Friday, 21 April 2006

Defense claims IDs bogus

I may not be a law enforcement officer, but I’ve seen enough episodes of NYPD Blue to know that this isn’t how you run a photo array:

Defense attorneys are questioning the method used by Durham police to obtain a woman’s identification of two Duke University lacrosse players in an alleged rape last month….

A written report of the April 4 identification was turned over to defense attorneys Friday, and sources told NBC17 that the attorneys are considering asking a judge to suppress the evidence, claiming it was improperly conducted.

To obtain the identification, Durham police showed the woman a photo array that included only photos of the 46 [white] lacrosse team members, sources said. The woman said she was 100 percent certain that Finnerty and Seligmann were involved and 90 percent certain that a third player was involved.

Durham County District Attorney Mike Nifong said Tuesday that he is still collecting evidence in the case and hopes to indict a third player soon.

No other photos were shown to the woman, sources said, and the defense attorneys maintain that police should have included photos of other young, white men in the photo array to make the identifications legitimate.

The bad news for me is that it shoots my theory of why Seligmann got ID’d to hell. Oh well.

The identification was on April 4. Let’s review what had already happened by April 4:

This news puts some real meat on the bones of the theory that Finnerty was set up because of his previous arrest, particularly if the defense can produce credible witnesses who have him at Cosmic Cantina when the rape allegedly occurred.

I’m going to go out on a limb here and say that this ID is not good news for Mike Nifong’s case—not just against Seligmann or Finnerty, but against anyone else she subsequently IDs. He’d better start hoping that second round of DNA comes back with a match real soon…


Any views expressed in these comments are solely those of their authors; they do not reflect the views of the authors of Signifying Nothing, unless attributed to one of us.
[Permalink] 1. Skeptical-Hog wrote @ Fri, 21 Apr 2006, 3:44 pm CDT:

This is just mind-blowing stuff, if accurate….


Explosive stuff. A clown can run a better investigation. The police have to sign off on this so they are also to blame. Are the police and Nifong going down together on this one or will there be some infighting? These are mistakes 1st year law students and police academy trainees wouldn’t make.


I already told you my views on Nifong. Also, did anyone see the news video with his smiling, soaking up the publicity? I really started to dislike him at that point. This should have never been about him, but about finding the truth. Any idiot would have known that. As it is, the truth is so muddled, it may never be known.


What are the ramifications of suppressing the photo id? Would that mean there would have to be other evidence produced for an arrest? Let’s say for the case of argument, these two are innocent. Does this mean Nifong can keep looking for others?

Not so sure I agree that the stripper was watching the internet and tv in order to determine which of these guys to id.

Also, still no logical prosecution theory on the missing 20–30 minutes. The cab driver does not help the players one bit…they may have wished he was never found by Seligmans dad.


Nifong could do an ID again, this time properly, but who on earth would trust the results? If she picks the same guys again, it’s still tainted because of the previous ID, and if she picks different guys, why didn’t she pick them on the previous ID? The jury would laugh Nifong out of court after the cross-examination of the poor officer called to testify on the IDs.

There are no other eyewitnesses. No wonder Nifong is so desperate to get someone to flip on the others. All he’s got is Kim, and she’s got a criminal record and can only narrow it down to maybe 10–20 guys, and incompletely at that.

Sure, the cab driver doesn’t help the players overall, but it helps Seligmann immensely. As far as I’m concerned, clearing two innocent guys is worth potentially getting a few others in hot water—which, if Nifong is put in charge of boiling it, might be tepid at best.


The cabbie, Moez Mostafa, also said he had seen a woman leaving the party in anger, and had overheard someone say, “She just a stripper. She’s going to call the police.”

“She looked, like, mad,” Mr. Mostafa said of the woman. “In her face, the way she walked, the way she talked, she looked like mad.”

So was this when he was picking up Seligman or when he came back for the second group? If it was on the first pickup, would it not mean Seligman was leaving at approximately the same time as the accusor?


tuocs: that’s the second pickup around 12:40; on the first, Mostafa didn’t even go to 610 Buchanan, he was at Watts and Urban—he may have driven past 610 to get there, but he may have just gone up or down Watts or come in via Urban from the east.


Unless the player photos were displayed in such a way that just Seligmann’s photo or just Finnerty’s photo, or both, stood out from all the others, I don’t the defense is going to get very far with the judge on this one.

The defense attorneys are claiming the police should have included photos of young, white men other than those she would have seen at the party, in the photo array to make the identifications legitiamte

Well actually the police did include photos of young white men other than those who the accuser encountered at the party… those being the photos of the players who didn’t attend the party. Those guys would obviously never have been seen by the accuser the night of 3/13 – 3/14


Gotcha…found this timeline at another site. How peculiar is this? And I wonder how hard Nifong is looking for the occupants of the second cab ride?

I still have not found much that puts Colin in the clear however.


I never thought I’d say this about anyone, but I’m starting to think Mike Nifong is an even bigger chump of a D.A. than Ronnie Earle.


Paul: The odds of the accuser picking out 3 guys who were not at the party from an array of 46, where let’s say 30 were present, are only (16/46) * (15/45) * (14/44) = 3 percent. To put it another way, there is a 97 percent chance she would have picked out at least one guy who was at the party, even if she had been blindfolded the whole time and just randomly picked three photos from the array.

That’s why they use mug books and ringers.


tuocs: On Finnerty, I think the defense is holding back on witnesses and receipts until Nifong decides to come up with another theory of when the alleged victim was attacked. Then they show that he was sitting in Cosmic drinking beers, eating burritos, flirting with the waitresses, playing pool, etc. from (say) 11 until 1, and completely blow him out of the water. Of course, Cosmic then loses its beer license, but what can you do?

[Permalink] 13. tuocs wrote @ Fri, 21 Apr 2006, 4:26 pm CDT:

So no pictures of Colin at the party eh? Obiviously the selective release of photos by the defense would being a little smarter then that.


Of course, this presumes that the defense story is credible. But, to this point, their only “lies” have been of omission (i.e. nothing about the second cabbie pickup, no details of things at times where the DA could theoretically move the rape, not giving all 21 photos to Abrams), so for now I’m willing to treat their leaks as reliable, if incomplete.

