Michael Nifong's Spaghetti Factory

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Prosecutors in the United States — both state and federal prosecutors — have a saying about filing of questionable charges: "Charges are like spaghetti; throw them against the wall and see what sticks." Indeed, anyone who has followed the predations of Rudy Giuliani and Elliot Spitzer in their "crusades to clean up Wall Street" knows something about the filing of bogus or questionable charges.

Indeed, the "securities fraud" charges that U.S. Attorney James Comey filed against Martha Stewart fit into that category. (That charge ultimately was dismissed, but enough charges stuck to the walls of that New York federal courtroom to gain a conviction of Ms. Stewart — a wrongful conviction, in my book.)

As the Duke non-rape, non-kidnapping, and non-sexual assault case continues to contaminate the North Carolina court system — a major accomplishment, given the rottenness of that system — prosecutor Michael B. Nifong has decided to throw his own bowl of spaghetti against the courtroom wall, hoping that Judge W. Osmond Smith III will like what he sees. According to the defense motion filed on January 11, Nifong has decided to completely obliterate the account that apparently he brought before the Durham County Grant Jury last April when he secured indictments against Reade Seligmann, Collin Finnerty, and David Evans.

Space does not permit me to go through everything, although K.C. Johnson’s Durham-in-Wonderland has done a marvelous job of taking apart the brand new prosecutorial story. But before we look at the New, Improved Set of Lies, we first need to take a look at the Old Set of Lies that Nifong told the country when he first sought charges.

According to Nifong, who went to great lengths during one of his many televised interviews to lay out the scenario, three men dragged Crystal Gail Mangum into a bathroom at a house where a spring break party for the Duke University lacrosse team was being held. After dragging her into the bathroom, they proceeded to rape and brutally beat her for 30 minutes while she bravely but unsuccessfully tried to fight them off. (She claimed that the men did not wear condoms, and that they ejaculated on her.)

Mangum "identified" her "attackers" during a session with police on April 4, 2006, her third session. (She failed to ID anyone before then.) After being shown a set of only Duke lacrosse players, she proceeded to name three people, Seligmann, Finnerty, and Evans, going into great detail about what each one allegedly did to her. (Seligmann, it seems, forced her to have oral sex — without using a condom. No tests ever found a spec of his DNA anywhere on her, but in Durham, no DNA apparently is proof that something happened.)

Thus, the three young men were charged with rape, kidnapping, and sexual assault. However, as I pointed out in a previous article, the DNA evidence did not match the story that Nifong and Mangum were telling. In fact, the DNA evidence was so discrediting to Nifong’s account that he conspired with Brian Meehan, the head of a private DNA lab, to hide the most damaging findings. Because Meehan was not able to find even a cell of DNA from any Duke lacrosse player anywhere on Mangum’s body (after hospital personnel had been able to thoroughly swab her body for DNA, since the “rape” was reported soon after the party), Nifong claims that his investigator, Linwood Wilson, visited Mangum and she told him that she could not be sure if she had been raped. Thus, Nifong conveniently dropped the rape charges, but kept the kidnapping and sexual assault charges.

However, it seems that Wilson was a busy man, for his conference with Mangum not only managed to discount the rape charges, but also created a brand new timeline, and a whole new set of descriptions about what happened that night. As Johnson has noted — and as I will point out — at that moment, Wilson committed a crime. Now, given the state of justice in North Carolina where prosecutors have a long record of hiding evidence and lying to juries, nothing is likely to happen to Wilson, but I do think it is important to point out to readers that Wilson, the Gospel singer who says his singing has brought "many souls to Christ," worked with Mangum to concoct a story that cannot be true.

Problems With the Old Story

The lack of DNA was not the only problem with Nifong’s first account. His timelines ran smack into problems of the reality of time and space. First, since in his original account the "rape" took place at about 12:25 a.m. on March 14, he had a problem in that Seligmann had proof he was elsewhere — his picture on a bank teller camera was taken at the same time that Nifong claimed he was raping Mangum. Furthermore, he had other electronic evidence from bank slips to testimony from a cab driver who picked him up at the party at about 12:15 a.m.

Nifong, as we know, arrested the cab driver, Moez Elmostafa, on a trumped-up charge of shoplifting. (Elmostafa was acquitted in court, but at the time of the arrest, the Durham police asked him if he wanted to change his story on Seligmann. When he refused, he subsequently was arrested. This sorry sidebar story is worth a book on its own.)

During a later hearing (after having insisted the "rape" went on for 30 minutes), Nifong told the court a new "theory," one that held that the "rape" was only five minutes long. Thus, he reasoned, he might be able to find a few minutes after midnight when Seligmann did not have electronic evidence to place him somewhere else and, thus, convince a jury that if the young man were not on camera, then he must have committed rape.

Second, when Mangum chose David Evans as an attacker, she said that he had a moustache, which was interesting, since Duke’s coach did not permit players to have moustaches. Third, Finnerty’s defense team claims to have evidence that Finnerty was elsewhere when the alleged "rape" occurred, although they have not shared it publicly, giving Nifong another problem.

The way Nifong worked around it was to bluster, threaten, and — as we found out December 15 — hide exculpatory evidence and lie to the court about it. Unfortunately for him, that charade ended the day Meehan told the court (under oath) that he and Nifong had conspired to hide exculpatory DNA evidence from the defense, ostensibly to "protect the privacy" of the non-indicted lacrosse players, the same people that Nifong a few weeks before had described as "hooligans."

