Enough from Duff

When we last heard from Duff Wilson of the New York Times about the lacrosse rape hoax he reported the following about an exchange between defense attorney Joe Cheshire and prosecution investigator Linwood Wilson:

"Mr. Cheshire's news conference was briefly interrupted by Linwood Wilson, an investigator for the district attorney, who challenged him to show where in the documents the woman had changed her story. In an interview later, Mr. Wilson said he had seen all the evidence and that the woman, a 27-year-old student and stripper, had not changed her story."

This article implied that the defense was misleading the public. One day later Cheshire sent a letter including a page from a police report recounting that the accuser said she was with 3 other girls at the house and was raped by five men. Mr. Cheshire encouraged Linwood Wilson to read his files before making statements to the press.

In today’s article, Duff Wilson claims to have read all 1850 pages of discovery and again implies that the defense is misleading the public. The heart of Wilson’s piece is the fifth paragraph:

By disclosing pieces of evidence favorable to the defendants, the defense has created an image of a case heading for the rocks. But an examination of the entire 1,850 pages of evidence gathered by the prosecution in the four months after the accusation yields a more ambiguous picture. It shows that while there are big weaknesses in Mr. Nifong’s case, there is also a body of evidence to support his decision to take the matter to a jury.

We at Liestoppers have no idea how Mr. Wilson obtained the full discovery. If he obtained it from the defense, there must be some angry lawyers on the phone this morning. The supposed paper of record chose to do everything they could to prop up Nifong’s case and further the false prosecution of Reade Seligmann, Collin Finnery, and Dave Evans. Here is a brief summary of the unforgivable flaws and omissions in Duff Wilson’s article:

Timeline

Duff Wilson’s article states the following:

“It was 12:04 a.m. March 14. The question is, what happened in the next 30 to 50 minutes?”

Yet he does not review the evidence available about what actually did happen. Instead, he jumps directly to the 911 call at 12:53AM and moves right into the interactions between the accuser and law enforcement. This segue implies that we don’t know anything about what the accuser alleges happened and what actually did happen between 12:04AM and 12:53AM.

This omission is bizarre considering that is the central time period at issue in the case and the files he reviewed surely contained the statements from the accuser, Kim Roberts, and the neighbor, Jason Bissey. From the search warrants, we know the accuser claims that after the women stopped dancing they

• (i) left the residence;
• (ii) got into a vehicle;
• (iii) were convinced to return; and only then
• (iv) was the accuser forced into a bathroom and raped.

In addition, we know the accuser made a cell phone call to an escort service at 12:26AM and there are time stamped pictures of the accuser standing on steps to the house at 12:30AM, lying on the steps at 12:37AM, and being helped into Kim Roberts’ car at 12:41AM. Duff Wilson mentions the photos around midnight, but completely omits discussion of these additional photographs. Why?

Furthermore, eyewitness testimony given in a sworn affidavit from the neighbor, Jason Bissey, indicates that he saw the dancers arguing with the players outside the residence sometime between 12:15AM and 12:20AM. Bissey states that he heard the alleged victim say that she needed to go back inside and get her shoe. This statement roughly corresponds to the statement given by Kim Roberts (discussed more below). She states the women stopped dancing and went into the bathroom together for a period of time before the two dancers left to go to the car. So when did the rape occur? This is the critical question that we have been asking on the blogs. The timeline is most clearly laid out at Johnsville News and has been for some time.

Based on Duff Wilson’s attempts to spin everything he can for the prosecution, we can assume that there is nothing in the files that disputes this timeline in any serious way. For example, there does not appear to be any statements that one of the attackers only participated for a brief period of time and left early. There does not appear to be any evidence that the photo timestamps are somehow altered. For all the tales Sergeant Gottlieb spins in his recently drafted notes, none of them appear to alter the fundamental time and space problem.

Kim Roberts Statements and Alleged Role in the Assault

Moreover, Duff Wilson completely ignores Kim Roberts’ statement about the events of the evening. He states only in a parenthetical comment that Ms. Roberts has given “contradictory accounts,” initially said the rape claim was a “crock,” and told the media that a rape could have occurred, but that she didn’t see it.

Of course, that’s not all Kim Roberts’ said. She told police that she and the accuser entered the bathroom for a period of time after they stopped dancing and that she wanted to leave but the accuser wanted to stay because there was more money to be made. Roberts also said that she left the house with the accuser and that the accuser wanted to return to the house because there was more money to be made. Roberts recounts the players helping the accuser to her car and then looking for the accuser’s belongings.

Duff Wilson implies that Kim Roberts changes her story dramatically in her later interviews with the press, including NPR. In her NPR interview, however, Roberts claims only that there was opportunity for a rape to have occurred because Roberts was outside in the car chainsmoking for a period of time. Roberts simply extends the time she was away from the accuser. She does not at any point claim to have been pulled away from the accuser or to have witnessed or participated in an assault.

