The Curious Case of Crystal Mangum’s Sexual Assault Examination Report

Levicy Allegedly Withholds Pages, Adds "Evidence"

(This article represents my opinions only, and is solely for discussion and debate purposes. Thanks to Kethra, Baldo, Quasi, and JSwift for suggestions, but all conclusions are mine.)

Authored by sceptical

SUMMARY

The SANE exam of false rape accuser Crystal Mangum was performed March 14, 2006 in the Duke University Medical Center Emergency Department (ED) by Dr. Julie Manly, assisted by SANE-in-training Tara Levicy. Levicy incompletely recorded the findings in the Sexual Assault Examination Report (SAER), mistakenly co-signed the SAER as the examiner, and was responsible for turning over the SAER and her notes to the police. Standard procedure is for the SAER to be sealed with the "rape kit" specimens and given to police the same day to be logged in as evidence to maintain the chain of custody. Instead, allegedly, Levicy improperly retained parts of the SAER and her notes for weeks afterwards. SAER pages concerning Mangum's physical examination were turned over to Durham Police Sgt. Mark Gottlieb on March 21 when he personally served Levicy with a subpoena for Mangum's medical records. It was not until April 5 that Levicy gave to Police Inv. Ben Himan the additional withheld SAER pages with the history of the "assault;" a written nursing note by Levicy purporting to give Mangum's March 14 recounting of the event; and Duke ED electronic medical records of Mangum's visit. It is unclear why there was a delay between receipt of the subpoena on March 21 and tendering of the records on April 5. The retained SAER pages, which were allegedly altered, and Levicy's nursing note turned over April 5 contained details of the case which were not known on March 14, indicating they had been added after the fact. Withholding sections of the SAER and then later allegedly amending them with notations helpful to the prosecution was unethical and possibly illegal.

PROLOGUE

The SANE exam was a key piece of evidence in the 2006 Duke Lacrosse rape hoax. SANE is an acronym for “Sexual Assault Nurse Examiner.” Written records and comments to police and prosecutors from SANE in-training Tara Levicy R.N., an inexperienced nurse and feminist who performed part of the exam, propelled the case ahead by giving credence to the false accuser, Crystal Mangum.

Mangum was brought to the Duke University Medical Center (DUMC) Emergency Department (ED) at about 2:45 a.m. on March 14, 2006 after claiming she had been raped at a party. She had originally been taken to Durham Access Center by Durham police, who thought she was drunk and needed to be committed for her protection. During the intake interview, Mangum, knowing otherwise she was going to be involuntarily confined, nodded yes when asked by a nurse whether she had been raped. She was then transported by police to DUMC for evaluation.

During the night shift (before 7 a.m.) at DUMC she was seen by seven nurses and physicians, as well as by police officers. She gave differing accounts of the “assault” to each one of those who interviewed her.

Mangum was first evaluated at 2:53 a.m. by triage nurse Jenni Hauver R.N. Mangum said she had been sexually assaulted and claimed to be in pain (pain score 10/10). Hauver noted she was anxious but on exam found Mangum to be “in no obvious discomfort.”
http://news.justia.com/cases/featured/north-carolina/ncmdce/1:2007cv00953/47494/

Resident physician Jaime Snarski M.D. interviewed and examined Mangum beginning at 3:18 a.m. “Mangum reported to Dr. Snarski that she was “stripping at a bachelor party,” and “the bachelor [and] other guys…put their fingers and penises” in her “vagina against her will.” To Dr. Snarski, Mangum complained of extreme pain, but denied being hit. When asked to describe the pain, Mangum said it was “only in her vagina.” “(McFadyen et al, para. 295).

The ED attending physician Joshua Broder M.D., who was Snarski’s supervisor, also saw her. She ''denies other physical assault,'' Dr. Broder wrote after initial examination in the Duke ED. http://query.nytimes.com/gst/fullpage.html?res=9407E2DF103EF936A1575BC0A9609C8B63&sec=&spon=&pagewanted=4

Another nurse Carol Schumoski R.N. checked Mangum about 3:28 a.m. “Mangum reported that her pain was a “10.” When Schumoski asked Mangum to describe the pain, Mangum said it was “down there.” Nurse Schumoski also examined Mangum for symptoms associated with pain, and found none. Shortly thereafter, Nurse Schumoski found Mangum, alone, resting quietly in no apparent distress. “(McFadyen et al, para. 296). Investigator Buffy Jones of the Durham Police Department (PD) also questioned Mangum about her story at about 3:50 a.m.

