Showing posts with label DUMC. Show all posts
Showing posts with label DUMC. Show all posts

Friday, May 16, 2008

Our Collective Voice: Part II: The Allegations that Duke University Medical Records were altered by Levicy



Part II of the allegations against Tara Levicy and Duke University Medical Center; researched and complied from the NC AG Summary of Conclusions, NC State Bar files, Court Motions, Depositions, News articles, Professor KC Johnson analysis, and from the two civil complaints filed in Federal court against multiple defendants including Levicy and DUMC. The author is sceptical, a well known and respected Blog Hooligan.

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 [2006] 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..

“In Closing:

“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.

To wit:

“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.”

In Conclusion

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.

References:

1) Search warrant text
http://news.findlaw.com/hdocs/docs/duke/ncduke41806sw4.html

2) NC Attorney General report
http://www.newsobserver.com/content/news/crime_safety/duke_lacrosse/20070427_AGreport.pdf
3) Levicy at University of Maine
http://www.newsobserver.com/1534/story/566819.html

4) Levicy article concerning “The Vagina Monologues”
http://home.att.net/~ltc8k9/eletter_august_03.pdf

5) KC Johnson on Levicy exam
http://durhamwonderland.blogspot.com/2007/05/levicy-exam.html

6) Levicy background
http://web.archive.org/web/20060321031916/http://www.wildmed.com/employee_profiles/emp_prof_k_r.html
7) Motion to Suppress the Alleged Identification of the Defendants p. 5 , para. 10, 12/14/06
http://www.newsobserver.com/content/news/story_graphics/20061214_motion.pdf

8) Neff article on SANE exam of Mangum 4/16/07
http://www.newsobserver.com/100/story/564692.html

9) Neff article on Dr. Manly interview 4/18/07
http://www.newsobserver.com/1537/story/565336-p3.html

10) KC Johnson on Levicy & law enforcement
http://durhamwonderland.blogspot.com/2007/05/levicy-and-law-enforcement.html

11) Wilson & Glater, New York Times 8/25/06
http://www.dukenews.duke.edu/mmedia/pdf/nytimes825.pdf

12) “Kethra” on Levicy’s performance as a SANE

13) Tara Levicy in New Hampshire

Civil Complaints

The Ekstrand lawsuit (McFadyen et al v. Duke at al)
http://www.ninthstreetlaw.com/docs/amended_complaint.pdf


The Cooper lawsuit (Carrington et al v. Duke et al)
http://www.bork.com/downloads/02-21-08-Complaint.pdf

Video

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.
http://www.youtube.com/watch?v=792hIhDAGM0


THE FORENSIC NURSE'S CODE OF ETHICS

http://www.iafn.org/displaycommon.cfm?an=1&subarticlenbr=56

Wednesday, December 19, 2007

XXVII. THE SANE CONSPIRACY

Looking back to those early days of the Hoax one of the common themes in outrage expressed in the community was the claim that the false accuser was examine at DUMC and they had proof of the injuries and rape. Those claims were taken seriously by individuals in Trinity Park and on Duke's campus. Here was Duke University Medical Center, a trusted teaching hospital, backing up these allegations in the press. Many of the doctors & nurses lived in the community and there were sharing the rumours that were spread around the hospital

In the civil lawsuit filed yesterday there are numerous chilling allegations about the Hoax. One of the most serious is the Sane Conspiracy.

XXVII. THE SANE CONSPIRACY

646. When Nifong, Himan, and Gottlieb learned on March 28th that there would be no DNA evidence, he lost the two fundamental elements of proof in his case at once. DNA evidence is not only identification evidence; it is also physical evidence of sexual contact, if not sexual assault. Without either, the investigation could not reasonably go forward. To perpetuate the investigation beyond March 28, 2006, Nifong, Himan, and Gottlieb solved their identification problem by rigging an identification procedure that totally disregarded G.O. 4077. They solved the physical evidence problem by colluding with Defendant Tara Levicy to fabricate proof of “trauma” where none, in fact, existed.

A. Levicy’s False Claims of Corroborating Evidence

647. At the inception of the media firestorm that erupted around Mangum’s allegations, Defendant Levicy was at the center. In the falsified factual sections of the NTID Order that grabbed national headlines, Gottlieb included the gist of what he claimed Levicy reported to him, namely that: ”The victim was treated and evaluated at Duke University Medical Center Emergency Room shortly after the attack took place. A Forensic Sexual Assault Nurse (SANE) and Physician conducted the examination. 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.”

648. Defendant Levicy’s role in Nifong’s public statements about the case became central when Nifong learned that DNA testing would not provide any physical evidence of sexual contact, much less sexual assault. Nifong learned there would be no DNA evidence to prove sexual contact on March 28, 2006. Beginning on that day, when Nifong was asked why he was so certain there had been a rape, he pointed to Tara Levicy and DUMC. For example:

(1) On March 28, 2006, Nifong told Dan Abrams of MCNBC that he was convinced there was a rape because “[t]here is evidence of trauma in the victim’s vaginal area that was noted when she was examined by a nurse at the hospital, and her general demeanor was suggestive of the fact that she had been through a traumatic situation.”

