Tuesday, January 30, 2007

Other “Misplaced” Commentary About the Merits of DNA Evidence

Yesterday, KC Johnson noted a remarkable editorial in, of all places, the New York Times, extolling the virtues of DNA evidence. The editorial cited numerous wrongful convictions that were overturned, and the paper applauded those states that have set up innocence commissions “to attempt to identify the causes of the wrongful convictions and propose changes to improve the state of justice.”

The editorial concluded by stating:

“The most recent exonerations show how much such commissions are needed. In Dallas, a prisoner was finally proved innocent after laboring for 18 years to win the right to DNA testing and disprove a rape conviction based solely on faulty testimony of a witness. (North Carolina’s innocence commission, led by the state’s chief justice, has already called for police investigators to vet witnesses more carefully.) In New York, a man who spent 15 years in prison on a murder conviction not only proved his innocence, but also tracked the actual murderer through DNA with the help of the Innocence Project at the Benjamin Cardozo School of Law.

"No one knows the depth of injustice hinted at by DNA exonerations. But it is clear that they demand organized oversight and serious reforms of the criminal justice system.”

No one following Nifong's Hoax can disagree with a call for “serious reforms of the criminal justice system.” It would be foolish to believe that Mike Nifong is an isolated rogue prosecutor, who just this one time managed to abuse the system for his own reasons. Many commentators over the past many months have pointed to the Innocence Project as an organization that has uncovered numerous wrongful convictions and gallantly worked to free the falsely imprisoned. Indeed, their record is impressive, and the stories of those they have helped are simply shocking and heartbreaking.

Those of us supporting the players often cite the Innocence Project as evidence that we recognize the injustices that have occurred to others. Others cite the Innocence Project as proof that other injustices have occurred without the attention given to the lacrosse players, thereby questioning the motives of those who seek justice in this case. For example, last week columnist David Hawpe (high school classmate of Houston Baker) wrote,

“What amazes me is that you don't see the same kind of fury when other people are definitively proven innocent of crimes for which they were sent to prison. Where was the right-wing rage last week when DNA testing showed that James Waller was wrongly convicted of raping a 12-year-old boy in 1982?”

As did the New York Times editorial, Hawpe described other overturned convictions based on DNA evidence and stated,

“Thanks to the Innocence Project and other advocates, similar things are happening across the country."

La Shawn Barber admirably and honestly responded to Hawpe’s assertion that “On wrongful prosecutions, the right engages in selective outrage.” In the process, she noted matter-of-factly that Hawpe’s article could have just as easily asserted, “On wrongful prosecutions, the left engages in selective support and reverence for prosecutors and the police.” No doubt, there is an element of truth in what both Hawpe and Barber write about political partisans engaging in selective outrage, or lack thereof, in response to the Hoax.

Surely, however, the Innocence Project was not one of those organizations on the left that engaged in "selective support and reverence for prosecutors and the police,” right? Surely the Innocence Project recognized the Hoax for what it was earlier than most, and has used this incredibly high profile false accusation to call attention to its extraordinary work and noble cause, right?

Unfortunately, co-founder and co-director of the Innocent Project, Peter Neufeld, saw the lacrosse case differently. Like the New York Times, he decided early on that this was the one case where DNA evidence apparently wasn’t relevant. Neufeld was a vocal defender of Nifong's "How does DNA exonerate you?" theory and gave several pull quotes to major new organizations deliberately obscuring the difference between old and cold crimes, and one in which a victim was swabbed for DNA evidence at a hospital by professionals within hours of an alleged attack.

The day after the results of the first round of DNA tests were turned over to defense attorneys and announced to the public, Neufeld downplayed the results. On April 11th, the New York Times wrote:

"Peter J. Neufeld of the nonprofit Innocence Project, an expert on DNA testing, said that in general, an absence of DNA evidence did not necessarily mean there was not a crime.

"There have been thousands and thousands of men who have been convicted in the United States of the crime of rape without DNA and without semen," Neufeld said."