DUMC had a roster of certified SANE nurses and an on-call schedule for them. Rather than bring in the on-call SANE nurse to do a SANE exam, someone, possibly the ED charge nurse, decided to wait until the day shift would arrive. Mangum was allowed to sleep on a gurney in the ED.
The assignment to do the SANE exam was given to SANE in-training Tara Levicy R.N. Ms. Levicy had started a 15 month “fast track” nursing program at the end of 2003. By February 2005 she had received her R.N. and a North Carolina nursing license (granted February 8, 2005). Her first job out of nursing school was in the DUMC ED. In August 2005 she was allowed to begin work on SANE certification, even though international standards call for at least 3 years of experience. Thus, by March 2006, Levicy had only little more than a year total of nursing experience and only 7 months of SANE training.
http://liestoppers.blogspot.com/2008/05/our-collective-voice-allegations.html

Levicy had completed the classroom requirements for SANE certification, but as of March 14 she had not yet received her certificate. She had not completed the Practical part of SANE training where she would observe exams by an experienced SANE and later do her own exams while under close supervision of an experienced SANE. Therefore, Levicy’s assignment by the Duke ED to do Mangum’s SANE exam without appropriate SANE supervision was improper, and Levicy was acting beyond the scope of her nursing practice.

Levicy had arrived at the Duke ED at approximately 6:45 a.m. She began to interview Mangum at about 7 a.m. According to Levicy’s account, Mangum told her that she was raped by three attackers vaginally, orally, and anally; that she had been pushed, pinched, and kicked; that she had lost fake fingernails in the struggles; that she had pain in her vagina, anus, face, shoulders, neck, abdomen, back, buttocks and legs; and that no condoms had been used (Carrington et al. para 119). Levicy talked to Mangum for about an hour and also took photographs.
http://durhamwonderland.blogspot.com/2007/05/levicy-exam.html

Because Levicy had not received her SANE certificate, she was not authorized to perform the pelvic exam on Mangum. A resident physician in her last year of training, Julie Manly M.D., joined Levicy about 9 a.m. and they commenced the SANE exam.

WHAT IS A SANE EXAM?









Figure 1 - A Sane Kit

According to the blog Forensic Talk’s Kathleen Eckelt R.N., a SANE with many years of experience:

" ‘A medical evidentiary examination is given to victims of sexual assault and other forms of abuse and is performed to collect physical evidence and document findings that can be used to identify, prosecute, and convict an assailant.

While an evidentiary examination includes an array of medical components, including assessment of injuries and crisis intervention, its main purpose is to meet the needs of the legal system...’

The SANE examination is usually completed by an RN with advanced sexual assault forensic training and experience. The nurse carries the designation of Sexual Assault Nurse Examiner (SANE), Sexual Assault Forensic Examiner (SAFE), or Forensic Nurse Examiner (FNE).
The nurse's report usually consists of several pages of in depth questions regarding the patient's past medical history, the alleged assault, as well as documentation on the collection of evidence.”
http://harfordmedlegal.typepad.com/forensics_talk/the_sane_report.html

The nurse’s report is commonly called the Sexual Assault Examination Report (SAER). This is a pre-printed form which includes check-offs, underlined spaces for written responses and open spaces for additional responses.

The form varies from state to state, but general features (adapted from Eckelt) include:

1. Identification information: Date, name, address, phone number; Date, place, time of incident; Date, place, time police notified; Date, place, time of admittance to ER; Name of Detective; How brought to the hospital

2. Informed consent of patient for the procedures

3. Physician’s orders for tests, medications and treatment

4. Patient’s past medical history: allergies, illnesses, chronic diseases, history of STDs, birth control use, medications, drug and alcohol use.

5. Sexual contact history: Date of last consensual sexual contact; Condom used?; Foreign objects (dildo, vibrator, other) used?; Date of last menses.

6. Assault information: Number of assailants, name if known, sex, race, age. How assaulted? Condom used? From what angle were they assaulted? Position of patient during assault? Any kissing, licking, fondling, biting, gagging, binding, blindfolding by assailant? Any verbal threats? Any physical force? Any weapons? Did the assailant (s) give the patient any alcohol or drugs? Did victim injure assailant? Any scratching? Did patient shower / bathe / drink liquids / brush teeth, etc. after the assault?

