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Lax - The N&O Goes After Nifong

The News & Observer has a column up which gets into considerably
more detail on the problems with the Duke lacrosse case.
This is a
must-read article, and makes the following points, some of which you may not
have heard before:

  • "The words and actions of police and prosecutors had outpaced the
    facts in the file, and not for the first time. The case, which began at a
    college team party on a warm March evening, quickly drew national attention
    to Duke, Durham and to North Carolina's justice system -- even as the
    prosecutor's version started to unravel.

"In examining the files Nifong has produced in the case, The News
& Observer found that the accuser gave at least five different versions of
the alleged assault to different police and medical interviewers and made
shaky identifications of suspects. To get warrants, police made statements
that weren't supported by information in their files.

"The district attorney commented publicly about the strength of the
medical evidence before he had seen it. He promised DNA evidence that has not
materialized. He suggested that police conduct lineups in a way that
conflicted with department policy.

  • The woman told the officers she was raped vaginally, anally and orally by
    three men -- "Adam," "Brett" and "Matt" -- in
    a bathroom at the house. Two of the men ejaculated, she said.

The woman described each of the men, according to Himan's handwritten

Adam: "white male, short, red cheeks fluffy hair chubby face, brn"

Matt: "Heavy set short haircut 260-270"

Brett: "Chubby"

  • Nifong, by his own estimate, gave 50 to 70 interviews in one week.

He called the players hooligans and said he abhorred the gang-like rape
accompanied by racial slurs. He disparaged rich Duke students whose daddies
could hire expensive lawyers to get them out of trouble. He told reporters
that DNA tests would tell precisely who was involved in the attack.

And Nifong made a series of factual assertions that contradicted his own
files: He suggested the players used condoms; he accused the players of
erecting a wall of silence to thwart investigators; and he said the woman had
been hit, kicked and strangled.

The medical and police records show that the victim had said no condom was
used, that police had interviewed three players at length and taken their DNA
samples and that the accuser showed no significant bruises or injuries.

  • On March 31, Nifong sat with Gottlieb and Himan, the two investigators, to
    discuss another lineup procedure. According to Gottlieb's notes, Nifong
    suggested that, instead of a lineup or photographic array, they simply have
    the accuser look at each picture and recall if she saw the person at the

The lineup Nifong suggested violated the Durham Police Department
guidelines, which call for photographic arrays to include at least five
nonsuspects for every suspect in the lineup. Police and prosecutors had named
all 46 players as suspects. The guidelines also called for an independent
administrator to conduct the lineup, not an investigator in the case.

The accuser viewed the photos at the police substation at Northgate Mall on
April 4. Gottlieb told her that she was going to "look at people we had
reason to believe attended the party," according to his notes. This
differed from the March 16 and 21 lineups, where police gave her specific
instructions that the suspect might not be in the lineup: "The person who
committed the crime may or may not be included."

The woman identified four players as her assailants. Nifong brought
indictments against three.

There is a lot to process here. It's a big article, and an important
one. It's clear that D.A. Mike Nifong either didn't read the notes on the
case or willfully disregarded them and told bald-faced lies. Kim
Roberts/Pittman has a lot to answer for as well.

And while the AV may have had trouble remembering details due to the trauma a
rape would surely induce, like remembering two guys as stocky and one guy as
short, when the non-stocky guy, Colin Finnerty, is actually 6-3 and 175, one
would think that details preceding the rape, like how many dancers were actually
at the party, would be clear. Her accounts of the evening and the days
preceding the party are all highly relevant, and in many cases contradictory or
just plain unbelievable.

This article doesn't mention the that the AV said at one point that she had
been drinking and had also taken the muscle relaxant Flexeril, which, if true,
is pretty critical.

It does, however, detail a number of legally shaky points in the
prosecution's approach to the case, and these may in fact make any conviction,
however unlikely it seems at this point, certain to be overturned on appeal.

But frankly, at this point, the case is falling apart, not least of all due
to Nifong's manipulation of the facts and the media.

He has been deceptive at critical points in the case, and has shown that he
is willing to corrupt procedures, witnesses, and investigators to get

If it turns out that evidence in fact, beyond a doubt, proves these three
young men raped the AV, they should go to jail forthwith. However, if, as
it currently seems likely, they are having their lives ruined for whatever
reason Nifong has, they will not and cannot receive a fair trial, and should not
be tried by this man, or his office, under any circumstance. What's
happening is an absolute travesty of justice.

There have been calls for special prosecutors in this case before, but the
idea has been they would replace Nifong. At this point, given what is now
known, perhaps Nifong is the one who needs to be prosecuted.