Sunday, October 08, 2006

The Effects of Corrupted Procedures

Flawed procedures beget flawed results, and massively flawed procedures beget massively flawed results. That’s the conclusion from what is the single most important article about the case to appear, under Joseph Neff’s byline in this morning’s N&O. Neff’s work painstakingly explains why procedure matters, highlighting what I consider the single most stunning aspect of this case—that the district attorney of Durham County ordered the Durham Police Department to violate its own procedures in multiple ways for an April 4 lineup.

North Carolina’s eyewitness ID policies were revolutionized by the recommended guidelines laid down by the Actual Innocence Commission (AIC) (on which, it should be noted, Professor James Coleman served), which grew out of a late 2002 initiative from former state Supreme Court Chief Justice Beverly Lake. The AIC urged, among other items:

  • The individual conducting the photo or live lineup should not know the identity of the actual suspect, to avoid unintentional influences from those conducting the identification procedure.
  • Witnesses should be instructed that the suspect may or may not be in the lineup.
  • A minimum of eight photos (that of the suspect and seven fillers) should be used in photo identification procedures.

To determine the AIC’s effects, a few months ago I contacted sixteen police departments from around North Carolina, from cities and towns of various sizes. (Durham’s policy, General Order 4077, had already been revealed in an N&O story.) Of the 17 departments, eight follow the AIC guidelines in their entirety, and a ninth is revising its guidelines to do so. Seven other departments, including Durham, use five fillers rather than seven, the recommended approach of the state Criminal Justice Academy. The 17th city, Wilmington, uses a unique hybrid structure, prepared by District Attorney Benjamin David, which offers the most due-process friendly procedure in the state.

The procedures employed in the lacrosse case deviate from statewide patterns in almost every respect. Indeed, Neff reveals that the two psychologists who advised the AIC described the handling of the lacrosse case as “a case study in violating” the Durham Police Department’s policies.

This case began to go off the procedural rails from the start. On March 16, a first photo lineup occurred. In many ways, it conformed to Durham’s policies: a neutral investigator (Clayton, rather than Gottlieb or Himan) conducted it, and it contained five filler photos per every suspect (lacrosse players named Bret, Adam, or Matt). For reasons that remain unclear, however, the Durham Police used photos of other lacrosse players as fillers. They should have used photos of players from other Duke teams; or of lacrosse players from other universities.

We’ve known for some time that the accuser identified four players with 100% certainty, and said that she was 70% sure about Reade Seligmann. As Neff’s article reveals, Clayton’s report was (deliberately?) unclear on what the accuser actually was identifying. Though forms prepared by Clayton listed asking the accuser only one question—whether the person in the photograph sexually assaulted her—according to Neff, Clayton claimed that these ID’s related to a question of whether the accuser recognized people at the party.

Regardless, all four of these ID’s, plus the partial ID of Seligmann, were of fillers, not of suspects. According to Durham and statewide procedures, this lineup should have been considered a failed one—the accuser not only couldn’t identify any suspects, but actually identified filler photos.

Instead, Nifong essentially tossed out the results of the March 16 lineup. (There is nothing in Durham’s rules, or the guidelines of any other North Carolina city that I examined, allowing police departments to conduct multiple lineups of the same suspects.) The rules for the new lineup, Nifong decided, would be different. In the first paragraph of Sergeant M.D. Gottlieb’s report for the April 4 lacrosse ID session, he wrote:

Mr. Nifong suggested we put together the mug shot type photographs [of the lacrosse players] into a group since we are under impression the players at the party are members of the Duke Lacrosse team and instead of doing a line up or a photographic array, we would merely ask the [alleged] victim to look at each picture and see if she recalled seeing the individuals at the party.

In contrast to the March 16 session, conducted by Clayton, the lead investigator, Gottlieb, would conduct the session, violating Durham’s policy. Psychologist Gary Wells explains the reasons for the policy to Neff: “when a person giving a test knows the answer, that person tends to influence the person taking the test.” Gottlieb then began the 4-4 lineup by violating another aspect of Durham’s policy, informing the accuser that she would only be seeing “people we had reason to believe attended the party.” (James Coleman’s powerful letter to the N&O argued that this decision effectively told the accuser that she could make no wrong choice.)

The accuser identified one person (Collin Finnerty) who she claimed attacked her in a variety of ways. (Finnerty, of course, bore no resemblance to the descriptions that the accuser gave initially, according to Inv. Himan’s handwritten notes from March 16.) Three others, she said, “looked” like people who might have attacked her. For reasons that Neff explains in today’s N&O, Gottlieb treated each of these three partial IDs in very different ways.