7. Physical examination: General examination of head, eyes, ears, nose, throat, neck, chest, heart, abdomen, extremities, and skin looking for signs of injury or trauma. Pelvic examination including examination of labia, hymen (if present), vagina and cervix. A speculum is used to visualize the vagina and cervix to look for discharge, redness, menses and cervical injuries. Techniques often include a Woods lamp exam using UV light to visualize semen and a colposcopic (Medscope) exam which makes injuries visible by magnifying the view of internal tissues.With each of these tests, photos are taken to document the findings. An external exam of the anus and an internal rectal exam is done to look for tears, bleeding or other signs of trauma.

8. Evidence collection: All significant clothes are collected, especially the underwear. Swabs are taken of all suspected areas, including the mouth, plus (4) vaginal / cervical swabs, and (2) perineal / anal swabs are done if need indicated. Other specimens obtained include fingernail scrapings, pubic hair combings, and pulled hair may be done, depending on the protocol. Attention is also paid to any feminine hygiene products, debris, and foreign material. Blood samples are taken for the patients DNA. A blood pregnancy test and RPR to check for Syphilis is usually done as well. Depending on the protocol, blood and urine samples may also be taken for toxicology tests. A urine test for GHB is taken if any date rape drugs are suspected. Swabs and culture are taken to check for Chlamydia and Gonorrhea.

9. Discharge. Patient is given antibiotic to prevent STD and urged to see a gynecologist and get HIV testing. She is given the name and phone number of the detective assigned to the case, and well as counseling resources.

There are several medical records generated by a SANE exam.

First, the medical facility involved has its own medical records, which may either be hand-written or computerized (electronic medical records). These document the patient’s admission to the Emergency Department and general medical and nursing evaluation.

Second, the SAER pre-printed form has several components listed above, including past medical history, history of the assault, physical examination, and pelvic examination.

Third, most jurisdictions have a medical evidence inventory list to identify what swabs and other specimens, including clothing, were collected. This is important for the chain of custody required for evidence items in criminal cases.

The normal procedure is for the SAER to be completed on the day of the exam by the SANE nurse, signed by the nurse, and included with the specimens in a sealed bag or box (Fig. 1). The evidence inventory list is also sealed in the bag or box. The sealed “rape kit” is then passed from the SANE nurse to appropriate law enforcement officers, preserving the chain of custody.

While this is the normal sequence of events, this is not what happened on March 14, 2006, and thereafter, with the SANE exam of Crystal Mangum in the Duke ED.

CRYSTAL MANGUM’S SANE EXAM

As noted above, because Levicy had not yet received her SANE certification, Julie Manly, M.D. performed the pelvic exam on March 14 with Levicy acting as a “scribe,” writing down the findings.

The resulting SAER, along with Mangum’s other medical records, was placed under seal by a judge in the criminal cases against Duke lacrosse players Reade Seligmann, Collin Finnerty and Dave Evans. However, motions in the criminal cases and the complaints in the three civil rights lawsuits (Evans et al v. Durham et al.; McFadyen et al v. Duke et al.; and Carrington et al v. Duke et al.), as well as some blog and press reports (especially from Prof. KC Johnson and the News& Observer’s Joe Neff) , inform us about the exam and the disposition of the products of the exam—specimens, the SAER, and Mangum’s other medical records.

According to the McFadyen et al lawsuit (para. 302-7)
302. At approximately 9:00 a.m., Defendant Julie Manly, Duke Physician, initiated the SAE with Defendant Levicy in tow. Manly conducted the SAE, while Levicy filled in the blanks and checked boxes on the pre-printed SAER.
303. Defendant Manly never completed Mangum’s SAE; it was abandoned in midstream because Mangum refused to allow the exam to continue.
304. To initiate the pelvic exam, Defendant Manly inserted a speculum, which allows the examiner to use a coloposcope to visually inspect the vaginal walls and cervix at high levels of magnification. Mangum quickly protested and insisted that the examination cease. According to Levicy, Mangum was responding to intense pain. However, if Defendant Manly believed Mangum’s pain was too severe to continue with the pelvic exam, the appropriate medical response was to diagnose the source of the pain and treat it. Once the pain (and its source) is treated, the exam can continue. That did not happen.
305. When Defendant Manly abandoned the SAE, much of the SAE had not been done.
For example:
A. No pelvic exam was conducted.
B. No rectal exam was conducted.
C. No forensic toxicology tests had been ordered.
D. No forensic blood draw was taken.
snip
307. Several photographs were taken in the SAE that did, in fact, show injury to Mangum’s feet and knees. However, even the nominal injuries documented in the SAER were not new.
http://news.justia.com/cases/featured/north-carolina/ncmdce/1:2007cv00953/47494/