(2) On March 28, 2006, Nifong told Rita Cosby of MSNBC that he believed “that rape did occur… [because] the victim’s demeanor and the fact that when she was examined by a nurse trained in sexual assault, there was swelling, and pain in the area that would have been affected by the rape. The victim gave signs of having been through a traumatic situation.” Cosby responded “Mr. District Attorney, good luck in tracking down the guys who have done a horrible thing.”

(3) On March 29, 2006, Nifong told a reporter for the Charlotte Observer that “there were bruises that were consistent with a sexual assault…. there was also behavior that was consistent with having gone through a traumatic experience.”

(4) On March 30, 2006, Nifong told a reporter for CBS’s nationally televised “The Early Show” that he was convinced a rape occurred because of the medical evidence in the case. The video of this interview is digitally annexed hereto as ATTACHMENT 19, and may be viewed below:

(5) On April 4, 2006, a reporter a reporter for the Charlotte Observer, Mark Johnson, was interviewed about the case by Greta Van Susteren. Based on Nifong’s statements to him, Johnson told the national audience “[Mangum] was examined at Duke University Medical Center, which as you know is a top flight hospital. This was a nurse who was trained in dealing with these types of cases and that examination is largely what the district attorney is basing his opinion on when he says that he believes an attack did occur.”

649. Levicy avidly followed the movements of the case in the media and on the internet. It was plainly obvious from Nifong’s statements that he would rely exclusively upon Levicy to “convince” a jury that a rape occurred.

B. Theresa Arico, Levicy’s Supervisor, Vouched for Levicy’s Fabricated SANE Evidence

650. Immediately after Nifong publicly proclaimed his reliance upon Levicy’s putative testimony in the case, Theresa Arico, Levicy’s DUMC supervisor, gave an interview to the Durham Herald Sun. Arico held herself out as “a sexual nurse examiner and coordinator of that program at Duke.” Arico was not present for Mangum’s SANE exam, yet she asserted, in her Herald Sun interview published on April 1, 2006, “you can say with a high degree of certainty that there was a certain amount of blunt force trauma present to create injury.” Arico told the reporter that this conclusion was based upon in the SANE nurse’s examination with a coloposcope, a device used to magnify minute injuries that are consistent with a sexual assault. Further, Arico told the reporter from the Herald Sun, “I can reasonably say these injuries are consistent with the story she told.”

C. Levicy Produced Falsified Medical Records to Support Her Fabrications.

651. Levicy falsified the SANE report to support her own and the Investigators’ fabrications. For example:

(1) Levicy did not produce a significant portions of the SANE until April 5, 2006 weeks after DUMC’s March 21, 2006, production of medical records. In the intervening time, Levicy re-created those portions of the SANE that were not completed on March 14th after the SANE was abandoned. On April 5, 2006, Levicy produced the remaining material portions of the SANE to Gottlieb, including what Levicy claims to be a handwritten transcription of the SANE interview of Mangum, and several pages containing strike-outs and other addenda that do not conform to the facts of the SANE exam, but instead attempted to conform the SANE exam to what Levicy understood to be the evidence at the time. For example:

(a) Levicy falsified the medical record of Mangum’s SANE by fabricating a transcript of her interview of Mangum in order to conform the SANE interview to what Gottlieb reported in his sensationalized application for the NTID Order to be Mangum’s account of the sexual assault;

(b) Levicy falsified the medical record of Mangum’s SANE by revising and annotating Mangum’s contemporaneous responses on the preprinted SANE forms to conform them to the evidence police believed existed at the time. By way of illustration, on one of the late-submitted pages of the SANE, a question asked if any efforts were made to conceal evidence. Levicy’s original notation, “no,” was struck through, and the (formerly empty) “yes” blank was checked. Further, a handwritten notation near the revision states, “wiped her off with a rag.” In this revision Levicy conformed the SANE with the fact a towel containing semen had been seized during the search of 610 N. Buchanan. However, after Levicy submitted this page on April 5th, police andNifong learned that, although the towel did contain semen matching one of the residents (who was then a suspect), Mangum’s DNA was not on the towel.

(c) The next day, on April 6th, Mangum gave her first (and only) written statement in the case. She wrote an account remarkably consistent with the SANE interview transcript Levicy gave Himan the day before. In a move transparently designed to conform her account to the existent evidence of semen found by police in the bathroom, in the case, Mangum writes an “add-on” paragraph at the end of her statement. The add-on paragraph reads, in toto, “I would like to add that Adam ejaculated in my mouth and I spit it out onto the floor, part of it fell onto the floor [scratch out] after he pulled his penis out.”

652. The falsifications in the SANE were plainly designed to conceal the fact that Mangum did not report any of the detail that appeared in Gottlieb’s application for a NTID Order that was published widely on the internet. In other words, the fabrications were designed to corroborate the sensationalized version of Mangum’s account that Gottlieb falsely reported in his factual sections of the application for the NTID Order.

