Friday, August 11, 2006

The Soucie Memo

At a time when most reporters in the state have either moved on to other matters or—as in the case of the Durham Herald-Sun—seemed to uncritically evaluate the motives and statements of D.A. Mike Nifong, one North Carolina journalist has consistently been ahead of the pack: the N&O’s Joseph Neff.

Neff’s latest story provides a devastating account of Nifong’s procedural misconduct and lack of evidence in the lacrosse case, uncovering critical and heretofore unrevealed information about the medical reports, the accuser’s initial descriptions of her alleged assailants, the odd timing of the accuser’s ultimate statement to police, and Nifong’s hands-on involvement with the police investigation. Neff made a rare error, however, in the story, inaccurately describing a memorandum by Durham PD Investigator Michelle Soucie as having been penned on April 17, when actually the memo was written on April 4. The N&O promptly issued a correction.

The error, however, meant only that Neff’s story was excessively kind to Nifong, and affected none of the story’s conclusions. The material in the excerpted portions of the Soucie memo, in combination with other facts and documents already publicly available, reinforces the pattern of this case: the more material released, the more indefensible Nifong’s behavior appears.

The previously unreleased Soucie memorandum brought four items to light. In its correction statement, the N&O writes that the corrected date for the memorandum (from April 17 to April 4) “changes the implication of the first five paragraphs of the story: that the conversation between Nifong and Soucie was an example of the words and actions of police and prosecutors outpacing the facts in the file.” The words of the correction were poorly chosen. For, in fact, as Neff’s original article claimed, “the conversation between Nifong and Soucie was an example of the words and actions of police and prosecutors outpacing the facts in the file.”

Before April 4, Nifong gave dozens of interviews to the state and national media commenting with certainty on the “events” of the “rape.” Here are three typical examples of his remarks:

March 29, MSNBC: “The circumstances of the case are not suggestive of the alternate explanation that has been suggested by some of the members of the situation. There is evidence of trauma in the victim’s vaginal area that was noted when she was examined by a nurse at the hospital.”

March 29, WRAL: “My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place.”

March 30, CBS News: "The victim was examined at Duke University Medical Center by a nurse who was specially trained in sexual assault cases. And the investigation at that time was certainly consistent with a sexual assault having taken place.”

Yet, days after Nifong made these and other similar statements, Soucie recorded the following, according to the memo the N&O uncovered: "Mike Nifong stated that: Also need documentation on escort service and how they do business. Need to nail down what victim did on the day before arriving at 610 N. Buchanan so we can show that she did not receive trauma prior to the incident—with witnesses." Neff’s original conclusion is correct: Nifong “had said repeatedly on national television that he was certain the dancer had been raped. Yet the prosecutor was still trying to rule out other explanations for the vaginal swelling a hospital noted in its examination of the accuser. The words and actions of police and prosecutors had outpaced the facts in the file, and not for the first time.”

This memo, in short, is the clearest example of date of misconduct by Nifong in his public remarks. Not only was he violating the state bar’s prohibition against statements “that have a substantial likelihood of heightening public condemnation of the accused,” he was, to put it bluntly, dissembling. Shortly after he dismissed “the alternate explanation” for the accuser’s alleged injuries (which, as things turned out, were far less severe than the D.A. claimed) to MSNBC, Nifong admitted to Soucie that he wasn’t sure if an “alternate explanation” did exist—namely, that “what [the alleged] victim did on the day before arriving at 610 N. Buchanan” could explain her trauma. Neff’s words—“the words and actions of police and prosecutors had outpaced the facts in the file”—are charitable in describing the misconduct here.

The N&O obviously had to issue a correction regarding the date of the Soucie memorandum, pointing out that it was written before Nifong sought indictments. But, contrary to the insinuation of the correction text, the memo’s earlier date actually raises more questions about Nifong’s conduct, rather than weakening any of the article’s conclusions. Three matters are immediately apparent.

First, the order contained in the Soucie memo had one immediate effect: the obtaining of the statement of Jarriel Johnson, the figure generally described as the accuser’s “driver.” Johnson provided his statement to police two days after Nifong instructed Soucie “to nail down what victim did on the day before arriving at 610 N. Buchanan.” Unfortunately for the district attorney, however, Johnson’s affidavit (reproduced at page 27 of this motion) provided no help in showing “that [the accuser] did not receive trauma prior to the incident.”

Johnson revealed that the accuser had engaged in a variety of private “events” in the hours before the lacrosse party, including at least one that involved use of a vibrator. As Liestoppers blog explained yesterday, “While Nifong instructed DPD to find witnesses to show that the accuser's nether region was unswollen, instead they found him Jarriel Johnson whose description of accuser's activities seemed to do the exact opposite. Nifong asked for proof that the swelling couldn't have been caused by the accuser's escort service activities, and instead found proof that it could very well have.” Yet he sought indictments anyway. The correct dating of the Soucie memo thus shows Nifong’s closed-mindedness to any evidence contradicting his theories as early as April 6. So much for his duty, under the state bar’s ethics code, to serve as “a minister of justice.”