He passed over the first partial ID quickly—in all likelihood, as Neff surmises, because the accuser’s identifying someone named “Matt” would have contradicted the “alias” theory to which Nifong was then attached. The second partial ID—of Dave Evans—led to the accuser saying Evans resembled her attacker, but the person who attacked her had a mustache (which Evans does not). Gottlieb then asked the accuser to give a “percentage-wise” estimate, something that he hadn’t asked of the previous partial ID. (The accuser said she was 90% sure.) The third partial ID—of Reade Seligmann—began with the accuser saying “he looked like one of the guys who assaulted me.” Then, under follow-up questioning from Gottlieb, the accuser claimed that she was 100% sure. As far as we know, this one statement is the only evidence against Seligmann, who was video-taped at a Wachovia ATM a mile away at the time of the alleged crime.

These flawed procedures—as Neff reveals today for the first time—produced results that were unreliable, quite apart from the botched ID’s of the suspects. The accuser twice identified with 100% certainty a player who wasn’t even in Durham on the night of the party. More than a dozen other players, Neff reveals, were recognized once but not twice by the accuser. She incorrectly identified the player who made the “broomstick” comment. And she seemed to identify a fourth attacker—only to be discouraged from moving forward by Gottlieb.

The Nifong-orchestrated photo ID deviates wildly from common North Carolina practice, in at least five ways:

1.) The basic debate in the state seems to revolve around showing five or seven filler photos, or developing a system that’s even more respectful of due process (Wilmington). As far as I could determine, no North Carolina jurisdiction is it the policy to confine eyewitness ID sessions to suspects in the case.

2.) Every police department that communicated with me has a standard policy—either formal or informal—of telling witnesses that the photo array might or might not include the suspect. As far as I could determine, in no North Carolina jurisdiction is it the practice, as was followed in this case, for the witness to be informed that the photo array would consist only of possible suspects.

3.) As far as I could determine, no North Carolina jurisdiction possesses a third identification procedure, one that can be used, to quote Gottlieb’s description of Nifong’s words, “instead of doing a line up or a photographic array.”

4.) As far as I could determine, no North Carolina jurisdiction allows multiple lineups of the same suspects.

5.) Some district attorneys who communicated with me seemed to like the AIC guidelines; others weren’t particularly enthusiastic about them; others (like David) developed their own systems. But of those who said that they made recommendations to local law enforcement, all did so in favor of departments using fillers in photo ID sessions, not the reverse. And a district attorney setting policy for a specific eyewitness ID session is very unusual— almost, from everything I could gather, unprecedented— in North Carolina.

The lacrosse session also departed from the statewide norm (although here no unanimity exists) in having someone intimately involved with the investigation oversee the photo ID session.

When I teach courses in U.S. constitutional or political history, I work hard to show my students that procedure isn’t bureaucracy; it’s due process. Neff’s article demonstrates the point. By adopted a corrupted procedure and ordering the Durham Police Department to break its own rules, Nifong created a process that he knew would yield unreliable results. And he didn’t seem to care. That’s abuse of power on a frightening scale.


Anonymous said...

Great analysis. It is shocking that this hoax has moved this far along in the court system. Nifong's friendly judges have allowed it. What a travesty!

Anonymous said...

Do you think, professor, that Nifong himself has violated laws? Will he have his own day in court? And should the judges who enabled him be impeached?

DRJ said...

Good work. Blogs like this are a modern-day version of Aticus Finch's actions in To Kill a Mockingbird.

Michael Patrick Gibson said...

Brilliant analysis and incredible news: another reminder of how the Long Tail of blogging journalism is overcoming the MSM...Your account here also reminded me of something Steve Levitt of Freakonomics fame once posted about. My memory is a little vague, but I think he used a statistical analysis of the ID line-up to show that the deck had been stacked. It seems that, if procedure requires a completely randomized mix, then it was statistically impossible that the suspects would have been placed in the order in which they were...

Howard said...

This is how the North Carolina and other deep South states used to convict Blacks. I also would like to know if the DA can be prosecuted. And I hate to say this, but if there is even one Black on the jury it will be hung because racism is the cause of it all; that and Nifong's quest for election in a Black city.

Anonymous said...

Great job. I think you are correct that the identifications of Evans and Seligmann are tentative at best. The charges against them should be dropped. Finnerty is a completely different story though. As you point out the accuser was absolutely certain of him.

Anonymous said...

What nonsense. The accuser was certain of others, and was completely wrong. She picked one man who was not even at Durham and claimed he was at the party. She was completely wrong on the man who made a broomstick comment. To suggest that because she was certain of Finnerty, her ID means anything is complete and utter nonsense. And never mind her descriptions of suspects didn’t even come close to Finnerty.

Anonymous said...

I am aware the Duke alumni frequent this site - you might try applying pressure on the N&O to repudiate their initial inflammatory reporting in a piece that appeals to the newspaper 'scanners' (yes I even do it). A public editor explanation would also be a good thing.