I’ll be happy to revise my credibility assessment when/if they come up with something that they don’t subsequently demonstrate. But they’ve banked a hell of a lot more credibility with me than Nifong has, and the laughable fruits of these dorm searches (news clippings, CDs, iPods, and crap like that) aren’t exactly making me think that he’s got a lot more useful information in the tank.

[Permalink] 15. azbballfan wrote @ Fri, 21 Apr 2006, 4:35 pm CDT:

Alas the releases of evidence and theories by both sides seem to be SIGNIFYING NOTHING.

Chris, an exacting premonition!

[Permalink] 16. Thoughts in Jerz wrote @ Fri, 21 Apr 2006, 4:36 pm CDT:

Chris, I think this is a great blog and has become a daily lunch hour stop for me to catch up on details of this case which I am following with great interest having attended a much maligned high school whose reputation has been thoroughly sullied in this whole mess… but I digress.

How can Duke, as an institution not be outraged by this whole process at this point? These are Duke students and they have just sold them down the river. Are the higher-ups such cowards that they will refuse to stand behind these kids no matter what? I am not saying it’s clear that the they are all innocent… but it is clear that much of what has been accused and reported on as front page news did not occur. This latest tidbit about the ID process just adds the final ring, to what is clearly a 3-ring circus.

I have been reserved in wanting to cast judgment in this case given its sensitive nature and some of my personal ties, but right now the prosecution has only helped in convincing me of the many things that did not happen that night. The futures’ of an entire team of bright, young and hardworking men is being thrown around like a hot potato. Not all the kids on that team are scholarship studs… think of the stigma that is going to be attached to that kid who walked on and is just happy to be there.


Abrams said Finnerty wasn’t in any of the 21 pictures he saw of the party, but that doesn’t mean he wasn’t there or that he isn’t on video. I’d be shocked, though, if Nifong has any evidence of his presence other than the word of the accuser and Kim Roberts. (The defense has been very careful to only say “X didn’t happen” when they are absolutely certain X didn’t happen; they said no DNA -> we see no DNA. So if Finnerty had been there, even if the photos they have don’t show him there, I doubt the defense would have said he wasn’t.)

As I’ve said before, though, I am willing to believe Finnerty wasn’t there—if only out of self-preservation, because the cops busting up a rowdy house party and some underage drinking arrest is the last thing he needed at the time. My guess is Pressler had already told him that the next arrest was the end of his playing career, and it probably would have screwed up the Georgetown diversionary sentencing too.


Chris, OK, then, what are the odds that, blindfolded, she would have picked out 1 of the 16 who was not at the party, rather than the odds she would have picked out three of the 16 ?

[Permalink] 19. tuocs wrote @ Fri, 21 Apr 2006, 4:40 pm CDT:

I just see this continuing along with a drip, drip, drip of new actors and new accounts….that is what cable tv news does. Whether any of this means anything, who knows? Train wrecks like this don’t fade away.

In North Carolina, what are the rules in civil court in regards to rendeing a judgement? I assume a lower burden of proof? I bet the attorneys are beating a path to the accusors door to represent her there.

And what of the players families going after….Duke?


TiJ: I think there is a significant faction at Duke that buys into, for lack of a better term, the “fake but accurate” meme: that even if there was no rape, there is this pathological campus culture and the lacrosse team are (literally, now) the poster children for it.

See, for example, this student’s blog. I hate to pick on her, but it’s almost like she wants the charges to be true—because it validates her belief that Duke has this terrible culture of rape, that “nice guys” can be rapists, etc. And, yes, there are guys in college who rape women, and they deserve to be punished, but at the same time I think we should give the benefit of the doubt to people that we know and trust—members of our community—when they are accused of crimes that seem out of character for them.

For example, one of the players on the team is a freshman I taught last semester. I hope and pray he had nothing to do with this, and he seemed like a good kid. I’m not sure if he’s charged I’d join the crowd wearing T-shirts saying the kid is innocent, but I’d be deeply skeptical of any charges against him. Then again, sometimes our students disappoint us (usually in academic terms, either by misconduct or lack of effort), and those are sad days.


Paul: 16/46, or just over a third (34.8%). In other words, if picking one guy at random, she had a 65.2% chance of picking someone at the party.

(Again, this assumes 30 of the 46 were there… the math changes if it’s 20 or 10 players present.)

I don’t know what the probabilities are with typical photo arrays; usually, I think, they present 5–10 possibles, with each suspect in a different array, the rest being ringers known not to be players. Of course, this means the AV would have had to go through 46 separate arrays.

[Permalink] 22. DevilAlumna wrote @ Fri, 21 Apr 2006, 5:02 pm CDT:

The “warrant follies” article was updated this afternoon to include the following tidbit:

After the exotic dancer told police she was raped at a party, police took pictures of all but one of Duke’s lacrosse team members. Theirs were the only pictures shown to the accuser during a photo line-up.

According to the identification report, mugshot-style pictures were shown one at a time in a Power Point type of display. A blank frame separated each picture.

The accuser identified her alleged attackers three weeks after reporting the rape.


Again, the defense attorneys are correct to assert that the police should have included photos of young, white men other than those she would have seen at the party, in the photo array, to make the identifications legitimate.

Actually, by your hypothetical, the police would have included 16 photos of young white men other than those who the accuser could have encountered at the party… those being the photos of the 16 players (by your hypo) who didn’t attend the party. If the odds were close to 35 out of 100 that she might have picked out someone who didn’t even attend the party, the photo array will easily pass judicial muster as not being unduly prejudicial to Seligmann or Finnerty. Again, this is assuming the player photos were displayed in such a way neither Seligmann’s photo nor Finnerty’s photo, or both, stood out from all the others.


The problem (beyond the probability hypotheticals) basically is that the police had no way of proving that all 46 men weren’t at the party. So it’s entirely possible that she could have seen all 46 at the party—according to the captains, 41 of the 47 players on the team were there at some point in the evening, although that may have been based on RSVPs or something, and the police didn’t even believe the captains anyway, else they’d never have arrested Seligmann, who apparently was there but didn’t show up on the list.

