DNA and Durham's Ahab

[Originally posted in Cliopatria.]

Flawed procedures often beget flawed results. The likelihood of the Duke lacrosse case confirming this maxim, indeed providing a record for future law students looking at how many procedural irregularities a prosecutor could commit in a single case, only continues to increase. In late April, Durham district attorney Mike Nifong requested that a court mandate all 46 white players on the Duke lacrosse team to give DNA samples. The filing cited the imperatives of clear-cut justice: “The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.” A local court granted the order, even though Durham police appear to have made little effort to determine which of the 46 players even attended the party. Outside of Durham, people normally are not asked to give samples of their DNA based solely on their membership in a group.

Backlogs at DNA labs prevented the complete test results from arriving before his hotly contested May 2 primary, but Nifong indicted two players anyway—based on a photo array that ignored not one, but two, state guidelines. Yesterday, the final DNA tests arrived. They contained no match to either indicted player. (Since the attorney for one of the indicted players, Reade Seligmann, had released a time-stamped bank video showing Seligmann at an ATM machine at the time of the alleged rape, this news came as little surprise.) Given Nifong’s earlier assertion that DNA would “immediately rule out any innocent persons,” he might have struggled to get an indictment of Seligmann had he waited to present this evidence to the grand jury.

As to the other half of Nifong’s promise—that DNA would “show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim”—yesterday’s results yielded genetic material, obtained from a vaginal swab, from a single male source, proving that the accuser had sex before the rape exam occurred. But this DNA matched none of the 46 players. Instead, according to ABC News, it matched the accuser’s boyfriend. An AP wire story quotes Loyola Law School professor Stan Goldman, a frequent cable-news legal commentator, saying that this evidence should end the case, unless the district attorney possesses heretofore unrevealed testimony from an eyewitness to the alleged crime: “There has got to be some really good prosecution explanation as to why the DNA evidence does not exist and why someone else's would be there.” Since the accuser described a graphic and seemingly unprotected assault, it’s hard to see what this explanation would be.

But Goldman has probably underestimated Nifong, the Triangle’s equivalent of Ahab, searching for his version of the white whale—conviction of those he labeled “hooligans” in one of his 70-plus press appearances immediately following the alleged crime, appearances that seem to have violated North Carolina ethics guidelines regarding permissible public statements by prosecutors. Press reports from Raleigh suggest that Nifong plans to indict a third player, a resident of the house where the party occurred, on the grounds that DNA under one of the accuser’s fingernails, which were retrieved from the trash, might belong to the player. (There was no conclusive match one way or the other.) Given that the accuser claimed that her third attacker had a mustache (no players on the team had a mustache), a contradiction would seem to exist between the photo ID array used for the first two arrests and the justification for this arrest. But what’s one more contradiction in a case with so many?

Lest anyone think that he’s resting on his laurels with this new DNA evidence, Nifong showed otherwise. In what Chris Lawrence of Signifying Nothing termed perhaps “the clumsiest effort at witness intimidation since, well, the last time Mike Nifong threatened someone involved with the case with something,” Durham police arrested cab driver Moezeldin Elmostafa on a 2.5-year-old misdemeanor warrant. A few weeks ago, an affidavit from Elmostafa provided the first glimpse of Seligmann’s alibi (that he wasn’t at the house at the time of the alleged rape). This alibi subsequently has been confirmed by the ATM video, cellphone records, various receipts, and an affidavit from the other passenger in the cab, lacrosse player Rob Wellington. "The detective asked if I had anything new to say about the lacrosse case," the cabbie said. "When I said no, they took me to the magistrate." Next week, we'll see Wellington hauled in on the basis of a complaint filed against him when he was in kindergarden.

Perhaps the arrest of Elmostafa will prompt Duke’s Group of 88 to reconsider their approach to the case, which heretofore has consisted of a commitment to “turning up the volume” and offering a public “thank you” to protesters who distributed “wanted” posters with photos of the lacrosse players around campus and banged pots and pans outside the residence of lacrosse players while shouting, “Time to confess.” The Bowen/Chambers report somewhat embarrassingly explained the professors’ position as based on the institution’s need to balance the due process protections of (white, male) Duke student-athletes with the fact that "in the eyes of some faculty and others concerned with the intersecting issues of race, class, gender, and respect for people, the Athletic Department, and Duke more generally, just didn't seem to 'get it.'" Yet as Elmostafa is a working-class African-American, presumably these “concerned” Duke faculty would feel no need to rationalize away authorities’ peculiar treatment of him. I’ll be checking future editions of the Duke Chronicle for a new “Group of 88” ad, saying they’re “listening” to those “concerned” about Elmostafa’s treatment.

Nifong, meanwhile, is rapidly achieving the apparently unachievable: overseeing an investigation that brings to mind the worst conduct of both sides in the Lewinsky affair. Like Ken Starr in decisions such as subpoenaing secret service agents, Nifong is so convinced of the moral guilt of his targets that he’s taken actions (such as arresting the cab driver) that only make him seem like an out-of-control prosecutor. And like Bill Clinton’s infamous “it depends on what the meaning of the word 'is' is” remark, Nifong has shown himself capable of the most tortured legalisms when new evidence has contradicted his earlier assertions (as when, responding to the Seligmann material contradicting the “timeline” of the alleged rape affirmed in the warrant authorizing the search of Seligmann’s dorm room, the district attorney replied that critics “don’t know what my timeline is.”) Indeed, this case is unlike any I can ever recall, in that in normal cases, such tortured explanations following release of unimpeachable evidence almost always come from the defense, not from the prosecution.

Explaining away the DNA results, however, will require more creativity than even Starr or Clinton ever demonstrated. But no one should doubt that Durham’s Ahab will be up to task. Perhaps he can allege a series of typos and/or proofreading errors in his April filing to the court. So, for instance, when he wrote, “The DNA evidence requested will immediately rule out any innocent persons,” he can now claim, at least with regard to Seligmann, “The DNA evidence requested will immediately rule in any innocent persons.” And when he asserted that an exact DNA match would “show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim,” he can now hold that he really meant it would “show conclusive evidence as to who the suspect(s) are not in the alleged violent attack upon this victim.” After all, he’s short-circuited virtually every other procedure in this case thus far, so why worry about an after-the-fact reinterpretation of a court filing?