Duke: The Anatomy of a Hoax

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As the criminal case against Reade Seligmann, Collin Finnerty, and David Evans continues to fall around Durham County District Attorney Michael Nifong, and as Nifong’s own future becomes even more uncertain, it is time to take a cold, hard look at how this hoax ever got legs and has advanced as far as it has. Make no mistake about it; this is a hoax, yet as I write, the three young men still face felony charges that could put them in prison for most of their lives.

No one, except perhaps the North Carolina Chapter of the NAACP and its supporters, along with Wendy Murphy, still claims that the young men raped, much less kidnapped and assaulted Crystal Gail Mangum on March 14, 2006. The physical evidence that would indicate that anything occurred simply is non-existent. Prosecutors across the State of North Carolina know it; that is why they have told him to step aside. Nifong’s fellow attorneys in the state bar association have filed charges against him (and are considering others) that could result in disbarment — or even a recommendation he be criminally prosecuted.

The question one asks this morning, then, is simple: Why is the criminal case still alive? This question receives a simple answer: It is alive because the government of North Carolina assumes that all criminal indictments are valid. For example, those who demand that this case go to trial cite the fact that Nifong obtained indictments against the three men last spring, and the very fact that he was able to convince a grand jury to indict them "proves" this is a legitimate case.

Such a set of circumstances, of course, proves nothing. Grand juries long ago ceased to be anything but a toy of prosecutors. It is rare when grand juries rebuff their masters, and on the day last April when Finnerty and Seligmann were indicted, the grand jury of Durham County also handed down 87 other indictments. In other words, grand jurors that day were little more than drones at a factory cranking out what the boss had ordered them to make.

(Lest anyone believe that grand juries actually "consider" evidence, remember that in North Carolina, grand jury proceedings go on without recordings, notes, or transcripts. Only the prosecutor and police appear, and whatever they say is assumed to be the unvarnished truth.)

One asks, however, what information did Nifong actually have the day he walked into the grand jury room and call for two of the young men (and later the third) to be formally charged with crimes. The scandal is that Nifong knew nothing more that day than what we know now, and what we know now tells us that Nifong has perpetrated a hoax, a lie, a set of lies. Furthermore, on the day he demanded indictments, Nifong already had to know that his beloved Duke Lacrosse Case was dead in the water, kept alive by an adoring press, a set of contradictory police reports, outright lies, and a judge who had every incentive to help his former colleague win a contested primary election. Think of it as a tag team of villains, except on this day, the villains were the winners.

Since Nifong obtained indictments of Seligmann, Finnerty, and Evans, a number of blogs have appeared to attack the "evidence," the process itself, and Nifong. A recent posting on the blog called Liestoppers is one of the most chilling documents I have read on this case, and I will look at this piece in some detail. (I recommend that readers look at all of it.) In the first paragraph, it states:

…we have detailed the various misleading statements and unethical actions that Durham County District Attorney Nifong has used throughout the case to spitefully prosecute three innocent young men. We now have another Hoax to add to the list, perhaps the most serious to date — the purposeful non-disclosure and misrepresentation of DNA test results and their evidentiary implications. The DNA chronology, when examined with dates and events in sequence, unambiguously demonstrates Mr. Nifong’s, and others’, intentional misconduct and abuse of power.

These words are powerful, as they speak of intentional misconduct and abuse of power. No one is saying that Nifong simply has been zealous or even believes that the young men raped or even touched Mangum. Nifong pursues this criminal case because he can do it. There is no other reason, and so far the State of North Carolina is satisfied with that explanation. What has led Liestoppers and people like me to conclude that this is and has been an intentional hoax? I will present the evidence.

The DNA Order

Judge Ronald Stephens on March 23, 2006, ordered that all white members of the Duke University lacrosse team be forced to give DNA samples to police. Stephens was a former Durham County district attorney and at one time had been Nifong’s boss. In requesting this overly-broad order, Nifong’s office declared:

Medical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally. Furthermore, the SANE nurse stated the injuries and her behavior were consistent with a traumatic experience.

We know now that the report from the medical examination given Mangum on the morning of March 14 said no such things, something that attorneys have filed in one of their various motions. First, no examiner drew a conclusion that she had been raped, and second, the injuries that the DA’s office claimed that Mangum had suffered were non-existent. To put it bluntly, the request was a fraud.

Nifong, however, was not content to lie just about the medical examination. The DNA tests, he declared would point to the guilty and exonerate those who had not participated in this alleged gang rape. The request stated:

The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.

We know now that Nifong was lying. After literally every set of tests came up snake eyes, he then declared at a political rally to a mostly-black audience at North Carolina Central University in mid-April that since there was no lacrosse player DNA present, he would pursue a rape conviction "the old fashioned way" before DNA could be isolated and used as evidence. In other words, Nifong simply dismissed the exculpatory evidence, not because it was irrelevant in this case — indeed, the DNA evidence would and will tell a huge story here — but because its presence would hinder his politically-popular prosecution.