It’s possible to believe that the New York Times pulled one small piece of Neufeld’s statements to support the Hoax, but Neufeld continued with the same theme in later interviews. On April 23rd, after the indictments of Seligmann and Finnerty and after information about Seligmann’s alibi had been revealed, the Washington Post wrote,

“Peter Neufeld of the Innocence Project says, "There's an old saying that the absence of evidence is not necessarily evidence of absence."

This was a rather strange statement for someone who is the co-founder and co-director of an organization whose sole mission is to use DNA testing to free wrongfully accused people. How many innocent people have been convicted by jurors who believed “the absence of evidence is not necessarily evidence of absence?" Is there any statement that is more inconsistent with concepts like “presumption of innocence,” “burden of proof,” and “beyond a reasonable doubt?"

Even after Nifong finally turned over to the defense attorneys the selective results of the second round of DNA tests, which showed no DNA matches linking any lacrosse player to the accuser (and, in fact, showing semen from the accuser’s “boyfriend," though not disclosing matches to at least four other unidentified males), Neufeld continued to give quotes apparently supporting the false prosecution. On May 15th, the day Dave Evans was indicted, ABC News reported,

"The truth is if you speak to crime lab directors, they will tell you that in only a relatively small number of cases is there any DNA evidence," said Peter Neufeld, co-founder and co-director of the Innocence Project, which uses DNA to free people wrongly imprisoned.

"In rape cases, there is an expectation of DNA. But like many expectations, often it is misplaced."

How can these statements possibly be justified coming from the co-founder and co-director of the Innocence Project? How can they be viewed as advancing the causes of the organization? Aren’t they almost verbatim what countless government attorneys have argued on appeal opposing motions for new trials on the basis of DNA evidence? Why would Neufeld repeatedly give such statements to the press, making them publicly available to be cited against his organization in future court arguments? Why has Neufeld not come forward after all that has been revealed to express regret for his public erroneous “reverence for prosecutors and the police” that was used by the press to downplay the dramatic and early revelations that the accuser’s story was a lie and Nifong's prosecution was a hoax? Shouldn’t one expect a different reaction from the Innocence Project? Shouldn’t one expect such an organization to be vigilant against an abuse of prosecutorial power? Doesn't its mission require no reservations about advocating for innocent defendants, no matter who they are or what the New York Times says about them?

How truly disappointing and disconcerting that the only thing Neufeld said about the Hoax that turned out to be insightful and relevant is that “many expectations” are often “misplaced."

29 comments:

Anonymous said...

Another job well done.

Innocence knows no color.

Anonymous said...

It amazes me how many times through out these last 10 months I have been utterly horrified.

It seems for the hard right and hard left ideology has become much more important than individuals. Considering these are often the groups with political power, I am again horrified.

Anonymous said...

Neufeld should be ashamed of himself for so glaringly alinging himself in the front ranks of the Nifong "enablers".

Shame... Neufeld... shame!

Anonymous said...

I am so disappointed in Neufeld, although, at the time I think it was an off the cuff remark. Unfortunately, he never came back and clarified his comments. Barry Scheck is a hero to me, but has never commented on the DNA evidence. With Brad Bannon, who need Neufeld or Scheck?

Anonymous said...

One of the important things about his case has been the role that the traditional "rights" groups have played in promoting the hoax no matter what. We already know about the NAACP, so we don't need to go there.

The Innocence Project was MIA precisely because the co-founders are leftists. This does not discount the good work they do in exonerating prisoners who have been wrongfully convicted, but nonetheless they are not going to go past their own comfort zone. They are leftists, and they are comfortable with leftist themes, and defending any of the three young men is not in their genre, as that would make the left mad.

And then there is the ACLU, which has been MIA from Day One. I have no doubt that the ACLU would not have been silent had the races been reversed, and well it should not be silent.

It is just that all of the groups mentioned above are selective in their view of rights and how rights should be protected. All of them see us as a bunch of privileged white racists who are just supporting David, Reade, and Collin because they are white.

Because the IP, NAACP, and ACLU have decided that in THIS case, evidence does not matter, they do violence to the very term of justice. They have behaved disgracefully, and I have lost confidence forever in these groups.

Anonymous said...

