Latest Bombshell Motion

The N&O, NBC-17 and WTVD-11 are reporting that the latest in what seems like a never-ending stream of bombshell defense motions was filed today in Durham. The issue? DNA.

After his disastrous performance at the December 15 hearing—when he admitted that he and Mike Nifong had entered into an agreement to intentionally withhold exculpatory DNA evidence—Dr. Brian Meehan filed an amended report, which purported to be the complete results of his findings. That report did little more than confirm what he admitted under oath in questioning from Brad Bannon: that DNA from multiple, unidentified, males was found in the accuser’s rape kit.

Defense attorneys have continued to scrutinize Meehan’s data, however, and today’s motion reveals that they have uncovered even more DNA—from additional unidentified males—that Meehan’s amended report failed to include. According to the motion,

DNA Security discovered the DNA of at least two males in the accuser’s rectum that did not match the Defendants, their lacrosse teammates, or anyone else who provided a reference DNA sample.

Mike Nifong obtained the indictments of three people on a charge of rape, in which the accuser’s then-present version (her April 6 statement) claimed that the crime had included anal rape. Even if North Carolina did not possess an Open Discovery law (which required turning over of all material to the defense), and even if North Carolina law did not require turning over of all test results obtained from a non-testimonial order to the defense, how would it not be exculpatory to have “discovered the DNA of at least two males in the accuser’s rectum that did not match the Defendants, their lacrosse teammates, or anyone else who provided a reference DNA sample”?

After all, this is the same Mike Nifong who in a 2000 case dismissed an indictment on rape because “results of DNA testing exclude the defendant as the perpetrator of this crime.”

Today’s defense motion also provides a statistical summary of the Meehan test results:

A collective review of all materials provided to the Defendants and information obtained by the Defendants about DNA Security’s work shows that at least 12 of the 22 rape kit DNA extractions—in other words, over half of them—contained male DNA that did not match the Defendants. [emphasis in original]

How is it possible that this case is still ongoing, and that a criminal investigation of Nifong has not been opened in its stead?

A copy of the motion is here, while JinC poses three unanswerable questions.

Change of Venue Motion

The defense has filed a powerful motion on the change-of-venue issue, laying out in chilling detail the poisoning of the jury pool in Durham. “There exists,” the motion states, “within this County among a significant percentage of residents so great a prejudice against the Defendants that they cannot obtain a fair and impartial trial and that a Jury selected from this County will be unable to deliberate on the evidence presented in the courtroom, free from outside influence.”

If this case doesn’t demand a change of venue, then the protection might as well be abandoned entirely. As the motion explains, under the Constitution, the defendants are entitled to “a trial in a community which has not been polarized by pretrial publicity or torn apart by the circumstances of these cases,” and copious evidence exists that Durham is not such a community.

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What caused this extraordinary polarization? The motion cites four primary suspects.

1.) Mike Nifong’s statements during his pre-primary publicity barrage demonstrate why the State Bar created Rule 3.8(f), which

A good summary of these procedurally improper statements can be found on Liestoppers’ board. A particularly effective defense paragraph on this point:

The District Attorney made multiple comments on the evidence, first indicating that DNA would plainly identify the perpetrators, then arguing that DNA evidence meant nothing in exonerating those under suspicion. He speculated that condoms were use when the medical records - - which he claimed to have been consistent with rape - - clearly revealed that no condoms were used and that at least one, and likely more, of the assailants ejaculated. He contended that the accuser broke her fingernails when scratching one of the attackers and then asserted that the attackers were wearing long sleeves or jackets, despite photographic evidence showing the opposite.

Nifong’s statements, the motion notes, appeared to be “designed to create substantial prejudice in the community against the Defendants and, indeed, to inflame members of this community.”

2.) Community polarization makes a trial in Durham inherently unfair.

In particular, the motion cites the consistent pattern of highly prejudicial statements among the African-American community, both from average citizens and from leaders of groups like the local NAACP.

All who have followed the case would, of course, be familiar with these developments. The motion cites a particularly troubling event, convened by the NAACP shortly after the arrests of Reade Seligmann and Collin Finnerty. The meeting concluded, according to a Herald-Sun article, with a request for “even-handed justice.” The response? “Laughter and giggles.”

