Thursday, August 31, 2006

An Affiant's Belief

We have previously reviewed the 911 Call Hoax, the DNA Test Results Hoax and the Date Rape Drug Theory Hoax. Still another Hoax Within a Hoax is the Fake Names Theory Hoax. By now most are aware that the accuser claimed that she was raped by three men named Adam, Matt, and Brett. Yet very rarely do commentators stop and ask why then did Nifong indict three players named Reade, Collin, and Dave. Isn’t that a problem for the prosecution in this case? Normally you might think so, but as KC Johnson would say, Durham is a Wonderland.

You see, according to DA Mike Nifong and police, the players were using fake names when they attacked the accuser, and since they weren’t very creative they used each others names. This wasn’t always the police theory. As reported by the News & Observer and the New York Times, the line-ups on March 16 and March 21 targeted players named Adam, Matt and Brett as suspects. In his notes of his interview with the accuser on Mar. 16, Det. Himan specifically matched physical descriptions to suspects named Adam, Matt, and Brett. He wrote:
  • Adam: "white male, short, red cheeks fluffy hair chubby face, brn"
  • Matt: "Heavy set short haircut 260-270"
  • Brett: "Chubby

(Digression Alert! As we have discussed before, Sgt. Gottlieb waited until after the accuser ID’d suspects to match his made up physical descriptions to their appearances. By then the Adam, Matt, and Brett theory was long gone and Gottlieb simply wrote suspect #1, suspect #2, and suspect #3. Is it odd that he could recall the descriptions well enough to match them to the suspects but apparently could not recall the names? Can you imagine if all investigators opperated that way? Gottlieb S.O.P.: Interview witness, witness gives name of suspect, write nothing down, use description to apprehend the bad guy. "Who did it Sarge?" "Uh, she told but I forgot but she said he was tall. Put out an APB on tall guys.")

The importance of the names to the police is evidenced by the fact that later on the 16th they showed the accuser photos of Duke lacrosse players in their blue uniforms, arranged in four groups with an Adam in one group, a Brett in another group, and a Matt in each of the other two groups. The police had organized 24 photos into four sets of six photos each. The sets were labeled A, B, C and D. The police had put one named suspect in each group: Matt in A, Adam in B, Brett in C and a second Matt in D. After each photo, none of which were "fillers", the police asked: Is this the person who sexually assaulted you? She did not identify any assailants. She did not recognize any of the players named Adam, Matt or Brett. [News and Observer]

On March 21 the police showed the accuser another 12 photos of lacrosse players, and still she was unable to identify any attackers.

(Digression Alert! We suspect that these last two photo arrays were aimed at the third Matt and Breck (sounds like Brett) Archer. It should also be noted that David Evans was included in one of these two March 21 photo arrays photo arrays. Further, to again point out the ridiculous notion put forth by Sgt. Gottlieb that suspect #1 was described in almost perfection to Collin Finnerty, it must be noted that Mr. Finnerty was not included in any of the six photo arrays. Of the 6 players suspected as indicated by the photo arrays, none was Collin Finnerty yet Gottlieb would have us believe that the accuser gave a description closer to him than anyone else. Of the 36 players shown to the accuser as of March 21, none were Collin Finnerty but Gottlieb claims that the accuser gave a description of him. If that bizarre inconsistency doesn't make one blink, oh nothing will.)

Then on March 22, the police interviewed the second dancer, Kim Roberts, who had told them earlier that the rape claim was a “crock.” She now gives a handwritten statement describing the night’s events, leaving virtually no time for a rape to have occurred. Ms. Roberts also very cleary refers to Dan Flannery as Dan and states the players were members of a sports team [singular]. Detective Himan's notes from his interview with Ms. Roberts indicate that she informed him: "Every on Spring Break, on Lacrosse Team." The Joseph Neff of the News and Observer notes, “There is no mention of baseball or track or any other sports team” in [Himan's] handwritten notes." It is very important to note that Ms. Roberts completes this written statement at 4:00pm on March 22.