The Accuser’s Story

Duff Wilson again returns to the theme that the accuser’s story is more consistent than the defense teams have led the public to believe. He goes so far as to state:

“Defense lawyers say she gave so many different accounts — that she had been raped by 3, 5 or 20 men, or not at all — that they add up to a lie. The prosecutor’s file, however, shows that, except in some initial contacts with the police, she gave a consistent account during that night and since then of how many men raped her.”

What exactly constitutes a “consistent account”? That she finally settled on three attackers? The number of attackers is hardly the only inconsistency in her story. Incredibly, Wilson neglects to reveal the details of how the accuser stated the rape occurred and how Kim Roberts participated in her many statements, including her only handwritten one on April 6th.

The accuser told Officer Sutton:

"Nikki wanted her to come into the bathroom with her and the guys. She ended up in the bathroom with five guys who forced her to have intercourse and perform sexual acts."

She told the nurse, however, that Nikki had urged her to have sex with her and one of the men, "Brett." The accuser said something didn't feel right and she stormed out of the house. She said she argued with Nikki in the car. Brett and Nikki then carried her back into the house, the nurse wrote."I kept telling them no," the nurse's narrative said. "Nikki said, 'Girl, you want some more to drink, we got to make some money.' ... I said no, I want to get back in the car."

Then finally, as revealed in the News & Observer, the accuser in her written statement on April 6th claims the following:

"Nikki and I started to leave again, and three guys grabbed Nikki," the woman wrote.

She said men named Brett, Adam and Matt grabbed her. "They separated us at the master bedroom door," she wrote, "while we tried to hold on to each other." I heard Nikki on the other side of the door, and when Adam opened the door she rushed in and helped Adam to get me dressed. They dragged me out to the car because my legs couldn't move. Nikki said, "What happened girl, did they hurt you," I said yes, and she said that she would get help for me."

These accounts are wildly different from each other and from the account Kim Roberts gave to police. They are also radically different from Kim Roberts’ revised story given to NPR. Duff Wilson also omits the fact that the accuser at one point told medical personnel that she had only been raped by two men and only raped vaginally.

Incomplete Explanations of DNA Evidence

Duff Wilson’s article discusses the DNA evidence but in several places in an incomplete and misleading way. For example, he states:

“The woman gave differing versions of whether her attackers had ejaculated inside her: she told the sexual-assault nurse she did not know, but she told Officer Himan that she thought one of them had.”

She thought one of them had? How is that consistent with the sentence that appears later:

“The police recovered semen from beside the toilet — about the same spot where the woman said she had spat out semen from someone who orally raped her.”

The article does acknowledge that the semen on the floor belonged to Matt Zash, who was not indicted (but why indicate that it was found where it would have been expected to be found when it belongs to a player who has been cleared by Nifong's own words). Saying that the accuser said someone ejaculated in her mouth is quite different from saying “she thought one of them had” ejaculated. It also renders the “they might have worn condoms” statement from Nifong ridiculous.

The article also contained the following discussion of the towel DNA:

“Investigators also found a towel in the hallway near Mr. Evans’s bedroom with semen matching his DNA. The woman had told the sexual assault nurse that someone had wiped her vagina with a rag. Mr. Evans’s lawyer said that this towel had nothing to do with her accusation, and that the semen came from other activity.”

This passage omits two highly critical pieces information. First, it does not specify whether the fact that the accuser said someone wiped her vagina with a rag was contained in the SANE nurse’s report or whether that statement was included in Gottlieb’s notes. This is extremely important because if the former it was written before the Evans’ towel DNA was discovered and if the later it was written after and could have been fabricated to conform to the evidence.

We find it odd that Susan Filan did not mention this when she reviewed the medical reports with Dan Abrams of MSNBC. Second, the article does not explain that none of the accuser’s DNA was found on the towel containing Evans’ semen and in fact DNA from an unknown, untested person was found.

In addition, the article neglects to fully explain the boyfriend’s DNA. The article states only:

“She also told the police that she had last had sex about a week before the party, with her boyfriend. His DNA was the only positive match with samples taken from her body.”

When did she tell police this?

The article neglects to mention that the boyfriend and two other parties were tested for DNA on May 3rd. If she only had sex with her boyfriend a week earlier, why were two other people tested?

Contradictions in Gottlieb’s Notes

First, we cannot begin to comprehend how the lead investigator in a case is allowed to wait until 4 months after an incident to type up notes of his investigation. How can there be 3 pages of handwritten notes and 33 pages of typed notes? Did Gottlieb write it all from memory? How is this practice even close to consistent with the spirit of the open file discovery rule? What is to prevent an investigator from conforming statements recounted in notes to evidence that is later discovered?

From our vantage point, Gottlieb’s notes purport to fill three holes in the prosecution’s case identified in defense motions:

• (i) investigator knowledge of the contents of the medical report;
• (ii) evidence of anal trauma;
• (iii) and the inconsistencies between the physical descriptions of the suspects and the players later identified.

