With several months’ perspective, three questions emerge about the revelation of the McFadyen e-mail: its source; its context; and its timing. All three cast strong doubt upon the integrity of D.A. Mike Nifong’s inquiry.
1.) The source
How did the Durham Police obtain the inflammatory e-mail? In the search warrant for McFadyen’s dorm room, police claimed to have received the e-mail from a confidential source. Looking back, there would seem to be three possibilities:
- someone from Duke obtained it and gave it to the police;
- a player on the team sent it to the police;
- the police already had it from the captains’ computers they seized on March 16.
You are correct that no one from Duke was authorized to review the emails of the players on the team. Duke has pretty strong privacy policies in that regard. As President Brodhead has noted on more than one occasion, we have been very conscious not to conduct our own independent investigation of the incident since we lack the legal authority and necessary powers (subpoena, etc.) to do so, nor have we wanted to do anything that could be perceived as complicating or hindering the police/court’s investigation.The second option, that the e-mail came from a lacrosse player–which seemed the most likely scenario at the time, since the police had conveniently left unrevealed that the three captains had, voluntarily, provided authorities with their e-mail passwords–now seems as inconceivable as Duke handing over the email. Nifong had no “secret source” among the lacrosse players.
As (1) and (2) seem unlikely, it would appear as if the e-mail came from the police themselves. if so, however, the police lied about the source of the e-mail in their affidavit requesting a search warrant for McFadyen’s room, with the apparent purpose of leaving unchallenged false media portrayals of a 'wall of silence" by the players.
2.) The context
Even if–as seems likely–the police obfuscated about how they obtained the McFadyen e-mail, proving the lie will be almost impossible. No doubt the technician who discovered the e-mail on the computer of Matt Zash, Dave Evans, or Dan Flannery was instructed to file a "confidential" tip with Durham CrimeStoppers, to provide the department with a level of plausible deniability.
Regarding the email’s context, however, Nifong&Co. lack a ready-made excuse. Assume the facts most favorable to the authorities: that they actually did receive the e-mail from an anonymous source. We know now that the police had access to the captains’ e-mail accounts. Only an extreme incompetent would not have immediately checked these accounts to determine whether other team members made additional “threats.”
So, what did the police find? And why did they not reveal the follow-up e-mails as part of the McFadyen search warrant? The e-mail was vile. But its significance to a criminal case depends on the e-mails that followed it. Did subsequent e-mails from players discuss, say, the methods for covering up McFadyen’s proposed “crime”? Or did subsequent e-mails, say, follow up McFadyen’s e-mail with the next lines from American Psycho?
Nifong obviously knew the answer to this question by the time he publicly revealed the McFadyen e-mail on April 5. If, as has been widely rumored, subsequent e-mails from players quoted other lines from American Psycho, Nifong’s method of revealing the e-mail–shorn of all context, offered alone as if reflective of a murder scheme–represented nothing short of an attempt to deceive the public.
3.) The timing
Police served a sealed warrant on McFadyen on March 28. Yet Nifong didn’t approve making* public the warrant’s details until April 5. What happened between those two dates?
- Nifong learned that the DNA evidence he had promised would “immediately rule out” any innocent people had, in fact, exonerated all the lacrosse players;
- Nifong ordered the Durham Police to construct a lineup that violated their own procedures in multiple ways.
So why, then, did Nifong approve making the e-mail public after McFadyen no longer was a suspect? And why did he do so in a context-free manner? Could he have hoped to inflame community sentiment against the lacrosse team, so as to encourage people to overlook the DNA results–or discourage them from looking too closely at the procedurally dubious manner through which he managed to obtained indictments before the May 2 primary?
This blog is entitled Durham-in-Wonderland because virtually everything about this case has seemed to operate through the looking glass. For instance:
- Prosecutors normally rely on facts as defense attorneys spin outlandish tales and secretly hope for jury nullification; in this case, jury nullification represents the proscutor’s only chance of victory.
- Prosecutors normally highlight the significance of scientific evidence; in this case, the head of the prosecutor’s citizens’ committee has offered a conspiracy theory to explain away DNA findings.
- Prosecutors normally are expected to prove defendants guilty beyond all reasonable doubt; in this case, defense attorneys are expected to prove the defendants innocent beyond all reasonable doubt.
- The academy normally celebrates due process and dispassionate evaluation of evidence; in this case, the public voices of the Duke faculty gleefully rushed to judgment.
In the last five months, the college sophomore has been vilified nationwide, while the actions of the police and prosecutors regarding the e-mail have escaped virtually all criticism. What’s wrong with this picture?
Hat tip: Greg Kidder
[*Update, 9.17am: Cash Michaels points out in the comment section, "If I'm not mistaken, I believe attorneys for the Durham Herald-Sun petitioned Judge Don Stephens to release the e-mail to the press, which, as part of what was retrieved per search warrant, was placed under seal. Judge Stephens, if I'm not mistaken, decided to release it, saying that the reasons for keeping it under wraps were no longer valid. Those reasons were never made clear, however."
He's absolutely right that the order releasing the email was made by Stephens--I should have made this point clear in the original post, and am grateful for the clarification. I changed the wording of the post to "approved making."
That said, we also know the relationship between the DA's office and Stephens during this part of the investigation (Stephens signing the non-testimonial order on dubious grounds, in particular). But even absent a close relationship between the judge handling the case and the DA's office, it would have been proper procedure for the D.A.'s office to have cleared any release before the judge acted.]