Second, the initial part of the memo is highly unusual: it details Soucie’s efforts, acting on Nifong’s orders, to schedule DNA tests at a private laboratory. But Nifong had already sent the DNA samples to the state lab, and was, in theory, awaiting results on April 4. On March 28, he announced, “There won't be any arrests before next week. I have decided not to make arrests until DNA evidence is back.” Two days later, however, he downplayed the effects of DNA in comments to the N&O, and now we know that on April 4 (six days before defense attorneys received results showing that there was no DNA match between the lacrosse players and material from the accuser’s rape kit), Nifong was telling the Durham police to schedule more testing.

Why does this date matter? On April 4, Nifong arranged a photo lineup for the accuser. In yet another scoop from the story, Neff reveals that the accuser already had gone through a photo ID session, at which she failed to identify any player as her attacker. (Hints of this lineup array existed in an earlier defense motion, but since then, the matter had received almost no public discussion until Neff’s exposé.) Given that Soucie was searching for an alternative private testing lab as of April 4, it seems more likely than not that the impetus for this second photo lineup came from Nifong’s discovery of the negative DNA tests.

This photo ID session violated Durham procedures and North Carolina norms in four major ways. A fifth violation can now be added to the list: no North Carolina lineup procedures that I examined contained even a mention of doing a second ID with photos of the exact same group of suspects if the accuser couldn't come up with a match the first time.

The April 4 session resulted in the accuser identifying Reade Seligmann with 100% certainty as “looks like one of the guys who assaulted me sort.” On this basis, and this basis alone, Nifong sought Seligmann’s indictment—even though Seligmann didn’t resemble any of the accuser’s original descriptions of her attackers. (He is 6’1”, 215 lbs.; as Neff’s story reveals, the accuser described one of her attackers as “chubby”; a second as weighing 260-270 pounds; and a third as “short.”) Despite this anomaly, which suggested that a procedurally flawed photo ID had yielded a flawed result, and although 13 days passed between the photo ID and the indictment, neither Nifong nor anyone from the Durham Police Department ever spoke with Seligmann or his attorney. (To this day, no one from the Durham Police Department has spoken with Seligmann.) And on the day of the indictment, in violation of yet another provision of the state bar’s ethics code, Nifong refused to meet with Seligmann’s attorney, who offered to present exculpatory evidence.

The inference from the Soucie memo: as soon as Nifong learned that the DNA tests, which he previously had promised would identify the guilty, instead came back negative for all, he orchestrated the procedurally improper photo ID session. When the accuser identified someone who hadn’t even been considered a serious suspect until that point, Nifong, despite his obligation to act as “minister of justice,” went out of his way not to seek any additional information about Seligmann before the next session of the grand jury—which he had already announced would be the final possible meeting before the D.A. primary at which he would seek indictments.

Finally, the Soucie memo provides additional evidence of one of the odder aspects of this case: Nifong’s service as de facto police commissioner. The district attorney was telling the police to conduct more DNA tests. The district attorney was ordering the police how and in what manner to conduct their investigation. Where was the police chief? The deputy police chief? Why was Nifong doing their jobs?

Nifong’s defenders have frequently pointed to his long record in the district attorney’s office to justify his handling of this case. But he never served as a police officer (he did spend three years as a social worker after college), and he therefore had never, before this extremely high-profile case, run a police investigation. As the Soucie memo shows, Nifong wasn’t cut out for such activity. His orders to the police department included getting “documentation on escort service and how they do business.” I suspect few police lieutenants would have needed to investigate how escort services “do business.”

Contrary to the ABA’s suggested guidelines (Standard 3-2.10), North Carolina lacks a mechanism to constrain runaway prosecutors, and, as the Soucie memo shows, Nifong has positioned himself as a quasi-police commissioner in Durham. The governor and attorney general have shown no willingness to step in. In the 1950s and early 1960s, the federal government involved itself with the FBI and the Justice Department when renegade Southern prosecutors overrode procedures to fulfill their political or personal crusades.

Echoing a point that MSNBC’s Tucker Carlson has been making for some time, a DBR editorial recently stated, “There have been calls for special prosecutors in this case before, but the idea has been they would replace Nifong. At this point, given what is now known, perhaps Nifong is the one who needs to be prosecuted.” What threshold of misconduct must become documented before the FBI involves itself? Given the performance of the Raleigh/Durham media to date, Neff seems to be the most likely reporter to reveal additional misconduct—and, given what he showed in Sunday’s article, additional misconduct almost certainly exists.

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