Tuesday, September 12, 2006

Mysteries of the McFadyen E-Mail

A key turning point in media coverage of the lacrosse case came on April 5, with the release of Ryan McFadyen’s “strippers” e-mail. We know now that the email–while disgusting–played off a scene in American Psycho (a pretty vile film, but one featured in several Duke classes). At the time, though, most journalists interpreted McFadyen’s words literally. CBS described the document as “a lacrosse player's e-mail rant about killing strippers and cutting their skin off in his Duke University dorm room.” The N&O approvingly quoted Duke student Simone Randolph, who reasoned, “You can’t say somebody’s guilty based off the e-mail, but it certainly does not help their case.” Duke president Richard Brodhead responded by demanding lacrosse coach Mike Pressler’s resignation and suspending McFadyen.

With several months’ perspective, three questions emerge about the revelation of the McFadyen e-mail: its source; its context; and its timing. All three cast strong doubt upon the integrity of D.A. Mike Nifong’s inquiry.

1.) The source

How did the Durham Police obtain the inflammatory e-mail? In the search warrant for McFadyen’s dorm room, police claimed to have received the e-mail from a confidential source. Looking back, there would seem to be three possibilities:
  • someone from Duke obtained it and gave it to the police;
  • a player on the team sent it to the police;
  • the police already had it from the captains’ computers they seized on March 16.
The first option struck me as extremely unlikely, but I wanted to confirm my doubts with Duke Senior Vice President for Public Affairs and Government Relations John Burness. Burness responded,
You are correct that no one from Duke was authorized to review the emails of the players on the team. Duke has pretty strong privacy policies in that regard. As President Brodhead has noted on more than one occasion, we have been very conscious not to conduct our own independent investigation of the incident since we lack the legal authority and necessary powers (subpoena, etc.) to do so, nor have we wanted to do anything that could be perceived as complicating or hindering the police/court’s investigation.
The second option, that the e-mail came from a lacrosse player–which seemed the most likely scenario at the time, since the police had conveniently left unrevealed that the three captains had, voluntarily, provided authorities with their e-mail passwords–now seems as inconceivable as Duke handing over the email. Nifong had no “secret source” among the lacrosse players.

As (1) and (2) seem unlikely, it would appear as if the e-mail came from the police themselves. if so, however, the police lied about the source of the e-mail in their affidavit requesting a search warrant for McFadyen’s room, with the apparent purpose of leaving unchallenged false media portrayals of a 'wall of silence" by the players.

2.) The context

Even if–as seems likely–the police obfuscated about how they obtained the McFadyen e-mail, proving the lie will be almost impossible. No doubt the technician who discovered the e-mail on the computer of Matt Zash, Dave Evans, or Dan Flannery was instructed to file a "confidential" tip with Durham CrimeStoppers, to provide the department with a level of plausible deniability.

Regarding the email’s context, however, Nifong&Co. lack a ready-made excuse. Assume the facts most favorable to the authorities: that they actually did receive the e-mail from an anonymous source. We know now that the police had access to the captains’ e-mail accounts. Only an extreme incompetent would not have immediately checked these accounts to determine whether other team members made additional “threats.”

So, what did the police find? And why did they not reveal the follow-up e-mails as part of the McFadyen search warrant? The e-mail was vile. But its significance to a criminal case depends on the e-mails that followed it. Did subsequent e-mails from players discuss, say, the methods for covering up McFadyen’s proposed “crime”? Or did subsequent e-mails, say, follow up McFadyen’s e-mail with the next lines from American Psycho?

Nifong obviously knew the answer to this question by the time he publicly revealed the McFadyen e-mail on April 5. If, as has been widely rumored, subsequent e-mails from players quoted other lines from American Psycho, Nifong’s method of revealing the e-mail–shorn of all context, offered alone as if reflective of a murder scheme–represented nothing short of an attempt to deceive the public.

3.) The timing

Police served a sealed warrant on McFadyen on March 28. Yet Nifong didn’t approve making* public the warrant’s details until April 5. What happened between those two dates?
  1. Nifong learned that the DNA evidence he had promised would “immediately rule out” any innocent people had, in fact, exonerated all the lacrosse players;
  2. 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. So whatever purpose Nifong had in making the e-mail public, providing information to Durham citizens about a possible suspect was not among his concerns.

So why, then, did Nifong approve making the e-mail public after McFadyen no longer was a suspect? And why did he do so in a context-free manner? Could he have hoped to inflame community sentiment against the lacrosse team, so as to encourage people to overlook the DNA results–or discourage them from looking too closely at the procedurally dubious manner through which he managed to obtained indictments before the May 2 primary?