To review briefly, as of 4:00pm March 22 it appears from all available information and police activity relating to the attempts to identify suspects that there is no evidentiary reason for the police to believe that the players used each others names in an effort to confuse anyone about anything nor is there any reason to believe that the players attempted to disguise the sports team they belonged to. Ms. Roberts knew Dan by his first name and writes that they were all members of a singular team. Himan writes that this team is specifically the Lacrosse team. Through six photo arrays the Durham Police have targeted six specific suspects. There are exactly six players whose name is or sounds extremely close to Adam, Matt or Brett. Of the six, we know that 4 were targeted in the first 4 photo arrays. While assumptive, it stands to reason that the next two photo arrays targeted the last two of the name matches. Oh, and what the heck, let's throw in there that the belief in the names being accurate must have been stronger than the belief in Gottlieb's "recollective" description of Finnerty.

With no evidence that any of the lacrosse players even touched the accuser, the police and DA’s office apparently became creative and hatched the fake names theory in order to cast suspicion over the entire team. By then it was obvious the Adam, Matt, and Brett theory hadn't panned out, and they had to quickly retreat and rationalize the specific names given in the accuser’s original description, which the police transcribed in the 610 N. Buchanan search warrant issued Mar. 16. The original search warrant for 610 N. Buchanan contained no mention of fake names.

However, on March 23 the affidavit filed to support the order for the players to submit to photographs and DNA testing miraculously added the fake names theory:

"The victim stated she did not think the names the suspects were providing her were their own. She stated one male identified himself as Adam, but everyone at the party was calling him Dan. In addition, the witness/co-worker stated the men at the party told her they were members of the Duke Baseball and Track Team to hide the true identity of their sports affiliation - Duke Lacrosse Team Members. In a non-custodial interview with Danniel Flannery, resident of 610 N. Buchanan and Duke Lacrosse Team Captain; Mr. Flannery admitted using an alias to make the reservation to have the dancers attend the Lacrosse Team Party. The three residents stated during their non-custodial interviews that their fellow Duke Lacrosse Team Members were the ones who attended this party. They knew everyone there, and stated there were no strangers who showed up at the event. It is the Affiant's belief the suspects used each others names to disguise their own identities and create an atmosphere where confusion would become a factor in this event should problems arise in the future where any actions or conduct would be questioned."

Where did the Affiant's (Himan's) belief and the fake names theory come from?

Clearly the accuser didn’t mention the fake names during her interview with Det. Himan and Sgt. Gottlieb on March 16, or else the police

(i) wouldn’t have organized the line-up with Adam, Matt, and Brett as the principal suspects and(ii) would have mentioned the fake name theory in the search warrant that was issued around 6:00 p.m. that evening.

If the accuser had mentioned the Adam/Dan story on March 16th, one would think the police would have focused on partygoers named Dan, instead of the lone lacrosse player named Adam. Only after the two line-ups failed and the election grew closer, did the fake names theory arise.

The police appear to have based this theory on nothing more than one claim, one misstatement and one distorted fact:

(i) Det. Himan claimed that the accuser said there was a player at the party named Adam who everyone was calling Dan;

(ii) Det. Himan appears to have falsely claimed that the second dancer said the players identified themselves as members of the baseball and track team;

(iii) team captain Dan Flannery used an “alias” to make the reservations for the dancers.

Many people put (i) and (iii) together to claim that the “alias” used was “Adam” Flannery. It appears that Himan's affidavit was specifically design to create that assumption and that one of those many people was Judge Stephens who signed the order.

The New York Times, however, revealed last week that the alias used was Dan “Flanigan.” Kim Roberts, the second dancer, even identified him as Dan F. in her statement, and described asking him for identification when she first arrived. Was this Adam/Dan story added deliberately to mislead the court and the public by suggesting that (iii) corroborated (i)? Even more troubling is the prospect that the actual alias used (Dan Flanigan) was omitted to hide the fact that (iii) actually contradicted (i). How could the accuser’s memory have been so accurate as to identify a single individual being called different names, yet so “traumatized” that she could not identify any of her attackers? And why didn’t Kim Roberts mention this atmosphere of confusion?

Adding to our belief that this deception may very well have been deliberate and that the Affiant's belief was invented, Himan’s typed notes contradict his handwritten notes. The undated typed version of his interview with Roberts state, “She was then told that it was not a bachelor party but a get together amongst friends. She stated they had told her that they were on sports teams, track, baseball and they all were grad students.” However, as mentioned previously, Det. Himan’s handwritten notes of the interview state "Every on Spring Break, on Lacrosse Team." and there is absolutely no mention of baseball or track or any other sports team in his handwritten notes as related by Joseph Neff.

(Digression Alert! Himan's notes taken by hand are now revealed to contradict Gottlieb's undated typed notes at times and his own undated typed notes at other times. Who needs white out when you have a perfectly good typewriter trained to conform your notes to the desired supects and preferred case?)