Posting to Melanie (an N&O editor) is pointless. Duke Alumni know of Duke Alumni that are asset managers, pension managers, financial analysts etc (and many own stock directly and most own stock indirectly through retirement plans). I would suggest you start a new 'front' by contacting the people that 'matter' - the McClatchy investor contact person and the general inquiries contact. If there are Duke Alumni out there in the business world that are willing to send some emails, leave some voicemails that'd be great. I think a big problem is that 'they' probably aren't aware of the reporting or even have McClatchy on their 'radar' (newspaper companies aren't that 'sexy')

Money matters and McClatchy isn't doing that well - if you look at the last two years (went from 70s to 40s after doing really well before that back to 2000). The 'problem' is that McClatchy is controlled by the founder's family through a seperate class of shares with 'extra' votes. They bought Knight Ridder assets and the market didn't like it.

Financial/Investor Inquiries
Elaine Lintecum, Treasurer

General Inquiries
Peter Tira, Communications Director

Investigative journalism is good for a paper - the N&O ought to be doing more of it (they have had stable revenues for the last two years a bit >$125 mil/yr). Note: that's N&O not McClatchy.

The problem with H-S is the parent company is privately held and held by a family that doesn't care about what 'we' think. Incidentally they paid a fortune for a junk paper - also 125 mil which is thought to be double the fair value of it - well fair value at the time. Since January 2005 the H-S has dropped from 50k readers to 44k readers. That's a good thing.

Anonymous said...

Clarification on the Newspaper Audits Numbers:
H-S lost 6k readers (avg M-F) from January 05 until July 06. The new set of numbers will be out in January 07. What is 'amusing' is that despite the Duke 'hoax' the H-S still managed to lose readers (they should have shown gains given that they had 3 out of 6 months of outrageous coverage during the audit cycle). Perhaps they 'turned off' part of their market...interestingly H-S has a 87 PERCENT MARKET SHARE of the Durham newspaper market. And you wonder why Nifong feels little pressure - he has his hack newspaper to back him up

Anonymous said...

N&O numbers are ~176k readers (avg M-F) with ~211k on Sunday. H-S has 45k on sunday and 44k M-F - the disparity is primarily due to the N&O being a regional paper that people in cities/towns up to 2 hours away choose to purchase as the local papers are pretty miserable and Sunday 'recaps' etc.

Anonymous said...

Can someone explain why all of the charges against these men should not be dismissed? How can anyone possibly get a fair trial? Justice will not be done here. Either for the accuser, if allegations are true, or the Duke players.

Anonymous said...

From a member named "sceptical" of the talkleft duke forum:


A. Actions subverting the legal system
1) Suggesting that potential defendants do not need lawyers
2) Declining to meet with defendants’ lawyers
3) Refusing to review exculpatory evidence
4) Improperly directing a police investigation instead of the police chief
5) Organizing an illegal photo-ID lineup without “fillers”
6) Indicting before fully investigating by going straight to the grand jury
7) Inflaming public opinion with over 50 interviews
8) Pursuing the case despite inconclusive DNA and forensic evidence
9) Declining to consider polygraph evidence
10) Delaying and blocking production of discovery material including police notes and phone and computer records
11) Refusing to release notes of his 4/11 meeting with accuser by implausibly claiming the facts of the case were not discussed
12) Attempting to place burden of proof on defendants rather than prosecution
13) Declining to produce a bill of particulars and giving changing theories of the “crime”
14) Deciding to prosecute the case personally to curry political favor with the black community
15) Attempting to tamper with witnesses by inducements (Kim Roberts) and threats (Mr. Elmostafa)

B. Misleading and/or lying to the public
1) Falsely stating identity of 911 caller who reported racial slurs was unknown
2) Falsely claiming use of condoms despite known contrary statements from accuser
3) Falsely suggesting use of date rape drug
4) Demonstrating choke-hold
5) Discussing “scratches” and shirts on players’ arms
6) Calling players “hooligans” and declaring definitely that a rape happened at the party
7) Stating DNA evidence would identify the guilty players then backtracking
8) Claiming players not cooperating after captains came involuntarily

C. Inappropriate Conduct
1) Shouting and swearing at a female defense attorney and others
2) Accusing lawyers for unindicted players of being disappointed their clients were not indicted
3) Demeaning defense attorneys in court
4) Smirking, laughing, and making insulting gestures in court
5) Inciting racial tensions by dealing with the National Black Panther Party (NBPP) and not denouncing its racist and anti-semitic views
6) Insulting Duke students by talking about “rich daddies” even though 40% of Duke students receive financial assistance.

Lowdogg said...

Excellent commentary on an area where most of us have little or no knowledge.

Thanks for the insights!

Anonymous said...

