If you've visited the blogs discussing the latest in the Duke Rape Case, such as Ankle Biting Pundits by Bull Dog Pundit, Liestoppers, Friends of Duke, or Durham In Wonderland by KC Johnson, you'll notice there's been an avalanche of posts regarding the recent NY Times Article about the case.
The NYT article states, “while there are big weaknesses in Mr. Nifong’s case, there is also a body of
evidence to support his decision to take the matter to a jury…. In several
important areas, the full files, reviewed by The New York Times, contain
evidence stronger than that highlighted by the defense”
I read the article. It makes some interesting points. However, I would question whether those points tend to help the prosecution or hurt it. The biggest problem I had was the fact that Sgt. Mark Gottlieb's notes weren't turned over to the defense until July 17 - four months after the rape allegation was made. I highly recommend reading Ankle Biting Pundits by a former prosecute. He makes some excellent points himself.
Since I have no experience as a law enforcement officer or detective, I can't answer as to what the protocols are for their documentation. I can, however, speak to the protocols for our own profession. In the medical field, whether written by physicians, nurses, physical therapists, or nursing technicians, the standard protocols for our documentation are all the same. We've all been taught that, according to the courts, "If it's not written, it's not done."
For example, if we, as nurses, do not document that we called the physician to report a change in our patient's condition, then according to the court [should the case end up there], that call was never made. It doesn't matter what we say in court. We could stand there and shout to the world all we want, it wouldn't make any difference. All that would matter is what we documented at that time. We couldn't go back and document it four months later. That kind of back-dating is not allowed and questions of fraud could quickly arise were we to try something like that. When I worked as a nurse consultant, I taught the assisted living facility counselors how to correctly document using the elements of "FACT" documentation:
F - Factual
A - Accurate
C - Complete
T - Timely
As I told the counselors: Follow these steps and you can't go wrong. Write only the facts as you know them. Document them accurately. Make sure your report is complete and always document in a timely manner - as soon afterwords as possible. In our profession, backdating weeks or months later is totally unacceptable.
According to Ankle Biting Pundits, the former prosecutor says almost the same thing: "The huge red flag here is that it appears that Sgt. Gottlieb does not appear to have written his notes, or typed his report contemporaneously with the events they describe. And the fact that these notes and reports weren’t turned over until recently leads to the obvious conclusion that they weren’t prepared until AFTER the first batches of evidence were turned over, especially when those previous batches of discovery material contained evidence very damaging to the prosecution.
However, any rookie cop knows that you do your reports immediately after the events they describe, and you only put down what you saw with your own eyes, and if you need to rely on what you heard from other cops, or read in other reports, you mention that in the report...It’s common sense that the the most accurate record of events will be one that is written contemporaneously. Over time, the ability to recall events, conversations and observations fades. "
As good as I think Ankle Biting Pundits' blog post is, I must take exception with his statement: " First of all the conversation with Ms. Levicy -who is not a doctor, thus making her opinion inadmissible - confirming the blunt trauma was consistent with the victim’s account occurred a week later. Plus, the information given by her should have been included in the report."
With all due respect to Bull Dog, I must disagree with the first part. Although I'm not an attorney, as forensic nurse examiner who treats victims of sexual assault, I can say that SANE nurses most definitely can and do testify as expert witnesses.
The Federal Rules of Evidence state, " if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
According to Kimberly A. Lawson, Ph.D 2005, in her report, The use of expert Witnesses in Cases Involving Sexual Assault, commissioned by Office of Violence Against Women Online Resources, " for cases involving sexual assault, most expert witnesses called to testify are medical professionals such as physicians, physicians' assistants, or Sexual Assault Nurse Examiners (SANE)."
"... confirming the blunt trauma was consistent with the victim’s account." We cannot make a diagnosis. Only a physician can and no one can determine whether or not the sexual contact was consensual. However, experienced SANE nurses can make a conclusion as to whether any injuries are "consistent with" sexual assault.
The key word here is experienced. Experienced forensic nurse examiners (or SANE / SAFE), are qualified to testify by virtue of their advanced, specialized training and experience. Without that experience, I could testify as a fact witness, but not [in my jurisdiction] as an expert witness. In fact, Ms. Lawson states, in her report, " It is critically important that any medical professional who testifies in a sexual assault case regarding the forensic evidence has specialized training and experience - including extensive experience with "normal" gynecological examinations and findings - as well as a critical understanding of the research literature and its limitations."
I've read repeatedly, in different articles, where the Duke nurse, Ms. Levicy, is "a SANE nurse in training." That is, of course, if she really is "in training." I've only seen that report coming from the media, so I'll take it with a grain of salt. However, if she is "in training", I have yet to read any article which states the name of the experienced SANE nurse who was supervising her.
This is standard protocol. A SANE nurse "in training" must have another experienced SANE nurse, or a physician, in the room with her during the whole exam, so that she can be evaluated and later certified to perform exams on her own. We always use our own staff FNE's to supervise the new nurses. We don't use physicians, except for the initial GYN exams. Those initial exams are done before an FNE can begin to do full examinations.
This was a full examination. If the media has no problems publishing Ms. Levicy's name, why not publish the supervising Rn's name as well? That would certainly lend more credibility to the "training" nurse's conclusions. The supervising SANE nurse's (or physician's) name should have been written on the standardized examination form. If there is no name written there, then that means there was no one supervising the new SANE nurse "in training". Hopefully, that's because the media got it wrong and she didn't need anyone supervising her.
As to Bull Dog's statement that the information should have already been in the chart, I totally agree. Everything is supposed to be documented at the time of the exam. Now I've had detectives call me up and ask questions. However, it's usually been during, or right after, the exam and the answers to questions about any evidence or trauma is already in the chart. I always document it as I observe it. A couple of times I've had a detective call me a week or so later but that's only been to ask me to clarify something I had written in the chart.
Now as to the Blunt Trauma injury the accuser was supposed to have, I admit to being a bit surprised. If you read my previous posting on Blunt Trauma, you'll see that the characterizations of Blunt Trauma are contusions, lacerations, abrasions, and bites. Simple edema can be caused by other factors such as infection but even then, you're usually going to see some redness due to inflammation and irritation of the tissues. When I see edema, in a sexual assault victim, I'm usually seeing [at least] erythema (redness) there as well.
In my experience, I've found it difficult to see only edema on the vaginal walls, without any other signs, such as edema and erythema of the cervix, or around the outer vaginal area as well. And without any other signs or injuries at all, I don't know that I would classify it as consistent with sexual assault. I don't know, I would have to have been there. However, I do know that I've not seen simple edema (alone) as a classification of blunt force trauma. If it's not a classification of blunt force trauma, then how could it be consistent with it?
One thing I've read that I question, has been a statement that a male hospital worker walked into the accuser's room, at the hospital, to grab some supplies. I was just floored with that statement and really question it. The standard protocol for sexual assault victims is to provide a private room, preferably locked, in which to do the exam. Two reasons: First, for the comfort and privacy of the patient. Second, is to maintain the chain of custody of the evidence. Either the room must be locked or the nurse must remain in the room, with the evidence, at all times. Otherwise, the integrity of the evidence can be questioned.
We do not have hospital personnel walking in and out of the room during an examination. That simply isn't done. We maintain strict privacy for our patients and control over all evidence. Once an exam is finished, we call security and have the evidence locked up until the detective can pick it up. Never would we allow someone, especially a male, to just walk in to get supplies or anything else and I can't imagine any other SANE nurse allowing it either.
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