Adding to our confusion and suspicion is this curious typed notation by Himan which appears timed only 15 minutes after Ms. Roberts completes her writen statements stating the opposite:

3/22/06 1615 HRS - WITH THE INFORMATION THAT WE RECEIVED IN REGARDING TO USING DIFFERENT NAMES, DIFFERENT TEAMS, STATING THAT THEY WERE ON THE BASEBALL AND TRACK TEAMS

It appears that Himan's "belief" that fake names were used arose within 15 minutes of the conclusion of his interview with Ms. Roberts. Certainly it appears that they were not based on the writen statement she gave him nor on the notes he took by hand. The notation we refer to above appears at the bottom of page 15 of Osborns June 8th motion. Wouldn't you love to see the end of that statement to know where "the information the we received" is from? It's difficult to imagine that there would have been enough time for Himan to receive additional information from anywhere between 4 and 4:15.

Our conclusion, of course, is that this is yet another shameless Hoax Within a Hoax born not out of information received nor evidence gathered but rather out of the necessity to find somebody, anybody, preferably three-bodies to charge.

11 comments:

Newport said...

This should be included here:

Notice that Himan attempts to mislead the Court here. He does not tell the Court that Dan Flannery admitted to using "Dan Flannigan" to make the reservation, Himan just says Flannery used an alias without specifying the alias. Himan simply omits this information. Himan knew that Flannery's admitted alias did NOT match the alias that the accuser stated Flannery was using. Publication of this fact would contradict the accuser's statement, so Himan's solution was to not include the cntradictory information. It can be inferred that this was a concious decison on his part to mislead the Court. Imagine this probable cause affidavit if Himan had included the information that Dan Flannery had admitted using the alias "Dan Flannigan." This would make a much less compelling statement to the Court to justify the issuance of such a broad order.

The misleading nature of Himan omitting the statement from Flannery that he used the alias "Dan Flannigan" is apparent from the universal acceptance by everyone who has written about this case of the erroneous notion that Dan Flannery used the alias "Adam" to hire the strippers. This erroneous notion has been repeated everywhere this case has been discussed based on the foregoing Himan affidavit. The intention to mislead can be inferred from the facts and circumstances of the case. There is no need for an explicit admission and such an admission rarely is forthcoming.

Note also that just one day prior to this statement, Himan had taken the statement of Kim Pittman/Roberts where Roberts stated that Dan provided her with ID for verification. Roberts' statement of 3/22 refers to Dan Flannery on numerous occasions and she always refers to him simply as Dan.

LieStoppers said...

Newport - Thanks for the heads up. We incorporated your catch into a revised version of this mornings post. Hat tip to you.

Newport said...

Thanks. You guys are great. Anything I can do to help.

ME said...

LieStoppers,

Your Hoax Within A Hoax series is fascinating. The latest analysis of the Fake Name Theory Hoax is outstanding.

I have worked on the following post intermittently over the past several days. It is tangentially related to your Fake Name Theory Hoax so I will post it here. You cover my “Turning Points #1 and #2 in detail above and elsewhere (and I incorporated your Breck Archer picture speculation), but Turning Point #3 may prove to be interesting in the future.


More From The Gottlieb Files (AKA Gottlieb’s Script)


Insert graphic here: http://www.newsobserver.com/content/news/crime_safety/duke_lacrosse/story_graphics/20060827_dukelacrosse.jpg


If the photo ID lineups survive the pending motion to exclude and thus make it to trial, there will be at least three turning points in the cross examination of Gottlieb related to the photo ID lineups.


Turning point #1

Gottlieb’s explanation as to why Finnerty’s picture was not included in either the Mar 16 or Mar 21 photo ID lineups. Gottlieb says his descriptions of the assailants stem from a Mar 16 interview of the complainant. Gottlieb then generated assailant descriptions months after the Mar 16 interview. In his assailant descriptions narrative, Gottlieb provided a remarkably dead-on description of Finnerty (see “Suspect one” in the graphic above). Despite Gottlieb’s dead-on description of Finnerty (from the Mar 16 interview of the complainant), Gottlieb inexplicable does not include Finnerty in the Mar 16 and Mar 21 photo ID lineups.

FootNote:
1) Gottlieb and Himan interviewed the complainant at approximately 12 noon on Mar 16. The Mar 16 photo ID lineup began some time after 6:00 p.m.

