The Effects of Corrupted Procedures

Flawed procedures beget flawed results, and massively flawed procedures beget massively flawed results. That’s the conclusion from what is the single most important article about the case to appear, under Joseph Neff’s byline in this morning’s N&O. Neff’s work painstakingly explains why procedure matters, highlighting what I consider the single most stunning aspect of this case—that the district attorney of Durham County ordered the Durham Police Department to violate its own procedures in multiple ways for an April 4 lineup.

North Carolina’s eyewitness ID policies were revolutionized by the recommended guidelines laid down by the Actual Innocence Commission (AIC) (on which, it should be noted, Professor James Coleman served), which grew out of a late 2002 initiative from former state Supreme Court Chief Justice Beverly Lake. The AIC urged, among other items:

• The individual conducting the photo or live lineup should not know the identity of the actual suspect, to avoid unintentional influences from those conducting the identification procedure.
• Witnesses should be instructed that the suspect may or may not be in the lineup.
• A minimum of eight photos (that of the suspect and seven fillers) should be used in photo identification procedures.

To determine the AIC’s effects, a few months ago I contacted sixteen police departments from around North Carolina, from cities and towns of various sizes. (Durham’s policy, General Order 4077, had already been revealed in an N&O story.) Of the 17 departments, eight follow the AIC guidelines in their entirety, and a ninth is revising its guidelines to do so. Seven other departments, including Durham, use five fillers rather than seven, the recommended approach of the state Criminal Justice Academy. The 17^th city, Wilmington, uses a unique hybrid structure, prepared by District Attorney Benjamin David, which offers the most due-process friendly procedure in the state.

The procedures employed in the lacrosse case deviate from statewide patterns in almost every respect. Indeed, Neff reveals that the two psychologists who advised the AIC described the handling of the lacrosse case as “a case study in violating” the Durham Police Department’s policies.

This case began to go off the procedural rails from the start. On March 16, a first photo lineup occurred. In many ways, it conformed to Durham’s policies: a neutral investigator (Clayton, rather than Gottlieb or Himan) conducted it, and it contained five filler photos per every suspect (lacrosse players named Bret, Adam, or Matt). For reasons that remain unclear, however, the Durham Police used photos of other lacrosse players as fillers. They should have used photos of players from other Duke teams; or of lacrosse players from other universities.

We’ve known for some time that the accuser identified four players with 100% certainty, and said that she was 70% sure about Reade Seligmann. As Neff’s article reveals, Clayton’s report was (deliberately?) unclear on what the accuser actually was identifying. Though forms prepared by Clayton listed asking the accuser only one question—whether the person in the photograph sexually assaulted her—according to Neff, Clayton claimed that these ID’s related to a question of whether the accuser recognized people at the party.

Regardless, all four of these ID’s, plus the partial ID of Seligmann, were of fillers, not of suspects. According to Durham and statewide procedures, this lineup should have been considered a failed one—the accuser not only couldn’t identify any suspects, but actually identified filler photos.

Instead, Nifong essentially tossed out the results of the March 16 lineup. (There is nothing in Durham’s rules, or the guidelines of any other North Carolina city that I examined, allowing police departments to conduct multiple lineups of the same suspects.) The rules for the new lineup, Nifong decided, would be different. In the first paragraph of Sergeant M.D. Gottlieb’s report for the April 4 lacrosse ID session, he wrote:

Mr. Nifong suggested we put together the mug shot type photographs [of the lacrosse players] into a group since we are under impression the players at the party are members of the Duke Lacrosse team and instead of doing a line up or a photographic array, we would merely ask the [alleged] victim to look at each picture and see if she recalled seeing the individuals at the party.

In contrast to the March 16 session, conducted by Clayton, the lead investigator, Gottlieb, would conduct the session, violating Durham’s policy. Psychologist Gary Wells explains the reasons for the policy to Neff: “when a person giving a test knows the answer, that person tends to influence the person taking the test.” Gottlieb then began the 4-4 lineup by violating another aspect of Durham’s policy, informing the accuser that she would only be seeing “people we had reason to believe attended the party.” (James Coleman’s powerful letter to the N&O argued that this decision effectively told the accuser that she could make no wrong choice.)

The accuser identified one person (Collin Finnerty) who she claimed attacked her in a variety of ways. (Finnerty, of course, bore no resemblance to the descriptions that the accuser gave initially, according to Inv. Himan’s handwritten notes from March 16.) Three others, she said, “looked” like people who might have attacked her. For reasons that Neff explains in today’s N&O, Gottlieb treated each of these three partial IDs in very different ways.

He passed over the first partial ID quickly—in all likelihood, as Neff surmises, because the accuser’s identifying someone named “Matt” would have contradicted the “alias” theory to which Nifong was then attached. The second partial ID—of Dave Evans—led to the accuser saying Evans resembled her attacker, but the person who attacked her had a mustache (which Evans does not). Gottlieb then asked the accuser to give a “percentage-wise” estimate, something that he hadn’t asked of the previous partial ID. (The accuser said she was 90% sure.) The third partial ID—of Reade Seligmann—began with the accuser saying “he looked like one of the guys who assaulted me.” Then, under follow-up questioning from Gottlieb, the accuser claimed that she was 100% sure. As far as we know, this one statement is the only evidence against Seligmann, who was video-taped at a Wachovia ATM a mile away at the time of the alleged crime.

These flawed procedures—as Neff reveals today for the first time—produced results that were unreliable, quite apart from the botched ID’s of the suspects. The accuser twice identified with 100% certainty a player who wasn’t even in Durham on the night of the party. More than a dozen other players, Neff reveals, were recognized once but not twice by the accuser. She incorrectly identified the player who made the “broomstick” comment. And she seemed to identify a fourth attacker—only to be discouraged from moving forward by Gottlieb.

The Nifong-orchestrated photo ID deviates wildly from common North Carolina practice, in at least five ways:

1.) The basic debate in the state seems to revolve around showing five or seven filler photos, or developing a system that’s even more respectful of due process (Wilmington). As far as I could determine, no North Carolina jurisdiction is it the policy to confine eyewitness ID sessions to suspects in the case.

2.) Every police department that communicated with me has a standard policy—either formal or informal—of telling witnesses that the photo array might or might not include the suspect. As far as I could determine, in no North Carolina jurisdiction is it the practice, as was followed in this case, for the witness to be informed that the photo array would consist only of possible suspects.

3.) As far as I could determine, no North Carolina jurisdiction possesses a third identification procedure, one that can be used, to quote Gottlieb’s description of Nifong’s words, “instead of doing a line up or a photographic array.”

4.) As far as I could determine, no North Carolina jurisdiction allows multiple lineups of the same suspects.

5.) Some district attorneys who communicated with me seemed to like the AIC guidelines; others weren’t particularly enthusiastic about them; others (like David) developed their own systems. But of those who said that they made recommendations to local law enforcement, all did so in favor of departments using fillers in photo ID sessions, not the reverse. And a district attorney setting policy for a specific eyewitness ID session is very unusual— almost, from everything I could gather, unprecedented— in North Carolina.

The lacrosse session also departed from the statewide norm (although here no unanimity exists) in having someone intimately involved with the investigation oversee the photo ID session.

When I teach courses in U.S. constitutional or political history, I work hard to show my students that procedure isn’t bureaucracy; it’s due process. Neff’s article demonstrates the point. By adopted a corrupted procedure and ordering the Durham Police Department to break its own rules, Nifong created a process that he knew would yield unreliable results. And he didn’t seem to care. That’s abuse of power on a frightening scale.