Based on 40/46 (assuming the black player was at the party; it’s 41/46 if he wasn’t)... the chances of picking out three guys not at the party are < 0.2%—so her chances of picking out three guys and finding at least one guy who was at the party according to the captains are 99.8%. She was virtually guaranteed to pick out at least one player who the captains thought was at the party.

[Permalink] 25. tuocs wrote @ Fri, 21 Apr 2006, 5:27 pm CDT:

Jason Bissey, who lives next door to the university-owned house, said Thursday that he had a clear view of the accuser’s arrival and that she did not appear to be impaired. He said he saw her walk up a long alley to the rear of the lacrosse house, then talk to the other woman hired to dance before entering the home.

“They were both totally lucid. [The accuser] was not impaired in any way, I remember clearly,” Bissey said Thursday. “It was a kind of a long way to walk so it would have been pretty clear if she was messed up.”

Hmm, this seems to directly contradict one item the defense lawyers are floating.

Has anyone checked the taxi driver’s bank account after the visit from Seligman’s father that jogged his memory?


Chris and others, as I understand it, North Carolina jurisdictions now follow guidelines that require 7 “fillers” (the ringers you talk of) for each suspect in a photo lineup. As you have hinted at with your math exercise, the reason for this is to ensure credibility by reducing the possibility of a false positive (i.e., the witness picking out the suspect by pure chance).

Now the key here to me is whether those fillers have to be non-suspects. My gut tells me they do—otherwise, it’s just a roulette wheel of suspects and no matter what the witness does, she will ID a suspect and somebody ends up on trial. That’s what the defense has to argue here.

To answer toucs’ question, what’s at stake here is whether the jury will ever get to hear that the accuser ID’d Reade and Collin on April 4. Since that’s the only eyewitness evidence ID’ing them, and since there isn’t any other evidence (i.e., DNA) linking them to the crime at this time, it’s the entire case. I’m not a criminal lawyer, but I would have to think that if this lineup ID were thrown out, the case would have to be dropped.

Even if it were allowed into evidence, you would have to think that the ID would be much, much, much, much, much, much more credible if the police had simply gone by the book and done a 7:1 ratio of fillers to suspects. The defense is going to go to town on this no matter what—there was literally no chance that the accuser could have ID’d a filler and had her credibility called into question before the arrest.

Paul, I don’t see the significance of the fact that they included players who were not at the party in the lineup alongside players who were at the party. For one thing, it is apparent that Nifong and the police have no idea right now who was there. But more importantly, all 46 white players on the team have been treated as suspects from the beginning of this investigation regardless of whether they were at the party. So the lineup may be 60% players who were at the party versus 40% who were not, but more importantly, it was 100% suspects. She couldn’t have ID’d someone who wasn’t a suspect. That’s why I think the defense is on to something (assuming, of course, that the ID process has been accurately reported in the press).


I don’t know… did Verizon/Sprint/T-Mobile/whoever also get bribed to forge Seligmann’s phone records? Did they also bribe Wachovia Bank to forge ATM receipts and camera footage?

And, if the cabbie had been bribed, I doubt he’d be backing Kim Roberts’ version of events at the wrap-up of the party and saying that he thought something happened in the house (not that that’s admissible, but it certainly makes the players who were still there look worse).

[Permalink] 28. toucs wrote @ Fri, 21 Apr 2006, 5:40 pm CDT:

I don’t doubt the veracity of the phone and atm records…if he was the one using them. And a ATM camera image would definitely establish him there. I just wonder how much the timeline can move back and forth?

And I don’t think the cabbie took a bribe…just throwing out some of the defense lawyer’s tactics on my comment.

Also very interesting, the cabbie describes the woman walking to the car from teh house wearing jeans and a sweater….not sure what that means.


Anyone who takes criminal justice 101 or psych 101 knows that you have to have some people put in a line up that are just random photos unrelated to the case. If you only show the people at the party or the team, then it is not a credible ID. That’s basic.

The DA better have some sort of Smoking gun evidence that he hasn’t released if all of these defense scenarios hold true. The cropped pictures didn’t show much, but we’ll see what else comes out.

If the investigator conducted that sort of photo line-up, he or she needs to be fired.

[Permalink] 30. politicaobscura wrote @ Fri, 21 Apr 2006, 6:00 pm CDT:

Paul, you are way off base.

This ID stinks to high heaven.


Here’s a big what if that occurred to me: What if the AV was raped AFTER the party – by the cop that drove her to the holding tank.

It’s not far-fetched that someone drugged would try to remember things and get them totally wrong. I know, big if – but she was scantily clothed in the police car. How long was the drive from Kroger’s to the police station. What if in her drugged state, she struggled with him? And in the questioning, (maybe leading) facts were inadvertently fed to her making her think she was raped back at the party?

Just a supposition.

[Permalink] 32. bertrand wrote @ Fri, 21 Apr 2006, 6:13 pm CDT:

Weren’t there non team members at the party? I read statements to that effect. Did the police have any way of identifying them?


Chris from Rachel’s Tavern, the one supposedly with inside info on this case, said there were non-members but that the DA never called them to be tested. I thought that was a big lapse.

[Permalink] 34. Carter wrote @ Fri, 21 Apr 2006, 6:29 pm CDT:


You have a solid theory which adds to the confusion of the moment and desire by all players to keep silent. The rapid decline if the AV, if a result of a disabling drug, suggests planning. The players had just returned from a weekend trip to Los Angelas day before so its unclear if it was planned before or after they returned. I think the ID is much more suspect than the accusations.

What to the legal minds think will happen to the case if the follow up DNA tests or other prosecutorial evidence implicates 1–3 team members not under indictment? Would the case be in shambles or would the State drop charges and indict others and does the defense have the sme right to excupatory DNA findings done privately by LabCorp?


“I was looking him right in the eyes,’’ she said. This is the second dancer on Finnerty. Also something to the effect of he was the skinny liitle one. He’s 6’3”. Either he was sitting or she’s quite tall; or she’s fibbing.