3.) The biased coverage of Durham’s own Herald-Sun. The motion explains, “In its editorial positions, the Herald-Sun has relentlessly condemned the Duke Lacrosse team and encouraged a prosecution of the Defendants in these cases.” It has done so through nearly 300 articles, 20 unsigned editorials, and dozens more op-eds or guest columns.

A few specific examples from the motion:
--“In its first significant editorial on these cases, the Herald-Sun stated that not only had a crime occurred, but that those present during the crime were guilty of an additional ‘outrage’ by not confessing to the crime.”
--Repeated claims “that the District Attorney must have compelling evidence that has not yet been revealed, evidence that justifies its positions.”
--A pattern of having “consistently and openly mocked any claim of innocence made by the Defendants and repeatedly claimed they are privileged persons with expensive lawyers.’
--Editorial suggestions that “it is up to the Defendants to prove their innocence.”

As important, the motion notes, the H-S has provided no pretense of balance, stacking its op-ed columns with extremist critics of the lacrosse players.

4.) Employees of the county’s largest employer have repeatedly, publicly, and viciously condemned the players. Those employees? Professors of Duke University.

The Group of 88’s statement, appropriately, is cited as an example of the Duke faculty acting to poison community sentiment against the lacrosse players. Also highlighted are efforts in this regard by Karla Holloway, Peter Wood, Grant Farred, and Orin Starn.

That the institution’s own faculty could be cited in a change-of-venue motion should deeply shame Duke.

As the motion points out, Nifong’s own comments—made in the context of the election—confirm the facts presented by the defense.

In an interview with the Associated Press on October 30, 2006, the District Attorney observed that while he could make these cases “go away pretty easily . . . with the stroke of a pen. But that does nothing to address the underlying divisions that have been revealed. My personal feeling is the first step to addressing those divisions is addressing this case.” Earlier, in a campaign appearance before the Rotary and Kiwanis Club, the District Attorney declared: “If a case is of such significance that people in the community are divided or up in arms over the existence of that case, then that in and of itself is an indication that a case needs to be tried.”

In short, this was yet another in a string of extraordinary defense motions.

The Lineup Motion

Flawed procedures beget flawed results. In many ways, this case can be summarized with those five words.

The latest bombshell defense motion demonstrates the point more clearly than any document thus far produced in the case.

Among the new material that the motion supplies:

Durham Access Center

For the first time, we get a sense of what occurred at the Durham Access Center, where the accuser arrived on 1.55am the night of the party. Once there, according to the motion, “she said her name was ‘honey’ and said that ‘she did not want to go to jail.’” The nurse described her as not “capable of maintaining her lucid thinking,” and therefore began “to zero in with questions.” (The nurse admitted that this approach was “unlike other interviews.” A confused allegation of rape appeared in response to this leading question—asked of a person who already had stated that “she did not want to go to jail.” The accuser was, however, consistent in one aspect of her tale: the second dancer had stolen her money.

Duke University Hospital

Kathleen Eckelt’s posts have made a convincing, inferential, case that the accuser was faking her pain. New material from the medical reports cited in the motion shows (yet again) the wisdom of Eckelt’s insights.

“The ESI Pain Documentation portion of the medical records indicates that she had no facial distress indicating pain, that she was not sweating (a common response to intense pain), that she did not change her body position in any way to indicate that she was uncomfortable, and that she had no changes in her vital signs (pulse, breathing, blood pressure) that would have corroborated her complaints of pain. Indeed, she was noted to be in ‘No Obvious Discomfort.’”

The Pre-Gottlieb Inquiry

It remains why, and how, Sgt. Mark Gottlieb, with his statistically significant disparity in arresting Duke students, assumed control of the investigation, late in the day March 15. But the motion sums up the state of the “inquiry” as of the time Gottlieb took charge:

Within the first 36 hours of the events in this case, the accuser denied being raped, claimed she was raped by 20 men, then 5 men, then 2 men and finally 3 men, claimed that she was carried against her will from a car by Nikki and “Brett,” claimed that she was dancing with three other women, multiple other women and then only one other woman, denied ever being struck with fists, claimed that Matt was getting married, told the forensic nurse that Matt raped her vaginally and orally, that Adam raped her anally, and did not mention Brett raping her, while telling other personnel that Brett raped her vaginally without mentioning either Matt or Adam. She is described as appearing intoxicated and as having a smell of alcohol on her breath; she told physicians that she was very drunk and was so drunk that she could not feel any pain on March 14 and did not realize that she had been hurt until she sobered up. At no time during this first 36 hours did the accuser ever describe the person(s) who she claimed raped her other than to say that he or they were “white.”

