Now that Mike Nifong has admitted he has no physical or forensic evidence linking any of the players he has targeted to any crime, he has made clear he is relying solely on the identifications made by the accuser in the April 4 lineup. He doesn’t, however, profess to believe anything that the accuser actually said about the three players ultimately indicted, since her remarks about them on April 4—each in a different way—are wholly inconsistent with the evidence in the case.
Since the on-line transcript of the lineup is awkward to access, I thought I would type up the relevant sections of the lineup, with commentary from me, and from various experts along the way.
Gottlieb: Investigator Himan and I met with Durham Co. DA Michael Nifong in reference of doing a photographic line up with the new mug shot style photographs contained during the Non-Testimonial Order procedures conducted on March 23, 2006 at the Durham Police Forensics Unit. Mr. Nifong suggested we put together the mug shot type photographs into a group since we are under the impression the players at the party were members of the Duke Lacrosse Team and instead of doing a line up or photographic array, we would merely ask the [accuser] to look at each picture and see if she recalled seeing the individual at the party. If in fact she could recall, just let us know how she recalled seeing them from that night, what they were doing, and any type of interactions she may have had or observed with a particular individual.
As we all now know, this setup violated in virtually every way Durham procedures, which required five filler photos per every suspect (Nifong had identified all 46 players as suspects). The
Nifong defended his approach to the New York Times, musing, “What is a lineup?” The bizarre rationalization prompted me to e-mail every district attorney in
D.A. #1: “We have tried to get [charging authorities] to adopt the latest photo identification techniques—showing a series of photos using an examiner with no knowledge of the suspect’s identity. We would not accept an identification made as you describe.”
D.A. #2: “In my jurisdiction if a law enforcement agency showed the photos to a victim for the purpose of identification we would consider it a photo lineup.”
Given that the North Carolina Conference of D.A.’s cited Nifong’s conduct in the case as a reason for him to step aside, there seems to be little doubt that every other district attorney in the state understands what constitutes a lineup, even if Nifong does not.
The procedure itself began at 11.29am.
Gottlieb: I sat down with the [accuser] in the briefing room at the conference table and explained to her we were going to sit in the far side of the room at the desk and look at people we had reason to believe attended the party . . . I explained to her during the time she was looking at each picture she should merely tell me who she remembered seeing at the party, or tell me if she did not recognize seeing an individual at the party . . . I also told her it was important to tell us if she recalled seeing a particular individual at the party and to let us know how she recalled seeing them from that night, what they were doing, and any type of interactions she may have had or observed with a particular individual. She agreed . . .
IMAGE 1 (Matt Zash)
Accuser: I don’t recognize him.
Even though Zash was a resident of the house and police had (unsurprisingly) found his DNA, the accuser couldn’t recall even seeing him—a good tipoff that she was simply engaging in wild guesses.
IMAGE 4 (Matt Wilson)
Gottlieb: Do you recognize the person?
Accuser: He looked like Bret but I’m not sure.
Gottlieb: Who is Bret?
Accuser: One of the guys that [allegedly] assaulted me.
Gottlieb: One of the guys that assaulted you. OK.
Note that Gottlieb asks no follow-up questions; compare his handling of
Not a scintilla of evidence exists that Wilson did anything wrong, by the way.
IMAGE 5 (David Evans)
Accuser [after a lengthy delay]: He looks like one of the guys who assaulted me sort.
Gottlieb: OK. How sure of it are you on this image?
Accuser: He looks just like him without the mustache?
Gottlieb: OK, so the person had a mustache?
Gottlieb: Percentage-wise, what is the likelihood this is one of the gentlemen who assaulted you?
Accuser: About 90 percent.
Before Nifong indicted Evans, defense attorneys attempted to present photos of Evans on March 11 and March 14 showing that he had no mustache. Nifong refused to look at them; the photos were eventually incorporated into the defense motion on the lineup.
To my knowledge, before her statement in response to seeing Evans’ photo, the accuser had never claimed that one of her attackers had a mustache.
IMAGE 7 (Reade Seligmann)
Accuser: He looks like one of the guys who assaulted me.
Gottlieb: How sure are you?
Accuser: 100 percent.
Gottlieb: You’re 100 percent sure, OK.
Gottlieb: How did he assault you? Which one was he?
Accuser: He was the one that was [allegedly] standing in front of me that [allegedly] made me perform oral sex on him.
Gottlieb: What else did he do?
Accuser: That was it.
Of course, when the accuser had seen a photograph of Seligmann nineteen days before, she replied that she was only 70 percent sure of even seeing him at the party, and couldn’t recall when or where she had seen him. As an expert in lineup ID processes,
Moreover, Seligmann performed the role the accuser had assigned to Adam, the sometime groom in the accuser’s tale. (In one version, Adam was getting married; in another, Matt was.) Adam did many other things, according to the accuser—he and Kim Roberts helped her get dressed; he then joined Roberts in helping her to the car.
Unfortunately for the accuser, she picked the wrong person: at the time she was passed out on the back porch and then helped to the car, Seligmann was in a taxi, photographed at an ATM machine, at a restaurant, and then back in his room.
Nifong therefore has based his case against Seligmann on the remarkable assertion that Seligmann possessed the ability to be in two places simultaneously.
IMAGE 9 (Brad Ross)
Accuser: He was there.
Gottlieb: In the bathroom, or at the party?
Accuser: At the party.
Gottlieb: OK, so he was not the person who assaulted you. Do you remember what he was doing at the party?
Accuser: He was standing outside talking to the other dancer.
In fact, while the accuser remembered Ross as standing outside talking to Kim Roberts, Ross was actually in another county—as Nifong knew at the time he made indictments. Of the 46 white members of the lacrosse team, Ross is the only person that the accuser was twice 100 percent certain of seeing at the party.
IMAGE 26 (Chris Loftus)
Accuser: He was in the living room.
Gottlieb: He was in the living room? What was he doing there?
Accuser: Sitting down.
In fact, as Nifong knew when he made indictments, Loftus had been in his dorm room since 11.00pm. The accuser never laid eyes upon him.
IMAGE 27 (Nick O’Hara)
Gottlieb: Do you recognize him?
Nineteen days before, the accuser said that she was 100 percent certain she saw O’Hara at the party.
IMAGE 30 (Fred Krom)
Gottlieb: Do you recognize him?
Nineteen days before, the accuser said that she was 100 percent certain she saw Krom at the party.
IMAGE 40 (Collin Finnerty)
Accuser: He is the guy who assaulted me.
Gottlieb: What did he do?
Accuser: He put his penis in my anus and my vagina.
Gottlieb: Was he the first or second one to do that?
Accuser: The second one.
Gottlieb: Is he the one that strangled you or not?
On December 21, in what has been claimed as the first discussion about events of the evening between the accuser and a representative of supervising investigator Nifong’s office, the accuser contradicted this version of events. So Nifong is keeping Finnerty under indictment despite the accuser having retracted most of the comments above.
IMAGE 41 (Kevin Mayer)
Gottlieb: Do you recognize him?
Gottlieb: Do you need some tissues?
Nineteen days before, the accuser said that she was 100 percent certain she saw Mayer at the party.
Flawed procedures beget flawed results. Corrupted procedures beget corrupted results. Flawed, corrupted procedures beget flawed, corrupted results.