[Permalink] 36. azbballfan wrote @ Fri, 21 Apr 2006, 7:23 pm CDT:

Finnerty does look like a skinny little one. Especially because of his baby face and dimunitive head sitting on top of a long neck.

Relative to the other players, he’s a skinny little one. She was using the statement to describe him in context of the other players – to identify him from the others and extend an attestation to his presence.

Does anyone know when the police and investigators can interview the accused? Does the DA need to wait until after May 15th?

[Permalink] 37. toucs wrote @ Fri, 21 Apr 2006, 7:24 pm CDT:

While we are batting around what-if’s.

The father stated when he saw his daughter the next day, her face was battered.
We don’t hear the defense talking about this much. If Nifong has photos taken of her showing facial trauma along with the rape kit images…it does support her story that she was physically assaulted in the bathroom. Now obviously she could have had her friend hit her in the face. But I wonder if in fact the prosecution has some damning images of her beaten face? That would certainly not help the defense.


The girl also fell down the stairs at the apartment and there are pictures of her lying down.

Four facts(at least at this point) I can not get past:

-the absolute confidence that the DNA tests would come
back negative. A suicidal statement if there was even an
ounce of sexual activity

- solidarity of 46 players with their lives on the line. These are kids with a lot to lose and as far as we know they all have the same story. Most detectives think that if something happened they could get to one of them

- the DNA came back negative after a brutal gang rape in a tiny bathroom with an immediate rape kit done afterwards

- the girl made the accusation from a back of a police car. If she went to the police immediately after the party the accusation would be much more believable. Cops were about to haul a drunk/high girl in

I think this will be a slow news weekend.


I just can’t fathom calling someone who is 6’3 little. I played at Duke and realize he sure might be skinny compared to other players, but not little in any sense.


Plus she’s extending an attestation after she has heard who her co-worker selected.

[Permalink] 41. toucs wrote @ Fri, 21 Apr 2006, 7:53 pm CDT:

More DNA testing is being done at a private lab…any idea what this is about?

Do we know for a fact the players are all saying the same thing? I thought they all lawyered up. They certainly are not speaking publicly, thats what their lawyers get the big bucks for.

I wonder also about zero DNA, particularly when Nifong made such a big to-do about it beforehand. However the two seperate semen stains found in the bathroom…have they been tied to those who reside there? If not, that would be interesting.

Not sure about the point of the woman going to the police station first, however that entire timeline with…who drove whom where is still vague. Who drove the accusor to the party? How was she supposed to get home? The cab driver describes a different car then what “Kim” drove. This grey area probably will get the news channels looking at it soon.


Toucs…..The most interesting question that posed was the one questioning who drove the girl to the party. My guess is that this will shed a lot of light concerning her impaired state. The rumor is that she was at a party beforehand. This was per the source on O’reilly and I think referenced by this “insider” Chris.


If anyone is interested, here’s the sentense history of the second woman (from the same site): :)


What the police are supposed to look for in finding fillers for a photo array is people who look similar to the suspects but could not possibly be suspects. So in a case where the police have suspects who only fall into the category “college-age, athletic white male”, the fillers should consist only of persons fitting that category who could demonstrably not have been at the scene of the alleged crime.

As far as this photo array is concerned, the non-party attending players are just as valid fillers as would be any other random athletic-looking young, white males. This is because the non-party-attending players, despite being described at least at first as “suspects” by Nifong, would have been just as much strangers to the accuser as would be white college athletes from any other school. The police were no worse off using the non-party-attending players in the photo array than they would have been had they used photos of, say, white Maryland or Holy Cross lacrosse players (or white non-Duke football players for that matter if they could find enough).

The more serious problem for the police (though not necessarily a fatal one) is, how many fillers could there actually be in this case ? That depends on how many players did not attend the party. The more players that didn’t attend the party, the less risk there is that the photo array is prejudicial to Seligmann and Finnerty. The question of how many players didn’t attend the party may always be impossible for law enforcement to answer. That may make it more difficult (but far from impossible) for them to carry their burden of showing that the method by which the identifications of Seligmann and Finnerty were made wasn’t prejudicial.

BUT even if we assume for discussions’ sake that ALL 46 of the white players attended the party, and therefore ALL 46 had an opportunity to be seen by the accuser, and therefore NO fillers were in the photo array she saw, doesn’t mean the photo array method by which she identified only Seligmann’s and Finnerty’s photos was fatally flawed. Far from ideal, for sure, but not fatally flawed. A fatal flaw would only be present if there were something unique in Seligmann’s photo, or Finnerty’s photo, or both, that made them stand out from all the other photos, such as, if they were the only two wearing a cap, or a certain color shirt, etc.

Another way to think of this is to imagine the police lining up all 46 players in a row, all with their shirts off, and then bringing in the accuser and asking her to identify any or all of the three that she claims raped her. That’s essentially what the police did here, only they used photos instead of live players. Would that method have been a problem for the DA from a legal standpoint ? I think it would be a problem ONLY if Seligmann and Finnerty were dressed or forced to act in a manner unique from all the others.


Dan… My first post, though I’ve been following the story. Several things make me uneasy about the AV’s story. Among other things, I’d like some blanks on the before and afterwards periphery filled in.

We’ve heard that the AV was “dropped off” and didn’t have her own car at the party (or “performance.”)

If she was dropped off without a car, how did she plan to get home afterwards?

She didn’t even know the second dancer beforehand—or even that there would be another dancer (they were from different “agencies”). Did she expect a ride home from the other dance, and if so, is there evidence of that?

Who “dropped her off” at the party? What was their relationship? Was it her boyfriend? Did they have sex beforehand? Perhaps rough sex?

When was he, or whoever it was, supposed to pick the AV up after the performance? Was he or she there at the appointed time? What did he, or whoever else, do when the AV wasn’t there to rendezvous?

Did they call police to report the AV missing?

Who was taking care of the AV’s kids that night? When was she expected home?

What records do Durham police have of a missing persons report, if and when the AV didn’t show up to take care of her two kids?


