Case Narrative

In light of last night’s 60 Minutes broadcast, it’s worth reviewing how a case virtually devoid of evidence, constructed upon a tissue of procedural irregularities, could have reached this stage. The case has thus far divided into five periods; with each new stage, the miscarriage of justice has intensified.

1.) The Party

I can add little to 60 Minutes’ efforts. The broadcast demonstrated:

• Unless laws of time, space, and motion do not apply in Durham, the three people charged are innocent.
• Unless common sense in evaluating evidence doesn’t exist in Durham, no rape at all occurred.
• Reasons for doubting the accuser include her ever-changing story and contradictions by the other dancer. The players’ statements, meanwhile, have remained constant. That all three players passed polygraph examinations administered by highly respected law enforcement figures gives added weight to their statements.
  

2.) The “Investigation”: March 16-23

After a confused 24-30 hours, Sgt. Mark Gottlieb, for reasons that remain unclear, assumed control of the investigation. In the months preceding the lacrosse party, Gottlieb arrested 10 times as many Duke students as the area’s three other supervisors combined. (The offenses all involved noise and alcohol-related violations.) Credible allegations of misconduct have come to light regarding his handling of these arrests.

Gottlieb’s investigation was almost laughably shoddy. He didn’t request a search warrant for the players’ house until 48 hours after the alleged attack. At his initial interview with the accuser, he failed to take contemporaneous notes. Nearly a week passed before he tracked down the second dancer; when he did, she deemed the accuser’s claims a “crock.” And it was weeks (if ever) before Gottlieb obtained statements from the accuser’s recent sexual partners or filled in gaps about her pre-party behavior.

The accuser, meanwhile, offered myriad, mutually contradictory versions of events. Sometimes she was raped by three people; sometimes, by five. Sometimes the second dancer was an accomplice; sometimes, a fellow victim. The accuser’s recollection that one attacker told her he was soon getting married suggested intent to deceive: this otherwise bizarre claim would have enhanced her credibility had she actually (as she believed) danced at a bachelor party.

According to Inv. B.W. Himan’s notes, the accuser described at least two of her attackers in ways didn’t remotely resemble any of the lacrosse players. No wonder, then, that the accuser identified none of the suspects that police presented to her in photo line-ups on March 16 and March 21. On March 16, police presented four groups of six lacrosse players each. In each group was one suspect named Adam, Matt, or Brett (the police selected only 2 of the 3 Matts on the team as suspects) and five fillers (players not named Adam, Matt, or Brett). On March 21, police showed the accuser two more groups, with one suspect apiece (the other two residents of the house, Dave Evans and Dan Flannery) and five lacrosse players as fillers. In total, the accuser viewed 36 of the 46 white lacrosse players and identified no one as an attacker.

Medical evidence likewise failed to sustain the accuser’s claims. The SANE nurse’s medical report, which listed “diffuse edema of the vaginal walls” as the only significant item, provided little evidence for the accuser’s story of a brutal, sustained attack. Indeed, this swelling could have been a result of the accuser’s known activity in the hours and days before the party, which included consensual sex or a job that involved entertaining with a vibrator in a hotel room.

In his “straight-from-memory” report, Gottlieb later would claim that Himan’s contemporaneous notes were wholly incorrect, and the accuser really had provided dead-on descriptions for the three players ultimately indicted—Dave Evans, Reade Seligmann, and Collin Finnerty. The report raises an unanswerable question: if the accuser had so precisely described Finnerty, why did police not show her Finnerty’s photo, on either the 16^th or the 21^st?

Virtually the only “evidence” that Gottlieb’s inquiry generated came as a result of the cooperation by the three residents of the house—Evans, Flannery, and Matt Zash. The trio each gave statements to the police without asking for counsel. They offered to take polygraphs—an offer the police, for reasons that remain unclear, spurned. And they willingly provided swabs of their DNA.

Despite this cooperation, Duke administrators actively assisted the state. Without informing President Richard Brodhead, administrators demanded from the captains a candid account of the evening’s events, allegedly citing a non-existent “student-faculty” privilege to encourage the captains to disclose any criminal activity. Multiple sources confirm that Coach Mike Pressler, apparently acting on orders from above, instructed the other players not to tell their parents about the police inquiry. Meanwhile, Dean Sue Wasiolek arranged for a local lawyer, Wes Covington, to act as a “facilitator” in arranging for a group meeting with police.

