Flawed procedures beget flawed results. In many ways, this case can be summarized with those five words.
The latest bombshell defense motion demonstrates the point more clearly than any document thus far produced in the case.
Among the new material that the motion supplies:
For the first time, we get a sense of what occurred at the
Kathleen Eckelt’s posts have made a convincing, inferential, case that the accuser was faking her pain. New material from the medical reports cited in the motion shows (yet again) the wisdom of Eckelt’s insights.
“The ESI Pain Documentation portion of the medical records indicates that she had no facial distress indicating pain, that she was not sweating (a common response to intense pain), that she did not change her body position in any way to indicate that she was uncomfortable, and that she had no changes in her vital signs (pulse, breathing, blood pressure) that would have corroborated her complaints of pain. Indeed, she was noted to be in ‘No Obvious Discomfort.’”
The Pre-Gottlieb Inquiry
It remains why, and how, Sgt. Mark Gottlieb, with his statistically significant disparity in arresting Duke students, assumed control of the investigation, late in the day March 15. But the motion sums up the state of the “inquiry” as of the time Gottlieb took charge:
Within the first 36 hours of the events in this case, the accuser denied being raped, claimed she was raped by 20 men, then 5 men, then 2 men and finally 3 men, claimed that she was carried against her will from a car by Nikki and “Brett,” claimed that she was dancing with three other women, multiple other women and then only one other woman, denied ever being struck with fists, claimed that Matt was getting married, told the forensic nurse that Matt raped her vaginally and orally, that Adam raped her anally, and did not mention Brett raping her, while telling other personnel that Brett raped her vaginally without mentioning either Matt or Adam. She is described as appearing intoxicated and as having a smell of alcohol on her breath; she told physicians that she was very drunk and was so drunk that she could not feel any pain on March 14 and did not realize that she had been hurt until she sobered up. At no time during this first 36 hours did the accuser ever describe the person(s) who she claimed raped her other than to say that he or they were “white.”
In a stunning item, the motion reveals that on March 28, the police knew that at least two non-lacrosse players attended the party. Yet Mike Nifong, who by this point had assumed command of the investigation, explicitly ordered the police not to include photos of these two Duke students in the April 4 array. Why? Doing so would have required going back to court and getting a supplementary non-testimonial order for their photos and DNA—creating an image of an investigation in disarray just after the district attorney had launched his pre-primary publicity barrage assuring people that a rape had occurred and he was handling the inquiry in a competent fashion.
The Tangled Web
In attempting to prevent disclosure of what was said at his April 11 meeting with the accuser, Nifong claimed that she was “too traumatized” to speak of the events of March 13 and 14. To take Nifong at his word, the accuser must have been even more “traumatized” a week earlier, on April 4, when she made her choices through the procedurally flawed photo array.
The lineup, as anyone who ahs followed Joseph Neff’s sterling reporting on the case already knows, was a procedural travesty. Confined to the suspects, overseen by the person co-running the inquiry, and with the accuser being informed that the lineup would include only people police believed attended the party, the array ignored all central elements of General Order 4077, which stated that “photographic arrays should adhere to the following set of guidelines”:
(a) “Use an independent administrator. It is preferable that the individual conducting the photographic array should be someone who does not know which member of the photographic array is the suspect. There should not be anyone present during the array procedure who knows the suspect’s identity. Only when resources make this practice prohibitive should an independent administrator not be utilized.”
(b) “Include a minimum of five fillers (non-suspects).”
(c) “If there is more than one suspect that fits the description of the perpetrator, there can be more than one suspect in the photographic array; however, the number of fillers should be increased to a minimum of five per suspect.”
As revealed in an earlier N&O inquiry, this flawed procedure produced badly flawed results—with the accuser describing herself as 100 percent certain she saw at least two players who weren’t even at the party, and misidentifying the player who made the broomstick comment, among other obvious errors.
The Number and Content of Statements
The motion reveals that the accuser gave approximately 16 versions of events at various points between March 14 and April 6 (including discussions with medical personnel). Inconsistencies resulted—over the length of the attack; whether the accuser was drunk; whether she was beaten; and whether Kim Roberts stole her money. Perhaps the greatest inconsistencies revolved around the question of “who did what”:
In her statement of March 14 to Officer GD Sutton, the accuser claimed that she had been in the bathroom with five men and that Brett had penetrated her vagina with his hands and penis; she would later add that she was penetrated by all five men. In the sexual exam assault report of March 14, the accuser said that Brett and Nikki carried her back into the house, where Adam closed the door and told her she could not leave. At that point Matt claimed that he was getting married but then raped her vaginally and then Adam sodomized her, later adding that Matt raped her orally as well. On March 16, the accuser told Inv. Himan that Adam came to the car and took her back into the house, that Brett first raped and sodomized her, followed by Matt, and that Adam forced her to have oral sex. She then said that Adam dragged her back to the car and wiped her off. In her handwritten statement of April 6, Dan and Adam came to the car to apologize and bring her back inside, Adam was the attacker who claimed he was getting married, Matt first raped and sodomized her, followed by Brett, Dan participated in beating her, and that Nikki and Adam took her back to the car.
The Mysteries of Adam
Even accepting everything the accuser said at face value, her story is fatally undermined by internal contradictions. Take the case of Adam—the person in the accuser’s narrative who she claimed forced her to perform oral sex. In the April 4 lineup, she assigned this role to Reade Seligmann.
Yet in the accuser’s April 6 statement and Inv. Himan’s notes, “Adam” also carried the accuser from the bathroom to the car when the rape was finished. Therefore, as the motion notes, the accuser’s statements claim that “‘Adam’ (ie, Reade Seligmann) stayed in the house for the entire attack and then carried or dragged the accuser to the car after the attack.”
This claim, however, cannot be true. The accuser was photographed on the back porch at 12.30am—several minutes after Reade Seligmann was photographed a mile away at an ATM machine. Seligmann, therefore, cannot be Adam. And if Seligmann cannot be Adam, then the accuser had to have lied in either her April 4 photo session or April 6 statement (or, of course, both).
The Mystery of the Mustache
The motion produces the photographs that Nifong refused to examine before indicting Dave Evans. In photos on March 11, two days before the party, and on March 14, one day after it, Evans had no mustache. Yet the accuser asserted that she was 90 percent certain that Evans attacked her—or a figure who looked like Evans, anyway, only with a mustache.
This motion, in short, constitutes a devastating assault on Nifong’s case. It should serve not only to justify suppressing the lineup, but as a central exhibit in any ethics proceedings against Nifong conducted by the state bar.