[Permalink] 46. muddywater wrote @ Fri, 21 Apr 2006, 10:07 pm CDT:

About the battered face, did Kim or the Kroeger security guard mention anything about the accussed looked beaten up? She definitely did not look beaten up to the first officer. It is after the arrival of the second police officer that it was determined that the accussed should be taken to the hospital for rape-kit collection rather than thrown into the drunk tank.

Also, note that her cousin Jackie mentioned once that the accussed once thought of dropping the charge, but the family and supporters insisted that she went on. If she is going to be found out lying in the middle of the brutal legal process, I wonder whether her current supporters will ever regret that they did not listen to the accussed when she mentioned that she wanted to drop the charges.

[Permalink] 47. muddywater wrote @ Fri, 21 Apr 2006, 10:13 pm CDT:

My apologies for the typo. My last sentence should be, “whether they did not listen to the accuser when she mentioned that she wanted to drop the charges,” not the accussed.

[Permalink] 48. muddywater wrote @ Fri, 21 Apr 2006, 10:20 pm CDT:

In spite of my eagerness to find out the truth in this case, somehow I hope that two sides do not need to fight so hard for their images in the court of public opinions now, but I think as an election is involved, it is unlikely this media competition will ever stop. I am sure that a lot of things will come to light after May 2, and Nifong will definitely serve something up on May 1, the day before the election.

By the way, could someone tell me more about who Wade Smith is? I read from today’s news that the “high-profile” triangle lawyer Wade Smith is joining Finnerty’s defense team. Isn’t he already involved as the one that announced that there’s no DNA match on behalf of the defense lawyers? I am just curious about who he is in the legal field in the Triangle. Is he a highly respected and regarded figure?


Jim, Those questions you have are all good ones. You would think the police very early on carefully interviewed whoever dropped off the accuser. If they didn’t, they dropped the ball big time. It would be interesting to do a criminal arrest history check on the person(s) who dropped her off.


Paul, I certainly would hope those things were looked into about the AV’s actual and planned ride to and from the party, as well as any boyfriend(s). Just for the record, I wouldn’t conclude that if she had rough sex with a boyfriend that the boyfriend necessarily had a criminal arrest history. Consensual rough sex isn’t a crime, as far as I know.

[Permalink] 51. Politicaobscura wrote @ Sat, 22 Apr 2006, 6:04 am CDT:

Paul – you have it completely backwards and are doing a great job explaining precisely what is WRONG with the line up.

The defense for Collin says, “my client was not at the party, but was ID’d, he was ID’d because of a flawed lineup that included ALL the players and only the players”.

You are making there case.


I can possibly see how you might argue the array was flawed because it included ONLY the players, but I can’t see how you might argue the lineup was flawed because it included ALL the players. Surely Seligmann and Finnerty would not have wished the lineup included fewer than all of the players – that would have increased the chances they would have been picked .. of course for them it turned not to have mattered anyway.

Since Seligmann and Finnerty are the only ones arrested so far, they are the only ones in a position to challenge the photo array in court, not any one else on the team (yet). Again, unless the player photos were displayed in such a way that just Seligmann’s photo or just Finnerty’s photo, or both, stood out from all the others, I don’t think they are going to get very far with a judge.


I looked over this blog. It’s a barrage of consistently crass commentary on a very tragic event. There is not one shred of humanity contained here and all I can say is that if your mothers knew you were writing such anger-filled venom they would be at best dismayed and more likely revolted.

To summarize the content of the white male locker room trash contained here:

1) Accused is lying or gets what she deserved
2) Durham is a dump and Nifong has the brain of a walnut
3) Lacrosse players are innocent or deserve to get away with whatever they did

It may be that the accused is lying. It may be that the lacrosse players are innocent. At this point, the information in the news is so conflicting and laced with spin that it is impossible to say with any degree of certainty what actually happened.

Since none of you have any more information than what is contained in the news, all of the speculation (consistently laced with misogynistic and racist overtones) is of no worth to anyone. And the ugliness of the banter certainly doesn’t help ease any tensions in what is a very divided community.

I suggest that instead of being vulgar armchair quarterbacks, you actually go out and help the community of Durham. Be a positive force in Duke helping to heal what is a very destructive and potentially violent situation. This blog is a sad testimony to boorishness. Do something good. Make Duke proud.

[Permalink] 54. azbballfan wrote @ Sat, 22 Apr 2006, 11:45 am CDT:

Thanks Karl.

As a side note, one meant to focus on a discussion of appropriate police procedure, here goes:

Apparently, Durham procedure for positive id of a suspect is to show 6 random pictures and the suspect. The AV then is asked to codify the identity of the subject by identifying them out of the seven possible suspects.

That procedure can be used when the police already know who the suspect is. For example, a guy gets mugged at an ATM – he gives a description of his assailant to the police – they do some background work, identify a suspect with known priors who was seen in the area at the time of the alleged attack and present the AV with his picture along with 6 others.

In this case, the AV was under the influence of alcohol and potentially other substances – it was a party atmosphere with numerous guys there. By April 4th, the police had varying reports of who was in attendance – including one which claimed Seligmann wasn’t there. Team captains adamantly say that only lax players attended (which apparently is untrue?).

I think it would be unreasonable to show the gal 322 pictures as suggested by strictly following police guidelines (46 * 7). At the time of the ID, police erroneously assumed that they had DNA evidence of semen from that night. At the time, they were focused more on narrowing the field of suspects to investigate. So they showed the gal pictures of the guys they thought were at the party.

Should they have included a few other pictures? In hindsight yes. IMO this is not gross negligence on the police. Should this error be reviewed and considered for future investigations? Yes.



First of all, when I was in Durham I did a lot to help Durham, including volunteering time to tutor children, and guess what? I’m not alone. There is a huge contingency of people at Duke who do the same. Volunteering aside, a report came out yesterday that stated Duke contributes $3.2 Billion/year to the Durham economy, so I’ve had quite enough of the comments that Duke doesn’t do enough for Durham.

Second, what, exactly is racist or misogynistic about stating that the lineup was flawed? It obviously was if someone was picked out who was demonstratively not present at the party when the rape occurred. That has NOTHING at all to do with race, NOTHING. None of the comments in the above thread implied racism in the least.


