Monday, October 23, 2006

What, Exactly, Did the Police Investigate?

It’s probably unsurprising that 60 Minutes reaction has focused on the broadcast’s most spectacular revelation (the accuser pole-dancing as early as one day after the Gottlieb report speciously described her as in such pain that she could barely sit down) and the most passionate comments (those of James Coleman explicating Mike Nifong’s procedural misconduct).

Yet though the broadcast devoted little specific attention to the peculiar investigatory techniques of the Durham Police Department, its outlining of what the police didn’t investigate raises even more doubts about why and how the police “investigated” what they did.

First, what the police didn’t investigate:

On April 6, in her first and (as far as we know) only written statement to police, the accuser described a crime in which Kim Roberts played a central role. Roberts had already given her statement, on March 22, the first time she met with police. So too did the captains. So too did the accuser’s “drivers.” So too, to my knowledge, did every witness in this case—except for the accuser. For reasons never revealed, the police waited 21 days after first interviewing the accuser to take her statement.

In the event, the accuser claimed that:

  • Roberts was crying, in the house, after racial epithets occurred in the dance;
  • she was separated from Roberts at the bathroom door, with three other lacrosse players dragging Roberts off into parts unknown;
  • Roberts and one of the people who attacked her dressed the accuser after the attack.

Roberts’ statement contained nothing even resembling these items. Moreover, if true, the accuser’s statement meant that no fewer than six people at the party committed a crime that evening—the three people who attacked her, and their three accomplices who dragged Roberts away from her at the bathroom door.

60 Minutes revealed the police never contacted Roberts about the accuser’s tale:

“In the police statement she describes the rape in this way. ‘Three guys – three guys grabbed Nicky,’ that’s you. ‘Brett, Adam, and Matt grabbed me. They separated us at the master bedroom door while we tried to hold on to each other. Brett, Adam, and Matt took me into the bathroom.’ Were you holding on to each other? Were you pulled apart? Is that true?” Bradley asks Roberts.

“Nope,” she replies.

“Yeah. Her statement continues. ‘I heard Nicky on the other side of the door. And when Adam opened the door she rushed in and helped Adam to get me dressed.’ so she’s saying that you helped one of the rapists,” Bradley says.

“She was never undressed as far as I remember. As far as I remember, she was never undressed,” Roberts says . . .

“She goes on to say that when both of you went back in the house, she says, ‘They were excited and angry. They were screaming, ‘We’re going to f you black bitches,’“ Bradley says.

“I just don’t remember it that way at all,” Roberts says.

If Roberts was never re-interviewed, how did Nifong determine that the accuser’s version of events was more credible than that of Roberts? And on what basis did Nifong—as he did in May—clear the other 43 white members of the lacrosse team of all suspicion, since according to the accuser, at least three more of them committed a crime?

It would seem as if Nifong employed the following investigative technique:

  • He believed only the elements of the accuser’s story that aided his desire to get indictments before the election;
  • He disbelieved the elements of the accuser’s story that he hadn’t described as elements of the crime in his March 27-April 3 publicity barrage (i.e., that three players tore Roberts away from the accuser at the bathroom door, an allegation the accuser first made on April 6);
  • He declined to re-interview Roberts so he could avoid basing arrests on an accuser’s tale that a police investigation had proven false.

Or, it could be that Nifong was merely confirming what he told Newsweek on June 13: “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 [on March 27].” Since the accuser’s statement came on April 6, Nifong, by his own admission, had already made up his mind. Therefore, he apparently felt no need to investigate the contradictions between the accuser’s version of events and that of Roberts.

But the police were not wholly inactive during the period between the procedurally flawed lineup of April 4 and the decision to go ahead with arrests. In the time they could have spent interviewing Roberts, Sgt. Mark Gottlieb and his investigatory team instead paid a night-time visit to Edens Hall, where many lacrosse players lived.

On the Thursday evening before Nifong obtained indictments, the police gained entry to Edens. They had no warrants, and entered the dorm not by going through the Duke police but by waiting for a Duke student to use her card-swipe and open the door. Once inside, they spent 75 minutes attempting to interrogate several lacrosse players.

We now know the purpose of this after-dark sojourn. Nifong had decided to seek indictments against Reade Seligmann and Collin Finnerty—despite the uninvestigated contradictions between the accuser’s statement and Roberts’ version of events. And despite the statement from the accuser’s “driver” that laid out her erratic behavior and multiple “appointments” in the hours before the party. And despite the April 10 report that the negative DNA tests that Nifong promised would “immediately” rule the duo out. And despite rumors that one or both might have alibis.

This action seemed highly dubious at the time: if police wanted to know whether Finnerty or Seligmann possessed ironclad alibis, they could have asked the players’ attorneys. Based on what’s emerged since, Gottlieb’s night-time sojourn constituted not only irregular activity but yet another of Mike Nifong’s myriad procedural violations.