Well, I will say that I was involved in a breaking and entering case about 12 years ago in Chapel Hill. I had the name of the individual who had randomly knocked on the door to ask about raking leaves, and who I saw an hour after discovering the theft of a $500 mountain bike, walking the bike back to Durham. The Chapel Hill police knew the name well. They had me come to the station and showed me one picture - of this gentlemen - and asked if that's who I had paid to rake the leaves and who was walking with the bike. I was shocked, thinking I was supposed to pick him out of a lineup (TV tells you many things, only some of them true...)

Anyway, I said yeah, that's him. Later in opening arguments that I witnessed as I had to testify for the prosecution, the accused had a public defender who stated in his opening argument that his client could not have committed the crime in question because he was legally dead during the evening on which the theft occured. His client was sitting right next to him, in case you were wondering. Suffice it to say this lawyer was not likely to find the procedure of ID questionable if that's the direction of the defense.

Anyway, that was 12 years ago, so perhaps with the new rules that doesn't occur over there any more. But that guy went to jail for 22 months on the basis of that ID and other evidence. So we don't have to reach back to the 60s to find some interesting shortcuts taken by the police. I assume cases like that were the impetus for the AIC review.

(Make no mistake, this was not a miscarriage of justice; the person in question was as proven guilty as you could find, but that was NOT a good lineup...)

KC Johnson said...

Very interesting story re the 8.43. Chapel Hill, in fact, has now adopted one of the two or three most rigorous eyewitness ID procedures in the state. So your experience couldn't be repeated.

To the 1.08: The question of whether Nifong has violated laws: I don't know. It's clear he has violated procedures, in a massive, systematic fashion. There's no evidence, however, that he's violated any laws. That could be uncovered only if the FBI or US Attorney's office elected to open a criminal investigation of him.

Anonymous said...

re: comments
Howard-this is how a lot of people besides just Blacks in the "Deep South" are convicted.Fortunately the accused had the financial,legal, and public relations resources to defend themselves against the State.

Tak said...

Hi KC, this is the first time I'm posting a comment and I'd just like to thank you for all the blog entries. They're wonderful. I'm sure you're aware of this, but there's a very nice op-ed in New York Magazine that just came out featuring you (toward the end of the article).

I personally am absolutely furious at Nifong. I just wonder--did this guy suddenly just become unethical after 28 years of service, or had he been unethical for a long time but hadn't been caught until now. How many other past victims are there of Nifong's unethical prosecutorial misconduct? I find it hard to believe that Nifong has all of a sudden become a complete lunatic/psychopath. I hope someone would do some digging to uncover what other bad things this DA has done. Anyway, once again thanks.

Anonymous said...

Oh, according to Niolet's article, Nifong has been yelling at other lawyers for years. It's a good thing Nifong doesn't work at McDonalds. I don't think they would tolerate such unprofessional rude bully behavior.

Anonymous said...

When will Gov. Easley be held accountable? He appointed Nifong and has refused to speak out or suggest a special prosecutor. Does Easley have future political ambitions?

Anonymous said...

If you wanted to make the victim of an alleged rape(and all of the supporters from her community) BELIEVE that at thurough and exhaustive prosecution took place, and yet you didn't WANT to get the allaged rapists punished, you'd be a smart prosecuter if you handled this case exactly the way Nifong has handled it. These guys all have enough money to get the kind of lawyers that will blast this case out of the water. And when it happens, Nifong can just throw up his hands and say, "Well, I tried. It's the system that's at fault, not me."

Anonymous said...

Write to the U.S. Department of Justice and the FBI. Together they investigate corrupt government officials. There is already a task force from the Justice Department and the FBI investigating Congressman Foley because he sent indecent emails to pages. Yet to date no investigation has been done yet into Mr. Nifong and the DPD and their abuse of the system and terrorism of these innocent young men and their families. It's election time and the squeeky wheel gets the grease. So write those letters and request an investigation into the desecration of the U.S. Constitution and prosecutorial misconduct. Don't let Washington look the other way on this one because they have elections to win. We can't let this be about politics, it is about right and wrong, good and evil. The public and supports of these young men do have the power to get the U.S. Attorney Generals attention. Write a letter today.
Thank you.

Anonymous said...

Better yet, write to the congressional representatives in your area, especially in North Carolina, and to the Senators of North Carolina, and ask them to put some Federal procedures of review in motion. That's how you get action in Washington - through your representative there. You know, it's the PROCEDURE.

Anonymous said...

I still can't believe the people of North Carolina haven't demanded and gotten somewhere with somebody!!! There has to be somebody that will do something for this community as they are the laughing stock of America right now.

John Thacker said...

former state Supreme Court Chief Justice Beverly Lake

A slight correction. His name is I. Beverly Lake (Jr.) and always referred to as such, never as just "Beverly Lake."

Ken said...

I will make a prediction. Nifong will drop this whole mess as soon as he is reelected since it is obvious he couldn't prove Duke had a lacrosse team on the evidence he has.