Karl…I have to disagree with you here. This case is a national bombshell for a reason and it is against human nature just to let everything play out according to our prescribed legal system. Like it or not the press seems to be ahead of the prosecutor and police in this case. They are tracking down leads, confirming alibis and detailing evidence(so much so that Nifong is calling local reporters to ask about the pictures). Your utopian process assumes complete competence on behalf of Nifong and the police department and we have seen none of that so far. The idea that he didn’t check to see whether the accused had an alibi is just unfathomable in any case(especially one this huge). I feel very bad for many other poor suckers put in jail because they don’t have the means to fully investigate every angle of their defense. Sloppy police work and an incompetent DA can do plenty of damage by not doing their due diligence. At least these players & the accuser have an army of people searching for the truth.


I also think this is the most intelligent blog I have read relating to this case. If Karl wants to see mindless drivel he can find it a million other places(including some published newspapers).

Investigative reporting has solved and exposed a million cases over the years. The bottomline is that the DA and police department only have a finite amount of resources.


I’m a black woman and I also feel this blog is even-handed in trying to determine what actually happened. I haven’t seen any of the racist/misogynistic rhetoric that’s rife in some of the other blogs.

Now I do admit that I have come down hard on Nifong, because you know what – he deserves it. Unless he has an ace up his sleeve that he’s holding near and dear to his heart, what we’ve seen so far amounts to incompetence on his part.


Karl, I don’t know why you came to this blog of all places to lay down those kind of accusations. Or to this particular thread talking about the technical aspects of police ID procedures. Perhaps if you click on the links of people upthread you would see that Sharon and Rachel S. are not white males and they haven’t said anything close to the three things you mention. I’m going to guess that you have cut and pasted that comment from other Duke-related blogs you have visited, but that’s only because I can’t imagine why someone would have chosen to say that here and only here.

Anyway, back to the ID’s. Yes, Paul, I think the defense argument is that ONLY the players’ pictures were shown. The guidelines talk about fillers as being people “unrelated to the case”. I think of that as non-suspects. You think of it as people who “could demonstrably not have been at the scene”. Usually, those two things go hand in hand. The problem with your argument is that, in this particular case, they do not. All 46 white players have been treated as suspects whether or not they were “demonstrably not at the scene”. They were asked to give DNA. They had their pictures taken (I believe). Furthermore, the police have done nothing to suggest that they know who was at the party and who was not. So it is highly unlikely that before the ID, they had a meeting saying “OK, these guys were not at the party but we are putting their pictures in the lineup as fillers.”

The kicker is what ended up happening—she ID’d two people that may well have been “demonstrably not at the scene”. It makes you wonder whether there was anybody in the lineup that would not have been arrested had she ID’d them. To me, that creates a very serious credibility problem.

azball, you are right that this is not like your typical investigation, and a 300+ picture lineup would not have been productive. However, it’s not as if the police were required to wrap up their investigation in three weeks. This isn’t the first time that police have had to investigate an alleged crime with multiple suspects where nobody’s talking. No doubt that makes the investigation more difficult, but there are still things they could have done to narrow the field of suspects. They could have subpoenaed bank, credit card and cell phone records to determine who had a plausible alibi. They could have brought in Kim to look at the photos and tell them who was there. They could have taken up the offers to view the party pictures that are now circulating in the media. They could have waited for the DNA results, which after all, came in one week after the ID. You think it’s crazy now, what if she had ID’d Reade and Collin and the DNA had matched 2 or 3 other players but not them?

Bottom line, this investigation could have and should have been much more deliberate. There’s a lot of suggestions out there as to why it wasn’t. But I won’t repeat them—after all, that’s just “locker room” talk.


Karl: For what it’s worth, my mother thinks I’m doing a good job and is proud of me. Your mother, may of course, vary.

I personally think the best thing for the community is to get to the truth at the bottom of this case as quickly as possible, rather than letting idiots like Mike Nifong and hotheads on both sides continue to use this to divide the community for their own political ends—which was really no more divided than any other mixed-race community in America at the outset of this case. I also think—although you may disagree—that the community would be best served by replacing Mike Nifong as its district attorney with someone else who isn’t out of his or her depth.

I have said before, and I’ll say again, that I am keeping an open mind on the central question of this case: was the alleged victim sexually assaulted on the night in question? I hope she wasn’t, but I also hope Duke and our community haven’t been dragged through the mud (largely because of the actions of Mike Nifong early in the case) on the basis of a lie.

That, however, is no excuse for witch hunts, incompetent investigatory and prosecutorial conduct, vigilante behavior by community members (more often than not, targeted against people with no connection to the case), or making broad-brush conclusions about people—including both the accuser and the lacrosse players—based on stereotypes of race, class, and wealth.

[Permalink] 61. Skeptical-Hog wrote @ Sat, 22 Apr 2006, 1:49 pm CDT:

Karl’s posting just has to be a cut-and-paste job…. because probabilistic discussions of lineup procedures, discussion of defense tactics and the competing narratives that are emerging, debate over the authenticity and admissibility of evidence, and criticism of the prosecutor’s handling of this case just ain’t white male locker room trash talk, “crass commentary,” or “anger-filed venom.” All of which make’s Karl’s posting unintentionally ironic and silly…

I’m sure there are blogs out there that fit Karl’s criticism, but this just plain isn’t one. For one thing, I absolutely wouldn’t be posting, even under an assumed name like I’m doing here, on a misogynistic or racist blog, and I doubt the vast majority of the folks posting here would either.

It’s also funny that Karl associates being pro-Durham with being pro-Nifong… I’m not at all convinced events support that association, to be frank.

And I think there’s at least one vestige of humanity left somewhere on this blog… matter of fact, basically everyone posting here seems to share a desire that 1) the truth (whatever it turns out to be) be known, 2) the guilty be punished and the innocent be exonerated, and 3) proper investigatory procedure and professional ethics be upheld all around. If a strong desire for justice isn’t humanity, I don’t know what is.