According to the Carrington et al lawsuit (para. 124-129)
124, Levicy took notes during Dr. Manly’s pelvic exam. According to Levicy’s notes, Mangum had no vaginal or anal tearing, bleeding, or bruising, no grimacing, no sweating, no changes in vital signs, and no other symptoms ordinarily associated with the serious pain of which she complained. Her head, back, neck, chest, breasts, nose, throat, abdomen, and extremities were all unbruised and normal. There was no sign of rectal penetration; as noted above, Levicy recorded “nothing notable” in the section of the SANE form labeled “Anal Exam.” Snip
126. Dr. Manly’s only diagnosis of any abnormality in the pelvic examination was “diffuse edema [i.e. swelling] of the vaginal walls.” Snip
128. During the examination, Mangum screamed hysterically, and complained of severe pain when Dr. Manly inserted a speculum for vaginal examination. This behavior was highly atypical for a rape victim who lacked any bruising, bleeding, tearing or other visible physical injury.
http://dockets.justia.com/docket/court-ncmdce/case_no-1:2008cv00119/case_id-47871/

Thus, Mangum’s exam ended prematurely without a full pelvic, colposcopic, or internal rectal exam. Whether Mangum actually withdrew consent for the exam or just was uncooperative is unclear. However, Dr.Manly did manage to obtain evidence specimens, including oral, vaginal, and rectal swabs from Mangum.

At the conclusion of the exam, according to Levicy’s notes, the evidence was collected, gathered up, and delivered to the custody of a representative of the “Law Enforcement Agency,” Duke Police Officer Joyce Sale. (McFadyen et al para 310). The same day the items were turned over to the Durham Police Department and logged in as evidence, preserving the chain of custody.
Therefore, the SANE exam was incomplete because of Mangum’s hysterics— most importantly, since she would not allow full insertion of a speculum there was no colposcopic exam (required for a diagnosis of “blunt force trauma,” among other injuries) or exam of the cervix.

Also, the documentation of the SANE exam was incomplete. For example, Dr. Manly noted a white discharge in the vagina. She thought it was sperm, but later concluded it may have been due to a vaginal yeast infection.

http://www.newsobserver.com/100/story/565336-p3.html

Whatever the cause, Levicy and Manly did not document the presence of the white fluid nor do any tests to identify the substance. Furthermore, Levicy did not fill in all the boxes and spaces on the pre-printed SAER, leaving some of them blank.

THE PRODUCTS OF THE SANE EXAM

According to the “DNA motion” in the criminal case (Motion to Compel Discovery: Expert D.N.A. Analysis 12/12/06, p. 2):

“The “rape kit” in this case contained cheek scrapings, oral swabs, vaginal swabs, rectal swabs, a pubic hair combing, and a pair of white panties collected from the accuser at the Duke ER that morning. Also collected from the accuser were four items of clothing: a pair of red lace underwear, a red lace halter top, a white knit skirt, and a white knit top.”

http://www.newsobserver.com/content/news/crime_safety/duke_lacrosse/20061213_dukelacrosse.pdf

The “rape kit” specimens were turned over to the North Carolina State Bureau of Investigation (SBI) by CSI Angela Ashby of the Durham PD on March 27 for processing and analysis. Other specimens from the March 16 search of the party house at 610 N. Buchanan, including false fingernails, a towel, and floor swabs, were also sent to the SBI.

What is not so certain is what happened to the documentation of the SANE exam. An evidence inventory was likely included with the specimens turned over March 14 to the police to document their source.

We also know that some pages of the SAER were retained by Levicy for up to 3 weeks later and not included with the specimens, as is standard SANE procedure.

On March 16, at 11:01 a.m., Durham PD Investigator Ben Himan called Levicy to inquire about the medical evidence relating to Mangum’s claims. It is not clear why Himan called Levicy instead of Dr. Manly or Theresa Arico, R.N., Levicy’s supervisor. However, it is known that Levicy improperly co-signed the SAER as the examiner, when in fact Dr. Manly was the sole examiner. Levicy’s mistaken signature misled the police as to her role in the procedure, and she apparently did not disabuse them of the error.