The Non-Suspects

In a stunning item, the motion reveals that on March 28, the police knew that at least two non-lacrosse players attended the party. Yet Mike Nifong, who by this point had assumed command of the investigation, explicitly ordered the police not to include photos of these two Duke students in the April 4 array. Why? Doing so would have required going back to court and getting a supplementary non-testimonial order for their photos and DNA—creating an image of an investigation in disarray just after the district attorney had launched his pre-primary publicity barrage assuring people that a rape had occurred and he was handling the inquiry in a competent fashion.

The Tangled Web

In attempting to prevent disclosure of what was said at his April 11 meeting with the accuser, Nifong claimed that she was “too traumatized” to speak of the events of March 13 and 14. To take Nifong at his word, the accuser must have been even more “traumatized” a week earlier, on April 4, when she made her choices through the procedurally flawed photo array.

Ignoring 4077

The lineup, as anyone who ahs followed Joseph Neff’s sterling reporting on the case already knows, was a procedural travesty. Confined to the suspects, overseen by the person co-running the inquiry, and with the accuser being informed that the lineup would include only people police believed attended the party, the array ignored all central elements of General Order 4077, which stated that “photographic arrays should adhere to the following set of guidelines”:

(a) “Use an independent administrator. It is preferable that the individual conducting the photographic array should be someone who does not know which member of the photographic array is the suspect. There should not be anyone present during the array procedure who knows the suspect’s identity. Only when resources make this practice prohibitive should an independent administrator not be utilized.”

(b) “Include a minimum of five fillers (non-suspects).”

(c) “If there is more than one suspect that fits the description of the perpetrator, there can be more than one suspect in the photographic array; however, the number of fillers should be increased to a minimum of five per suspect.”

As revealed in an earlier N&O inquiry, this flawed procedure produced badly flawed results—with the accuser describing herself as 100 percent certain she saw at least two players who weren’t even at the party, and misidentifying the player who made the broomstick comment, among other obvious errors.

The Number and Content of Statements

The motion reveals that the accuser gave approximately 16 versions of events at various points between March 14 and April 6 (including discussions with medical personnel). Inconsistencies resulted—over the length of the attack; whether the accuser was drunk; whether she was beaten; and whether Kim Roberts stole her money. Perhaps the greatest inconsistencies revolved around the question of “who did what”:

In her statement of March 14 to Officer GD Sutton, the accuser claimed that she had been in the bathroom with five men and that Brett had penetrated her vagina with his hands and penis; she would later add that she was penetrated by all five men. In the sexual exam assault report of March 14, the accuser said that Brett and Nikki carried her back into the house, where Adam closed the door and told her she could not leave. At that point Matt claimed that he was getting married but then raped her vaginally and then Adam sodomized her, later adding that Matt raped her orally as well. On March 16, the accuser told Inv. Himan that Adam came to the car and took her back into the house, that Brett first raped and sodomized her, followed by Matt, and that Adam forced her to have oral sex. She then said that Adam dragged her back to the car and wiped her off. In her handwritten statement of April 6, Dan and Adam came to the car to apologize and bring her back inside, Adam was the attacker who claimed he was getting married, Matt first raped and sodomized her, followed by Brett, Dan participated in beating her, and that Nikki and Adam took her back to the car.

The Mysteries of Adam

Even accepting everything the accuser said at face value, her story is fatally undermined by internal contradictions. Take the case of Adam—the person in the accuser’s narrative who she claimed forced her to perform oral sex. In the April 4 lineup, she assigned this role to Reade Seligmann.

Yet in the accuser’s April 6 statement and Inv. Himan’s notes, “Adam” also carried the accuser from the bathroom to the car when the rape was finished. Therefore, as the motion notes, the accuser’s statements claim that “‘Adam’ (ie, Reade Seligmann) stayed in the house for the entire attack and then carried or dragged the accuser to the car after the attack.”