Sorry to waste space responding to a baseless attack, but if Karl reads this, perhaps he should consider an apology to the readers and posters of this blog. Oh, and an apology to Chris, who’s been kind enough to offer an interesting and intelligent forum for some fascinating discussion on what actually is an important case. And Karl, I share your distaste of degrading the alleged victim, and I commend your posting your entry to blogs that have done so. Only, in your haste, you are failing to differentiate between the good and the bad, between those who seek justice and those who wish to denigrate the weak. And that sort of sloppiness is unhelpful.

[Permalink] 62. Tom Maguire wrote @ Sat, 22 Apr 2006, 3:56 pm CDT:
Are the police and Nifong going down together on this one or will there be some infighting?

Per the Ankle Biting Pundit, the police investigators have been irked by Nifong’s behavior for weeks. For example, (per ABP) the investigators found the group with whom the First Dancer was drinking prior to her performance, but the DA sat on that evidence.

I would look for bitter recriminations after this case blows up.

From the cabbie:

“She looked, like, mad,” Mr. Mostafa said of the woman. “In her face, the way she walked, the way she talked, she looked like mad.”

Well, the Second Dancer did call the cops, and reported that partiers shouted ethnic slurs at her. So yeah, I guess she was mad enough to call the cops.

As to Finnerty being 6’3” but little and skinny in comparison to his teammates – not so much. He was clearly among the taller players, and there were several notably smaller (Loftus is 5’9”, 155 lbs, and was all-conference or all-county in lacrosse, basketball, and soccer).

All I have handy is a listing for the sophomores, but the team roster is out there (and probably here, for that matter).

The complete quote on that point was this:

Roberts said Thursday she does not remember Seligmann's face, but said she recalls seeing Finnerty whom she described as the "little skinny one."

“I was looking him right in the eyes,” she said.

[Permalink] 63. Jonesy wrote @ Sat, 22 Apr 2006, 4:37 pm CDT:

I’m still intrigued by this photo ID. It’s pretty clear that the AV was unable initially to make any kind of identification, which is why the DA had to perform DNA tests on all 46 white players. Remember, at the time, a lot of people were saying this was a very unusual thing to do and some “experts” were saying how the results might not hold up in court. So you would think that the investigators had no other way to narrow down the list of suspects. And while the DNA tests are being done, the AV is now able to ID those involved in the case. She was only shown the 46 lacrosse players and selected 2 with 100% certainty. Since the DA was expecting the DNA tests to show who the guily players were (Remember Nifong said that the DNA tests “would show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.”), there was no reason to put in other photos because he believed this photo ID would (in theory) just corroborate the results of the DNA tests.

Of course, that isn’t what happened but I don’t know how much the investigators can be faulted given what they thought at the time. So, although I’m no expert, it appears there wasn’t anything wrong with the photo ID method that would allow it to be just thrown out, even though it does seem flawed.

However, what I still don’t understand is once the DNA tests can back all negative, why not use the results of the photo ID to search those two suspects rooms (not wait until after the indictment) and (1) look for other evidence and (2) question them to see if they had alibis that could be verified. I’m sure either player would give this information if it could save them from being one of the ones arrested. I think the photo ID method used was ok for either narrowing down the suspects involved in the case (so you only have to spend time investigating a few players as opposed to all 46) or using the ID results to corroborate some already obtained evidence suggesting the guilt of specific players. But, from what we know, this isn’t what happened.


Jonesy….Your last paragraph raises the questions that make everyone question whether Nifong and the police department know what the hell they are doing. I also think that you are right in that Nifong thought that the DNA results would seal the case and now he was stuck with two players ID’d without damning evidence. He is now playing catchup and may have run into at least one player with a very tight alibi. It really appears that he had to indict before he had his ducks lined up due to the elections timetable. I have no sympathy that this appeared to have blown up in his face.

[Permalink] 65. tuocs wrote @ Sat, 22 Apr 2006, 5:33 pm CDT:

Why could Seligman not leave while Colin and #3 were still in the bathroom with the AV? And why is everyone assuming all the watches, cameras, phones are all calibrated to the same time hack? Other then the police logs, the rest of the time issues would not be as black and white as the defense seems to think IMHO.


I’d think the alleged victim might have noticed that Seligmann’s penis was no longer in her mouth and communicated that as part of her desciption of events. Granted, we don’t know exactly what she said transpired, but you’d think “one assailant stopped forcing her to perform oral sex on him because he had a hankering for a trip to the Cook Out, while the others continued assaulting her” would be a detail worth mentioning.


The phones would be calibrated to GPS times. On the others, if you’re a college student who is more than 1–2 minutes off what everyone else thinks time is, you tend to find out about that relatively quickly when professors start glaring at you for being late to class.


Those are awful big leaps given the evidence we have seen so far. These kids aren’t the type of analysts that you see on a show like 24 who can doctor all types of evidence. I know they go to Duke, but I wouldn’t give them that much credit.

The big word I got out of reading the blog that Tom Maguire recommended was that the AV was a party beforehand and was really banged up. Who drove her to the party and did Nifong investigate this angle of the case? there are loud whispers on this and I wonder when something will come out. It is a huge missing piece of the story.

Also…Why didn’t Nifong take up the initial captains request for a lie detector tests? I know these things aren’t perfect but I guess they are reliable enough to kick out a CIA agent. Was the AV ever given a lie detector test? Sometimes people fail these so badly that you take away that supposed 105 margin for error.

[Permalink] 69. toucs wrote @ Sat, 22 Apr 2006, 7:49 pm CDT:

The neighbor witnessed the arrival and departure of the two women…his account of their appearance directly disputes the defense tale that the women was intoxicated and beat up beforehand.

One thought…since the defense seems to be trying to paint the accusor as drunk before she arrived….what about the lacrosse players who had been drinking for quite some time prior to her arrival? Does their inebriation aid them in making accurate statements?


The defense doesn’t need players who can make accurate statements unless they plan on calling players who were at the party at trial. My guess is that they don’t.

The alleged victim, however, has to go on the stand or Nifong has no case whatsoever.


