Opinion: Daily Journal

Duke Case Leaves Lingering Questions

This week’s “Daily Journal” guest columnist is Abby Alger, research intern for the John Locke Foundation.

If the Duke lacrosse case were about exonerating three players and punishing Mike Nifong, I could have moved past it. By now, most people have. The events have faded into a haze of strippers, drinking, and Dukies gone wild. Nifong has been disgraced and disbarred, so it seems like case closed.

Not for me.

Nifong is a villain, but not the villain, in this story. The Durham Police Department, the City of Durham, and Duke University all played important roles as the case unfolded. They are the Duke lacrosse case to me now. For while the players’ civil lawsuit continues, they wait nervously. They hope people will forget that they have not owned up to any responsibility.

Of this sad trio, the Durham police merit the closest scrutiny. Part of it is pragmatic: the full involvement of Duke may never be known. (The university, eager to stay out of court, has settled with all involved.) But part of it is principled. We need to trust our police offers. They are our protectors; they should be our heroes. Yet the Durham police have consistently denied any wrongdoing in their investigation. If anything, they classify the behavior as “typical.”

Is it? Review some key facts that have slipped from public memory. Then ask yourself: is this the way I want my police department to act? Are these practices that require no review or revision, as the police and Durham suggest?

1. The official Durham investigation into the department was the Baker/Chalmers Report. Published in May 2007, its authors were City Manager Patrick Baker and Police Chief Steven Chalmers. The report was dismissed almost immediately as a whitewash. Its descriptions were meandering; its responses to critical points were vague.

Chalmers has since retired. Baker has since become City Attorney. Durham has produced no other official report. The Baker/Chalmers Report remains the final word.

2. The players’ indictment was based on the accuser’s identification of them. But this “identification” was the result of a seriously flawed procedure.
In violation of Durham Police Department General Order 4077, the accuser saw a slideshow with photographs of white Duke lacrosse players three weeks after the party.

Police told her they believed all had been present. Then she was asked if she saw her “attackers.” David Evans, Collin Finnerty, and Reade Seligmann were the three she selected. Curiously, for six previous photo arrays (which all followed procedure) she could not identify anyone — even though she had seen Evans and Seligmann.

General Order 4077 requires five filler (non-suspect) photographs to be included for each possible suspect. Law and Order fans know the importance of this. If a lineup is limited to suspects, there can be no “wrong” answer, as happened in the Duke case.

The Baker/Chalmers Report said the procedure was proper because it was used to identify potential witnesses. (It did not explain why Durham police officers thus had already narrowed it down to witnesses, people they believed to be at the party.) Chalmers went so far as to classify the order as “administrative guidelines.” Apparently it is only a suggestion.

3. The case’s supervising officer, Sergeant Mark Gottlieb, did not keep contemporaneous notes for the majority of the investigation. Instead, he wrote on a dry-erase board and assumed fellow officer Ben Himan took a photograph each day, although that never happened.

Even so, without any recordkeeping, Gottlieb produced a 33-page memo in July 2006. It covered four months of investigative work in excruciating detail. It also contradicted previous records at least 11 times — all in ways that were favorable to Nifong’s story. Nifong did not request the report.

Today, Gottlieb remains with the Durham Police Department. In November 2007, he was moved from criminal investigations to uniformed patrol.

4. Linwood Wilson, Nifong’s chief investigator, admitted in his response to the players’ civil lawsuit that his “actions might have lead [sic] to a deprivation of a constitutional right” or could be considered “otherwise illegal.” Wilson admitted to having conducted an “internal affairs inquiry” into the conduct of Sergeant J.C. Shelton. Shelton was the first officer to respond to the accuser — and the first to question her story.

But Wilson’s greatest moment was a December 21, 2006, interview of the accuser. The result of their conversation was an entirely new version of events that filled all the holes in previous stories. The lack of DNA evidence, the players’ photographs, Seligmann’s alibi — all these “problems” were solved.
Wilson was fired after Nifong was removed from office. But during the case, he earned a promotion and a generous (66 percent) raise.

5. The Durham Police Department blamed the drawn-out timeline of the case on the defense attorney. The Baker/Chalmers Report argued that the lacrosse players made no effort to present exculpatory evidence to the police department.

This claim is interesting for three reasons. First, defense attorneys tried time and again to present exculpatory evidence to Nifong, who, according to Durham police, seized control of the investigation. Second, the credibility of the accuser was exculpatory evidence never investigated; no one ever questioned her rapidly changing stories.

Third, as defense attorney Jim Cooney said, all the lacrosse players’ lawyers presented their players’ alibis to the media — and to the world. Seligmann’s alibi was not investigated, but his alibi witness was. The cab driver, Moezeldin Elmostafa (now a Reader’s Digest hero), was arrested for bizarre three-year-old shoplifting charges after he went public with his corroboration of Seligmann’s story.

It would be easy to dismiss these anecdotes as part of a messy chapter now closed. Everyone acted badly during the Duke lacrosse case; now they have learned their lessons. If the Durham Police Department had admitted to any wrongdoing in its investigation, or if the department agreed to modify any of its procedures, perhaps that would be true. Instead, they have stubbornly clung to their see-no-evil, hear-no-evil strategy.

So question yourself again. If the suspect were your son, your brother, or even just your friend, would you be content with these procedures? Would you support an indictment based on an identification procedure that defied police procedure and common sense? Would it be fair for both the accuser and the police to rapidly change their version of events? Would it be just for the accused to need to prove his innocence to police, rather than have the police prove his guilt?

If you answered “no” to any of the above, then the Duke lacrosse case is not closed for you, either.