Enabling the Hoax

In the first two months of the Duke Lacrosse case, most of what we knew about the evidence came from media reports of statements made by District Attorney Nifong and the Durham Police Department (DPD). As the long process of getting DA Nifong to fully comply with his discovery obligations may finally be winding to a close, we have been able to examine the evidence released in defense motions and in the accounts of reporters who have examined the files. The comparisons of the statements to the actual evidence have enabled us to examine the Hoaxes within the Hoax. We now return to another aspect of the case, and examine the use of the Grand Jury by DA Nifong.

After the initial allegation was made, the DPD began an investigation. They interviewed the accuser, obtained search warrants to inspect the alleged crime scene on March 16, and seized potential evidence. Later they took statements from the captains living at 610 Buchanan, including Dave Evans. On March 23, Judge Stephens took the unprecedented and, in our opinion, unwarranted step, of ordering DNA tests for the entire Lacrosse team minus one. The next day local media reported that forty-six Duke Lacrosse Players were ordered to submit to DNA testing because of horrid accusations of a gang rape. The story soon broke nationally, too.

DA Nifong personally became involved in the Duke Lacrosse case very early on, stating positively that a rape had occurred, and taking the unusual step of personally injecting himself into the police investigation. On March 31 DA Nifong met with investigators Gottlieb and Himan and gave them instructions on how to conduct the non-standard and constitutionally doubtful third photo identification session, which violated DPD’s own policies. The identification session was carried out on April 4. After two previous unsuccessful photo identification attempts, the accuser finally identified four suspects: a player who was neither charged nor indicted, Reade Seligmann, Collin Finnerty, and “90% sure with a mustache” Dave Evans.

With the photo ID’s in hand, Nifong could have obtained arrest warrants if he felt he could show probable cause for an arrest. If he had, this would have been the procedure: after an arrest and an initial appearance before a district court judge, a defendant’s case would be set for a probable cause hearing. Unless the defendant waived the probable cause hearing, the district court judge would schedule the hearing within 15 working days of the initial appearance. At the probable cause hearing, the defendant would have a right to cross-examine the prosecution’s witnesses, and have his attorney examine the truthfulness of the evidence. The defendant would also have a right to testify and to produce exculpatory evidence. After the hearing, if the judge found probable cause, the judge would bind the defendant over to superior court, and the state would seek an indictment before the grand jury. If the judge did not find probable cause, he would dismiss the case.

Court Process According to Nifong

GS 15A-304

Felony Cases by State

GS 15A-601

NC Courts: Go To Court

GS 15A-606

GS 15A-611

However, "the North Carolina courts have held that once the state obtains an indictment, the district court loses jurisdiction of the case and may no longer hold a probable cause hearing. As a result of such rulings, the state can avoid a probable cause hearing by obtaining an indictment first."

Probable Cause Hearing

So instead of choosing the procedure of an arrest, which then would have been followed with a formal probable cause hearing, DA Nifong chose to wait until April 17 to seek grand jury indictments prior to arrests. Like many people, we were curious at the time as to why he did this. We, of course, had not seen his “evidence.”

Claiming the suspects have not been identified at the NCCU Forum

On April 11, activist Victoria Peterson asked DA Nifong during the NCCU forum a very pointed and direct question as to why the three suspects haven’t been arrested. Nifong denied that the accuser identified the three suspects.

"Are you planning to arrest those three men?’ asked Peterson. ‘That's the only thing I'm asking."

Nifong said that until he can identify the three men suspected of attacking the alleged victim, members of the lacrosse team ‘are going to be walking around under a cloud."

WRAL

Since the third photo identification session, with its four identifications, had taken place a full week earlier, DA Nifong should have answered Victoria Peterson’s question directly and honestly. The answer most likely wouldn’t have pleased her, but it would have been the truth. Once arrested the defendant has a right to a probable cause hearing within 15 days after his first presentation before a judge, unless the defendant waives it. DA Nifong knew that if he arrested Reade, Collin and Dave, they could have demanded that probable cause hearing, and it could have happened before May 2, Primary Election Day. Nifong’s Hoax could have been exposed.