2) Although Seligmann’s picture was included in the Mar 16 photo ID lineup, the complainant did not identify any assailants on Mar16 according to an undated report by Investigator Clayton.

3) Although Evans’ picture was included in the Mar 21 photo ID lineup, the complainant was still unable to identify any assailants. On Mar 21, Himan wrote the following about the Mar 21 photo ID lineup and his interview with the complainant, "I asked her questions trying to follow up on a better description of the suspects." "She was unable to remember anything further about the suspects."


Turning Point #2

Gottlieb’s explanation as to why his descriptions of the assailants (generated months after the Mar 16 interview) vary so radically from the descriptions provided by his partner Himan (Himan’s notes written contemporaneously on Mar 16). See Himan and Gottlieb suspect descriptions in the graphic above.

Gottlieb’s explanation as to how his descriptions of the assailants are so rich in detail given that they are generated months after the Mar 16 interview.


Turning Point #3

During the Apr 4 photo ID lineup the complainant identified an assailant that was never charged with any crime.

During the Apr 4 photo ID lineup, the complainant identified the person displayed in the fourth image as “one of the guys that assaulted me” via responses to the following:
Question: Did you recognize that person [fourth image]? Response: He looked like Bret, but I’m not sure.
Question: Who is Bret? Response: One of the guys that assaulted me.
Question: One of the guys that assaulted you? OK. Response: Um hum.

At that point Gottlieb inexplicably moved on to image number five (see Footnote 2). By quickly moving past image number four and on to image number five, Gottlieb disregards a standard procedure line of questioning he utilizes later in the this photo ID lineup. That standard procedure is to ask the complainant follow-up questions about the percentage likelihood the person identified as an assailant assaulted her.

The question at this point is, why did Gottlieb move past image number four, foregoing further follow-up questions, and on to image number five? A possible answer to this conundrum is two-fold. First, clearly Gottlieb knows the name “Bret” had no significance at this point because the only available “Bret” was Bret Thompson and he was included in an earlier lineup and he was not identified as an assailant (the same may be true with regard to Breck Archer) (see Footnote 2).

The second, much more insidious explanation is pure speculation at this point. Gottlieb may have rushed past image number four because he knew the person displayed in image number four was not at the strip party on Mar 13/14.

It will be much more clear why Gottlieb rushed passed image number four and failed to follow his standard procedure line of questioning (asking the complainant follow-up questions about the percentage likelihood the identified person being an assailant) when the following facts becomes known:

• The name of the person displayed in the fourth image,
• The physical location of that person on Mar 13/14,
• What Gottlieb knew or had reason to know on Apr 4 with regard to the name of that person and physical location of that person on Mar 13/14.

Footnote:
4) It is important to note that Gottlieb moved past image number four despite the fact that: (i) “Bret” is the name of an assailant provided by the complainant in the earliest days of the investigation, and (ii) DPD investigators were operating under the belief that at least one of the assailants was named Bret (or perhaps Breck) due to the fact that investigators include Bret Thompson in the Mar 16 photo ID lineup (and perhaps Breck Archer in the Mar 21 photo ID lineup).

Newport said...

ME and Liestoppers, I will put this July 31 post up too. It has a slightly different take on ME's turning point #3 and ties in false names as well.

So here goes:

Gottlieb ran the 4/4 lineup, Clayton was his witness. Gottlieb transported the DNA collected on 3/23 to the SBI lab. He is an essential witness, as is Clayton.

In the monumentally flawed 4/4 lineup the accuser identified 4 people, including "Bret" who she originally said attacked her.

===================================

IMAGE 4

Gottlieb:
Did you recognize that person?

FA
He looked like Bret but I'm not sure.

Gottlieb
Who is Bret?

FA
One of the guys that assaulted me.

Gottlieb (in a parrot impersonation)
One of the guys that assaulted you? Ok.

FA
Um hum.

(Nothing to see here, keep moving. Gottlieb never follows up with how sure are you on this picture like he does on the next one, below)

Gottlieb shows the next picture to the FA. In an almost identical response to the one offered in response to the preceeding picture, FA says:

IMAGE 5

FA
He looks like one of the guys who assaulted me sort [of].

Gottlieb (something to see here, let's explore)
Ok. How um, how sure of it are you on this image?

FA
He looks just like him without the mustache.

Gottlieb
Ok, so the person had a mustache?