Levicy told Himan that “due to HIPAA laws she was unable to divulge patient information,” but that “there were signs consistent with sexual assault during her test” (Carrington et al, para 150). According to KC Johnson, in a later interview with defense attorneys, Levicy confirmed that she had, in fact, passed along to Himan this diagnosis—based, she said, on her subjective evaluation of the hysterical Mangum’s pain. http://durhamwonderland.blogspot.com/2007/05/levicy-and-law-enforcement.html

However, Levicy’s assertion that HIPAA laws (Health Insurance Portability and
Accountability Act) prevented disclosure was incorrect—in those regulations there is a clear exception when information is for law enforcement purposes.

On March 20 the Durham PD prepared a subpoena for Mangum’s medical records (Fig. 2). (A subpoena was not required for a SAER, but was needed for her other records).
The subpoena was addressed to Arico, the head of the SANE unit at Duke hospital. This in and of itself is unusual because normally a subpoena would be issued to the director of medical records at the hospital.
























Figure 2 - The subpoena for Magnum's Medical Records

On March 21 Sgt. Mark Gottlieb, Himan’s supervisor, personally served Levicy, rather than Arico, with the subpoena at Duke University Hospital.

Gottlieb later summarized his meeting with Levicy:

"I asked her if the exam was consistent with blunt force trauma, and she replied yes," Gottlieb wrote.

The nurse, Tara Levicy, "stated the victim had [swelling] and tenderness to palpitation both anally and especially vaginally. She stated it was so painful 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."

http://www.newsobserver.com/1185/story/479650.html

According to the Carrington et al. lawsuit (para 185), “Levicy made crucially false and misleading statements to Gottlieb about the nature of the physical and medical evidence. She told Gottlieb that the examination of Mangum had revealed physical evidence of ‘blunt force trauma,’ and that the blunt force trauma was ‘consistent with the victim’s statement’ alleging a forcible gang rape by three men…”

However, no colposcopic exam (required to diagnose blunt force trauma) had been performed, and there was no mention of physical trauma in the written SANE report (except the three lower leg scratches from an earlier injury).

Also, Levicy told Gottlieb there were signs of anal rape, although no findings such as rectal tenderness or swelling were noted in Dr. Manly’s exam.
http://durhamwonderland.blogspot.com/2007/05/levicy-and-law-enforcement.html

A new analysis of the McFadyen et al v. Duke et al lawsuit (submitted by attorney Robert Ekstrand) reveals that during their March 21 meeting at Duke Hospital Levicy gave Gottlieb some parts of the SAER pages she had withheld on March 14. These pages apparently contained all or part of the physical examination pages of the SAER.

According to the complaint in McFadyen et al.:

791. 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 SAER 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 SAER documents make it clear that the coloposcope was never used in the pelvic exam because Mangum refused the insertion of a speculum.

If Ekstrand is correct about these assertions in his complaint, then Gottlieb, and through him the Durham PD and District Attorney Mike Nifong, received part of the SAER on March 21. This conflicts with previous reports that Nifong and the Durham PD did not receive any SANE documentation until later, on April 5 when the rest of Mangum’s Duke medical records were turned over.

We do know that some of the history pages of the SAER were in fact not given to the Durham PD and thence to Nifong until April 5, 3 weeks after the SANE exam, when Levicy met with Inv. Ben Himan to give him the subpoenaed records. It is not known why it took from March 21 to April 5 for Duke University Medical Center to deliver the records; normal procedure is to respond to a subpoena in less than 2 weeks.

According to typewritten case notes kept by Himan:

4/5/06 1027hrs - Arrived at Duke Hospital and spoke with Sane Nurse Levicy about Wellsoft medical records of victim.4/5/06 1055hrs - Received triage and discharge and nurse notes from Ms. Levicy.
http://liestoppers.blogspot.com/2007/07/inv-ben-himans-typed-notes-part-1-march.html

Therefore, on April 5, Levicy turned over the following materials to police and prosecutors :

1) The Wellsoft medical records of Mangum are the reports from the Duke ED electronic medical record system called Wellsoft EDIS. This is used for all patients who come in to the ED. The Wellsoft records would be the source of the notes taken by the various nurses and physicians who interacted with Mangum before 7 a.m.

