Friday, August 25, 2006

More Bad Times

[Welcome Instapundit readers. I invite you to sample the site, where I'm currently housing all my posts on the case.]

Liestoppers has an painstakingly detailed examination of the . . . inconsistencies . . . in the Times' story of this morning; see here for a prosecutor's standpoint, arguing, "Having looked at these 'new' revelations supposedly beneficial to the prosecution, I disagree that it makes Nifong’s case any stronger. In fact, I think it raises some very disturbing questions."

To put it mildly, it is highly problemmatic that the Times--for a piece widely touted as a review of its initial, one-sided coverage--elected to send the same reporter (Duff Wilson) to write the new story. The history of this case has been the rush to judgment (by Nifong, by the Group of 88, by much of the national media) coupled with an almost complete refusal to admit that initial judgments might have been overstatement (David Brooks and, ironically, Ruth Sheehan are exceptions here).

There are three serious problems with the Times piece, which I will take in order of ascending importance.


The Times article is a lengthy one--nearly 6000 words--and so lack of space should not have been a problem. Why, then, as I mentioned this morning, did Wilson and co-author Jonathan Glater neglect to mention that Reade Seligmann's alibi includes a videotape of him a mile away at the time of the alleged crime? In fact, the duo go out of their way not to mention this, describing the alibi as one that his defense attorney claimed "includes cellphone records, an A.T.M. record, a time-coded dormitory entry card and a taxi driver’s account." What, exactly, is "an A.T.M. record"? Times policy seems to be to engage in creative writing and allow readers to draw their own conclusions, rather than to say, "Reade Seligmann was on a Wachovia Bank videotape at an ATM machine a mile away at the time of the alleged crime." Even those who have trouble understanding the intracacies of procedure would recognize that it's impossible to commit a crime while you're on videotape someplace else.

And why the failure to mention Nifong's promise to the court that a negative DNA test would clear "innocent" persons--while Wilson and Glater found space to include Nifong's complete rationale for dismissing the significance of the very DNA tests he had pressed the court to compel?

On the DNA front, the Times duo does everything it can to help out Nifong. The authors toss in this odd sentence: "Outside experts say it is possible for a rapist to leave no DNA evidence." Who are the "outside experts" who contend it is possible for three men that the accuser said didn't use condoms and who violently raped her "to leave no DNA evidence"? Wilson and Glater don't tell us: I guess we're just supposed to trust their word. And they also offer this strange assertion: "The woman had initially told doctors and nurses that her attackers had not used condoms." Are they asking the readers to believe that she "subsequently" changed her story? If not, why did they use "initially" in the sentence?

The Wilson/Glater approach to the primary represents another peculiarity in the article. Here is the only mention of a key motivation for Nifong to act as he did: "Mr. Nifong, in the middle of a tight primary campaign, was summoning racial ghosts for political gain. " No discussion of the racial dynamics either in the election or in the electorate. No analysis of whether Nifong's actions helped him in the primary. It unquestionably did. No mention, even, of the primary's outcome. And I've heard rumors that thousands of people signed petitions to get another candidate on the ballot, an extraordinary development in a race for DA in Durham County. Wilson and Glater apparently couldn't find time to confirm or deny these reports.

And regarding the 4-4 lineup, Wilson and Glater write the following, "The array of photographs used to identify the suspects violated generally accepted guidelines for lineups, because it included only lacrosse team members. " Well, not exactly. The lineup violated Durham city procedures--along with "generally accepted guidelines." That's a pretty big omission.

Questions for Nifong

Given the authors' obvious sympathy for Nifong, perhaps they could have found time to ask him some questions based on the facts they revealed in this story.

1.) "One of the team captains, Dan Flannery, using the name 'Dan Flanigan,' called a local escort service and arranged to pay $800 for two women to dance at what he described as a bachelor party." Nifong has repeatedly asserted that the team captains used aliases for their names, in an attempt to "confuse" the accuser. There's been no version of events (as far as I know) in which the accuser was ever given the last names of any of the players. There's no suggestion that Dan Flannery was using an alias for his first name; Kim Roberts' statement says he wasn't using an alias in talking with her, nor was Dave Evans. So where's the evidence that the players were using fake first names--a claim critical to Nifong's case, and at the heart of his March 23 filing for DNA evidence? Did Wilson and Glater ask their contacts in the DA's office about this problem?

2.) "About 30 players had been at the party," reveal Wilson and Glater. They say their article is based on "an examination of the entire 1,850 pages of evidence gathered by the prosecution in the four months after the accusation," but don't say where they got confirmation that "about 30 players" were at the party. Given this fact, under what possible rationale, well after he had filed charges in the rape case, did Nifong seek federally protected student keycard information of players that he knew were not at the party? Wilson and Glater don't say.

3.) As Liestoppers has pointed out, the last article from Duff Wilson maintained the following, "Mr. Cheshire's news conference was briefly interrupted by Linwood Wilson, an investigator for the district attorney, who challenged him to show where in the documents the woman had changed her story. In an interview later, Mr. Wilson said he had seen all the evidence and that the woman, a 27-year-old student and stripper, had not changed her story." A Lexis/Nexis search reveals that Duff Wilson never wrote about Cheshire releasing, the very next day, a statement by the accuser, from the file, that five men raped her--suggesting Nifong's case investigator was either lying or hadn't read the file. Here's how Duff Wilson treats the issue in today's article. "The reference to five rapists has not been explained."