This blog is entitled Durham-in-Wonderland because virtually everything about this case has seemed to operate through the looking glass. For instance:
  • Prosecutors normally rely on facts as defense attorneys spin outlandish tales and secretly hope for jury nullification; in this case, jury nullification represents the proscutor’s only chance of victory.
  • Prosecutors normally highlight the significance of scientific evidence; in this case, the head of the prosecutor’s citizens’ committee has offered a conspiracy theory to explain away DNA findings.
  • Prosecutors normally are expected to prove defendants guilty beyond all reasonable doubt; in this case, defense attorneys are expected to prove the defendants innocent beyond all reasonable doubt.
  • The academy normally celebrates due process and dispassionate evaluation of evidence; in this case, the public voices of the Duke faculty gleefully rushed to judgment.
The reaction to the McFadyen e-mail is one more aspect of this through-the-looking-glass case. On the one hand, we have an e-mail written by a college sophomore–tasteless and vile, but, from everything we know now, of no evidentiary value. On the other hand, we have a police department that probably lied about how it obtained the e-mail; and a prosecutor who used the e-mail to inflame public sentiments and compensate for shortcomings in his case.

In the last five months, the college sophomore has been vilified nationwide, while the actions of the police and prosecutors regarding the e-mail have escaped virtually all criticism. What’s wrong with this picture?

Hat tip: Greg Kidder

[*Update, 9.17am: Cash Michaels points out in the comment section, "If I'm not mistaken, I believe attorneys for the Durham Herald-Sun petitioned Judge Don Stephens to release the e-mail to the press, which, as part of what was retrieved per search warrant, was placed under seal. Judge Stephens, if I'm not mistaken, decided to release it, saying that the reasons for keeping it under wraps were no longer valid. Those reasons were never made clear, however."

He's absolutely right that the order releasing the email was made by Stephens--I should have made this point clear in the original post, and am grateful for the clarification. I changed the wording of the post to "approved making."

That said, we also know the relationship between the DA's office and Stephens during this part of the investigation (Stephens signing the non-testimonial order on dubious grounds, in particular). But even absent a close relationship between the judge handling the case and the DA's office, it would have been proper procedure for the D.A.'s office to have cleared any release before the judge acted.]


Anonymous said...

This is an informative and enlightening analysis. If true, it demonstrates the utter corruption of the prosecutor and some members of the Durham police force.

Anonymous said...

Does anyone ever question political/racial motive here? I mean, I'm a white guy in college, and my classes tell me I have some kind of "white privilege." Privilege for what? What did I miss that people can't talk about this?

Anonymous said...

Good Job Durham in Wonderland !

I think all the actions of Nifong and the DPD were to exert pressure on a weak and scared 18 or 19 year old to run in and implicate someone to save their own butt. The pressure was designed to make someone that wasn't involved in a crime that knew there wasn't a crime - to act only on the need to cease the pressure.

This is why Niong also had the record number of press conferences - why the affidavits were false. They didn't expect it to get to court. Nifong had gotten fat on plea deals from working in Durham for 29 years. The State was accustomed to making defendants feel powerless and cop to charges because they felt there was no out.

Everything along the way was done consistent with the belief that the privleged, soft white boys would run and spill their guts when enough pressure was applied - even if someone didn't know anything - he would be useful to the DPD to make others cave to pressure, solidify public opinion and influence the jury pool. Although, I believe Nifong, Gottieb, and Linwood Wilson thought that it would never go to court because the players lives would be turned upside down (like getting prosecuted by other jurisdictions, being suspended from schoool, and going to court for noise violations). If you remember, the team wasn't even allowed to practice. There was the
psychological factor.

These were all designed to exert great pressure:

1) Poster handed out to angry crowd
2) Treatment of Cabbie
3) Cameras waiting when they arrived to provide DNA
4) 74 Public Statements and press conferences - hooligans with Rich Daddies.
5) Leak of the Date Rape Drug info
6) The woman's injuries grew worse and worse - who could publicy defend these beasts that attacked a women with a broomstick?
7) The 911 call with the N word was played over and over in the guise of finding the caller whom was independent corroboration of the state of mind. The DPD and Nifong already knew the ID of the caller - Kim Roberts.
8) Condom statements
9) Choke Holds - again inflame media
10) Robbery and money found laying right where she said it - remove any doubt of guilt
11) False affidavits - the Evidence is irrefutable - there's no debating the woman was sexually assaulted 2 or 3 ways.
12) Announcing trial would be a year away.
13) Allowing people to threaten the players with violence in the courtroom.
14) Nifong statements that DNA isn't
important in Rape cases - or commonly is not a factor.
15) Implying - and outright stating there was much more evidence than the public knew.
16) Stating the Defense attorneys were misleading the public by selectively releasing portions of the discovery.
17) Anonymous sources in the DPD and DA leading the National Media to believe that one of players was "cooperating" with them and would be a witness.
18) Favorable treatment of Kim sent a message to players that may want to end the anxiety and say anything just to stop the pressure and uncertainty.
19) Nifong tried to stir rancor by making a public statement that the entire team had to be tested and photographed because the team wouldn't cooperate identify the perps. Cooperate was defined as tell us what we want to hear.
20) Question the players without their legal counsel and send a message that one side didn't have to play by the rules - and that they would stop at nothing to put some of them away for the crime.

craig said...