2) A hand-written nursing note written by Levicy purporting to record the story of the “attack” recounted to her by Mangum back on March 14.

3) The remaining SAER pages, mainly those dealing with information about the history of the “assault.”

However, there are major problems with the notes written by Levicy, as well as the SAER pages she turned in on April 5.

First, there were important changes to the withheld SAER pages which had to have been made well after the SANE exam to include new evidence which was not available on March 14.

According to the McFadyen et al complaint:

785. Levicy did not produce significant portions of the SAER until April 5, 2006, weeks
after DUMC’s March 21, 2006, subpoena and subsequent production of medical records to Gottlieb. In the intervening time, Levicy re-created those portions of the SAER that were not completed on March 14th after the SAE was abandoned. On April 5, 2006, Levicy produced the remaining material portions of the SAER to Himan, 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 SAE 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 SAE by revising and annotating Mangum’s contemporaneous responses on the pre-printed SAER 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 SAER, 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 revisio Levicy conformed the SAER 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 and Nifong 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.

The “wiped her off with a rag” comment is important because while the SANE exam was done on March 14, the house where the towel was found was not searched until the evening of March 16. A contemporaneous SAER would not have mentioned the towel (there is no other evidence that Mangum had in fact said anything prior to police or others about being wiped off with a towel).

The version of the “assault” turned in April 5 by Levicy purporting to represent the history given by Mangum on March 14 is remarkable for its consistency with the written statement by Mangum the next day (April 6) and with the Non-testimonial Identification Order request submitted by Gottlieb. There are details of the “assault” which do not appear in any other of Mangum’s earlier accounts—such as anal rape. There are also aspects of this version of Mangum’s history which could only have been concocted after March 14 because they resulted from the search of 610 N. Buchanan on March 16—such as a semen stain on the floor of the bathroom. Again, this reflected additions after the fact in Levicy’s nursing notes.

The McFadyen et al complaint states:

(785) 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 SAER 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.”

786. The falsifications in the SAER 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.

Based in part on Levicy’s allegedly altered records and false testimony to police, DA Nifong decided to go ahead with indictments of Seligmann and Finnerty (April 17) and Evans (May 15) despite negative DNA evidence linking any lacrosse player to Mangum.

Levicy continued her efforts to promote the prosecution’s case long after the DNA results came back negative. She and Arico met privately with DA Nifong on June 9, 2006; curiously, no notes were taken by any of the parties about the meeting. Levicy kept “spinning” her story up to and including January, 2007 when she met with Himan and Inv. Linwood Wilson. For example, at this meeting Levicy claimed Mangum was not sure condoms were used, even though this conflicted with all of Mangum’s previous statements. Also, when asked about the SBI finding no semen in the “rape kit” samples, Levicy said, “I wasn’t surprised when I heard no DNA was found because rape is not about passion or ejaculation but about power.” Apparently she did not realize that DNA tests were sensitive enough to detect skin cells and that ejaculation was not required for a DNA match.
http://durhamwonderland.blogspot.com/2007/05/levicy-and-linwood.html

It was only after Nifong recused himself and Special Prosecutors were appointed that she admitted that a rape might not have happened.

CONCLUSIONS

The SANE exam of Crystal Mangum on March 14, 2006 was incomplete because it was terminated early due to her hysterics. Specifically, no colposcopic, cervical, and internal rectal exams were done.

The SANE examiner who obtained specimens and who attempted to do a pelvic exam was Julie Manly M.D. and not SANE in-training Tara Levicy R.N., who had not yet received her SANE certificate and was an inexperienced nurse.

Tara Levicy R.N. obtained a history from Mangum prior to Manly’s attempted exam and she acted as a “scribe” for Manly filling out parts of the SAER. The documentation was incomplete with facts such as a white vaginal discharge not noted, and spaces left blank in the pre-printed form.

Both Manly and Levicy signed the SAER as the examiner. It was improperly signed by Levicy because she did not perform the pelvic exam. As a result, Durham Police investigator Ben Himan called Levicy about the SANE procedure. Himan and his supervisor Sgt. Mark Gottlieb followed up only with Levicy and never interviewed Dr. Manly or Theresa Arico R.N., Levicy’s superior and head of the Duke SANE program.

