Duke: Why the DNA Mattered

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Although it has been more than two years since rogue prosecutor Michael B. Nifong secured wrongful indictments in the Duke Non-Rape, Non-Kidnapping, and Non-Sexual Assault Case, and although it has been more than a year since North Carolina Attorney General Roy Cooper declared Reade Seligmann, Collin Finnerty, and David Evans "innocent," the whispering continues.

Part of the problem is that Nifong himself and his political allies in Durham, North Carolina, continue to whisper that "something happened," and that the families were able to use money and political clout. Wendy Murphy, the former prosecutor who often appears on cable television shows like "Nancy Grace" and others have claimed that the families bought off accuser Crystal Mangum herself, which is curious, given that Mangum claimed until the very end she had been beaten and raped.

Duke faculty members like Sally Deutsch, the dean of social sciences at the university, have openly declared that these young men were rapists who simply got away with their crimes. They were not innocent, she told one historian, but rather that the charges "were dropped." And so it goes. Their reasoning was laid out by Brian Meehan, the DNA scientist who agreed with Nifong to hide exculpatory evidence until their plot was uncovered in a dramatic court hearing on December 15, 2006.

Meehan, who no longer heads DNA Securities, but still is being sued by a number of former players, declared in court that the fact that no DNA matches were found between any Duke lacrosse player and Mangum was irrelevant. After all, he told the court, one can rob a bank and not leave fingerprints.

Thus, there always has been a cloud, or at least some people (many of whom have bad motives, I’m afraid) have tried to say that the players simply were able to make sure that everything was cleaned up. As Nifong himself declared on April 11, 2006, at an anti-lacrosse team rally at North Carolina Central University, the lack of DNA simply meant, "They left nothing behind." His words were echoed across the NCCU and Duke campuses, and many people still seem to wonder if that is true.

(At the 2007 Austrian Scholars Conference, a woman inferred to me that the players simply had managed to cover up well. The lack of DNA to her meant absolutely nothing, and even after I had explained to her the particular science of the ultra-sensitive YSTR tests, she still seemed to doubt what I was saying.)

Thus, while this might seem to be a dead issue, I do not think it is. Yes, the "rape" case is over, and what we see now are the inevitable lawsuits that have followed, but I believe that I need to explain to the LRC readers just why I took the stand that I took very early in this case, and why I have absolutely no doubts as to the correctness of my position.

In the Duke case, the DNA was central to everything, not peripheral, as many would think. (Nifong simply declared the DNA to be irrelevant, although he did trumpet the supposed "DNA match" between David Evans and one of the false fingernails Mangum left in the bathroom. He said that such a "match" was enough for an indictment, and Nancy Grace on her show declared Nifong’s "discovery" to be a "home run.")

What did happen in the DNA testing, and why does it matter? After all, Peter J. Neufeld, co-founder of The Innocence Project, told the New York Times that DNA really was not very important, at least in this case:

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.

Indeed, people still hold onto Neufeld’s unfortunate statement as "proof" that DNA really does not matter. Yet, it absolutely mattered in this case because had a rape really occurred, DNA matches almost certainly would have solved the "crime." When the woman at the ASC confronted me, I touched her arm very lightly and told her that under the ultra-sensitive YSTR testing, it would have been discovered that I left DNA on her. That statement would turn out to be a key to understanding why the DNA tests truly did exonerate the lacrosse players.

One forgets that Nifong first went to the North Carolina crime lab, which quickly expedited his demands. By the end of March, 2006, the lab told him clearly that there were no DNA matches at all, something Nifong held for two weeks before releasing the information. When he did release it, he declared it to be irrelevant.

However, he quietly obtained the services of DNA Securities, which did very sensitive testing, as the state lab told him that there was "something" on a false fingernail they could not identify found in a trash can in the bathroom of the house where Mangum claimed to have been raped. Meehan found a mixture of about 14 people on the nail, which was not surprising, since it was in a trash can with tissue and other items that people who had used that bathroom had thrown into the container. (There is a phenomenon of "DNA transfer" in which if an item comes into contact with another item that has the DNA of someone upon it, that DNA can "transfer" to the second item.)

One profile found on the fingernail matched David Evans, or at least it "matched" him and 13 other people. The match was at the 98 percent level, which while sounding high, is quite weak in DNA testing, where "matches" might mean that there is a one-in-six-billion chance that the DNA could belong to someone else, and that person usually lives in a far-away country. Furthermore, despite what Grace claimed on her show (that Evans’ "flesh" was found under Mangum’s "fingernail"), it was an extremely weak match and meant almost nothing scientifically, especially considering that to assume that it "proved" Evans raped her would have meant that 13 other young men had to have crowded into the postage-stamp-sized bathroom at the same time, a mathematical impossibility.

To shed further perspective on this "match," Meehan accidentally discovered that his DNA was found in Mangum’s "rape kit." Keep in mind that Meehan was wearing the kind of space-age protective clothing, gloves and everything else that people in his business wear to keep from contaminating the samples, yet his DNA profile bled onto the material anyway. Furthermore, the Meehan match had a stronger profile than did that of David Evans, which sheds much light on this vaunted "home run" of a DNA match that Nifong and his supporters claimed.

In other words, given the strength of Nifong’s case at the time, he could have charged Meehan with the rape of Crystal Mangum and it would have made almost as much sense as charging Evans. However, there was even more. As was clearly pointed out that day in court, Mangum had the DNA of a number of other men in her private areas and in her underwear, despite claims from the prosecution that she had not had sex for a week before the alleged assault. Nifong not only lied about that evidence in a court, but also withheld that material from the defense, despite his stating otherwise.