Great post.

I think there is another email that deserves some scrutiny: the "i'm going to the police" email that came out around Easter.

If the player did not send it, who did? If the police sent it as a ploy, did they show it to any reporters?

kcjohnson9 said...

On Cash Michaels' point:

I should have made this clear in the post (and am going to amend it) that the email was released upon order of Stephens.

That said, we also know the relationship between the DA's office and Stephens during this part of the investigation (Stephens signing the non-testimonial order on dubious grounds, in particular). It's almost inconceivable that Stephens would, or could, have made an independent determination as to whether the reasons for keeping the email under wraps were still valid--i.e., he would have had to have discussed that issue with Nifong's office.

Anonymous said...

"So why, then, did Nifong make the e-mail public after McFadyen no longer was a suspect?"

Because Nifong was trying to get McFadyen to flip on some of the players. It didn't work, because "nothing happened."

My question is, Why didn't Duke object to making the email public? Are they not the owners of the emails?

Very interesting that it was Judge Stephens who unsealed it. (The Herald-Sun should give a hat tip to Nifong!) Stephens chose not to unseal the medical records of the AV and he had "privacy" concerns with the AV's cellphones.

August West said...

Strange bedfellows.

In the course of his career as a prosecutor, Nifong has worked for three different District Attorneys, serving as Chief Assistant under both Ronald L. Stephens and James E. Hardin, Jr., both of whom now serve as Superior Court Judges. He was appointed District Attorney for Durham by Governor Mike Easley on April 18, 2005, and was sworn into that position on April 27, 2005.

Anonymous said...

There's one other aspect to the "confidential source" that extends beyond just plausible deniability or the maintaining of the "wall of silence" public image.

By attributing the email to a "confidential source" Nifong and Sgt. Blinco were likely hoping that they could pressure the players into the belief that someone within their ranks had become that informant. Knowing that the probable cause affidavit would eventually be made public meant that the players would see that supposed confidential source and, in the hopes of the DA, start to crack.

Oddly enough, when nobody panicked after the probable cause affidavit ploy the notorious mystery email suddenly popped up. Again, it's the same approach - instill some fear and hope that someone talks to save their own butt. It's actually a good method.... if you're dealing with a situation where an actual crime was committed.

OTOH, if you don't have reason to suspect a crime then it's a deplorable act as you're relying on the human nature of self-preservation to entice someone to provide false testimony supporting an allegation against an innocent person in order to avoid the risk of being falsely accused themself.

Anonymous said...

Great analysis. I agree that the other email ("sorry guys, i'm going to the cops to tell them what I know...") has sort of been forgotten but is very important. Shouldn't some details about that email be available in discovery? The source of that email could be some of the strongest eveidence yet of "the fix."

Anonymous said...

This is the kind of stuff some prosecutors pull on poor young black males all across America daily. Durham now sees what kind of man Nifong is. The question is, is it ok now since he is trying to railroad some "privileged white" kids. Or is the citizens of Durham going to stand up and say now to this type of bogus prosecution. The citizens of Durham need to think about one thing before they vote in the up and coming election. If Nifong could try and pull what he is doing now with the whole nation watching what will he do when no one is watching? The citizens of Durham also need remember the names of all the judges involved in this case or any of the cases related to this one. Did they do the right thing or not. If they didn't you need to vote them out too.

Anonymous said...

"This is the kind of stuff some prosecutors pull on poor young black males all across America daily."

This happens to rich and poor
white males too.
I speak from having this done to my family.

Anonymous said...

I agree with North9's comments above. What I find to be so disturbing about Nifong's behavior is the release of the email even after McFadyen said "nothing happened." Nifong scarred McFadyen's reputation and cost Pressler his job.

Anonymous said...

I applaud your post regarding the e-mail. Knowing this kid personally, yes the language was vile but let us remember that it was sent ONLY to other lax players. He really is the most polite, greatest kid ever who made a bad judgement in words.

Anonymous said...

Really amazing what the DA has done to so many families. Your perspective on the e-mail is enlightening. Seems like a perfect article for the McFadyens to start a law suit if they have not already. For a private e-mail to his buddies (only) to be intentionally used by Nifong to cause such furor is inexcusable. He knew all along that if he had published the 20 or so responses to McFadyens e-mail it all would have been put in context instead of making this kid out to be some sick monster.

Unknown said...

I was wondering if you also were appalled at the Tulia, Texas, false convictions in which over twenty people were sent to prison based on false police testimony. Some of them rotted in jail for 4 years based on lies of a dishonest cop.

Anonymous said...

I was wondering if you also were appalled at the Tulia, Texas, false convictions in which over twenty people were sent to prison based on false police testimony. Some of them rotted in jail for 4 years based on lies of a dishonest cop.