The neighbors account also corresponds with the photo timeline. I am sure the defense would gladly trade the neighbor speculating at inebriation to corroborate a timeline vital for an alibi. That would be like trading a nickel for a rare silver dollar.

[Permalink] 72. azbballfan wrote @ Sat, 22 Apr 2006, 8:25 pm CDT:

One thing we may be discounting is the lax players 4th amendment rights. Good defense attorneys would be all over any spurrious warrants and subpeonas for a case prior to charges being made.

Also, the police and Nifong are subject to potential civil suits from subjects of any such warrants. There may be warrants we’re unaware of, but it’s a bit strange that the alleged’s rooms weren’t searched until after charges were brought.

Man, I’m glad I’m not officially investigating this one. Much safer to be in the stands quarterbacking this game.

I liked the earlier post referencing “Playing Fantasy DA”

[Permalink] 73. Sharon wrote @ Sat, 22 Apr 2006, 10:56 pm CDT:

I read somewhere that she had taken a lie detector test, but I don’t know where I read it. It could have been just a rumor being passed along.

But if there was a lie detector test given and she passed, this could be why Nifong is egging along. Still, if she had passed, wouldn’t he have said something official?

[Permalink] 74. azbballfan wrote @ Sat, 22 Apr 2006, 11:45 pm CDT:

A poster on another blog seemed to have inside insights about the case before they became public. If his explanation of events and locales of players is true – it would explain why the DA and police couldn’t have access to players to get statements.

During the city councilmeeting on April 7th, a councilmember said he heard that boys had been taken out of state to avoid the police.

Makes complete sense. Anyone who could possibly be implicated would be instructed to stay home (only one player hails from NC) until the DA either presses charges, drops charges, or tries to extradite players for testimony.


That sounds unlikely to me; I’m quite certain most, if not all, of the lacrosse players are still on-campus, except on weekends when a lot of kids may be going home. (For example, the inventories of the rooms in the latest searches were signed by the players’ roommates, who are also lacrosse players.)

Someone said on FNC tonight while I was flipping around that player #3 is widely known on campus—if so, apparently not widely enough that I know who it is :)

[Permalink] 76. Sharon wrote @ Sun, 23 Apr 2006, 10:24 am CDT:

I’m started to get POd. OK, didn’t I read that the defense atty’s said there was no DNA found beneath her fingernails? Well, why in the linked article is one now saying that there was some DNA but it was inconclusive? That is hardly the same thing as finding NO DNA. And the way I understand some DNA tests, if there is a mixture from more than one person, it is going to be inconclusive. This fact may establish that she did scratch more than one person.


The Newsweek article was most a regurgitation of what everyone knows but there were two things that I took out of it:

- Seligmann’s alibi is even more airtight than once thought as his phone calls started at 12:05

- As Sharon noted there is inconclusive DNA under the finger nails. This is clearly different than the no DNA line the defense has been harping on.

The 2nd round of DNA tests will either move the case heavily towards the defense or it will move it toward the prosecution with questions as to whether they got the right guys.

[Permalink] 78. Ferdinand wrote @ Sun, 23 Apr 2006, 11:43 am CDT:

According to the Newsweek article, Seligmann’s summer home has a motor boat and tennis court , thus he fits “the rich-kid stereotype.” Perhaps with a little more diligence, the reporters can found out if he has a butler named Cadbury or not.

[Permalink] 79. Sharon wrote @ Sun, 23 Apr 2006, 11:49 am CDT:

I’m pretty sure I read somewhere that the Butler’s name is Jeeves (or Giles); rumor mill.


A couple more illuminating highlights from the article:

“Simeon says he has also been giving Nifong fashion advice, telling him to lose the plaid shirts and to start wearing black suits, light shirts and power ties. Women like power, Simeon says he told Nifong.” (uh huh; we sure do like them power suits.)”

“On April 13, Nifong met with three defense lawyers, Bill Thomas, Butch Williams and Wade Smith. According to Williams, when the lawyers got into exculpatory evidence, like the photos, Nifong essentially cut them off, saying that he KNEW MUCH MORE ABOUT THE CASE THAN THEY WOULD EVER KNOW, and that he intended to indict two players.” (emphasis mine; can anyone say Seligmann?)


Very funny Ferd & Sharon…does that mean we talk about what the AV’s yard looks like and guess her parole officer’s name?

[Permalink] 82. toucs wrote @ Sun, 23 Apr 2006, 7:30 pm CDT:

Lengthy, but interesting read. Not sure which side it favors. ONE interesting tidbit, according to a defense attorney…..DNA was collected from her fingernails, testing so far has been inconclusive.

[Permalink] 83. toucs wrote @ Sun, 23 Apr 2006, 7:32 pm CDT:

Hey, sorry I should have read thread…my post just a repeat, my bad.

So what is up with the DNA coming back into play? Stay tuned, eh?


Well, Nifong says not to hold your breath on the DNA… May 15th.

Maybe he’s thinking he survives through the runoff in the DA’s race :p

[Permalink] 85. southern yankee wrote @ Mon, 24 Apr 2006, 5:26 am CDT:

Chris, sorry to be so late but it took me awhile to get through all the comments.

Re your comment #12: Cosmic doesn’t have waitresses or pool tables. Did that wording come from Finnerty’s alibi?


Re #85: No, that was simply a hypothetical alibi (having never set foot in Cosmic myself, apparently not the best one in human history).

Nonetheless I expect Finnerty’s lawyers will have some strong evidence (sworn affidavits, receipts, etc.) showing when he was there.


It’s the off-9th Street experience you should have before leaving Durham; just going up the stairs on Perry to Cosmic/Ninth Street Dance brings you back about 50 years (the building is probably even older). It used to be The Music Loft which is now around the corner in the non-descript concrete box.

Not really Mexican, just a lot of food for a reasonable price. My latest favorite is their spicy eggplant quesadilla but my old standby is the chicken deluxe burrito with black beans instead of pintos. Our little girl loves their chicken quesadillas and the Mrs. is quite fond of their sangria. Plus, you might run into some attractive and fit young ladies entering/leaving the dance studio. While there, I’d also check out the new record store a few doors down on Perry, Chaz’s Bull City Records.

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