape by three large athletes. Second, the negative DNA findings from the rape kit, which were part of the medical evidence, proved conclusively there had been no physical contact, let alone a rape, between the lacrosse players and Mangum (although DNA from multiple other men was found). Third, Levicy paid too much credence to Mangum’s loud and hysterical behavior, which has been described by experts in field as atypical for a true rape victim. Finally, Levicy’s reliance on Mangum’s “demeanor and complaints of pain rather than on objective evidence” is consistent not only with Levicy’s inexperience at the time as a nurse and as a SANE, but also with her ideological bias.
As KC Johnson later noted: “This wholly subjective evaluation proved particularly troubling given Levicy’s apparent biases. As she conceded in a November  interview with defense attorneys, she had never seen a woman who had claimed sexual assault behave hysterically as Mangum did during the examination. Did this atypical behavior raise alarm bells? No. Levicy, it turns out, isn’t particularly discerning in evaluating the truthfulness of a sexual assault patient’s verbal claims. When asked whether she had ever received a sexual assault report from a patient that turned out to be false, she replied, “No, never.” (10)
A Critique of Levicy’s Actions by An Experienced SANE
A SANE with many years of experience writing under the pseudonym “Kethra” evaluated the performance of Levicy and Manly in an extensive on-line post (12):
“The important part of the above is that Dr. Manly alone is responsible for the vaginal exam and Dr. Manly made ONE notation on the SANE paperwork that being “diffuse edema of the vaginal walls.” Dr. Manly did not make a note as to patient demeanor nor to the extended amount of time the vaginal exam too OR to the finding of a “white exudate.” Dr. Manly did sign the SANE as having participated but Tara Levicy, signed the SANE as the examiner. In Interviews with the DPD [Durham Police Department] she took credit for Dr. Manly’s examination and in interviews with the DPD did nothing to disabuse them of the notion she was wholly responsible for the exam. These statements were rightfully attributed to Ms. Levicy by the DPD based on what she was quoted as saying, when in fact it was the Physician’s note and examination that she was claiming as her own work.
“Ms. Levicy committed one of the worst acts an RN and a SANE can commit; that of injecting her opinions and beliefs onto the patient and into the case. Ms. Levicy stepped out of her required role as an impassionate forensic examiner and into the role of a feminist with an agenda. She made stated conclusions not based on an evidence based practice, but instead based on her own personal agenda and skewed world view. Nowhere in the SANE exam or the medical examinations that occurred was there any evidence to support Ms. Levicy’s statements of “Signs consistent with sexual assault during her test.”( Himan notes). There was no evidence to support her statements to Gottlieb on March 21, “I asked her if the exam was consistent with blunt force trauma, and she replied, ‘Yes,’ ” “She stated the victim had edema and tenderness to palpitation both anally and especially vaginally. She stated it was so painful for the victim to have the speculum inserted vaginally that it took an extended period of time to insert same to conduct an examination. I asked her if the blunt force trauma was consistent with the sexual assault that was alleged by the victim. She stated the trauma was consistent with the victim’s allegation.”
“Nor did the evidence support her statements made on January 10, 2007 of “"Ms. Levicy stated she asked if condoms were used and Ms. Mangum said 'no' but wasn't really sure. Ms. Levicy stated that it was her opinion as a [sexual assault nurse examiner] that 'victims can never be sure if condoms are used because if they can't see them how would they know for sure. You can't feel them so you have to realize there is always a possibility that a condom could have been used.' " Even though her own documentation denied this claim.
“Instead ALL physical examination documented, directly contradicts these ongoing claims made by Ms. Levicy. Incredibly enough, Ms. Levicy herself notes in the systems examination portion of the SANE “Head, back neck, chest, breasts, nose, throat, abdomen and upper and lower extremities were all “normal” and in the Pelvic Examination portion of the SANE Ms. Levicy writes “Diffuse edema of the vaginal walls”(echoing the actual Physicians findings since she did NOT do the vaginal exam) and recorded “nothing notable” in the subsection for the Anal exam.
“In DIRECT contradiction to not only her own notes, but those of Dr. Manly and other Physicians and nurses that examined Crystal Mangum, she [Levicy] begins telling her “she was raped” conclusion to DPD. She not only was inaccurate as a forensic examiner but she was untruthful. There is no documentation that supports her claims of “the victim had edema and tenderness to palpitation both anally and especially vaginally” (Gottlieb notes) other than Crystal Magnums’ hour long display of hysterics for the Physician which interestingly is NOT noted in Levicy’s documentation. It is somewhat beyond me that a patient could present like this and the SANE documentation indicate “nothing notable”..snipped..
“Ms. Levicy’s actions were unconscionable, unprofessional and the inherent sign of an incredibly biased person and nurse. She alone, is responsible for the start of this witch hunt in my opinion. By not telling the actual facts, by misrepresenting to the police the signs and symptoms of a rape victim, by “embroidering “the true patient findings and historical story, by her sheer ignorance of appropriate forensic evidence collection technique, her sheer ignorance of basic pathophysiology, her sheer ignorance of general medical conditions and the identification of those conditions and by her glaring egotistical need to portray herself as an expert, she sent the police down the trail of deception. Combine that with a rogue prosecutor and shoddy police work (didn’t they read the stupid medical reports for themselves?) she almost put 3 innocent men in jail. “ (12)
The Civil Lawsuits Against Tara Levicy and Duke
The Cooper lawsuit (Carrington et al v. Duke et al) charges that “Defendant Tara Levicy intentionally provided the Durham [Police] Investigators information about the medical and physical evidence of rape that was false and misleading. This information was provided in repeated interviews over a long period of time with intentional or reckless disregard for the truth. The Durham Investigators expressly relied on this misinformation, and without it the rape investigation would not have occurred or would have been terminated promptly.” (C 483).
