LieStoppers: Another Hoax Within A Hoax

Previously, we addressed the Hoax Within A Hoax involving the release of the first 911 call and the subsequent false statements by Durham Police Department’s spokesperson, Kammie Michael, who indicated that the DPD did not know the identity of the woman who made the call while issuing a public plea for assistance. We noted how the DPD and the District Attorney had joined in a public media campaign targeting the Duke lacrosse team when releasing the 911 call in this manner. The image of drunken white college athletes using racial slurs late at night against two additional black women driving by while walking by 610 N. Buchanan gave credence to the idea that a racially motivated rape had actually occurred.

The events encompassing March 27 through 31st, which coincidentally was Sexual Assault Awareness Week at Duke, were critical in this first Hoax Within A Hoax. Booths and displays were set up on campus. Seminars were scheduled to inform students of the very real issue of crimes against women. The events of this week, the pre-planned climax of the “Take Back the Night” rally, the Durham PD’s release of the 911 tapes and Mr. Nifong’s inflammatory statements set the stage for what became a very vocal and nationally broadcast community protest, including a march of citizens and students against the seemingly intentionally manufactured image of racially motivated “rapists” in their midst.

“Wanted” posters, later to be curiously deemed as originating from an anonymous group, appeared that night as if issued by Crimestoppers. The posters, showing most of the lacrosse team, featured a quote from Durham PD’s Cpl. David Addison, appealing to the team to come forward. Adding to the Hoax Within A Hoax, interim District Attorney Nifong was fanning the flames while campaigning on local and national television. Nifong, the race baiter, was asserting his conviction that a racially motivated rape took place in that house, and that he, the hero in his own mind, was not going to allow such a transgression, whether invented or real, to go unpunished in his community.

As we examined this initial Hoax, we discussed how little evidence Nifong had when he made his statements of certainty, and how inflammatory his words became. Today, we examine the further perpetuation of the overall Duke Hoax by means of an additional Hoax Within A Hoax, initiated by an unfounded yet ominously prophetic statement on the part of Mr. Nifong. We believe that this second Hoax, necessitated by the failure of mass DNA testing to identify the imaginary suspects, was instigated by the premature suggestion on March 31st that Mr. Nifong had certain evidence in hand, namely an accuser who could identify her attackers, followed by an ethically flawed lineup procedure that would produce the results he desperately needed to bring indictments prior to the primary election.

Feel free to draw your own conclusions from the proximity in time of his own self fulfilling prophesy to both the instructions given to Gottlieb and Himan just hours before, and the staged photo ID lineup conducted a few days after.

March 16th

Durham PD’s investigators Gottlieb & Himan interviewed the accuser. She described her alleged assailants as:

Adam: "white male, short, red cheeks fluffy hair chubby face, brn"
Matt: "Heavy set short haircut 260-270"
Brett: "Chubby”

Later that same day, two Durham PD’s investigators, Soucie and Clayton, showed the accuser four sets of six photos. A total of twenty-four photographs of Duke lacrosse team members, all wearing their distinctive blue jerseys as seen on GoDuke.com, were shown to the accuser. These four photo arrays targeted the players named Adam, Brett and Matt, and included “fillers” of other Duke lacrosse players. Despite her descriptions and ability to name suspects, she was unable to pick out any of her assailants. She was only able to say with 100% certainty that four men out of the twenty four shown to her were at the party. She also picked out Reade Seligmann with 70% certainty as being at the party. She could not remember where she saw any of the men she picked as being at the party. Further, she stated that they all looked alike and "This is harder than I thought.” N&O

March 21st

During an interview with Detective Himan at a Durham PD’s station, the accuser was unable to remember anything further and indicated she could not give any better descriptions. Investigators Himan and Clayton showed her two more sets of six photos. "She could not identify any of the pictures in the photo array," Clayton wrote in his notes. "She again stated the photos looked the same." N&O

March 23rd

The investigation was obviously in trouble. To date, the accuser was unable to identify any assailants after viewing thirty-six Duke lacrosse team pictures in two separate photo array identification attempts. The accuser’s descriptions of her imagined assailants did not resemble any of the athletic Lacrosse players. The accuser also made many wild, conflicting statements that included, among other nonsense, that there were five assailants, no assailants, twenty assailants, gropers but no rapists, two attackers, three attackers and three accomplices, Kim as an accomplice and a thief, or Kim as a helper and an outcry witness.

Adding to the confusion, and one would think, to the investigative skepticism, the troubled accuser also admitted she worked for an escort service and that she had danced with three other women that night. In fact, Kim Roberts was the only other entertainer present. On March 20th, Kim Roberts, the other entertainer, had given the now infamous “Crock” statement to investigator Himan regarding whether a rape occurred that night.