As of March 24, Nifong assumed formal control of the investigation (which was at that point eight days old, and had featured statements from the three captains denying the charges, a statement from Roberts denying the accuser’s tale, and a failed photo ID session). While police, obviously, have the right to ask any questions they want of individuals not in custody, under the North Carolina bar’s ethics rules that right does not extend to the district attorney if the individuals are represented by counsel--as all the lacrosse players were.

According to Rule 4.2(a) of the Code of Professional Responsibility, “During the representation of a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”

This rule contains few, if any, loopholes. Comment 6 states, “When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule.” Comment 8 holds that the rule’s terms apply whether or not any of the lacrosse players consented to the questioning (as at least one appears to have done). And, according to Comment 7, “A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order.” Nifong never applied for such a court order.

Because Nifong was directing the police investigation on April 14, the night-time sojourn to Edens was his responsibility. As Rule 4.2, Comment 4 affirms, “A lawyer may not make a communication prohibited by this Rule through the acts of another.” Attempting to employ this loophole to get around the CPR prohibitions, as Nifong did on the evening of April 14, falls under the terms of Rule 8.4(a), which deems it professional misconduct “to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another [emphasis added].

Rule 3.4, Comment 4, should have reminded Nifong that “rules of evidence and procedure are designed to lead to just decisions and are part of the framework of the law.” Instead, the district attorney appears to have used the Rules of Professional Conduct as a guide on how not to conduct his investigation.

At the Friday media forum, Herald-Sun editor Bob Ashley said that “the Herald Sun should have been quicker to aggressively examine the competency of the investigation.” To my knowledge, the paper has not once run an article on this issue. Perhaps now would be the time to begin.

Hat tip: J.K.


Anonymous said...

I think te DPD also sent an email pretending to be one of the LAX players stating they they were going to tell all. However, they didn't investigate that either because the guy they pretended to be was in class. What a bunch of losers.

kcjohnson9 said...

Excellent point.

And then there is also the mysterious fake email sent from Collin Finnerty's account that was posted on a messageboard at NCCU.

Neither of these fake emails have received much attention.

Anonymous said...

Either email is easily traced to its point of origination. Addresses are available from IP addresses. So, whoever had the will and power to do it can. Obviously, Duke doesn't care to exercise either.

So, just who is going to be the one to DO something about the myriad of procedural violations that have been meticulously documented? No one seems to care.

That this is occurring, as well as all of the implications of this rape hoax (a wide variety of major issues, not the least of which is the blatant reverse racism that is evident in black leadership and organizations, newspapers, and the DA office and PD), is truly frightening.

But, nothing is being done about any of it.

Anonymous said...

Your post also shows that even the potbangers know that the accusation is a hoax. If they really believed Precious, they would be screaming for Nifong to apprehend the 3 accomplices.

Anonymous said...

Not only the 3 accomplices, but Kim Roberts as well since the accuser in one statement said that "Nikki" helped them rape her.

Anonymous said...

I had completely forgotten about the email pretending to be Collin
sent to NCCU. Thanks for the great article - you continue to produce some of the best analysis of this case.

Anonymous said...

perhaps the H/S could also address the NC BAR ethics rules (specifically 3.8) that Nifong trampled...

Anonymous said...

I think the North Carolina State Bar bears a lot of responsibility for Nifong's (and probably many other NC prosecutors as well) willingness to flout the ethics rules. After all, the NC Bar has repeatedly demonstrated that it will not impose any serious discipline against lawyers who violate the rules. In the notorious Gell case, two prosecutors withheld exculpatory information that would have proved the defendant did not commit the murder with which he was charged. The defendant was convicted and sent to death row, yet the prosecutors whose malfeasance sent him there received only a slap on the wrist from the NC Bar -- and one of those prosecutors is now a judge! Prosecutors like Nifong received the message from the NC Bar -- that they're free to do whatever they want, regardless of the rules, and they need not fear any sanctions from the Bar. The people of NC need to speak up and demand accountability from the NC Bar. Change won't happen until the people of NC make it happen.

Anonymous said...

The Department of Justice and FBI must get involved. There have been cases where the have overridden the state jurisdication because the DA's prosecutorial misconduct was so egregious. I believe one such case was with DA Jim Garrison in Louisiana. I am not an attorney but I have done alot of research on how the Federal Governement can step in. KC exactly what Federal law has Nifong and the DPD broken. I thought the tampering and destroyin of evidence and the unconstitutional line up was enough along with all his other lies and corrupt behavior.
From the U.S. Dept. of Justice, Unithed States Attorneys' Manual, Title 9, ch11,paragrah 9-11.233,88 (1988) "When a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence which directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking indictment agaisnt such a person." A Federal investigation must be done to stop the reign of terror by Nifong. Any attorneys who know Federal law please give your input.

Anonymous said...

I seem to recall reading a while back that the fake e-mail from Collinn was traced back to an IP address in New Zealand, of all places.

KC, what are the details about your appearance in Durham this coming weekend, and how and when will you communicate to the rest of us the details of that event? Do you plan to attend the latest hearing in the case, which is scheduled for this coming Friday, October 27th?

