Case Narrative, II

With a blatantly unconstitutional lineup and an accuser who won’t cooperate, it’s hard to imagine how things could move forward for much longer in the criminal case. In mid-October, I did a narrative post that looked at events in the case up to that time. I thought it might be useful to continue the narrative, to include events since October 16.

The October Hearing and Nifong’s Election Triumph

The October 27 hearing was the final event of the case before the November election. Its defining moment came when Nifong admitted—under repeated questioning from Brad Bannon—that he had never spoken to the accuser about the facts of the case. How did he test her reliability, then? By chatting about unrelated topics, such as her children. Bannon, quite correctly, said this assertion “stretched credulity.”

Those who followed the case closely already knew this was Nifong’s party line—the N&O’s Ben Niolet had revealed it in a devastating profile of the district attorney. (The item was one of dozens of facts N&O broke about the case. The total number of accurate Herald-Sun scoops? One, coming in mid-November and regarding the accuser's one-time supervisor at the strip club, Yolanda Haynes. Editor Bob Ashley complained, mysteriously, that the paper lacked good sources on the case.) But few in the national media, it appeared, read the N&O, and Nifong’s admission was major news.

The admission placed Nifong on the defensive, part of a broader pattern of highly erratic pre-election behavior by Durham County’s “minister of justice,” in which the DA played the part of a race-baiting demagogue with increasing frequency.

This record appeared not to disturb Nifong’s faculty enablers among the Group of 88. In a novel interpretation of the statement’s meaning, Group member Alex Rosenberg told the New York Sun that he had abandoned the presumption of innocence to protest the role of alcohol on campus and “affluent kids violating the law to get exploited women to take their clothes off when they could get as much hookup as they wanted from rich and attractive Duke coeds.” (The statement, in fact, mentioned neither item.) Two days later, Grant Farred penned an op-ed that ranks as the single worst publication by a Duke faculty member regarding the case. The Literature professor stunningly contended that those Duke students who registered to vote in Durham were motivated by a “secret racism.”

The anti-Nifong coalition combined Beth Brewer with veteran political operative Jackie Brown; Chronicle columnists Kristin Butler and Stephen Miller with N&O columnist Ruth Sheehan; longtime Durham residents with Duke Students for an Ethical Durham, the umbrella organization that coordinated the voter registration drive. All advocated a vote for the Lewis Cheek line, although Cheek said he wouldn’t serve if elected. Perceptive—and prophetic—observers urged Durham voters to look beyond this problem. Friends of Duke spokesperson Jason Trumpbour commented just before the election,

Because it is almost certain that Nifong will be suspended or disbarred, he will not be able to continue in office. And as the governor may be choosing the next district attorney in Durham County, the best option is to start looking to the future now and save the community the disruption and pathetic spectacle of Nifong’s protracted death throws.

On Election Night, Nifong prevailed, but short of a majority. (He tallied 49 percent of the vote.) In the end, the DA owed his victory to two factors. First, he received near-monolithic support (around 95 percent) from Durham black voters, who found his race-baiting message appealing. Second, he benefited from the write-in campaign of “Spoiler Steve” Monks, who took 11 percent of the vote. By March, Monks would be removed as chairman of the Durham County Republican Party, and—according to a recent Newsday article—most black voters would regret their decision to back Nifong.

The December Hearing

Nifong’s victory turned attention to the next hearing in the case, scheduled for December 15. Defense motions dealing with the apparent withholding of exculpatory DNA evidence, the April 4 lineup, and a change of venue were released in consecutive days before the hearing. The lineup motion demonstrated in extraordinary detail the extent of the accuser’s flawed performance—the only evidence that Nifong had to link anyone to any “crime.” Beyond her many errors (she was 100 percent sure that she saw chatting with Kim Roberts outside the house someone who actually was in Raleigh that night), the motion pointed out that the “attacker” the accuser had claimed went by the name “Adam” did many other things that night, according to her story. “Adam” helped her get dressed, just after 12.30. Then he helped her to Kim Roberts’ car, around 12.40. The only problem? Reade Seligmann (“Adam” in the accuser’s then-current tale) could prove he was nowhere even near the lacrosse house when the accuser claimed he was helping her dress and escorting her off the premises.

The December 14 motion could be used as a case study in the dangers of flawed procedures. Nifong had ordered the police to orchestrate a lineup confined only to suspects (the 46 white lacrosse players). Is it any wonder that the results he received were worthless?

The lineup motion almost certainly would have ended the case at the next scheduled hearing (Feb. 7). But it got overshadowed by the DNA controversy. Under extemporaneous questioning first from Bannon and then from Seligmann attorney Jim Cooney, Dr. Brain Meehan eventually admitted that he and the DA had entered into an agreement to intentionally withhold results showing that the DNA of several unidentified males in the accuser’s rape kit. Before the hearing, Nifong said he didn’t know about Meehan’s findings; directly afterwards, he said he did—but felt it important not to turn over this information, so as to protect the privacy of the unindicted lacrosse players. How such a course would, in any way, benefit the unindicted players Nifong explained neither then nor since.

The Meehan Revelations

The Meehan revelations marked the beginning of the end for Nifong. On December 20, he received a letter from the State Bar informing him of possible ethics charges on the DNA issue. With his career going up in smoke, the district attorney panicked. He sent his chief investigator, Linwood Wilson, to meet with the accuser. At this meeting, Wilson claimed the accuser came up with a wholly new version of the “crime”—she now was asserting that the attack might have occurred with an object. This new version of events also had the accuser—for the first time in nine months—a precise time for the “attack,” 11.40pm. (The new timeline suggested that the accuser was chatting with her father on the phone during her dance.) The new version also featured the accuser recalling, again, for the first time, a “white” towel had been used to clean her up after the “crime.” This “magic towel” cleaned up the scene of the crime—but left the DNA of an unindicted resident of the house on the bathroom floor. And it cleaned up the accuser—but retained none of her DNA. How such a towel could be reconciled with the tenets of forensic science Nifong explained neither then nor since.

In short, the December 21 story was not only a frame—it was a stunningly blatant frame. But Nifong treated it as legitimate, dropping the rape charges the next day, while leaving in place the sexual assault and kidnapping charges.

Nifong and his advisors (the “Troika” of Wilson, wife Cy Gurney, and citizens’ committee co-chair Victoria Peterson) apparently thought the new version represented a clever way of minimizing the significance of the withheld DNA evidence. Instead, the DA presented to the Bar and the national media the image of a rogue prosecutor who would stop at nothing to bring the case to trial.

Within a week:

• Duke president Richard Brodhead—who heretofore had avoided all public criticism of Nifong—publicly urged the DA’s recusal from the case.

• The State Bar filed ethics charges against Nifong, citing the “dishonesty, fraud, deceit, or misrepresentation” in his pre-primary public statements about the case.

• The North Carolina Conference of District Attorneys publicly called for Nifong’s recusal.

Though Nifong would remain on the case for another two weeks, he implicitly recognized his isolation in one of the case’s many “Only in Durham” moments—the DA’s decision to bar the public and the media from his early January swearing-in ceremony.

Tomorrow: 2007 events.