Within a week after Nifong’s lies were discovered in open court (and after a three-hour "interview" with reporters from the New York Times), Nifong then declared he was dropping the rape charges (and keeping the others) because Mangum suddenly could not remember if she had been raped. Keep in mind that during the photo identification session, Mangum went into great detail about being "raped," and described everything in graphic terms.

But after she met with Wilson on December 21, suddenly Nifong’s star witness could not remember very much. Nifong, as K.C. Johnson put it aptly, then impeached his own witness by telling us that we were supposed to believe her identification, but were not supposed to believe her descriptions of anything.

Wendy Murphy, the former sex-crimes prosecutor who claims that every accusation of rape is true and that no woman ever wrongfully identifies a rapist, wrote in USA Today that Nifong’s actions were a "brilliant move," since he somehow no longer needed proof of rape. (Murphy conveniently forgot that the kind of assault we are supposed to believe happened would have left DNA all over the place.)

Thus, we thought that Nifong was now going to try to build his case on the rest of the charges. Little did anyone know that he, Mangum, and Wilson literally reconstructed the entire story in order to make it fit into the holes that the defense had blown by publicly releasing exculpatory evidence.

Nifong’s New and Improved Theory

According to the embattled district attorney, his old account — the one that he almost surely brought to the grand jury (we won’t know since grand jury proceedings in North Carolina are secret and no record is kept of those proceedings) — had too many holes in it. Thus, he had to invent a new account — one that also is full of holes, but will serve him for the time being.

Now, this new account does away with the various theories that the North Carolina NAACP had devised (including its insistence that Seligmann must have returned to the party so he could rape Crystal). However, because the NAACP has insisted that facts not be permitted to get in the way, no doubt that organization will try to insist that both its account and Nifong’s new story are true — even if the accounts are mutually exclusive.

The story that Nifong now insists is true was crafted to try to work around Seligmann’s own timeline. Mangum now insists that the "rape" (or what was called a rape before the DNA tore up that charge) began at about 11:40 p.m., and continued until midnight. This is quite convenient, of course, since Seligmann did not depart until 12:15 a.m. However, there is this problem of the cell phone call made by Seligmann to his girlfriend (they talked for several minutes) that was made supposedly while Seligmann was non-raping Crystal. Another witness, a neighbor who was hostile to the lacrosse players, told police a consistent account of his observation of the party that also conflicts with this new story. (One wonders if Nifong will order the neighbor to be arrested, too.)

Again, Wilson, Nifong, and Mangum come to the rescue of the previous untrue account. According to this New and Improved Version, Reade Seligmann was not the person who stood in front of Mangum and forced her to have oral sex with him — the person that she described in great detail while looking at Seligmann’s picture on April 4. No, Seligmann just stood in the room and did not touch her. It was David Evans who forced her to have oral sex, except in the April 4 identification session, David Evans was the guy who was behind her. Oh, and this time he had a "five o’clock shadow," not a moustache.

This new account does not exactly figure what Collin Finnerty did to her, but no doubt he must have done something, since Nifong is trying to have him put into prison for 30 years. And what is a new account without some magic? Yes, this time, the prosecution has introduced a "magic towel." According to Mangum, after having sex with her, Evans or Seligmann — or somebody — wiped her and himself with a towel, the same towel that investigators found in the house.

However, this magic towel apparently made all of the DNA of Crystal Mangum, Reade Seligmann, and Collin Finnerty disappear. As the defense has pointed out in its more recent motion to suppress Nifong’s "evidence":

To believe the accuser’s present claim that her vagina was wiped with this towel, that her face was wiped with this towel, that Dave Evans was wiped with this towel, and that the floor was wiped with this towel, would require the belief that this towel could wipe away all DNA from her attackers on the accuser’s body, but leave the DNA of other, unknown males. It further requires the belief that the accuser’s face and vagina could be wiped with this towel, but leave no trace of her DNA on the towel. Further, it requires the belief that the floor could be wiped with this towel, but that it would only wipe Dave Evans’ DNA, leaving Matt Zash’s DNA behind on the floor. Finally, the towel, while apparently obliterating any DNA left behind by the alleged attackers on the accuser’s body, somehow contained only one of her attackers’ DNA, despite her multiple claims that two of her attackers penetrated her rectum and vagina with their penises.

So, we are left with new timelines that don’t make sense (and conflict with statements by other witnesses who are not lacrosse players), and a magic towel that makes DNA disappear. This is what the State of North Carolina — and Nifong still is the voice of that state, according to the court documents — is insisting is the whole truth, and nothing but the truth.

So help me God. And please pass the spaghetti.

Note: The CBS show "60 Minutes" will devote part of its Sunday, January 14, broadcast to a "Part II" of the lacrosse story. The late Ed Bradley was the lead reporter for the first one in and Lesley Stahl will report the second story. In one of the segments, Stahl asks the families what they would say to Nifong:

When asked what they would say to Nifong if he were in the room, Rae Evans, the mother of indicted player David Evans, says, “I would say with a smile on my face, ‘Mr. Nifong, you’ve picked on the wrong families … and you will pay every day for the rest of your life.'”

Ouch.

January 13, 2007

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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