The night before the meeting, one player broke down and told his father, who happened to be in Durham. Other parents then were informed, and—recognizing the need to obtain competent counsel—postponed the meeting. In response, Gottlieb, incredibly, gave up, and turned the investigation over to Nifong.

3.) The Nifong Usurpation: March 24-April 6

The District Attorney’s assuming personal control of an ongoing—and scarcely begun—police investigation fundamentally transformed the case. Appointed to the office in 2005 despite a pattern of emotionally unstable behavior during his half-decade sojourn in Traffic Court, Nifong appeared destined for defeat in the upcoming May 2 Democratic primary.

In a primary electorate almost evenly split along racial lines, Nifong faced long odds. A strong white candidate, Freda Black, enjoyed higher name recognition than the incumbent as a result of her prosecuting a high-profile murder case in 2003. The two also had a personal history: Nifong had fired Black almost immediately after becoming district attorney. Meanwhile, a black attorney, Keith Bishop, ran a desultory campaign but threatened to siphon enough African-American votes away from Nifong to ensure a Freda Black victory. By late February, the local elite had delivered its verdict: Nifong’s fundraising had dried up; personal loans to his campaign kept his candidacy afloat.

Under personal, financial, and political pressure—and perhaps even, at first, believing that a crime occurred—Nifong seized the opportunity to exploit the case. He quickly secured a court order demanding that the players submit DNA samples and new photos. That motion, we now know, was fraudulent:

• Nifong claimed that the players called each other by first-name aliases and uniform numbers at the party; no evidence existed for either claim, as even the transparently pro-prosecution New York Times conceded.
• Nifong withheld from the court that the accuser had failed to identify any suspects in an official photo lineup.
• Nifong, it turned out, falsely promised the court that negative DNA tests would “immediately rule out any innocent persons.”

Confident that DNA would “show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim,” the D.A. launched a publicity barrage that seemed unrelated to any legitimate law enforcement purpose but did much to boost his name recognition in the run-up to the primary. Though Section 3.8(f) of the North Carolina Code of Professional Responsibility requires prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,” Nifong gave dozens of interviews. He termed the players “hooligans” whose “daddies” would buy them expensive lawyers. He made a host of statements not backed by items in police files. He mused, “One would wonder why one needs an attorney if one was not charged and had not done anything wrong.” And, in a blatant bid for the black vote, he deliberately exaggerated the racial element of the alleged attack.

As he basked in the media spotlight, Nifong appears to have learned that, contrary to his assurances, the DNA results would be negative. But he refused to discard the case for lack of evidence, and instead instructed police to conduct another lineup. Only this time, he would ensure that the accuser identified someone. In violation of Durham policies, the lineup would be confined to suspects—now all 46 white players on the team. In further violation of procedures, the accuser would be told that the lineup contained no fillers. And overriding yet another procedure, the lead investigator for the case—Gottlieb—would oversee the array.

Duke Law professor James Coleman, former chief counsel to the House Ethics Committee, later wrote that 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.”

In the lineup, the accuser identified the three suspects, with varying degrees of certainty. Her performance gave no indication that she was a reliable eyewitness. After having not recognized him at all on March 21, she now claimed that Evans attacked her, and that he had a mustache—even though he didn’t have one. She claimed to be 100% certain that Seligmann attacked her—even though three weeks earlier, she said she was only 70% sure that Seligmann even attended the party. As Joseph Neff has pointed out, the lineup was riddled with other such inconsistencies. Indeed, the only player that the accuser twice identified as attending the party with 100% certainty wasn’t even in Durham that night. Nifong ignored this litany of transparent inconsistencies.

With knowledge that the DNA tests were negative and surely understanding that his procedurally dubious identification would not survive close scrutiny, Nifong fanned the flames of public indignation. The D.A.’s office stood aside as Judge Ron Stephens released the (out-of-context) contents of a vile e-mail by lacrosse player Ryan McFadyen. Though the e-mail actually played off a scene in American Psycho, as follow-up emails from other players recognized, to the public, the e-mail confirmed the players’ guilt.