I guess the Innocence Project is really about innocence after all. It is about getting out of prison innocence men who fit their Political ideals.

There goes another off my list of people who I thought were good guys!

Anonymous said...

Great job with this post on the politics of he Innocence Project. The ideology of the left wing seems much more precious to them than the truth is. When confronted with real injustice and real discrimination, they retreat to their "metanarratives" and abandon justice to the enablers.

Anonymous said...

Great article. My take on all of this is that politics have entered our Justice system way to much. The septic environment of Washington's desire to make political gain out of everything has now spread to our courts.

It is dangerous. Will we soon be faced with the reality that whether you get indicted depends more upon which party is in power and do you fit the profile of the opposition idealogical targets.

Anonymous said...

Wow! Left wing hypocrites involved in the Innocence Project. Color me amazed.

Anonymous said...

While I agree with almost all of the articles on this board, this one leaves me scratching my head. I cannot see a single statement from Mr. Neufeld that seems either incorrect or biased against the defendants in this case.

Mr. Neufeld did not say that absence of matching DNA evidence does not tend to exonerate the accused. He did not say that in certain circumstances it is not compelling exonerating evidence. He did not say that the absence of matching DNA evidence was completely irrelevant. He simply stated a general rule that the absence of DNA evidence does not *necessarily* mean that there is not a crime. Is that incorrect?

Given the accuser's claims (and assume, for the moment, that they had been consistent), the lack of DNA evidence would be strong, arguably compelling evidence that no crime took place. However, the outrageousness of this case does not depend solely (or, in my opinion, even predominately) on the absence of matching DNA evidence. It is a result of accusers constantly changing and wildly inconsistent stories, the fatally defective identification process, the lack of reasonable match between the accuser's original descriptions and the people she ultimately "identified" as her alleged attackers, the existence of time dated evidence strongly indicating that an attack could simply not have occurred the way she says, the evidence provided by Kim "its a crock" Roberts, the lack of any supporting witnesses, the failure of Nifong to seriously investigate the case (such that a reasonable person can easily conclude that he really does not believe that any attack occurred -- consider his failure to seek DNA samples from the non-team members who were present at the party), etc. etc. etc.

Neufeld is correct. The lack of matching DNA evidence does not necessarily mean that a rape has not occurred. The fact that this correct observation may have been contained in a news story that otherwise failed to point out the overall "weakness" (to the point of nonexistence) of the government's case is the fault of the newspaper reporter, not Mr. Neufeld. Nor do I believe that he has an obligation to get himself up to date on the facts of this case to the point that he can express an intelligent opinion on the meaning of the lack of DNA evidence in this particular case. He is no doubt very very busy exonerating other falsely accused individuals. I do not believe that there is anything which obligates him to make this particular case his cause celebre.

Where's the beef?

Anonymous said...

2:05 PM

Here is my beef. The kind of rape and assault as described by the DA AND Crystal is exactly the kind of assault where DNA evidence would matter. The IP looks at cases in which there WAS DNA or where DNA definitely would have been present.

In the Duke case, we have a situation where DNA WOULD have been present, given the description of the case. Yet, there was none. Furthermore, there was plenty of DNA, just none from Duke players.

Neufeld KNEW all of this when he made his comments. Furthermore, as one who is considered to be an authority, he had a duty to qualify his statements. Instead, he basically gave fuel to the fire of the lies that Nifong and Crystal were telling.

Let me ask you this question: The IP has people "exonerated" because their DNA is not found on the victim even when other DNA is found. Does that mean that the DNA evidence is irrelevant?

My sense is that this is EXACTLY the kind of case that the IP would jump on TO PROVE INNOCENCE, provided that the defendants were from a background that met the PC notions of Neufeld. That is my beef, and I think it is legit.

Furthermore, the lawyer Harvey Silverglate, who has worked with the IP on occasions, has told me that he agrees with what I am saying about the DNA evidence. I think I am on solid ground here, while I think that Neufeld at best was irresponsible and at worst devious.

Anonymous said...

Bill A .. Agree with you completely. Thanks for clarifing this issue. Like you, many of us will never look at these organizations in the same way again. That also includes yearly contributions. From now on, I am sticking with Covenat House and Boys and Girls Town in my giving.

