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Monday, June 19, 2006

Duke Lacrosse Scandal: Show Us the Subpoena Timeline

updated: 3:40 p.m., June 19, 2006

Durham District Attorney Mike Nifong and his Investigator Benjamin W. Himan still have some explaining to do. As The Johnsville News first pointed out on Saturday-

They need to explain how and why Investigator Himan stated on a Probable Cause Affidavit, dated March 27, 2006, for a search warrant that they had "medical records and interviews" about the victim Crystal Gail Mangum.

Because, according to a defense motion filed on June 15th for David Evans by his attorneys, the police and prosecution, based on their own documentation, did not have the the subpoenaed medical records until April 5, 2006.

From the defense motion:

Discovery materials provided to the Defendant on May 18, 2006, trace the following timeline by whic the records of Crystal Mangum's treatment at Duke Hospital on March 14, 2006, were provided to the prosecution in this case.
  • March 16, 2006: Durham Police Investigator Ben Himan contacted Nurse Tara Levicy to discuss the "rape kit and examination" of Crystal Mangum. According to Investigator Himan's notes of his activities that day, Nurse Levicy responded "that due to HIPAA laws she was unable to divulge patient information but stated that ther were signs consistent with a sexual assault during her test."2

  • March 20, 2006: Durham District Attorney Michael B. Nifong issued a subpoena to Duke Hospital for copies of the records of Crystal Mangum's treatment at Duke on March 14, 2006, and specifically named Investigator Himan as the person to whom Duke was commanded to produce the subpoenaed records.3

  • March 21, 2006: The subpoena was served on Duke Hospital.4

  • March 30, 2006: The medical records of Crystal Mangum's treatment at Duke Hospital on March 14, 2006, were printed out for purposes of complying with the subpoena. The date and time-stamp indicating when the records were printed is readily visible at the bottom of the Duke Hospital records provided to the Defendant in discovery.5

  • April 5, 2006: Investigator Himan picked up the subpoenaed record from Nurse Levicy at Duke Hospital.6
There is no indication elsewhere in discovery that anyone involved in the investigation and prosecution of the above-referenced case had any other personal contact with Nurse Levicy or anyone at Duke Hospital regarding the contents of the medical records of Crystal Mangum's treatment on March 14, 2006.7 Indeed, had such contact been made and any substantive conversation occured, the statutory discovery laws would have required the substance of that conversation to be reduced to writing and provided to the defense. See N.C.G.S. 15A-903

Thus, given that lack of record, the timeline sketched above, and Nurse Levicy's initial reluctance to discuss the case in light of HIPAA restrictions, it is reasonable to assume that the earliest point in time when anyone involved in the Investigation and prosecution of this case could have received any details from Duke Hospital personnel or records about the hospital's treatment and interaction with Crystal Mangum on March 14, 2006, was April 5, 2006.

2 See Attachment 2 (Investigator Himan's notes dated March 16, 2006).
3 See Attachment 3 (subpoena issued to Duke Hospital by D.A. Michael Nifong on March 20, 2006)
4 See Attachment 3
5 See Attachment 1 (the bottom of the Duke Hospital medical records, filed herein under seal)
6 See Attachment 4 (Investigator Himan's notes dated April 5, 2006)
7 In a sworn probable cause affidavit submitted on April 18, 2006, to support the search of co-defendant Collin Finnerty's dorm room in Edens Hall on Duke's campus, Investigator Himan and Sgt. Gottlieb swore under oath:
"A Forensic Sexual Assault Nurse (SANE) and Physician conducted the examination [at Duke Hospital]. 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 behaviour were consistent with a traumatic experience."
Because there is no reference in Investigator Himan's narrative of his case activities before April 18 to any conversation with Nurse Levicy other than those noted above and memorialized in Attachments 2 and 4, one can only assume this statement was a reference to those conversations (although it is notable that there was absolutely no evidence of rectal trauma observed by anyone at Duke Hospital on March 14, 2006). If not, and if there were other interviews with Nurse Levicy and/or any doctor at Duke Hospital, their absence in discovery is yet another example of the deficiency of voluntary discovery at this point.
TheSmokingGun.com has the March 27th Search Warrant and Probable Cause Affidavit:

Duke Lacrosse Search Warrant and Inventory of Seized Property, for Ryan McFadyen's dorm room #204, 2C Edens Dormitory, Duke Univ., March 27, 2006, 9 pages [TheSmokingGun.com]

It says:
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.
As indicated by Nurse Levicy, medical records are protected by HIPAA (Health Insurance Portability and Accountability Act), which has a privacy rule:
The Privacy Rule took effect April 14, 2003, with a one-year extension for certain "small plans". It establishes regulations for the use and disclosure of Protected Health Information (PHI). PHI is any information about health status, provision of health care, or payment for health care that can be linked to an individual[12]. This is interpreted rather broadly and includes any part of a patient’s medical record or payment history.
It sure sounds like something happened on March 27th regarding the medical records. Because as the defense pointed out in their motion:
D.A. Nifong's Public Comments About Crystal Mangum's Treatment at Duke

On March 27, 2006, local and national media outlets began reporting on what would become dozens of public statements that District Attorney Michael Nifong would ultimately make in March and April about the investigation and prosecution of the above referenced matter. Those statements would often be made by Mr. Nifong to the public through interviews with print and television media outlets, both local and national.
Someone please explain all of this.

June 15 motion for David Evans by Cheshire and Bannon (.pdf) [newsobserver.com]
attachments to June 15 motion (.pdf) [newsobserver.com]
Duke Lacrosse Scandal: Nifong Lies & Deception [TJN, June 17, 2006]
Duke Lacrosse Search Warrant and Inventory of Seized Property [TheSmokingGun.com]

update: It's disappointing to see Jeralyn Merritt at the blog TalkLeft.com cite this subpoena discrepancy in her blog post on Sunday, June 18th, that The Johnsville News first pointed out on Saturday, June 17th, and not give TJN a link/credit. Thank you, Ms. Merritt. I guess liberal doesn't mean liberal with the links. Ms Merritt wrote:
I would note that in the March 27 search warrant the Affiant officer wrote:
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.
This raises a legitimate question of whether the investigator actually had obtained the subpoenaed records by March 27 as he claimed, or he was misstating information to the Court, which would seem to be the case if the defense is correct the report wasn't received until April 5.
Ms. Merritt will probably say her policy is not to link to blogs or posts that use the name of the alleged victim. Every blogger can certainly set their own policy, but even a non-linked citation would have been nice.

Interestingly, Ms. Merritt just got a small write up in AARP Magazine (saw it at the library, thank you) about her blog:
Jeralyn Merritt, a Denver crimminal defense attorny and an MSNBC talking head, says her blog TalkLeft.com where she discusses everything from Iraq to Social Security gets more attention (almost 20,000 unque visitors a day) than her TV spots...
Every Blog Has It's Say [by Andrea Poe, AARP Magazine, July/August issue]

Jeralyn E. Merritt is a very old 56Funny, Ms. Merritt doesn't look a day over 65 from her website photo.

But, all of her 20,000 visitors a day should know that according to the article Ms. Jeralyn E. Merritt is 56-years-old, repeat 56-years-old. Just wanted to make double sure that Ms. Merritt never cites The Johnsville News.

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