When A Lineup is Not A Lineup and A Suspect is Not A Suspect

Apparently determined to continue defending the universally condemned identification procedure that allowed three innocent men to be railroaded by Durham County’s rogue district attorney, Durham City Manager Patrick Baker has creatively expanded his Nifong-esque non-lineup lineup argument. Baker's latest revisionist spin now claims that the corrupt identification procedure directed by Mike Nifong and conducted by Baker’s police department was appropriate because it included imaginary non-suspects as well as suspects.

Today’s Herald Sun reports:

"The lacrosse photo array is still under scrutiny.

A police general order says photo lineups should include pictures of people other than possible suspects. It also suggests they should be administered by neutral parties rather than officers who might have a vested interest in the outcome.

A photo procedure used in the lacrosse case met neither of those guidelines.

However, City Manager Patrick Baker said Sunday that it didn't need to, since it wasn't intended to be a lineup in the usual sense.

"The Police Department believed then -- and still believes -- the general order was not applicable," Baker added.

The reason, he said, is that the photo procedure was intended to identify witnesses as well as -- or instead of -- suspects in the case.

"It would not be a lineup if you simply asked the accuser if she recognized anyone from the [lacrosse] party," according to Baker. "You have suspects and nonsuspects."

Despite Baker’s creative assertion, the non-testimonial identification order by which the photographs were obtained specifically for use in "photographic lineups to identify suspects" states clearly to each of the forty-six subjects of the photo array that there were grounds "to suspect that you committed" the imaginary assault.

To each of the forty-six suspects, the non-testimonial order signed by Judge Ronald Stephens states:

The undersigned finds that there is probable cause to believe that the offense named above, which is punishable as a felony or Class A1 or Class 1 misdemeanor, has been committed.

There are reasonable grounds to suspect that you committed the offense and that the results of the procedures ordered here will be of material aid in determining whether you committed the offense. The grounds to believe that an offense has been committed, to suspect that you committed it, and to believe that this Order will be of material aid in confirming or negating the suspicion, are stated in the attached application and affidavit. Your presence is required for the purpose of permitting non-testimonial identification procedures in order to aid in the investigation of the offense named above.

The methods to be used and the time required to conduct the non-testimonial procedures are as follows:

Procedures for non-testimonial identification

Photographic documentation and identification; DNA

In his affidavit requesting the NIO, the Durham Police Department's Inv. Benjamin Himan swears for each of the forty-six suspects:

“I have reasonable grounds to suspect that the person named or described on the reverse committed the offense.”

“The photographs used for mug shots will give the availability of the suspects' current hair styles, complexion and body mass for photographic lineups to identify suspects.”

Contradicting Baker's erroneous perspective, North Carolina law offers no provision for non-testimonial identification orders of non-suspects. The statute reads:

§ 15A-271. Authority to issue order.
A nontestimonial identification order authorized by this Article may be issued by any judge upon request of a prosecutor. As used in this Article, "nontestimonial
identification" means identification by fingerprints, palm prints, footprints,
measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical examination, handwriting exemplars, voice samples, photographs, and lineups or similar identification procedures requiring the presence of a suspect. (1973, c. 1286, s. 1; 1975, c. 166, s. 27.)

§ 15A-273. Basis for order.
An order may issue only on an affidavit or affidavits sworn to before the judge and
establishing the following grounds for the order:
(1) That there is probable cause to believe that a felony offense, or a Class
A1 or Class 1 misdemeanor offense has been committed;
(2) That there are reasonable grounds to suspect that the person named or
described in the affidavit committed the offense; and
(3) That the results of specific nontestimonial identification procedures will
be of material aid in determining whether the person named in the
affidavit committed the offense. (1973, c. 1286, s. 1; 1997-80, s. 14.)

Clearly, each of the photographs was obtained for the sole purpose, as described by DPD Inv. Himan and ordered by Judge Stephens, of inclusion in photographic lineups. Further, the photographs were secured based on the sworn assertion of DPD Inv. Himan that each of the forty-six subjects were suspected of committing the crime that never occurred.

Baker's contention that the non-lineup lineup included both non-suspects and suspects appears to contradict the assertions made by Inv. Himan that each of the forty-six subjects of the NIO were suspects. Certainly, it defies logic that any one of the forty-six players could have simultaneously been both a suspect and a non-suspect. Had anyone of them not been a suspect, as Baker suggests to support his fragile claim that the lineups were acceptable, Inv. Himan's sworn statement must be false. By clinging to Defendant Nifong's illogical claims, Baker creates an argument that implodes upon itself. To support Nifong's lineup and absolve his police department's complicity, Baker has created an argument that requires him to admit that Inv. Himan deceived Judge Stephens into believing that each of the forty-six men were genuine suspects.

Giving Baker's argument the widest benefit of the doubt and assuming that there were indeed non-suspects included illegally in the non-testimonial identification order, does not lend much support to the notion that the non-lineup lineups were acceptable procedure. If there were non-suspects included in the NIO, a very strong argument could be made that the three wrongfully indicted players would have been among them. In fact, the December 14 motion to suppress the identifications did exactly that while eviscerating the merits of the non-lineup lineup lottery.

To summarize the arguments made in the motion:

• Reade Seligmann was identified by the false accuser prior to the NIO with only a 70% certainty of having been in attendance and with no recollection of what he had been doing.

• Reade Seligmann did not match the descriptions given by Nifong's co-hoaxer.

• David Evans photograph had been viewed twice prior to the NIO by the psuedo-victim with no recognition upon either viewing.

• Collin Finnerty did not match the descriptions given by the false accuser.

• Collin Finnerty was not included as a suspect in either of the two photo arrays that preceded the NIO.

Without assuming that City Manager Baker has no intention of offering an honest accounting of the Durham Police Departments complicity in the Nifong/Mangum Hoax, it is difficult to understand why he continues to put himself through such extreme contortions of logic and law to defend a transparently corrupt identification procedure, the deficiencies of which have been exposed by the devastating review from the Attorney General's special prosecutors, the objective examination of independent experts, and an excoriating forty-six page defense motion. If by no other measure than the simple fact that the procedures employed by his police department led to the wrongful indictments of three factually innocent men while allowing an obviously fraudulent accuser and a politically motivated rogue prosecutor to perpetuate a Hoax of monumental proportions that ripped his community asunder and left little confidence in the integrity of the police department he oversees, Baker must know that the lineup he defends had no investigative merit, no integrity, and no possibility of a result other than the indictment, arrest, and prosecution of innocent men.