It’s probably unsurprising that 60 Minutes reaction has focused on the broadcast’s most spectacular revelation (the accuser pole-dancing as early as one day after the Gottlieb report speciously described her as in such pain that she could barely sit down) and the most passionate comments (those of James Coleman explicating Mike Nifong’s procedural misconduct).
Yet though the broadcast devoted little specific attention to the peculiar investigatory techniques of the Durham Police Department, its outlining of what the police didn’t investigate raises even more doubts about why and how the police “investigated” what they did.
First, what the police didn’t investigate:
On April 6, in her first and (as far as we know) only written statement to police, the accuser described a crime in which Kim Roberts played a central role. Roberts had already given her statement, on March 22, the first time she met with police. So too did the captains. So too did the accuser’s “drivers.” So too, to my knowledge, did every witness in this case—except for the accuser. For reasons never revealed, the police waited 21 days after first interviewing the accuser to take her statement.
In the event, the accuser claimed that:
- Roberts was crying, in the house, after racial epithets occurred in the dance;
- she was separated from Roberts at the bathroom door, with three other lacrosse players dragging Roberts off into parts unknown;
- Roberts and one of the people who attacked her dressed the accuser after the attack.
Roberts’ statement contained nothing even resembling these items. Moreover, if true, the accuser’s statement meant that no fewer than six people at the party committed a crime that evening—the three people who attacked her, and their three accomplices who dragged Roberts away from her at the bathroom door.
60 Minutes revealed the police never contacted Roberts about the accuser’s tale:
“In the police statement she describes the rape in this way. ‘Three guys – three guys grabbed Nicky,’ that’s you. ‘Brett, Adam, and Matt grabbed me. They separated us at the master bedroom door while we tried to hold on to each other. Brett, Adam, and Matt took me into the bathroom.’ Were you holding on to each other? Were you pulled apart? Is that true?” Bradley asks Roberts.
“Nope,” she replies.
“Yeah. Her statement continues. ‘I heard Nicky on the other side of the door. And when Adam opened the door she rushed in and helped Adam to get me dressed.’ so she’s saying that you helped one of the rapists,” Bradley says.
“She was never undressed as far as I remember. As far as I remember, she was never undressed,” Roberts says . . .
“She goes on to say that when both of you went back in the house, she says, ‘They were excited and angry. They were screaming, ‘We’re going to f you black bitches,’“ Bradley says.
“I just don’t remember it that way at all,” Roberts says.
If Roberts was never re-interviewed, how did Nifong determine that the accuser’s version of events was more credible than that of Roberts? And on what basis did Nifong—as he did in May—clear the other 43 white members of the lacrosse team of all suspicion, since according to the accuser, at least three more of them committed a crime?
It would seem as if Nifong employed the following investigative technique:
- He believed only the elements of the accuser’s story that aided his desire to get indictments before the election;
- He disbelieved the elements of the accuser’s story that he hadn’t described as elements of the crime in his March 27-April 3 publicity barrage (i.e., that three players tore Roberts away from the accuser at the bathroom door, an allegation the accuser first made on April 6);
- He declined to re-interview Roberts so he could avoid basing arrests on an accuser’s tale that a police investigation had proven false.
Or, it could be that Nifong was merely confirming what he told Newsweek on June 13: “None of the ‘facts’ that I know at this time, indeed none of the evidence that I have seen from any source, has changed the opinion that I expressed initially [on March 27].” Since the accuser’s statement came on April 6, Nifong, by his own admission, had already made up his mind. Therefore, he apparently felt no need to investigate the contradictions between the accuser’s version of events and that of Roberts.
But the police were not wholly inactive during the period between the procedurally flawed lineup of April 4 and the decision to go ahead with arrests. In the time they could have spent interviewing Roberts, Sgt. Mark Gottlieb and his investigatory team instead paid a night-time visit to Edens Hall, where many lacrosse players lived.
On the Thursday evening before Nifong obtained indictments, the police gained entry to
We now know the purpose of this after-dark sojourn. Nifong had decided to seek indictments against Reade Seligmann and Collin Finnerty—despite the uninvestigated contradictions between the accuser’s statement and Roberts’ version of events. And despite the statement from the accuser’s “driver” that laid out her erratic behavior and multiple “appointments” in the hours before the party. And despite the April 10 report that the negative DNA tests that Nifong promised would “immediately” rule the duo out. And despite rumors that one or both might have alibis.
This action seemed highly dubious at the time: if police wanted to know whether Finnerty or Seligmann possessed ironclad alibis, they could have asked the players’ attorneys. Based on what’s emerged since, Gottlieb’s night-time sojourn constituted not only irregular activity but yet another of Mike Nifong’s myriad procedural violations.
As of March 24, Nifong assumed formal control of the investigation (which was at that point eight days old, and had featured statements from the three captains denying the charges, a statement from Roberts denying the accuser’s tale, and a failed photo ID session). While police, obviously, have the right to ask any questions they want of individuals not in custody, under the North Carolina bar’s ethics rules that right does not extend to the district attorney if the individuals are represented by counsel--as all the lacrosse players were.
According to Rule 4.2(a) of the Code of Professional Responsibility, “During the representation of a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
This rule contains few, if any, loopholes. Comment 6 states, “When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule.” Comment 8 holds that the rule’s terms apply whether or not any of the lacrosse players consented to the questioning (as at least one appears to have done). And, according to Comment 7, “A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order.” Nifong never applied for such a court order.
Because Nifong was directing the police investigation on April 14, the night-time sojourn to
Rule 3.4, Comment 4, should have reminded Nifong that “rules of evidence and procedure are designed to lead to just decisions and are part of the framework of the law.” Instead, the district attorney appears to have used the Rules of Professional Conduct as a guide on how not to conduct his investigation.
At the Friday media forum, Herald-Sun editor Bob Ashley said that “the Herald Sun should have been quicker to aggressively examine the competency of the investigation.” To my knowledge, the paper has not once run an article on this issue. Perhaps now would be the time to begin.
Hat tip: J.K.