Over the past nine months, Mike Nifong has distinguished himself as a figure incapable of thinking much about the long-term consequences of his actions:
- Need publicity for a cash-starved primary campaign? Make inflammatory, misleading public statements about the case, and worry about violating Rule 3.8(f) later.
- Need to find someone to indict—any player would do—before the primary? Order the police to violate their own procedures by constructing a lineup with no wrong answers, and worry about explaining the setup later.
- Don’t want to reveal what the accuser said in the April 11 meeting? Claim repeatedly in open court that the case was never discussed, without anticipating the p.r. damage from stating that indictments were brought without the prosecutor ever speaking to the accuser about events of the “crime.”
- Don’t want to turn over DNA results casting enormous doubt upon the accuser’s veracity? Enter into an agreement with the lab director to intentionally withhold the evidence, without thinking about possible allegations of obstruction of justice down the road.
Nifong’s recent decision to offer a new theory of the crime—rape didn’t occur, but sexual assault did—fits into this pattern of the D.A.’s short-term approach consistently working to his long-term harm. As the N&O pointed out, the accuser told a different story to every single police officer or medical personnel that interviewed her. Sometimes twenty people raped her, sometimes five did, sometimes three, sometimes two. But the accuser, at least, fairly consistently portrayed rape as an element of any attack that occurred. Now, nine months later, she’s abandoned even that shred of consistency.
It wouldn’t have taken much brainpower to have figured out that the latest manipulation of evidence would backfire. But, as the Herald-Sun revealed, even such obvious consultants as Mayor Bill Bell, Police Chief Steven Chalmers, and Deputy Chief Ron Hodge all learned of Nifong’s decision to drop the rape charges from the media.
It appears as if the D.A.’s circle of advisors has shrunk to the troika of wife Cy Gurney, “investigator” Linwood Wilson, and citizens’ committee co-chair Victoria Peterson. Each has reasons unrelated to the pursuit of justice to prop up Nifong’s crumbling career: Gurney to maximize her husband’s pension;
The Troika’s thinking isn’t hard to discern: now that the Nifong-Meehan conspiracy to withhold the exculpatory DNA evidence has unraveled, the rape charge no longer is tenable. So drop the rape charge and claim instead that the assault occurred with a foreign object—even though the accuser had never previously made such an allegation.
A few of the most shameless sycophants—Wendy Murphy (could she actually have prosecuted people?) and Durham attorneys John Bourlon and Woody Vann—gave the expected responses, suggesting that Nifong’s retooling the charges would make his case easier to prove, by taking the DNA evidence out of play. But Nifong and the Troika appear to have overlooked even the hapless Dr. Meehan conceding that a cell of his own, perhaps from dandruff, was found in the accuser’s rape kit—and so a claim that a lengthy, violent assault occurred without leaving any trace of the attackers’ DNA is absurd.
Arthur Caplan, chairman of the Department of Medical Ethics at the University of Pennsylvania, termed it “next to impossible” for the accuser’s story to be true if no DNA from her alleged attackers was left behind. He said, “The odds are tiny to zero that you’re not going to find any sample from anybody. It gets hard to imagine that some kind of forced or unwanted activity took place.” Nifong’s decision to drop the rape charges, in short, will not resolve his DNA dilemma, nor help him address obstruction-of-justice charges in the long term.
Moreover, by manipulating the charges to cover his tracks on DNA, Nifong has found himself contradicted by two other critical pieces of evidence in his file. The first item: the video of the April 4 “identification” “procedure.” In that “no-wrong-answers” event, the accuser not only made her selections, but described what each of her alleged attackers did to her. So by dropping the rape charges, Nifong is now in the unenviable position of asking the court to accept the identifications resulting from that “procedure,” but to ignore what the accuser said about her alleged attackers.
The second item: the SANE nurse’s report, which detected no injuries beyond “diffuse vaginal edema” and a scratched heel. Kathleen Eckelt immediately detected Nifong’s problem, and correctly reasoned that the D.A.’s new theory seemed to “insult our intelligence.”
Real rape victims, Eckelt notes, are traumatized, and as a result “can have some trouble with memory, especially if they were under the influence of drugs or alcohol.” But radically shifting stories can often suggest a fraudulent claim, and “it’s a huge leap to go from explicitly saying she was penetrated orally, vaginally, and rectally to suddenly not being sure what body part actually penetrated her.”
In her experience as a SANE nurse, Eckelt observes that patients can have problems with small details, since in “any traumatic event, most people are often so overwhelmed with emotion that they can’t remember all the details all at once.” But in this case, the “recovered-memory” issues are huge—whether the accuser was raped, and how many people raped her. According to Eckelt, “most patients are able to tell me that right up front. And if they’re not sure, they tell me so. Right away. They will say something like, ‘I’m not sure if I was even raped.’ I’ve had patients actually express surprise when I’ve found injuries because they were so unsure.”
In addition to the accuser’s remarkably changing memory patterns, Eckelt notes that sexual assault with an object in stranger rapes is rare—and that the injuries reported in this event are inconsistent with assault with an object.
While “rape does not always leave genital injuries . . . objects used in assaults cause immediate damage. It’s hard to get around that fact. Objects injure skin and tissue . . . They damage the epithelial lining of the outer skin or inner tissue, and break fragile blood vessels, causing redness, swelling, bruising, lacerations (tears), and abrasions. Large injuries, like lacerations, can usually be seen with the naked eye. Tiny, micro-abrasions can be seen with the culposcope. Abrasions will ooze and often bleed.”
Meanwhile, anal penetration by an object “can cause a great deal of injury. Not only will we see redness and swelling but the tears and abrasions are usually larger, encircling the rectal opening, very visible to the naked eye. The anal sphincter is often affected too and we can see delayed sphincter closing.”
Where, Eckelt wonders, are the “significant number of injuries” that would be expected from the latest version of events offered by Nifong? Eckelt’s conclusion is blunt: “Personally, like everything else that has come out about this case, I seriously question this type of hypothesis. Sexual assault by objects tends to leave far more injuries than rape alone.”
Upon hearing of Nifong's latest maneuver, Jackie Brown, one of the most astute observers of Durham politics around, concluded about the D.A.: "He's dead. Put a fork in him, he's done." Between now and February 5, perhaps Nifong and the Troika will come up with another way to manipulate the evidence so as to keep the case alive. But Brown is right--the “no-rape” theory is dead on arrival.