False statements by Levicy confirming Mangum’s claim of a sexual assault were a major basis for search warrants, the Non-testimonial Identification Order, and the indictments of Seligmann, Finnerty, and Evans.

The “rape kit” specimens (including oral, rectal and vaginal swabs, hair samples, and clothing) were turned over by Levicy to the Duke Police on March 14, along with an evidence inventory documenting their source. Parts of the SAER were improperly held back by Levicy and not included with the specimens. Duke Police transferred the “rape kit” the same day to Durham Police, who turned them over to the NC State Bureau of Investigation on March 27.

Durham Police Sgt. Mark Gottlieb met March 21 with Levicy at Duke Hospital to deliver a subpoena for Mangum’s medical records, even though the subpoena was addressed to Theresa Arico R.N. At the March 21 meeting, Levicy turned over some of the withheld SAER pages which detailed Mangum’s physical examination. Thus, as early as March 21 Durham Police and DA Mike Nifong had documentation which was inconsistent with the brutal gang rape by three men claimed by Mangum.

For unknown but suspicious reasons, the rest of Mangum’s medical records from Duke were not given to police until April 5. Three types of records were turned over:

First, the Wellsoft EDIS electronic medical records from the Duke Emergency Departments concerning Mangum’s visit on March 14. These computerized records detailed findings by the seven nurses and physcians who interacted with Mangum that night.

Second, a nursing note written by Levicy purporting to be a contemporaneous record of the history she took from Mangum on March 14. There is evidence that Levicy allegedly wrote this note long after March 14 because it included details that were only known following the March 16 search of the party house by police. The story as presented by Levicy bolstered police claims in the NTIO application and Mangum’s written statement of April 6. There are suspicions of coordination and collusion.

Third, the rest of the withheld SAER pages were also turned over April 5. The SAER is supposed to be completed the day of the SANE exam (March 14) or shortly thereafter. Levicy allegedly altered these pages long after the fact with details available only after the March 16 search. These alterations were not properly signed and dated, as required for changes to medical records.

Levicy violated SANE and nursing standards by retaining pages of the SAER for up to 3 weeks after giving the “rape kit” to police, by making claims based on evidence not available at the time of the exam, and by allegedly altering the withheld SAER pages to conform to these claims.

Levicy’s alleged improper changes to her nursing note and the SAER after the fact were an attempt to confirm Mangum’s false claims of rape, provide a justification for search warrants and indictments, and promote the prosecution of three innocent men for a rape that never happened.
REFERENCES

EVANS et al v. DURHAM, NORTH CAROLINA, CITY OF et al
http://news.justia.com/cases/featured/north-carolina/ncmdce/1:2007cv00739/46882/

MCFADYEN et al v. DUKE UNIVERSITY et al
http://news.justia.com/cases/featured/north-carolina/ncmdce/1:2007cv00953/47494/

CARRINGTON et al v. DUKE UNIVERSITY et al
http://dockets.justia.com/docket/court-ncmdce/case_no-1:2008cv00119/case_id-47871/

NY Times article on Gottlieb notes
http://query.nytimes.com/gst/fullpage.html?res=9407E2DF103EF936A1575BC0A9609C8B63&sec=&spon=&pagewanted=4

Kathleen Eckelt R.N. on SAER
http://harfordmedlegal.typepad.com/forensics_talk/the_sane_report.html

DNA Motion 12/12/06
http://www.newsobserver.com/content/news/crime_safety/duke_lacrosse/20061213_dukelacrosse.pdf
Ben Himan’s Case Notes

http://liestoppers.blogspot.com/2007/07/inv-ben-himans-typed-notes-part-1-march.html

News & Observer series “Rush to Judgment” by Joe Neff

http://www.newsobserver.com/1537
http://www.newsobserver.com/100/story/565336-p3.html
http://www.newsobserver.com/1185/story/479650.html

Liestoppers articles on Levicy by sceptical
http://liestoppers.blogspot.com/2008/05/our-collective-voice-allegations.html
http://liestoppers.blogspot.com/2008/05/our-collective-voice-part-ii.html

Durham in Wonderland articles on SANE by KC Johnson
http://durhamwonderland.blogspot.com/2007/05/levicy-exam.html
http://durhamwonderland.blogspot.com/2007/05/levicy-and-law-enforcement.html
http://durhamwonderland.blogspot.com/2007/05/levicy-and-linwood.html

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

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.”