Anonymous said...

What really blows my mind is that it is documented that Reade Seligmann went to a burger joint for late night food after the party. Now if you investigate cases everyday, which I don't, it would seem that isn't typical behavior for someone who just committed a rape. Doesn't it?

Anonymous said...

I've been following this case pretty closely (or so I thought). What e-mail from Collin? I remember the fake one sent by the police to the lax players saying "I'm going to tell them everything," which couldn't have been from the player because he was in class at the time. What did Collin's e-mail say?

Anonymous said...

Above - it said some ridiculous stuff about how he can do anything he wants because he's rich and no one can touch him blah, blah, blah. The NCCU campus newspaper traced it to an IP address in New Zealand and realized it was fake. They still printed it though.
*rolls eyes*

Anonymous said...

Cool NCCU....way to keep things stirred up at the time.

Anonymous said...

Yeah, it was classy all right. NCCU's newspaper printed the email, revealed that it was likely a fake (from NZ) then trashed Collin (and Duke by association) for what it said. You just can't win with people like this!

The Dude said...

I am not sure exactly what Federal law was broken but there seems to be several Civil Rights violations. it also appears that Duke Admin is fully culpable and will probably bear the brunt of the financial settlements that will arise from this whole mess.
Did you say the police entered the dorm without consent, emergency or a warrant? There's one. they questioned persons in a secure environment where any student could be coerced to provide information. That's 2. Fake emails sent to witnesses to make them talk. That is not illegal, in and of itself, but using the private party(Duke U.) to do their dirty work is clearly a violation of the students rights since they can't disobey the school. that's number 3.
The prosecutorial misconduct is overwhelming here. The Grand jury lapse of providing exculpable information is a big point. So is not allowing the defendants the right to legal counsel despite there full cooperation(along with the others not charged).
The prosecutorial misconsuct applies to anything the police do. the pros. is responsible for Police Actions. in this case it looks as if Police were acting on Nilfong's orders. This is one example of a corrupt police making the facts fit the allegation. The police in this case aren't very smart, either.

Anonymous said...

Johnson, get your facts straight. Finnerty's alleged e-mail was not sent from his Duke account. It originated from New Zealand. These are the kind of ticky tack mistakes about which you would write paragraphs (and insinuate the worst), but when you make the same type of mistake, everyone ignores or excuses it.

Anonymous said...

To 8:40
There were two different fake emails attributed to the LAX guys. One from N Zealand and one from Duke. The one from N. Zealand was an obvious near-parody of the image of the team the media was presenting.
The Duke sourced fake was much more sinister in its implications because it reeked of intent to pressure the kids to "confess". Not to mention that it was defamatory.
Those are the straight facts, well known to anyone who was really interested in this case.

Anonymous said...

Mr. 8:40 Pm. I am amazed you have the gull to tell Professor Johnson he does not have the facts, while it's you who are cluless about the facts.
"One e-mail, which uses the e-mail address and is signed Collin Finnerty, one of the indicted lacrosse players, was particularly problematic."
That's from the Campus Echo newspaper.
The link is no longer valid, but the article is cashed by google.
So, e-mail in fact appeared as originating from collin.,just as KC Johnson said.

Anonymous said...

And look. Who but professor Joyner was commenting on a fake e-mail as if it was actually send by Finnerty?
"NCCU law professor Irving Joyner said the e-mail could be “useful” for District Attorney Mike Nifong. “A valid interpretation would be that [Finnerty] is cocky and arrogant,” Joyner said. “[The e-mail] suggests that with [Finnerty’s] race and status, no one would find him guilty.”
That's from campus echo newspaper, the same article.

The Dude said...

Did someone say there is a pretrial hearing or motion this week? When is it and what are the particulars. Thanks for any info. This is a great site and the analysis is very thought provoking.
I don't know why someone would constantly badger the professor with trivial points that are clearly spelled out when they are posted.

Anonymous said...

Yes, there is a hearing this Friday at 9:00am.

Anonymous said...

This was a Hoax Created by Nifong. It was an attempt to frame three inncoent players.

It is that simple.

Anonymous said...

Dude, your 7:38 PM post contains some very strange statements. You say that while you are not sure exactly what laws were broken, you nevertheless think there have been several civil rights violations in connection with the LAX case, that the Duke Administration is fully culpable for those violations, and that the Duke Administration will probably bear the brunt of the financial settlements that will arise from this mess. Would you please tell us exactly what the heck you are talking about?

Anonymous said...

Thanks for interesting article.

Jason said...

I sent the e-mail via proxy server to New Zealand from my US government computer in Fairfax, VA. I had a hunch that this Nifong character was dirty so I set out to prove it. My spoofed e-mail was the bait and he bit hook, line, and sinker. This was the straw that broke the camel's back thank me very much. I took an oath to uphold, obey, and enforcement the Constitution. He did as well, but fell down on the job and I caught him in the act. Next time I'll make sure not to forget to spoof the date stamp.

JJ The Fed