Among the most frightening aspects of this case is the realization of how few people were necessary to keep the fraud alive. Nothing could have occurred, of course, without a deeply unethical DA. But beyond Mike Nifong, the cast of characters was surprisingly small:
- One investigator—first Sgt. Mark Gottlieb, then Linwood Wilson, both willing to trim the rules.
- One SANE nurse-in-training—Tara Levicy, who preposterously argued that an exam showing only diffuse edema in the vaginal walls and no DNA matches was consistent with a violent 30-minute, condom-free gang rape.
- One lab director—Dr. Brian Meehan, who was willing to enter into an agreement with his “client” to withhold exculpatory evidence.
And one judge. One of the two people who recommended Mike Nifong to Governor Easley, Judge Ron Stephens appeared at six critical junctures in the lacrosse case. At each stage, he made decisions that appeared questionable at the time, dubious in retrospect, and deeply troubling when viewed in totality.
Stephens signed off on the non-testimonial order requiring DNA samples from all 46 white team members. This order—and the press coverage it received—initiated the media frenzy.
It’s hard to overstate the constitutionally suspect nature of this order. To obtain such an NTO, police are supposed to show probable cause that a crime occurred and probable cause that each person subject to the NTO could have committed the crime. Yet at the time of the order, Nifong had no evidence—much less probable cause—that anyone not named Adam, Matt, or Brett committed any crime.
The office’s response? Make things up. The March 23 NTO cited Dan Flannery’s voluntary admission that he booked the dancers under the name of “Dan Flanagan” to assert that the players used first-name aliases at the party—even though Kim Roberts’ police statement, sworn out the day before, expressly denied such a claim.
Stephens didn’t care. Though at that stage of the process the only check on a rogue prosecution, the judge signed on the dotted line. Months later, in his response to the Bar, Nifong would claim that he wasn’t bound by the order’s promise that DNA would exonerate the innocent, since he personally hadn’t requested the order.
Stephens’ response? To date, nothing.
On March 28, police served a sealed warrant on Ryan McFadyen. They found nothing, because there was nothing to find. By April 5, the case was very different than it had been when Sgt. Gottlieb scoured McFadyen’s room.
- Nifong learned that the DNA evidence his office had promised would “immediately rule out” any innocent people had, in fact, exonerated all the lacrosse players;
- Nifong ordered the Durham Police to construct a lineup that violated their own procedures in multiple ways. In that lineup, the accuser didn’t recognize McFadyen.
Nifong’s response? Stand aside as his house organ, the Herald-Sun, petitioned Stephens to unseal the order. Stephens’ response? To unseal it, even though the investigation was ongoing. The result? Inflaming community sentiment against the lacrosse team, overshadowing the defense’s revelation five days later that the DNA results had exonerated the players.April 18
Stephens imposed bonds of $400,000 on Reade Seligmann and Collin Finnerty. To provide some perspective: in 2005, a Durham rape suspect with 17 prior convictions had received a $100,000 bond.
The move formed part of a pattern of decisions by Stephens seemingly intended to facilitate Nifong's political aim of making it look like he had arrested "dangerous" criminals. Six days before, he had consented to Nifong's request to seal any grand jury indictments, a practice common with flight risks.
Whatever Stephens' motive, it was not a good-faith belief that Seligmann and Finnerty were flight risks. Despite the absurdly high bond and sealed indictment, the judge didn't even require them to forfeit their passports--the first step taken when a court genuinely believes defendants are flight risks.
One of the lowest points of the case. As members of a hate group spewed death threats at Reade Seligmann, Stephens asked them to change seats in the courtroom, as Mike Nifong stood idly by. He treated Kirk Osborn with ill-concealed contempt, did nothing as Nifong treated Osborn unprofessionally, and denied Osborn’s request for a speedy trial.
The latter request was particularly unusual—in real rape cases, the defense almost always wants to drag the process out, in the hopes that a real victim might grow discouraged and elect not to testify.
Stephens did everything he could to prop up Nifong’s collapsing case. The same judge who had been so solicitous to unseal an (ultimately extraneous) item favorable to the prosecution with the McFadyen e-mail denied a request from the N&O and the defense to unseal the accuser’s (clearly relevant) medical record—without providing an explanation. When the N&O asked for a hearing on the issue, he said no.
The most interesting section of the hearing involved requests by Joe Cheshire to force Nifong to memorialize his conversations with Dr. Brian Meehan. (In these conversations, Meehan subsequently revealed, he and Nifong entered into an agreement to withhold exculpatory DNA evidence.) At the time, Nifong said that he and Meehan had discussed nothing of consequence. Presciently, Cheshire noted, "It's very difficult for me, although I take Mr. Nifong as an officer of the court at his word, to believe that there was no discussion at all as it relates to that testing."
Without explanation, Stephens denied a defense request that Nifong include a memorandum of the conversation in the discovery file.
The defense then asked that Nifong file a memorandum of the conversation for Stephens to review in camera. Without explanation, Stephens denied the request.
The defense then asked that Nifong file a memorandum of the conversation under seal, for use in any possible appeal. Without explanation (or, seemingly, any innocent rationale), Stephens denied the request.
In short, Stephens did everything in his power to ensure that no written record survived of conversations between Nifong and Dr. Brian Meehan.
In that morning’s New York Times, Duff Wilson penned his pre-election shout-out to Nifong, playing up the strength of Steve (polling-at-2-percent) Monks and ending his article with quotes from three Nifong supporters. Here was
“He’s a good person, he’s a good lawyer, but he’s in a situation he has never been in before,” said Ronald L. Stephens, a local judge who was district attorney before Mr. Nifong.
Ron Stephens’ twin brother, Don, is a judge in
Judged by his twin’s standards, Ron Stephens was a bad—a very bad—judge in this case. No one is going to forget that he was involved.