Investigator Knowledge of Contents of the Medical Report

One of the critical charges in the defense motions is that Nifong spoke about the contents of the medial reports before reading those reports. We know from Himan’s notes that Himan spoke to the SANE nurse on the phone on March 16th and she refused to reveal their contents because of HIPPA, but supposedly stated there were injuries consistent with a sexual assault. We also know that the time stamp on the medical report shows that it was printed on March 30th and that Himan picked it up on April 4th. Gottlieb apparently fills this gap. The article leads in the opening paragraph with a conversation between Gottlieb and the SANE nurse recounted in Gottlieb’s notes. It is now apparently this conversation that formed the basis for the statement in the affidavits for the search warrants that medical records and interviews revealed signs and symptoms consistent with a vaginal and anal rape. The article states:

On March 21, a week after an African-American woman charged that she had been raped by three white Duke University lacrosse players, the police sergeant supervising the investigation met with the sexual-assault nurse who had examined the woman in the emergency room. The sergeant, Mark D. Gottlieb, reviewed the medical report, which did not say much: some swelling, no visible bruises.

But the sergeant’s case notes also recount what the nurse told him in response to his questions:

...that the woman appeared to be in so much pain that it took “an extended period of time” to examine her, and that the “blunt force trauma” seen in the examination “was consistent with the sexual assault that was alleged by the victim.”

This opening paragraph immediately raises several questions. If Gottlieb reviewed the report on March 21st, why does the report indicate that it was not printed until March 30th and why did Himan have to go pick it up on April 4th? Why is Himan the investigator that called the SANE nurse and the one that that signed the affidavit yet Gottlieb is the one who spoke to the nurse in person (apparently without Himan) and the one who heard all significant injuries, many of which are not documented? Why didn’t Himan talk to the SANE nurse with Gottlieb? If Gottlieb’s report wasn’t written, how did Himan know what the interviews and medical records revealed when he signed the affadavits? If the accuser was in so much pain, why were there not more injuries detailed in the medical report? Was this pain noted by other examining physicians in their reports? Is “blunt force trauma” a medical term that appears elsewhere in any of the medical reports?

Evidence of Anal Trauma

One of the key items from the early revelations about the medical report is that there is nothing written about anal injuries. This appears dramatically inconsistent with an anal rape. Gottlieb tries to fill in this gap with this story in his notes:

“The victim was at home alone with her two young children,” the sergeant wrote, noting she walked slowly and in obvious pain. “Her facial expressions conveyed her pain as she ambulated.” She sat so neither hip touched the sofa. "Anytime her bottom touched the sofa cushion while repositioning during our interview, she groaned and had a facial expression consistent with pain.”

So now we are to believe that Gottlieb’s observations about how the accuser was sitting are more credible than the medical reports? The article does state that Dr. Julie Manly and Ms. Levicy “confirmed “tenderness” in the vagina and the rectum.” In addition, Gottlieb states in his notes that Ms. Levicy stated “the victim had edema and tenderness to palpitation both anally and especially vaginally.” In a gang rape like what has been alleged, how likely is it that there would be more damage to the vagina than the anus?

Suspect Descriptions

Finally the most disturbing portion of Gottlieb’s notes is the descriptions of the suspects. The article compares Himan’s recollection of the victim’s description to Gottlieb’s notes.

In Officer Himan’s handwritten notes, the woman described all three as chubby or heavy. Adam: “white male, short, red cheeks fluffy hair chubby face, brn.” Matt: “Heavy set short haircut 260-270.” Bret: “Chubby.”

The descriptions in Sergeant Gottlieb’s notes are more detailed and correspond more closely to the men later arrested: Collin Finnerty, 20, a slender 6-foot-3 and 175 pounds with light hair; Mr. Evans, 23, 5-foot-10, 190 pounds and with dark hair; and Mr. Seligmann, 20, who is 6-foot-1 and 215 pounds with dark hair.

Sergeant Gottlieb wrote: “She described the three men as 1) W/M, young, blonde hair, baby faced, tall and lean, 2) W/M, medium height (5’8”+ with Himan’s build), dark hair medium build, and had red (rose colored) cheeks, and the third suspect as being a W/M, 6+ feet, large build with dark hair.”

This is almost ironclad proof that Gottlieb fabricated the notes to improve the state’s evidence. If his notes were accurate, why was Collin Finnerty, who appears to be described perfectly as “young, blonde hair, baby faced, tall and lean” left out of both the photo lineups on March 16th and March 21st? How would that even be possible? If the accuser remembered her attackers so perfectly, why didn’t she pick anyone on March 16th or March 21st? Further, how could Himan have written the descriptions so completely inaccurately? This is extremely suspicious.

Conclusion

The New York Times has published an article that is lengthy but chooses to ignore many of the basic facts of the case. Was the New York Times really so taken in by the sudden magical appearance of Gottlieb's notes four months after the night of March 13th? With the release of these notes it is eminently clear that Nifong is not the only evil actor in this travesty. It is extremely disappointing that the New York Times would chose to facilitate rather than expose this hoax.