D. Levicy Proffered Falsified Testimony to Perpetuate the Investigation
from March 16, 2006 until January 11, 2007

653. Further, over the course of several meetings and interviews with Nifong, Gottlieb, Himan, and Wilson, Levicy repeatedly proffered false testimony that was clearly designed to fill the chasms in Mangum’s case and/or to restore Mangum’s glaring credibility problems. For example, in those meetings and interviews with Nifong, Gottlieb, Himan and /or Wilson:

(1) Levicy agreed with Nifong, Gottlieb, and Wilson that she would testify to forensic medical evidence that she did not observe and did not exist.

(2) Further, Levicy falsely claimed that “diffuse edema of the vaginal walls” corroborated Mangum’s claims.

(3) Levicy fabricated a forensic medical observation that the SANE revealed evidence of penetrating blunt force trauma. Her supervisor Arico, had already echoed publicly supported this false claim in Arico’s on-the-record Herald Sun Interview, given the day after the SBI formally notified Nifong that the rape kit had no DNA evidence that would corroborate Mangum’s allegations.

(4) Levicy, Arico, and DUMC all condoned and ratified Nifong’s repeated recitation of the claim of trauma in interviews televised locally and nationally, and in local and national newspapers and magazines. Yet, there was no evidence of blunt force trauma consistent with rape. According to the SANE documentation that Levicy submitted on March 21st , it is plainly obvious that the pelvic exam was abandoned at its inception because Mangum protested Manly’s use of a speculum. Penetrating blunt force trauma, if it existed, would be found on Mangum’s cervix. Mangum’s cervix, however, could not be observed without the aid of (1) a speculum and (2) a coloposcope. The March 21st SANE documents make it clear that the coloposcope wasnever used in the pelvic exam because Mangum refused the insertion of a speculum.

(5) Levicy claimed the speculum could not be inserted because Mangum was in too much pain. If that were true, the pain would be treated, and its source diagnosed. There was no effort to diagnose the source of Mangum’s pain, nor was her pain treated. Furthermore, there is no evidence that Dr. Manly requested an E.D. attending physician to examine Mangum to diagnose the source of Mangum’s pain and to treat it. Upon information and belief, Dr. Manly, like every other provider at DUMC, could not corroborate Mangum’s reports of pain with any symptoms associated with pain.

(6) In three separate places, the SANE notes that no condoms were used. Nearly a year after the SANE, Levicy claimed that she felt Mangum could not be sure that condoms were used. Throughout Levicy’s SANE, Mangum’s unequivocal report that no condoms were used is noted again and again. For example, when asked if condoms were used, the “not sure” blank was not checked in favor of the “no” blank. Further, in Step 2 of the SANE, the SANE is required to write a “[b]rief account of the assault us[ing] the patient’s own words.” In the small space provided, Levicy volunteered, “No condoms used.”

(7) After the DNA testing revealed the impossibility that Mangum could have been assaulted vaginally, rectally, and orally by any lacrosse player, Nifong claimed publicly and falsely that he believed condoms were used. Nothing in science or the human experience suggests that the violent rape Mangum falsely alleged can be perpetrated without leaving so much as a skin cell somewhere—anywhere. Knowing this, on January 10, 2007, Levicy proffered additional fraudulent testimony that the absence of DNA could be explained by the use of condoms.

(8) Further, Levicy proffered additional fabricated testimony that to explain why the SANE is rife with statements indicating “no condoms” were used. As of January 10, 2007, Levicy’s testimony would have been that Mangum, in fact, “wasn’t sure.” Levicy explained that no one can ever really be sure whether a condom is used, unless they actually see the condom.

(9) Further, Levicy proffered that she “wasn’t surprised when [she] heard no DNA was found because rape is not about passion or ejaculation but about power.” Levicy’s statement belied her ignorance of modern DNA testing, particularly Y-STR testing employed in this matter, which does not depend upon an ejaculatory event. Y-STR testing has the capacity to detect malesourced human cells of all kinds, including a skin cell.

(10) Further, Levicy proffered testimony calculated to save Mangum’s identifications from suppression. One of the factors in the legal analysis for suppression of identification testimony is the ability to attend and to recall (acuity) things at the time in question. The evidence that Mangum was incoherent, if not suffering from psychotic delusion, in the early morning hours of March 14th was significant. Levicy proffered testimony to rebut that evidence. Nearly a year after the SANE, Levicy proffered new testimony claiming Mangum was “very alert.” To support that claim, Levicy proffered testimony that Mangum “knew what she was missing (meaning her money, her bag and her phone.)”

654. Levicy proffered the foregoing fabricated testimony on the evening of January 10,2007. Two days later, Nifong quit the case, and asked the Attorney General to take over the prosecutions and still continuing “investigation.” Shortly thereafter, when Levicy learned that Nifong, Himan, and Gottlieb were no longer controlling thecase, Levicy called Wilson to make a “clarification” to her proffered testimony. In her clarification, Levicy said—for the first time—that the absence of DNA matching the lacrosse team members could also be explained by the fact that the alleged gang rape “didn’t happen.”