This claim, however, cannot be true. The accuser was photographed on the back porch at 12.30am—several minutes after Reade Seligmann was photographed a mile away at an ATM machine. Seligmann, therefore, cannot be Adam. And if Seligmann cannot be Adam, then the accuser had to have lied in either her April 4 photo session or April 6 statement (or, of course, both).

The Mystery of the Mustache

The motion produces the photographs that Nifong refused to examine before indicting Dave Evans. In photos on March 11, two days before the party, and on March 14, one day after it, Evans had no mustache. Yet the accuser asserted that she was 90 percent certain that Evans attacked her—or a figure who looked like Evans, anyway, only with a mustache.

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This motion, in short, constitutes a devastating assault on Nifong’s case. It should serve not only to justify suppressing the lineup, but as a central exhibit in any ethics proceedings against Nifong conducted by the state bar.

A Few More DNA Items

Some other items from the motion:

1.) DNA Security included none of its written communications with Nifong, Gottlieb, or any other representative of Durham in the supposedly comprehensive material turned over to the defense. The pattern throughout this case: information that Nifong has had pried out of him has almost always been highly damaging to the prosecution.

2.) DNA Security appears to something of a fly-by-night company--one that had financial problems almost from the start. According to this article, the company originally was located in its founder's "garage," and owner Brian Meehan had to sell the company to obtain necessary capital.

3.) The Soucie notes are--not for the first time in this case--damaging to Nifong, particularly in their statement that Meehan would lower his normal rates because he wanted to be involved in the case.

4.) The transcript of Nifong's attempts to avoid turning this material over to the defense looks very troubling in retrospect. It's hard to imagine that a concern with privacy motivated the reluctance of either Nifong or Meehan.

5.) The SBI notes had an intriguing line: "want to prove fingernail's are (v) and prove (v) was in the bathroom." Not exactly an unbiased scientific source.

6.) Why did Nifong choose DNA Security--which appears to be a fairly small company, located in Burlington, not exactly the state's scientific or population center?

7.) And how do these lines from the Nifong campaign website look now, in light of the DNA motion?

“I have never understood why any prosecutor would try to gain an advantage at trial by concealing evidence from the defendant. After all, if the information in question is damaging to the State's case, then the defendant is clearly entitled to have it; if it is not damaging to the State's case, why should it matter if he gets it?”

More later.

DNA Motion

I've been reading through the DNA motion, whose material is stunning; will have a longer post on the item a bit later.

Joseph Neff has an excellent summary of the motion here. Neff's article makes it clear that DNA Security, the private lab that did the testing, violated its own policies by failing to turn over all material to the defense. Instead, it removed all mention of matches with multiple other (unidentified) males from its report.

"This is strong evidence of innocence in a case in which the accuser denied engaging in any sexual activity in the days before the alleged assault, told police she last had consensual sexual intercourse a week before the assault, and claimed that her attackers did not use condoms and ejaculated," said the motion.

The DNA Security document appears to be the medical equivalent of the Gottlieb report, a transparently fraudulent and procedurally suspect document designed to paper over the chasms in the state's case. Himan's notes needed to be undermined: enter Gottlieb. The SBI's findings of no DNA matches needed to be undermined: enter DNA Security.

A question begins to emerge:

In recent months, Mike Nifong has frequently complained about how busy he is managing the district attorney's office. He has used this argument to rationalize his snail-like pace of turning discovery material over to the defense and his refusing to respond to any of the defense motions.

Yet this remarkably busy man made the time, twice, to personally travel from Durham to Burlington, a 90-minute round trip. The purpose: to discuss the contents of the DNA testing with DNA Security director Brian Meehan. The defense motion today suggests that Meehan is either grossly incompetent, in that he failed to include large amounts of material in the report he produced for Nifong; or, far more likely, malevolent, in that he deliberately manipulated evidence, withholding obviously exculpatory material.

Did Nifong make these personal trips to Burlington to he could strategize with Meehan on how Meehan could produce a report that withheld this evidence? And, in September, why did Nifong resist so strenuously the turning over of all the DNA files to the defense if he had nothing to hide?

These issues, it seems to me, are ones that federal investigators could legitimately explore at this point in time.