Interim District Attorney Nifong, shortly thereafter, obtained a court order for Non-Testimonial Identification to include photos and DNA samples from forty-six lacrosse players, in part or in whole, due to the accuser’s inability to identify or describe suspects further. The application, made by Assistant District Attorney Saacks, at the assumed direction of his superior, Mr. Nifong, stated:

“There is probable cause to believe that an offense punishable as a felony or a Class A1 misdemeanor has been committed and reasonable grounds to suspect that the person named or described above committed the offense. The results of the requested non-testimonial identification procedures will be of material aid in determining whether this person committed the offense…The DNA evidence requested will immediately rule out any innocent persons and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.” Osborn Motion to Suppress Photos

Thus, the application stated there was probable cause to order forty-six players to submit to photographs and DNA samples. The application promised that the requested DNA testing would serve to exonerate as well as inculpate. The application omitted that the accuser had failed to identify her alleged assailants from those included in the order and had likely excluded by description most, if not all, of those so ordered. The application also failed to mention any of the additional exculpatory evidence, including the numerous versions and recantations by the accuser, remarks by Shelton, the responding officer at Kroger’s, describing the accuser as drunk, or contradictory written testimony by Kim Roberts. The application also included misleading statements about medical records.

March 27 through March 31

Despite serious flaws with the evidence, or lack thereof, interim District Attorney Nifong instigated a media campaign of public appearances, proclaiming his conviction that a racially motivated gang rape had indeed occurred at 610 N. Buchanan. His unethical, election-minded, personal attacks continued for weeks. Initially contributing to the confidence suggested by his expressed pre-conviction were his equally convincing, yet misleading, stated opinions on the value of DNA obtained through the order on March 23rd and the subsequent testing that would, as we were assured, rule out the innocent and identify the guilty. Considering that his con game began with the expressed illusion that DNA would identify the imagined suspects while exonerating the innocent, his almost immediate backpedaling was both notable and odd. His unprecedented request for forty-six DNA samples to be tested on a rush basis in the end would cost the taxpayers of North Carolina nearly $23,000. MSNBC

The DNA samples arrived at the SBI laboratory on the 27th, and within forty-eight hours these previously crucial tests became irrelevant to Nifong. We can only conclude that DNA evidence was deemed unworthy simply because the results did not coincide with the Nifong-preferred conclusion. In response to the DNA testing which supported the LAX team’s claims of innocence rather than Nifong’s pronouncement of guilt, Mr. Nifong immediately began hinting at alternate means of identification and additional evidence, while continuing to magnify the seriousness of the alleged crimes. Undeterred by the realization that his proverbial ace in the hole was now useless to him by value of contradicting the theory of the case that he espoused as “fact”, he begins to employ a familiar con game tactic, the bluff, while continuing his attack by media.

March 29

"Under North Carolina law, the only felony more serious than that is first-degree murder," Nifong told ESPN's George Smith. "These crimes are actually punishable at a higher level than second-degree murder." Yet Nifong added,"If the only thing that we ever have in this case is DNA, then we wouldn't have a case" ESPN

March 30

Durham District Attorney Mike Nifong said Wednesday, March 29, that even if DNA results, which are expected as early as next week, do not match team members, no one is necessarily exonerated. N&O

"The attackers could have used condoms or might not have been team members," Nifong said."How does DNA exonerate you? It's either a match or there's not a match...If the only thing that we ever have in this case is DNA, then we wouldn't have a case” N&O

March 31

On MSNBC’s Abrams Report, interim District Attorney Nifong suggests that he does not expect to have identification by way of DNA testing. In his conversation with Dan Abrams, Mr. Nifong states that he does not need DNA to match if the accuser can identify her imagined attackers. The following exchange demonstrates how Nifong implied that the accuser can identify suspects.

The Bluff

ABRAMS: Right. Because that's what I was going to ask you. So the bottom line is if there is no DNA match in this case, you're saying that is not going to be the death nail for your case?

NIFONG: Well, you have to remember that DNA is a relative latecomer to the forensic scene. There have been many successful rape prosecutions involving nothing more than the statement by the victim that she was raped by a particular individual.

ABRAMS: Yes.

NIFONG: Obviously, we would always prefer to have forensic corroboration for the victim's statement, but the fact is that we have enough to go forward any time that the victim identifies a particular person as the perpetrator of a sex crime against her.

While reviewing the previous exchange, consider that these statements by Mr. Nifong are made despite the facts that:

At least two of the three accuser’s descriptions of the imaginary suspects were contrary to the physical appearance of any lacrosse player
The accuser failed to identify her alleged assailants through the course of two photo lineup attempts consisting of six photo arrays totaling thirty-six pictures, including photographs of two of men who would eventually be charged
The accuser expressly stated that she was unable to offer further description of suspects
The accuser stated that the identification was harder than she thought it would be, since they all looked the same
The accuser’s descriptions were so vague and misleading that it was deemed necessary to obtain a DNA sample from every white member of the team to seek identification.

It appears obvious that on March 31st, DA Nifong was saying that he wouldn’t need corroborating DNA evidence if the accuser made an ID, despite knowing full well that at that point in time the accuser was not able to make an ID, nor to offer specific descriptions. It also appears obvious that what necessitated the expression of confidence in the accuser’s identification was the failure of the hoped for DNA identification.

It is important to consider not only what necessitated this flip flop on the value of DNA testing as means of identification, but also what may have been the basis for the confidence that the accuser would soon make an identification despite previous failures. Was Nifong’s bluff completely blind, or was it merely a partial bluff based on some probability of success?

To answer this question, consider that this interview with Abrams came only hours after Mr. Nifong met with Durham’s PD Investigators Himan and Gottlieb and instructed them to conduct a third photo ID session in a manner that clearly violated both Durham PD’s own written procedural policy, as well as the NC Supreme Court’s approved recommendations of the NC Actual Innocence Commission.

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