The Cooper civil lawsuit also charges that DUMC breached its duties with regard to “Levicy’s misrepresentations to the Durham Investigators and other that the medical and physical evidence was consistent with Mangum’s rape allegations; defendants’ failure to require sufficient training to its sexual assault nurse examiners and its failure to ensure that a properly trained SANE nurse examined Mangum; defendants’ failure to provide adequate supervision of Levicy and other SANE nurses; Levicy’s subsequent mischaracterizations of the medical and physical evidence to the Durham Investigators; defendants’ suppression of and/or failure to disclose exculpatory information derived from Duke’s examinations of Mangum on March 14; Arico’s public statements ratifying Levicy’s misrepresentations concerning the medical and physical evidence from Duke’s examinations of Mangum; defendants’ failure to correct Levicy’s misrepresentations…” (C 506)
The Ekstrand lawsuit (McFadyen et al v. Duke at al) charges Levicy, Arico, Manly and Victor Dzau (DUMC chief), among other things, with negligence, negligent supervision, and infliction of emotional distress.
“1313. At the time they made their respective public statements and statements to law enforcement falsely claiming the medical evidence supported Mangum’s accusations, Levicy and Arico each knew or should have known that such statements were false and inflammatory and likely to cause Plaintiffs harm.
“1314. At the time they fabricated the records of Mangum’s SAE and delivered them to the police investigators, Levicy and Arico knew or should have known that such conduct was likely to cause Plaintiffs harm.
“1320. Arico, Manly, the PDC, DUHS and Duke University negligently supervised Defendant Levicy by failing to monitor her conduct and performance, to discipline her, retrain her, and/or terminate her employment when they knew of her propensity to abuse her status as a forensic nurse examiner to prop up or fabricate evidence to support plainly false claims of sexual assault, fabricate forensic medical records, and otherwise engage in misconduct in the performance of her duties as a SANE nurse, but instead, assigned her or acquiesced in her assignment to conduct Mangum’s SANE exam while still a SANE in training.
“1322. Arico (viz. Levicy), Manly, the PDC, DUHS and Duke University further negligently supervised Levicy and Arico by ignoring evidence demonstrating their misconduct in their public statements and statements to law enforcement and prosecutorial authorities, and instead continuing to allow Levicy to hold herself out to law enforcement and prosecutorial authorities and to the public as an expert qualified to render opinions as to observations during an SAE that she did not conduct, nor was qualified to evaluate, and, throughout the 13 month investigation, to allow Levicy and Arico to continue to proffer testimony, expert and otherwise.
“1327. Levicy, Arico, Manly, the PDC, DUHS and Duke University acted individually and in concert to manufacture false evidence and to conceal the forensic medical evidence that proved Mangum’s claims were false, for the purpose of enabling Durham Police to obtain and abuse an NTID Order, perpetuating the 13 month investigation, and in an attempt to force a trial on Mangum’s claims, placing Plaintiffs and their teammates in grave danger of wrongful convictions, which charges they knew or reasonably should have known and believed were false and not supported by probable cause.”
Tara Levicy R.N. did not renew her North Carolina nursing license (inactive status as of July 25, 2007) and moved to New Hampshire in 2007. She has a New Hampshire nursing license and lives in West Lebanon, NH. It has not been confirmed where she works, but an internet page states she is running in a July, 2008 benefit for Dartmouth’s Norris Cotton Cancer Center in Lebanon NH (13). She faces civil legal liability in the Cooper and Ekstrand suits and is expected to be thoroughly deposed should these cases go forward. She was not named in the civil lawsuit filed by attorneys on behalf of Evans, Finnerty and Seligmann against Durham because her activities were covered by their prior confidential eight-figure settlement with Duke University.
Ms. Levicy’s actions in the attempted Duke lacrosse frame-up show how important the SANE is in the investigation of sexual assault cases. Her actions also demonstrate how inexperience and ideological bias in a SANE can be dangerous. The case also underlines the importance of good supervision and review of in-training nurses and SANEs by their superiors. Hers is a cautionary tale for all those who work in forensic medicine.
1) Search warrant text
2) NC Attorney General report
3) Levicy at University of Maine
4) Levicy article concerning “The Vagina Monologues”
5) KC Johnson on Levicy exam
6) Levicy background
7) Motion to Suppress the Alleged Identification of the Defendants p. 5 , para. 10, 12/14/06
8) Neff article on SANE exam of Mangum 4/16/07
9) Neff article on Dr. Manly interview 4/18/07
10) KC Johnson on Levicy & law enforcement
11) Wilson & Glater, New York Times 8/25/06
12) “Kethra” on Levicy’s performance as a SANE
13) Tara Levicy in New Hampshire
The Ekstrand lawsuit (McFadyen et al v. Duke at al)
The Cooper lawsuit (Carrington et al v. Duke et al)
Levicy being questioned at the NC State Bar where the former Durham DA Nifong was disgraced and disbarred for his actions in indicting three innocent players over a sexual assault which never happened.
THE FORENSIC NURSE'S CODE OF ETHICS