Furthermore, we know that even before his swaggering mid-April speech at NCCU ("My presence here means this case is not going away"), Nifong and Stephens had to know that the case was in serious trouble. The state lab already had found no DNA, and so Nifong turned to a private lab, DNA Security, headed by Dr. Brian Meehan. The private lab, as we were to find later — much later — not only found no evidence of anyone touching Mangum, much less raping her, but also found the DNA of seven other men in and on Mangum’s body. More on that part later, for it has turned out to be the most important development in this case, and one that likely will ruin Meehan professionally and perhaps land Nifong in prison.

Stephens, an experienced prosecutor, had to know when he permitted the transfer of DNA materials to DNA Security that this was a dead-in-the-water investigation. He had blocked defense attempts to force Nifong to turn over investigation materials — as required by state law. But Stephens decided to help jump-start this clinically-dead case by releasing a nasty, but irrelevant email from Ryan McFayden, a Duke lacrosse player. (Police had confiscated computers, downloaded emails, and had flyspecked other items owned by white team members.)

McFayden had fired off an email to his teammates soon after the accusations story broke, paraphrasing something from American Psycho, a contemporary novel they were reading in one of their classes about a New York stockbroker who murders people at night. (I do not include what he said here, except that I would not want one of my own sons writing anything like that.)

Nifong and Stephens already knew that McFayden was not a suspect, given that Mangum already had named her "attackers" during a photo lineup that violated federal, state, and Durham City procedures. Mangum had not identified McFayden as an attacker or someone who had helped the “rapists,” so while his email was inappropriate at best and downright nasty at worst, it had no bearing on the case, or what Nifong claimed was the case.

Note that Stephens did not release any other emails, including those that might have shed light on exculpatory evidence. Instead, he threw it out there for the public to read, and the reaction was predictable. Duke President Richard Brodhead immediately suspended McFayden (who later was re-instated), fired Duke’s men’s lacrosse coach, and cancelled the team’s season, a blow considering that Duke at the time was ranked number two in the nation. The McFayden email, which Nifong and Stephens knew was irrelevant, nonetheless became the defining moment in this whole episode, and it was held out as "proof" that the team was a den of rapists.

Nifong Plows On and Hides Evidence

Energized by the angry Duke response to the McFayden email, Nifong easily plowed on, unencumbered by the facts. He obtained indictments against Finnerty and Seligmann first, their pictures then being plastered on the cover of Newsweek as accused rapists. Evans would be indicted soon afterward.

But Nifong’s troubles with the evidence were just beginning. While Meehan’s lab was able to find a trace of Evans’ DNA on a fake fingernail Mangum wore (it was found in the trash can of the bathroom in the house where Evans lived), Nifong knew that as evidence, this ballyhooed DNA "match" really meant nothing, since Evans’ DNA most likely was all over items in his trash cans.

However, the story was becoming worse for Nifong, even if no one else knew it but he and Meehan. Mangum told investigators that she had not had sex with anyone for a week before the alleged incident, yet Meehan’s lab found sexual evidence from seven men, none of them lacrosse players.

This was explosive, for it demonstrated two things. First, it showed Mangum already had lied to police investigators, thus undermining her credibility. Second, it bolstered the account told by the accused, which was that none of them even had touched her. Something like this in the hands of the defense would have provided powerful exculpatory evidence, so Nifong and Meehan conspired, according to Meehan’s sworn testimony at a December 15, 2006, hearing, to withhold that evidence from the defense.

Although the defense attorneys were skeptical, Stephens continued to permit Nifong’s stonewalling. When the case later was passed to Judge Kenneth Titus that summer, the new judge threw down a gag order (which really only gagged the defense, as Nifong had stopped talking to the press after his early outbursts), and still enabled Nifong’s conspiracy to hide the evidence. While both Stephens and Titus would no doubt claim that they were unaware of what Nifong was hiding, it was their coddling of the prosecutor that kept this important exculpatory evidence in hiding until the third judge on the case, W. Osmond Smith III finally ordered Nifong to turn over all materials, which he finally did in the fall of 2006.

Nifong already was on the record telling all three judges in separate hearings that he did not have anything to add to the earlier incomplete reports that Meehan’s lab had sent to the defense. To put it another way, Nifong lied to the judges, telling them clearly that he was not aware of any other information while knowing that he had something in his possession that he did not want to share with the defense.

At that moment, Nifong stepped over the line from civil liability (for extracurricular statements he made at press conferences and interviews that were not part of his official duties) to criminal liability. Lying to judges and withholding information can be construed as criminal offenses, and one awaits the decisions of the authorities.

For the time being, however, the case plows on to a scheduled hearing on February 5 as though Nifong were telling the truth and Mangum really were assaulted. One can only hope that Smith will not enable this rogue prosecutor in the way that Stephens and Titus did — to their everlasting shame. If Smith permits this hoax to go to trial, then he will have endorsed outright prosecutorial lies and misconduct. One hopes that this jurist will see things differently.

January 6, 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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