FA
Yes.

Gottlieb
Percentage wise, what is the likelihood this is one of the gentleman who assaulted you?

FA
About 90%.

=========================

The foregoing actions of Gottlieb in asking follow-up questions to elicit an identification in the case of photo 5 (Evans) and not asking similar follow-up questions with respect to virtually identical statements of the accuser on photo 4, demonstrate that Gottlieb engaged in impermissible coaching of the accuser. Gottlieb moved the accuser past an identification that the police and DA did not want (photo 4) and almost certainly suborned a false identification in the process. And, that is a reserved assessment. One could just as easily argue that Gottlieb is simply a dirty cop.

Gottlieb knew who could not get picked, i.e., anyone named Bret, Matt or Adam/Dan, because DPD had adopted the ridiculous "false names" theory of the case. There is no evidence that any of the players used a "false name" other than Dan Flannery who used "Adam" when ordering the strippers with the escort service. Dan Flannery did not hide his identity. Roberts' statement states that Dan Flannery provided her with his ID and that Roberts knew him as Dan. There is no other evidence of false names being used. "Bret, Dan/Adam and Matt" are all names of guys on the team, how could rapists be using aliases that are names of fellow team members? Makes no sense.

Gottlieb pushed the witness past an identification that would not work with this theory. I am not sure how the other players got picked. The point is that the accuser told the police that Matt, Adam/Dan and Bret assaulted her (these are actual guys on the team, captains even, that she probably met at the party and might have remembered), and she picks Collin, Reade and Dave. How amazing is that? Maybe it was random, maybe it was coached or rehearsed. Gottlieb is not going to admit to it if he did the coaching.

Moreover, if the DPD and Gottlieb were not committed to the false names theory of the case, they surely would have followed up with regard to the accuser's statements concerning "Bret" as one of her stated attackers, as Gottlieb did with respect to the identification of Evans, one picture later. Or, did the DPD know that captain Bret wasn't at the party that night and therefore should not be picked? He did live at another lax house. Regardless of why Gottlieb avoided followup questions with regard to "Bret," such avoidance is strong evidence of impermissible police coaching and subornation of a false identification.

Some other thoughts on Gottlieb:

Gottlieb took 4 months to write his report. This is not indicative of an honest cop.

Gottlieb was involved in the assault of a poor, hard-working black fry cook, and at a minimum, failed to render assistance and report the crime. Gottlieb may also be the Bald One. This is not indicative of a good cop.

Anonymous said...

Dan Flannery did NOT use the name Adam when ordering the strippers. He used an alias of Dan Flanigan.
The first name stayed the same.

Newport said...

Yes, that's certainly true. You have to take into account that this was written on 7/31, before Gottlieb's report was reported on. There may be a few other things in there that have changed, but upon cursory review I didn't see any. Thank you.

concerned mom said...

Is this acceptable? Sounds dumb, I know, but are typed notes, many of which are NOT dated, acceptable and admissable in such a serious case? It's painfully obvious that these dishonest people made this stuff up entirely...what's to stop them from adding ANYTHING to their original notes? The answer so far is, nothing.

Newport said...

What a powerful point you made here:

"If the accuser had mentioned the Adam/Dan story on March 16th, one would think the police would have focused on partygoers named Dan, instead of the lone lacrosse player named Adam. Only after the two line-ups failed and the election grew closer, did the fake names theory arise."

The inferences from this fact are very powerful, almost conclusive really when taken together with the lack of false names in the March 16 warrant application, that the false names was a post hoc fabrication desiged to mislead the court into issuing an unsupported and unconstitutionally broad identification order on March 23.

Amazing work you are doing.

Anonymous said...

With respect to the identification given by the accuser, there is an obvious problem.....the pictures of Reade Seligmann show that he was wearing a RED shirt....How does someone miss that when they give a description!

Anonymous said...

It's also amazing that an affidavit could be filed with the court that contains both these statements (1) "Two males, Adam and Matt, pulled the victim into the bathroom" etc, etc. and (2) "The victim stated that someone introduced himself to her as Adam, but everyone was calling him Dan", without having to make any connection between those statements. Would not a judge who was anything but rubber stamping have asked: "If the victim recalls that someone introduced himself to her as Adam, can she identify that person? Does she believe that the person who introduced himself as Adam was the person who assaulted her? If not, is she saying that two persons introduce themselves to her as Adam, meaning your representation is incorrect?

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