Anonymous said...

2:05's comments are foolish. The false accuser described an event that, if true, did tranfer DNA, semen, skin, blood and so forth. An inherent aspect of this purported crime as alleged is that DNA was transferred from the alleged attackers to the alleged victim, from the alleged victim tot he attackers, from the alleged attacker to the floor. Detailed sampling did not confirm any portion of the story and therefore the DNA is conclusive proof of innocence of the crime alleged.

If you thought otherwise, you would have to have a theory as to why the DNA that was transferred, if the victim is believed, is gone. And, once you know that older DNA is detected, it is impossible to develop such a theory.

Anonymous said...

The accuser clearly and unambiguously claimed her assailants ejaculated on her. Either she is a liar, or she is telling the truth.

Take your pick.

This is the 21st Century. Science trumps racism. Wrongfully charged persons don't have to put up with this anymore, absent the deliberate and willfully supported actions of a corrupt system of justice to further the despicable personal agendas of the few.

Anonymous said...

Do people like Neufeld actually believe the nonsense they spout or is it they don't care if 3 innocent, affluent, white kids go to jail?

Anonymous said...

Bravo Bill, you say it much clearer than I can. My 2 cents-
2:05 is a version of claims made by the Victimization Industry after the 1st DNA matches came up negative-"no DNA match is no big deal, because 75% of sexual assault cases don't have DNA matches presented in court". If you read it real fast, and don't think very hard, it sounds like it applies to the Duke Hoax.
But wait, how can that be? A 75% chance that there'd be no match if CGM is telling the truth(on versions 1-8)?!? That number is deceptive-it does NOT apply in this case. Here is my understanding of that stat-

The REAL question should be, for THIS SPECIFIC case... ..
What % of time should incriminating DNA be found on a person who was vaginally raped AND sodomized AND forced oral sex AND strangled AND who fought and clawed for 30 minutes AND multiply all that by 3 assailaints, if DNA was extracted thouroughly and professionally within 6 hours? Answer- over 99.9%. Only reason it's not 100% is slim chance of a lab screwup or a D.A. intentionally hiding exculpatory evidence(nah, latter would NEVER happen).
The "no DNA matches in court 75% of the time" refers to a universe of cases which the Duke Hoax does NOT belong to....

1. A chunk of the 75% applies to ATTEMPTED sexual assault, with no actual physical/sexual contact, hence no DNA.
Doesn't apply to CGM's story(s).
2. Another chunk of that 75% are cases where it was too late to recover DNA. Over 24 hours is bad. The recovery here was within a few hours, so this case does not fall in this category.
3. Many victims of real attempted sexual assault would try to cleanse/shower themselves the first chance they'd get after the rape. If there is no actual penetration, that could eliminate DNA. The FA obviously did not bathe before the DNA scrub, unless Kimmie's car came equipped with a shower. And CGM's claim is there was a LOT of condomless penetration. So this case does not fall into this category either.
4. In many cases, the sex act is conceded, the question is consent. Example- the Kobe case. No reason to test for DNA in those cases, it would just show that sex took place, which is not contested. Remember, the deceptive 75% is for DNA matches presented during trial. Most of the 'Kobe Defense' cases would either not bother with costly DNA tests, or would not bother presenting DNA matches during trial, since the DNA only shows if the uncontested sex took place, not the contested intent.
5. Another chunk of the 75% is, no DNA matches were made because the accusations are false.
There are other reasons, but all those explain that 75% number, imo. And none of those reason apply to this case, other than #5, the false claims group.
So, in summary, that 75% likeliehood of no DNA match if CGM's claims were true is totally, completly bogus. If she was telling the truth, since the DNA was recovered timely, the chances of no matching DNA on her body are absolutely miniscule.
It's like saying there are 300 million Americans, so the odds of any American being elected president in the next election are 1/300million , so the odds of either Hillary or Barrack or McCain or Giulliani winning the election are 1 in 300 million for each of them.

Anonymous said...