We now know that as of April 11 Nifong knew:

• There was no DNA match to any lacrosse player found in or on the accuser, or on her clothes, after an alleged three-man, thirty minute rape.
• The accuser had given multiple versions of the rape-recantation-rape by five or three or two suspects, with some versions including Kim Roberts as an assistant to the rape.*Officer Shelton’s supplemental report suggested the accuser could have been faking unconsciousness and was drunk.
• The accuser failed to identify her alleged attackers in two photo identification sessions on March 16 and March 21, and at that time could hardly remember who even was at the party.
• Kim Roberts, the other dancer, had initially stated that the rape allegation was a “crock.”
• Jarriel Johnson’s statement, written on April 6, described how he drove the accuser to appointments with clients in the three days preceding the party.
• The accuser had admitted that before the party she had performed using a vibrator for a couple in a hotel.*The accuser and her fellow dancer had criminal records.
• A SANE exam didn’t make any conclusions on whether the accuser’s injuries were consistent with sexual assault, and in fact showed that those “injuries” were limited to diffuse edema and three small non-bleeding scratches on accuser’s leg and foot.
• The accuser told the doctors at UNC she had a lot to drink before the party, and was on the muscle relaxant, Flexeril, which should not be taken with alcohol.
• The captains living at 610 Buchanan, including Dave Evans, had been forthcoming in their interviews with the police, despite the propaganda that lacrosse players were not co-operating. They described what took place at the party, turned over computer passwords, gave DNA samples, allowed photos, and even offered to take polygraphs tests. The captains also stated that the accuser was not assaulted at the party.

In other words, the DA and the police knew the investigation was in serious trouble.

Bizarre Behavior by DA Nifong

Defense attorneys were at a loss at this time to explain Nifong’s bizarre behavior in refusing to take their calls and meet with them. When Nifong was offered alibi evidence by Reade Seligmann’s attorney, Kirk Osborn, he would not look at the documents.

"Nifong rebuffed efforts by three defense lawyers to present him with exculpatory evidence before he went to the grand jury to get the players indicted. On the day of the indictment, he refused to see Kirk Osborn, the lawyer for Reade Seligmann. Osborn has since made public evidence that almost surely proves that his client could not have raped the alleged victim. Seligmann made six calls to his girlfriend during the time the alleged assault would have been taking place. Within 15 minutes of the end of the strip show, he was out of the house and in a cab to get takeout food before he returned to his dormitory."

MSNBC

In our opinion, DA Nifong didn’t want to talk to defense lawyers and look at exculpatory evidence for fear of hearing the truth.

Enabling the Hoax

It is now clear to us why DA Nifong injected himself into the police investigation. The Duke Lacrosse case was Nifong’s silver bullet in his desperate drive to get elected. It was common knowledge around Durham that before March 13 he was behind Freda Black in the polls. After DA Nifong took on the Duke Lacrosse case, his campaign soared. After Nifong took on the case, he started to turn up on the national morning shows, chat with Greta at night, and demonstrate the chokehold on Dan Abram’s show. A politician couldn’t buy publicity like that. Besides, Nifong clearly loved being on camera.

Instead of seeking the truth and looking at exculpatory evidence, Nifong went to the grand jury and asked for indictments, bypassing a probable cause hearing. Seligmann’s attorney Kirk Osborn in his May1 Motion for Recusal states:

“District Attorney Mike Nifong neglected his duties as a prosecutor to seek the truth and a fair prosecution. He created an actual conflict between his professional duty to search for the truth and his personal, vested interest in getting elected in the following ways: (1) he ignored the actual facts of the case which demonstrate the Defendant could not have committed this crime; (2)he made a series of statements to the national media designed to bolster his election chances while prejudicing the case against the Defendant; (3) he improperly injected himself into the photographic lineup proceedings, causing the Durham Police Department to violate its own policies in an effort to provide himself a source of information from which to indict some, indeed any, Duke Lacrosse players; and (4) he denied the Defendant a probable cause hearing where the Defendant's actual innocence could have been shown and the gross deficiencies in the prosecution's evidence would have been exposed.” Osborn Motion for Recusal

In our opinion, DA Nifong was using the grand jury system to enable the Hoax.

What happened in the Grand Jury?

So what exactly did the grand jury hear? What caused the grand jury to bring the indictments? Even after the lack of evidence became apparent, we continued to hear from the former DAs turned Talking Heads:

“The grand jury indicted, so Nifong must have something!”

The spin continued after Nifong went silent, as the cadre of former DAs, such as Pam Bondi, Nancy Grace, Georgia Goslee, and Wendy Murphy came to the rescue of their brother in arms.

“Oblivious to the fact that police, forensic experts, prosecutors, AND a grand jury comprised of citizens, all agreed that charges should be brought, angry pundits rant on and on about how the charges must be bogus because of politics, race and/or who the victim is and how she lives her life.” - Wendy Murphy

Unfortunately, we will never know what was said in the grand jury room. Astonishingly, North Carolina grand juries do not keep transcripts of witnesses’ testimony, with the exception of specially convened grand juries in drug trafficking cases. Grand jury Proceedings

Defense Attorney Joe Cheshire gave us insight on April 17 on CNN on what most likely happened in that Grand Jury room.