Gottlieb and the Missed Headline

The main source for the Times duo is the late-arriving report of Sgt. Mark Gottlieb. The Times reveals that Gottlieb possesses extraordinary memory skills: his report was typed months after the events it described, with, apparently, virtually no contemporary notes.

As it's apparently Times policy to trust the good faith of figures like Gottlieb, Wilson and Glater seem to have missed a main story: the Durham police force (and medical staff in the area) bring incompetence to a new level.

1.) The Times reports, "A female officer took photographs and confirmed that 'she had the onset of new bruises present,' Sergeant Gottlieb wrote. (The female officer’s report does not mention bruises.) " The Glater/Wilson article--which says it reviewed the entire discovery file--makes no mention of the authors having seen these photos. Did they?

In any case, we have Gottlieb's notes (which, again, Glater and Wilson trust enough to use as the spine of their article) saying one thing, and the female officer's notes, along with the findings of the Duke Medical staff, saying another.

2.) The Times reports,
In Officer Himan’s handwritten notes, the woman described all three as chubby or heavy. Adam: “white male, short, red cheeks fluffy hair chubby face, brn.” Matt: “Heavy set short haircut 260-270.” Bret: “Chubby.” The descriptions in Sergeant Gottlieb’s notes are more detailed and correspond more closely to the men later arrested: Collin Finnerty, 20, a slender 6-foot-3 and 175 pounds with light hair; Mr. Evans, 23, 5-foot-10, 190 pounds and with dark hair; and Mr. Seligmann, 20, who is 6-foot-1 and 215 pounds with dark hair.
Again, we have Gottlieb's notes saying one thing, and notes of another police officer saying something quite different.

Imagine any sort of cross-examination: "Sgt. Gottlieb, was your partner so incompetent as to botch the accuser's fairly straightforward descriptions"? "Sgt. Gottlieb, did you make up the accuser's reference to bruises, or was your female colleague so incompetent that she didn't mention this vital item in her report"? "Sgt. Gottlieb, since your notes reveal that the accuser apparently gave a dead-on description of Collin Finnerty, why didn't you have her view a photograph of him on March 16 or March 21: is it customary not to show accusers photos of people who look like their descriptions of their alleged attackers"? "Sgt. Gottlieb, could you explain why the Duke Medical staff was unable to detect bruises that you seem to have had no trouble observing"?

There is, of course, an explanation other than the utter incompetence of Gottlieb's partner, Gottlieb's female colleague, and the doctors trained to detect bruises. Some might wonder about the credibility of Gottlieb's all-too-convenient revelations, at least to the extent of authors not using them as the spine of the article. But this is, after all, the New York Times, which showed in the WMD crisis that it's newspaper policy to uncritically accept the unverified or even contradicted accounts of government officials who might have personal, political, or ideological motives to lie. Old habits apparently die hard.


Anonymous said...

It's obvious that Nifong or one of his allies leaked stuff to The New York Times — after the judge imposed a gag order. What are the consequences for Nifong?
And why did The Times omit the main piece of evidence clearing Seligmann: the video from the ATM during the time the rape supposedly occurred? Why did The Times use the investigator's 33 pages of typewritten notes as the guideline for the lengthy story?

Anonymous said...

Excellent questions . . .

Anonymous said...

The NYT tells us:

"Outside experts say it is possible for a rapist to leave no DNA evidence."

So why was this guy set free?

Man Exonerated After 22 Years in Prison Adjusting to New-Found Freedom

Date: Thursday, July 13, 2006

By: Leonard Greene, Special to

It's been one stop after another for freed inmate Alan Newton, who was released from prison last week after 22 years in jail for a crime he did not commit.

After a week of parties, picnics and public appearances, Newton, a former bank teller from the Bronx, is adjusting to life on the outside after DNA testing cleared him in the vicious rape and beating of a Bronx woman whose shaky identification sent him away for nearly half his life.

DNA from Newton that was compared to a sperm sample recovered as evidence after the rape showed conclusively that Newton had nothing to do with the brutal attack.


What say you - NYT, NAACP, Professor Chemerinsky?

Anonymous said...

"Outside experts say it is possible for a rapist to leave no DNA evidence."

This is one of the most pernicious statements in the article.

What are the chances that three violent, forcible penetrations by three separate attackers would leave NO DNA evidence?

Let's hold the NYT's feet to the fire over this. Exactly who are these "outside experts" they are citing?

August West said...

Professor Johnson:

My wife and I just laughed out loud on clicking your "see here" link to a former prosecutor's standpoint, inasmuch as he had clearly, earlier today, matured the same thoughts generally permeating my take, this evening, on "The Gottlieb Files." While I'm gratified to see that others are "in sync" with my musings, I'm mildly dismayed not to have been "in first" because, while it is true that I was not online earlier today in defenence to other responsibilities, there are some, I'm sure, whom I will never be able to wholly convince.

As usual, your piece is just great!