Everytime I read about this case, I can't help but feel that I am looking through the "looking glass". I keep waiting for the Cheshire Cat, humpty dumpty and a deck of guards to appear. The Queen, no doubt, would be there screaming "Oooofffff with their heads." The King, following meekly behind, whispering, "Off with their heads. Off with their heads. You heard what she said."

This whole thing doesn't make any sense. Even looking past the shady behavior of the DA and into the heart of the accusation itself...

The accuser's stories don't match timelines that the defense have been able to establish through witness testimony and verifiable physical evidence. (Hello? Are ATM cameras and phone records no longer trusted by law enforcement?)

The other dancer admitted on 60 minutes that she was the 1st to throw a racial (and at the same time, sexual) insult, yet the accused have been labelled "racists," even though they were (apparently) not the ones that returned the racial insults.

(Deranged?) People say that a lack of DNA evidence doesn't prove innocence but....if I'm not mistaken, THERE IS DNA EVIDENCE. It just happens to belong to someone other than the accused. Apparently, a "rape victim" that is full of DNA from multiple males, yet lacking ANY from the accused - both of these factors clearly contradicting the accuser's own story - is of no interest to her supporters or law enforcement/investigators.

Did I fall down a hole or something? It seems that my old-fashioned brand of 2+2=4 logic doesn't work in this world. Maybe it's time to break out the Chewbacca Defense.

Anonymous said...

5:44 Bill A says "they don't fit their leftist agenda." Looks correct.

Anonymous said...

Thanks for the votes of confidence. The thing to keep in mind is that DNA samples can be helpful when a woman's body can be treated as a crime scene. That is what happened with Crystal. Thus, if there were relevant DNA to be found, it would have been found.

Neufeld's comments, while technically true, were wrong when applied to this situation. What he did was to give Nifong's dishonest investigation and charges the kind of cover that they never should have had. He was able to say, "See, even Peter Neufeld says that DNA does not matter in rape cases."

By the way, Neufeld had plenty of chances to qualify his statement or to raise concerns about what Nifong was doing. People contacted him, including me, and he would not budge an inch. (I wrote the IP, and then a person close to the IP contacted Neufeld, but he did not qualify his comments.)

The comments by 6:15 were on the money. Again, this is EXACTLY the kind of case where DNA would matter. Nifong himself said it at the beginning, since they found semen in an on the accuser, so he must have figured he had hit paydirt. When the tests came back negative, he already had taken the train from the station and decided not to stop, since his election was at stake.

Anonymous said...

Innocence Project obviously means only Black Innocence Project. White Innocence = Black Guilt ... hmmm, where have I heard that before?

Anonymous said...

Off topic but this march planned in Durham could turn into a riot. I can't imagine the folk in Durham will take kindly to this. We already know the police. I would not want to trust my safety to them. If they must march, do it on Duke campus or the street around the campus.

Anonymous said...

"Neufeld had a duty to note the circumstances involved. Because he failed to do so. He sucked. And, he was completely, egregiously, and stupidly WRONG!"

The next time the IP has a news conference about DNA exonerating one of their clients, someone should ask them if it's presumptuous to assume innocence due to lack of DNA, and don't you believe " the absence of evidence is not necessarily evidence of absence."

Anonymous said...

James Coleman and NC AG are on the NC innocence project- which as the national website is clear to say only deals with cases which have already been tried. There evidently is a lengthly screening process involved before your case will be considered by innocence project.

Anonymous said...

I know I am repeating myself but here goes....since the false accusers version involved DNA transfer (spit, blood, semen, skin) you could only claim that DNA did not matter IF YOU HAD A THEORY AS TO WHAT HAPPENED TO THE DNA. So, if anyone says that DNA does not matter without proposing a theory whether it is Nifong, Joyner, or any other clown they are engaged in purposeful deception. If they had a theory, it would not be plausible in light of the other DNA. In the time I have followed this case closely, no on, not Joyner, not Murphy, not Grace, not Nifong, not Meehan has ever proposed a theory as to what happened to the DNA, even a wild crazy inherently implausible theory because there is no possible theory that would explain why the defendants' and only the defendants DNA is missing.

Anonymous said...