In this critical period, Nifong had three indispensable allies:

• The media—first the N&O, and, after March 27, the national networks and especially the Times—uncritically accepted his version of events, framing the story as a morality tale of white, rich, athletic excess, exploiting a poor, black, demure mother of two.
• Among what New York’s Kurt Andersen has termed the Duke faculty’s “loopy left,” the players were guilty until proven innocent. In late March, Houston Baker, a professor of English and Afro-American Studies, issued a public letter denouncing the “abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us” and demanding the “immediate dismissals” of “the team itself and its players.” A week later, on April 6, 88 members of Duke’s arts and sciences faculty signed a public statement saying “thank you” to campus demonstrators who had distributed a “wanted” poster of the lacrosse players and publicly branded the players “rapists.” By contrast, no Duke professor publicly criticized Nifong’s conduct.
• Declining to lean against the spirit of the moment, Brodhead failed to resist his faculty’s assault on due process. Moreover, whether intended or not, his actions fortified a public image of guilt. On March 25, in an unprecedented move, the president canceled (at the last minute) the lacrosse team’s game against Georgetown, citing underage drinking at the party. Then, after the April 5 release of the McFadyen email, Brodhead demanded Pressler’s resignation, cancelled the lacrosse season, and issued a statement anchored by a lament on the evils of rape—at a time when the players were firmly denying any sexual contact, much less rape. These moves enjoyed enthusiastic support from Board of Trustees chairman Robert Steel.

In normal circumstances, the media and the academy can be counted on to value due process and dispassionate analysis of evidence. In this case, however, both groups not only failed to stand up for procedural regularity, but gleefully joined the rush to judgment. As Ed Bradley noted, the “biggest surprise for us was the presumption of guilt.”

4.) The Effects of Demagoguery: April 6-May 3

As Duke’s anti-lacrosse jeremiad peaked, Nifong started losing control of public sentiment. On April 6, the accuser gave a written statement contradicting both her earlier version of events and the second dancer’s statement. (Police never re-interviewed the second dancer to resolve the discrepancies.) That same day, the accuser’s “driver” told police that before the party, she was behaving erratically and had fulfilled a variety of one-on-one “appointments.” Then, on April 10, defense lawyers publicly revealed that the DNA tests revealed no matches to any players.

These three developments ended any hope for Nifong to mount a credible case. At the same time, the D.A. discovered that mobilizing the electorate’s basest passions carried risks as well as rewards. In a tumultuous forum at NCCU held on April 11, local activist Victoria Peterson claimed that Duke University Hospital “tampered with” the DNA samples. (Peterson, ironically, would later be welcomed as co-chair of Nifong’s citizens’ committee.) The forum’s message: Nifong would get the black vote he needed to win the primary only by securing indictments. In a chilling remark that captured sentiment in the auditorium, NCCU junior Chan Hall said that the Duke students should be prosecuted “whether it happened or not. It would be justice for things that happened in the past.”

In mid-April, Nifong’s obligations as Durham County’s “minister of justice” stood on one side; his political, personal, and financial concerns, the other. As he infused his campaign with another loan, this one for more than $22,000, he went to the grand jury and obtained indictments against Reade Seligmann and Collin Finnerty.

But Seligmann struck back. He quickly produced unimpeachable electronic evidence—culminating in an ATM video of him a mile away at the time of the alleged attack—proving his innocence. (His attorney, Kirk Osborn, had offered this evidence to Nifong, but Nifong had declined to meet, despite a state bar mandate not to “intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.”) Perhaps as important, testimonials flooded in regarding Seligmann’s character, demolishing the negative caricature of the players constructed by Nifong, the Duke faculty, and the media.

The voters, at least initially, seemed not to care. On the evening of May 1, each of Raleigh’s television stations led their newscasts with the ATM video, showing that Durham County’s “minister of justice” had indicted a demonstrably innocent person. The next day, by a margin of 881 votes, Nifong captured the Democratic nomination for a full term as D.A. Shortly thereafter, he brought an indictment against a third player, Dave Evans, citing the tainted ID and the possibility of Evans’ DNA matching a sample on the accuser’s false fingernails, four of which were discarded in the garbage, mixed with other items from Evans’ bathroom trash can.

5.) The Effects of Procedural Fraud: May 4-present

Since Nifong’s primary victory, three themes have dominated the case.

