What Did Nifong Know, and When Did he Know It?

Timelines are unusually significant in the Duke lacrosse case. Sunday’s N&O article by Joseph Neff, and subsequent correction of the date of a key memo whose existence Neff first revealed, provides more timeline clues. For the first time, it seems more than plausible to suggest that D.A. Mike Nifong’s misbehavior extended beyond procedural misconduct.

Thanks to the N&O, a new timeline of the case’s investigation exists. Dates of items first publicly revealed from the Neff exposé are bolded.

March 16: Operating under the assumption that, as the accuser had claimed, her attackers were named Matt, Adam, and Brett, the Durham police constructed a photo lineup array. The lineup loosely conformed to Durham’s guidelines (which are among the state’s weakest): the accuser was told that her attackers might or might not be in the array, and she was shown five “filler” photos for every suspect. These “filler” photos, however, were of other lacrosse players, not people uninvolved with the case, as the guidelines suggest. (The photos came from the Duke lacrosse website.) Since the team had two students named Matt, the accuser looked at four arrays of six photos each. She identified no one as her attacker.

March 21: When the accuser returned to the police station to pick up some of her other items, she was shown two more six-player arrays. The accuser identified no one. That outcome should have come as little surprise to the police. In extraordinarily vague terms, she had described one of her attackers as “chubby” and said a second weighed about 270 pounds. Duke’s lacrosse team, an elite Division I athletic squad, had no “chubby” players, nor did any of its players weigh anything close to 270 pounds.

March 23: Nifong’s office obtained a court order for all 46 white players on the team to submit DNA samples. The motion neglected to inform the court that the accuser had failed in photo lineups to identify as her attackers at least 36 players on the team, including at least two (Reade Seligmann and Dave Evans) she ultimately would select. With the wording of the order, authorities abandoned their March 16 belief that Adam, Matt, Matt, and Brett were their targets; now all 46 white players were suspects. At the time, Nifong promised, “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.”

March 27-28: In his first public comments on the matter, Nifong repeatedly expressed confidence—in interviews with MSNBC and with North Carolina stations WRAL and NBC-17—that the DNA evidence produced by the court order would solve the case.

March 29: In an interview with the N&O that was published March 30, Nifong suddenly and dramatically reversed course on the significance of DNA to the case. He now suggested that the attackers could have used condoms—even though the accuser had denied her alleged attackers used condoms, which the district attorney would have known had he read his own file before speaking out publicly. "How does DNA exonerate you?,” mused Nifong. “It's either a match or there's not a match. If the only thing that we ever have in this case is DNA, then we wouldn't have a case." He no longer mentioned a relationship between the return of the DNA results and closing out the case, and offered no public explanation for his new viewpoint.

March 31, 12.23pm: In a meeting with the two chief police investigators on the case, Nifong ordered a second photo lineup. Only this time, he told the officers, they were to ignore Durham’s procedures and these Nifong-mandated procedural irregularities “strongly suggest[ed] that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice.”

April 4, 11.29am: The accuser’s procedurally flawed photo ID session began. Eventually, the accuser identified four players, of whom Nifong charged three. (He couldn’t charge all four, since none of the accuser’s myriad stories had cited an attack by four players, though she had claimed at one point that five had attacked her.) Nifong has never publicly explained how he chose the three that he did; the accuser said she was 100% certain that Seligmann looked like a person who attacked her, while she commented, after seeing a photo of Evans, to be 90% certain that the photo resembled someone with a mustache who attacked her. Evans has no mustache.

April 4, 3.59pm: Police Investigator Michelle Soucie memorialized a conversation in which she gave Nifong price quotes for DNA tests at a private lab. In his pre-primary publicity barrage, Nifong had never suggested that he would request a second round of tests: he had stated, repeatedly, that he would indict based on the results from the state lab. Indeed, the fact that the prestigious SBI lab handled his request on an expedited fashion suggested that its word would be definitive. Nifong’s only motive for seeking a second round of tests, of course, was bad news from the SBI. In short, sometime before 3.59pm on April 4, the district attorney knew that the first DNA tests would all come back negative. Alas, the N&O, since it dated the memorandum incorrectly in an error unrelated to the content of the story as a whole, has removed this document from its website.

April 10: Nifong supplied the DNA test results to defense attorneys, who publicly announced that all 46 were negative.

This timeline reveals an investigation whose basic evidentiary goal veered dramatically whenever findings contradicted the district attorney’s public theories and political needs. The theories drove the search for evidence; the finding of evidence had no impact on the theories. As a result, the inquiry divided into three, distinct, segments.

First, from March 14 through March 21, the police employed standard tactics, showing the accuser a photo lineup that, more or less (less, in this case), conformed to the spirit of city guidelines. The accuser identified no one; her descriptions of at least two of her alleged assailants did not resemble anyone on the team.

The second stage began sometime between March 21 and March 23, when Nifong seized control of the case. The district attorney argued now that DNA, not results from a photo lineup, would provide the key evidence, and obtained an extraordinarily broad court order to get the evidence he wanted.

Then, no later than the morning of March 31, Nifong completely reversed himself: a photo lineup, not DNA, would supply the key evidence—even though, just 10 days earlier, he had gone to the court on the grounds that DNA, not photos, would make his case. In the new reality, moreover, authorities would simply pretend that the first photo lineup had never occurred. To ensure that someone would be picked that he could indict before the May primary, the district attorney ordered the police to conduct a lineup that violated Durham’s procedures by consisting solely of suspects, and by telling the accuser of this fact.

The transition from phase one of the investigation to phase two—i.e., from reliance on photo IDs to the mass gathering of DNA evidence—was irregular: the courts generally frown on demanding DNA solely on the basis of group membership. As Durham attorney Alex Charns noted at the time, “I can't imagine a scenario where this would be reasonable to do this so early in the investigation. It seems unusual, it seems over-broad, and it seems frightening that they're invading the privacy of so many people." To interpret Nifong’s actions in the most favorable light to the district attorney, perhaps he wished to give every conceivable benefit of the doubt to the accuser.

There can be, however, no benign explanation for the transition from stage two (DNA as the inculpating evidence) to stage three (back to photos, but with a lineup that violated all procedures). The question, therefore, becomes when, and especially why, Nifong made this decision. The Soucie memo confirms that the district attorney had word of the negative DNA results at least six days before they were publicly revealed. How much earlier had he gained access to this information? Did he know of the likely negative outcome on March 29, when he inexplicably started to downplay the significance of DNA in his public statements?

Regarding the negative DNA tests, the question is: what did Nifong know, and when did he know it?

Specifically, why, on March 31, did he order the Durham police to orchestrate a second lineup that violated their own procedures in virtually every way, even though they had already conducted a lineup whose results he ignored? Did he do so in response to a heads-up that the DNA tests he had promised would “show conclusive evidence as to who the suspect(s) are in the alleged violent attack” instead produced no matches? If so, he dangerously abused his authority, in a manner well beyond his (by now routine) violations of the state ethics code.

It’s unlikely that the Herald-Sun, whose ardently pro-Nifong editorial stance has recently seeped into its news coverage, will explore these matters; and, from the look of things, the Herald-Sun is the only media outlet to which Nifong speaks.

Perhaps, in any case, the questions of what Nifong knew and when he knew it are more appropriate for federal authorities to ask. It’s high time they did so.

Hat tip: Greg Kidder.