8:55 - Enter the magic towel, stage right.

One of the most transparently absurd lies I have ever seen in a case. It's so awful, even the left won't point it out.

My question is did these tactics work in Durham before this case? Didn't they realize the whole country would say "huh?" to this?

-Esquire-
-Maryland-

Howard said...

Neufeld's background is almost exclusively in bailing out Black people falsely accused. He has made clear that rich people get better quality justice than Black people do. He was the one who trashed the DNA in the OJ case (I know, Barry Scheck was on the stand)He has a clear bias toward the racial component in all crime. He has written and spoken about how Blacks get a raw deal, how the justice system works against them, and so on. I heard him speak once during the OJ trial and he was almost delusional in believing almost anything other than the fact that OJ was innocent. He argued against DNA evidence because it was so often contaminated through mishandling or through age. He also was quite sure that lab people lie, withhold evidence, and deliberately fix findings against Blacks. This Duke Hoax case doesn't fit his matrix for crime i.e.; the Black is guilty and the rich whites are innocent. He cannot get a handle on that.

"There's no question that if you're white and you're well off, you have a much better chance of having a fair trial and getting justice ultimately than if you're poor, and particularly if you're poor and black or Hispanic in this country. Our data show that you're five times more likely to be wrongly convicted if you're a black man charged with sexually assaulting a white woman than anybody else. It's that simple. What's unfortunate is that for a lot of the other causes of unjust convictions, we have reforms in mind that can be put into place to correct those problems and make the system a lot fairer. The only cause we don't have a reform for yet is racism. And it's, obviously, much more deep-seated."


Further along he says:Every study that's been conducted so far, any reasonable study suggests that if you're black, you're more likely to be arrested, you're more likely to be convicted. All other things being equal, you're more likely to sentenced to death, if the victim was a white person as opposed to the victim being a black person. You're more likely, if you're a juvenile, to be charged as an adult. You're more likely to get a longer prison sentence if you're black. Every single element in the criminal justice system is stacked against people of color. And if the evidence is pretty overwhelming, people just have to roll up their sleeves to be thinking about how we're going to remedy that.

I think this speaks to a prejudice against all rich whites and in favor of all Blacks

Anonymous said...

"Our data show that you're five times more likely to be wrongly convicted if you're a black man charged with sexually assaulting a white woman than anybody else."

That is certainly due to the fact that cross-racial identifications are fraught with error (in either direction). This does not meant the woman wasn't raped or was lying ...just that she had trouble with the identification. There was an earlier IP case in Dallas in November in which this seemed to be the case. Black on white rape occurs with much greater frequency than other way around - so it makes sense that more black men are charged. Focusing on the risks and flaws of cross-racial eyewitness testimony might be the best way to keep an innocent black man from being wrongly imprisoned. Selective application ( based on race )of DNA results should be rejected.

If Mr. Nuefeld were not so repulsively biased, his cause would be noble. Mr. Nuefeld's concept of DNA exoneration as a tool for reducing the number of black people in prison is sort of like affirmative action in reverse. Exceptions to achieve greater numbers admitted to college, now an exception to get out of prison. The exception being DNA as infallible if it exonerates a black person, but subject to "interpretation" if used to defend anyone else. Hopefully, that will never fly and better people than Nuefled will take up the cause of justice and work for all wrongly convicted, regardless of their race, creed or gender.

Anonymous said...

White on black rape is so minimal, the stats are 0%. Black men are raping white woman. White men and asians do not rape black women. I am very disappointed in Peter Neufeld's remarks. The morale is if you are accusted /raped go to the hospital immediately so they can get DNA>

Anonymous said...

After several leftward leaning "fairness in reporting" organizations (Media Matters, FAIR) came out in support of Dan Rather and CBS on the faked memos, and such groups as Human Rights Watch screamed about alleged Israeli transgressions while grudgingly (if at all) doing the same for Hizbollah, I began to wonder whether leftist premises (primarily, collectivist ones) in any argument is prima facie evidence of epistemological corruption in that argument.

Now that Neufeld of Innocence Project has gone down that rabbit hole, I'm just about certain of it.