That revelation was enough to cast doubt on the case, and certainly was enough to spring the North Carolina State Bar into action to levy a second set of charges against Nifong and ultimately to disbar him. However, the True Believers remain.

They ask the simple question: Could not the players have "cleaned up" after the rape or used condoms? That was what Nifong claimed, and a lot of other people have said the same thing. As one NCCU student told a sympathetic reporter from The Washington Post, “They (the lacrosse players) watch CSI.” The prosecution, in an almost-hilarious attempt to obfuscate the issue, claimed that the discovery of a towel in the house with Evans’ DNA also was “proof” of the veracity of Mangum’s claims. Mangum told police that Evans had wiped her with a towel after ejaculating on her, and Nifong claimed to be in possession of that towel. However, the “magic towel” did not have even a trace of Mangum’s DNA, yet the prosecution was trying to argue that since there was such a towel (not surprising, since Evans lived in the house and used towels), it constituted proof he had raped Mangum. This “magic towel” could wipe off Mangum’s DNA, but leave Evans’ intact, according to Nifong.

So, to deal with that “CSI” claim and Nifong’s insistence in the “magic towel,” I must then demonstrate how someone might successfully eradicate one’s DNA from a scene.

First, one can do as Meehan and wear what basically is a space suit. However, as was clearly shown, even that precaution might fail. Second, one can use a condom, but condoms leave latex residue, and the lab tested for that, but found nothing.

Third, one can use chemicals like bleach or cleaning fluid. For example, in the gruesome murders in Knoxville, Tennessee, of Channon Christian and Christopher Newsom, one of the murderers apparently tried to remove DNA:

One of the suspects, Vanessa Coleman, later told police that, “she witnessed Christian’s mouth being cleaned with a bottle of some type of cleaner,” in an attempt to remove DNA evidence. Coleman also said that she had seen “clothes that were stained with blood and smelled of gas being put in the washing machine at the house.”

No one, not even the nurse Tara Levicy, whose false reports (read the lawsuit complaints filed by the players against Duke University) kept the hoax alive almost as much as Nifong’s lies, ever claimed to have smelled or observed any chemicals such as bleach or cleaning fluid on Mangum. Moreover, from the pictures taken of the players at the March 13—14, 2006, party where the rape supposedly happened, we see that the accused players were wearing short-sleeved shirts, and unless they changed into space suits and then took them off again and cleverly hid them, there is no way that bare-armed men could avoid leaving DNA on a woman if they raped and beat her. Furthermore, Mangum insisted in her statements that the men ejaculated on her, and there is no way one can do that without leaving DNA. Had those men followed the "CSI" directions, they would have used bleach or cleaning fluid on her — and literally everyone who came into contact with Mangum would have smelled it; no one did.

(Nifong claimed in his criminal contempt hearing before Judge W. Osmond Smith III in September, 2007, that he "knew it would be a non-ejaculatory event." Thus, he reasoned, there would be no DNA. The man really needs to take a course in forensic science — or he needs to stop lying.)

There is one more indirect proof of the power of DNA in this case. When police raided the alleged "rape house" at 610 N. Buchanan on March 16, they found the bathroom to be pretty much a mess. Pictures show that paper and other items from the party still were in the trash can and elsewhere.

Furthermore, no one — no one — who inspected the room (and police gave that bathroom a thorough inspection, taking swabs everywhere and testing for DNA) found any evidence of bleach products having been recently used. They found no DNA of Mangum, and none of Finnerty and Seligmann, and nothing else that demonstrated that either of those two young men had ever been in that bathroom.

Had there actually been a rape, and had Evans been one of the rapists, one can bet that those young men would have thoroughly cleaned the bathroom and given it the "CSI" treatment. If they were such amateur "experts," as Nifong and his supporters were claiming, then it seems those "rapists" would have covered their tracks.

Neufeld’s words are true, but they are true for a particular reason. As I wrote more than a year ago in "An Open Letter to the Innocence Project":

Unfortunately, even your co-founder, Peter J. Neufeld, has made some comments on this case that, while technically true, are very misleading. Yes, as Neufeld said, “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,” but the reason for that has been that most women who claim they have been raped wait for several days before speaking to the authorities, and any potential DNA sources by then are scientifically useless.

In the case of the Duke accuser, police were able to treat her body as a crime scene, and they were able to obtain numerous DNA matches — of other men.

In the dishonest pursuit of rape charges against innocent people, Nifong, the Durham Police Department, and their supporters, discounted literally all science in this investigation. It was the classic "Heads, I win, Tails, you lose" proposition, in which any DNA evidence that would have demonstrated their case was acceptable, but any DNA evidence that would be exculpatory was illegitimate and useless.

These people will continue to mouth the same lies, as their pursuit of these young men had to do more with a political agenda than any pursuit of truth. However, I do hope that for those who have had doubts about the outcome of this case, that this article will help change their minds.

Police and prosecutors had every reason to investigate this case and gather as much evidence as they could. The DNA testing itself was some of the most complete of any case anywhere. There literally was no stone left unturned, yet investigators found nothing, nothing. Thus, they turned to lies and lawbreaking in an attempt to keep this case alive, and they found many willing allies who long ago had come to believe that all "truth" is political in nature.

The criminal portion of the Duke case is over. There should have been criminal investigations of many of those on the prosecution and police side, but none have been undertaken for obvious political reasons. What are left are the lawsuits, and I would urge readers to work through the many claims laid out in the court documents. They are powerful, and they tell a story.

However, the DNA also told a story, and it demonstrated that the only criminals in this case were employed in official government positions of trust and power. There is none other.

April 21, 2008

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. He also is a consultant with American Economic Services.

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