"ZAHN: When you say it's impossible that that rape might have happened, are you suggesting that the DA is making up something here?

CHESHIRE: I'm not saying -- well, you know, you can indict a ham sandwich in North Carolina, Paula. There's no record of what goes on in a grand jury. There's -- there's no tape recording, no court reporter. There are no rules of evidence. Two sides are not put on. The only thing that happens is, a police officer goes in, in front of the grand jury and says, these are the facts. They're not always the true facts. And grand jurors indict 99.9 percent of the time. So, the fact that they have a grand -- a grand jury indictment means absolutely nothing in the process here.

And I'm not saying at all that the prosecutor is making anything up. The prosecutor has said he believes this accuser. Well, that's his right, to believe the accuser. But the facts, as I understand them -- and we have worked in this case very hard and very long. And we know much about this young lady. We know much about the timeline. And, as I have said all along, as all the other lawyers and all the boys have said, no rape happened in that house.”

CNN Transcript April 17

Prosecutorial misconduct

As prosecutorial misconduct has become a bigger issue across the United States, in recent decades reform has entered the grand jury system, but not in North Carolina. Contrast North Carolina to California, where a transcript of grand jury proceeding is not only required but has to be released to the defendant [Woverbeck]. Furthermore, in California, "if the prosecutor is aware of exculpatory evidence, the prosecutor shall inform the grand jury of its nature and existence [Find Law CA Codes]." In the Federal Courts, recording of grand jury proceedings were made mandatory in 1979, and most states followed suit [Grand Jury].

Who were the witneses?

What took place in the Grand Jury room? By statute, only the witnesses can be present in the grand jury room. Neither the prosecutor or the defense attorneys can be in the room. The only clue as to what took place is the true bill of indictment, which is signed by the grand jury Foreman. The bills of indictment state that the only witnesses before the Durham County Grand Jury were Sergeant Gottlieb and Officer Himan. News & Observer

What did Gottlieb and Himan say to the Grand Jury? Did they talk about Kim’s “crock” statement, or other exculpatory evidence? Did they mention there were no DNA matches? Did they tell the Grand Jury that the accuser gave multiple inconsistent versions of the story? Absent further lawsuits being filed in this case, we will never know, since the Grand Jurors are sworn to secrecy. But since the presentation of exculpatory evidence was not required, we can guess.

The Deliberations

So how diligent was the Durham County Grand Jury on the day Reade Seligmann and Collin Finnerty were indicted?

"Eighty-one indictments were returned by the secret jury but none of the cases presented were rejected by the court. The indictments are under seal, so it's not yet known whether there are more charges in the Duke case or if that specific case was among the 24 that were "carried forward" to be heard at a later date." Fox News

What possible deliberations on those cases could have happened? How could the Grand Jury have enough time to carefully weigh each case, look for probable cause, and debate the issues? The Grand Jury did what it was asked to do: issue indictments and allow Nifong to bypass the possibility of a probable cause hearing.

Summary

If Nifong hadn't gone to the Grand Jury to get indictments directly, the evidence could have been presented in a probable cause hearing. Defense attorneys could have questioned the results of the SANE exam, lack of DNA matches, and conflicting statements by the accuser. The light of day could have been shed on this Hoax. DA Nifong could have been exposed as an emperor with no clothes.

In our research of this issue we discovered that both District Attorneys and defense attorneys in North Carolina are choosing the option of grand jury indictments frequently, thus bypassing the probable cause hearings. However, grand jury procedures have not been changed to reflect what is actually happening in North Carolina. With knowledge that on the day Seligmann and Finnerty were indicted, the Grand Jury returned 81 indictments, it is apparent to us that it was impossible for the Grand Jury to make meaningful determinations of probable cause in that amount of time. Without the safeguard of transcripts to insure accurate testimony and without the requirement for the exculpatory evidence to be presented, the Grand Jurors have no data to challenge the veracity of the witnesses (who are usually the investigators). The door to prosecutorial misconduct is wide open.

The North Carolina Legislature needs to address the reform of the grand jury. The Legislature could start with the mandatory recording of grand jury proceedings, and proceed to requiring the prosecutor to present the exculpatory evidence if the prosecutor is aware of it. This case could have turned out differently if DA Nifong knew recordings would be made of his two star police witnesses, and exculpatory evidence had to be presented. We believe this case could have ended after a brief investigation.

The fact that the Duke defendants were indicted is no more probative of their guilt than the sworn affidavits in the various search warrants. At least we can read the preposterous and unsubstantiated assertions in the search warrants, while we guess at the tale the Grand Jury was told.