Nifong: DNA "Excludes" (Except When It Doesn't)

“DNA results,” said Mike Nifong on April 11, “can often be helpful, but, you know, I’ve been doing this for a long time, and most of the years I’ve been doing this, we didn’t have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them.”

As noted on Monday, Nifong failed follow this approach in a 1989 “gang rape” allegation that he oversaw. Then, police tested the accuser’s credibility—in part by having the person supervising the investigation actually speak to the accuser. When “embarrassing” contradictions in her story were discovered, Nifong dropped the charges. The accuser never “got on the stand and told what happened to [her].” Instead, the prosecutor exercised discretion, as he is required to do under the North Carolina Rules of Professional Conduct.

In fact, before the DNA results failed to give him what he needed politically in the lacrosse case, Nifong seemed to believe exactly the opposite of what he suggested on April 11. In a 2000 case, he maintained that since DNA evidence trumped witness identifications, DNA tests could—and should—exclude the falsely accused.

In early 2000, two rapes occurred in the Trinity Park neighborhood, off Duke’s east campus. Acting under strong pressure from the Trinity Park “community,” police charged a black homeless man, Leroy Samuels, based solely on an identification from the second woman who was raped. According to the April 8, 2000, edition of the Herald-Sun, Ed Sarvis (last heard from confirming that the DPD has an official policy of disproportionately meting out punishment to Duke students) expressed confidence in the department’s actions—although, he added, “we’re still in the process of collecting probable cause.” Samuels could not meet his $150,000 bail.

Maybe the police should have tried a little harder to ascertain probable cause before making an arrest. After Samuels was charged, the police sent a rape kit to the State Bureau of Investigation lab. Lacking any political pressure for a fast turnaround, the lab took more than three months to perform its tests. When the results came in, no match existed for Samuels’ DNA. But a male DNA specimen was found. Technicians ran the result through a national crime database, revealing the DNA of Jeffrey Lamont McNeill, who subsequently was charged with the crime.

According to the July 12, 2000 N&O, the prosecutor issued a definitive written statement: “Results of DNA testing exclude the defendant as the perpetrator of this crime.”

The prosecutor’s name: Mike Nifong.

In 2000, then, Nifong viewed DNA as so important that it would “exclude” someone he had already charged with the crime, someone who the victim had identified. (And yes, in this case, there was a real victim.) By 2006, not only had Nifong abandoned his position on DNA (even as most others in law enforcement have become more reliant on DNA evidence), but, on April 10, in a conversation with Dr. Brian Meehan, he contended that a finding of other males’ DNA was not even potentially exculpatory for defendants, and therefore should be excluded from Meehan’s report.

Nifong isn’t the only case-related figure to have performed a 180-degree change between the Samuels case and the lacrosse case. Writing in the July 11, 2000 Herald-Sun, John Stevenson penned an article on the Samuels dismissal framed wholly around the unreliability of eyewitness IDs vis-à-vis DNA evidence.

According to Stevenson,

The Samuels case is not the first time a Durham rape victim reportedly identified the wrong man.

Veteran lawyer Tom Loflin told The Herald-Sun two weeks ago that he once defended a rape suspect who ultimately was cleared by DNA evidence.

According to Loflin, the suspect was accused of raping a woman who lived near him in an apartment complex. The victim said the man broke into her apartment, brutally raped her and then returned to his own apartment.

Loflin said the victim claimed to be certain of her identification. So Loflin’s client was indicted.

But before the case went to trial, a DNA analysis cleared the suspect, even though DNA testing was not as sophisticated then as it is now, Loflin said.

“I have no reason to think this woman would lie,” Loflin added. “I think she was just outright mistaken.”

Loflin said academic studies have proven that, in general, eyewitness testimony is “enormously unreliable.

“Only a tiny fraction of eyewitnesses get it correct,” Loflin said. “This now has been established by DNA testing.”

Nevertheless, juries still tend to think that eyewitness testimony is the strongest form of evidence, even though it actually is the weakest, Loflin contended.

“You have juries believing victims and other eyewitnesses who are notoriously unreliable,” he said. “Juries really need to be educated that eyewitnesses are extremely shaky. It’s dangerous to convict someone on their testimony if there is no corroborating evidence, such as fingerprints or DNA.”

It appears that Stevenson, much like Nifong, has changed his mind about the value of DNA and the sanctity of even the most unreliable and procedurally flawed eyewitness identifications.

In a June letter to the New York Times, St. Louis attorney Thomas Schlafly offered a stinging rebuke of Nifong’s “old-fashioned” comment:

There’s a big difference between convicting a defendant without DNA evidence because the technology did not exist and convicting a defendant when DNA evidence is available and the DNA results are negative.

In the first instance, there would have been no DNA evidence to counter the testimony of witnesses. In the second, such DNA evidence exists and is exculpatory.

It turns out the actual situation is even worse than Schlafly imagined.

Based on his conduct in the Samuels case, Nifong once believed that when “DNA evidence exists and is exculpatory,” rape charges must be dropped. After his pre-primary publicity barrage, however, his beliefs clashed with his personal and political needs. And so, in early April, Nifong would deem irrelevant for Collin Finnerty and Reade Seligmann the same type of test results that freed Leroy Samuels, while the district attorney joined Meehan to do everything they could to ensure that these results would never see the light of day.

The Nifong motto:

In 2000, the DNA excludes; in 2006, exclude the DNA.