First, the district attorney has behaved in an increasingly erratic fashion. Consider:

• On the day of Evans' indictment, Nifong engaged in a profanity-laced public tirade against one of the lacrosse attorneys, Kerry Sutton--who, ironically, had supported him in the primary.
• In a rambling June e-mail to Newsweek’s Susannah Meadows, Nifong asserted, “None of the ‘facts’ that I know at this time, indeed none of the evidence that I have seen from any source, has changed the opinion that I expressed initially.” As he initially expressed his opinion on March 27, this assertion suggested an extraordinary closed-mindedness. The evidence that came in after March 27 included: the DNA tests; the accuser’s own statement(!); the Seligmann alibi; the procedurally flawed lineup; the statement from the accuser’s “driver” about her pre-party medical activity; and the SANE nurse’s report.
• Acting upon a nearly three-year-old unserved warrant, the D.A.’s office ordered the arrest of the cab driver who picked up Seligmann on the night of the party, Moezeldin Elmostafa. At the trial, which resulted in a quick acquittal, Himan’s notes indicated that “Mr. Nifong wanted to know when we picked [Elmostafa] up.” The document enhanced the credibility of Elmostafa’s claim that when Inv. R.D. Clayton arrested him, “The detective asked if I had anything new to say about the lacrosse case. When I said no, they took me to the magistrate.”
• After learning that two members of the Animal Control Board, on which he sits as D.A., had signed petitions to place Lewis Cheek on the ballot as an unaffiliated challenger to him, Nifong threatened to resign from the board.
• In the September court hearing, the N&O’s Benjamin Niolet described the odd environment: “When defense lawyers spoke, Nifong occasionally sighed, rolled his eyes, laughed quietly or rubbed his temples.”

Second, Nifong has abandoned all pretense of seeking “justice” for the accuser. In the September hearing, the D.A., citing nothing beyond his own (non-existent) psychological expertise, said he “supposed” that the attack lasted only five minutes, ten at the outside. He added that defense attorneys could test his tale against the accuser’s 30-minute version by cross-examining the accuser as vigorously as they wanted at trial.

The D.A. has little choice, of course, but to move forward—if only to minimize the likely financial and ethics sanctions that will emerge once this case ends. He also needs to maintain his base in the African-American community to have any chance of holding off the Cheek effort in November.

Third, even as overwhelming evidence has emerged that through procedural fraud, the D.A. constructed a case out of whole cloth, Nifong’s enablers have kept the faith.

• In the media, Bob Ashley’s Herald-Sun has adopted the ingenuous dual strategy of simply ignoring news that damages the prosecution’s case while suggesting that a trial is necessary to heal the community. Meanwhile, Slate columnist Jack Shafer suggests using the Times’ coverage as a case study in examining why it is “so hard for newspapers that have climbed out onto a limb in reporting a story to turn back once they hear the wood cracking.”
• The Duke arts and sciences faculty, seven months after the fact, still contains not a single member who has publicly criticized Nifong’s procedural irregularities or defended the lacrosse players’ character. Indeed, the professoriate appears frozen in time, circa April 8: the leaders of Duke’s Campus Culture Initiative include the team’s most vitriolic critics, such as Peter Wood and Karla Holloway. The continued prominence of figures such as Wood and Holloway shatters the argument that the Group of 88 and their supporters were just caught up in the heat of the moment when they denounced the lacrosse players in the print. Holloway’s remarks, for instance, came long after evidence of the players’ likely innocence and Nifong’s certain misconduct had emerged—but she treated both of these developments as essentially irrelevant. “Justice,” Holloway claimed, “inevitably has an attendant social construction. And this parallelism means that despite what may be our desire, the seriousness of the matter cannot be finally or fully adjudicated in the courts.” Therefore, she continued, since the presumption of innocence “is neither the critical social indicator of the event, nor the final measure of its cultural facts,” judgments about the case “cannot be left to the courtroom.”
• The Brodhead/Steel administration, operating from the premise that a trial gives the players a chance to be “proved innocent,” has attempted to rewrite the history of American higher education, rationalizing its own passivity on the grounds that professors and academic institutions should not comment on procedural abuses in the criminal justice system.

In some respects, Nifong’s enablers need a trial as much as the district attorney does, if for different reasons. For the Times, a trial might prevent Duff Wilson from becoming the 2006 version of Judith Miller—the reporter who uncritically trusted incredible government documents that reinforced the journalist’s preconceptions. For the Duke faculty, a trial will improve chances of the school’s adopting what Group of 88 member Mark Anthony Neal termed a “progressive” (i.e., intolerant) curriculum. For the Brodhead/Steel administration, self-preservation is the motive: otherwise, expect to start hearing hard questions from parents and alumni as to why, in a trial Nicholas Kristof has compared to the Scottsboro Boys in reverse, the administration initially assisted Nifong in troubling ways, and since has adopted a stunningly passive approach.

Beneath all this complexity, however, it actually requires only five words to summarize this case: corrupted procedures beget corrupted results.