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Quest to convict hid a lack of evidence

DURHAM, N.C.—Mike Nifong, the district attorney in Durham, found out about the case that now threatens to end his career on March 23, 2006, when he stopped by the office copier and found a court order demanding DNA samples from 46 members of the Duke University lacrosse team.

The order said that Crystal Gail Mangum, an escort service dancer, had told police that three men at a team party had dragged her into a bathroom and raped her anally, vaginally and orally for 30 minutes.

The next day, Nifong told Durham police that he was taking over the case. It was an unusual move for a prosecutor, especially since the case was already troubled.

The 27-year-old dancer and mother of two couldn't identify any of her alleged attackers. She'd given police at least six conflicting accounts of what had happened. After Durham police Sgt. John Shelton, the first officer who saw Mangum after the party, talked with her in the Duke Hospital emergency room, he announced, "I think she is lying."

Nevertheless, Nifong forged ahead in what became a single-minded quest not to discover the truth, but to confirm Mangum's story. It ended in January when, facing charges from the North Carolina State Bar, he removed himself from the case. The case finally collapsed on April 11, more than a year after Nifong had launched it, when North Carolina Attorney General Roy Cooper dropped all the charges that Nifong had brought against Dave Evans, Collin Finnerty and Reade Seligmann and declared the three Duke lacrosse players innocent.

A Raleigh News & Observer examination of Nifong's handling of the case, based on documents and dozens of interviews, has found that Nifong tried to buttress Mangum's claims, ignored contrary facts, withheld evidence favorable to the players and refused to discuss the case with defense lawyers. His lead investigator, Linwood Wilson, pressured witnesses and produced different timelines and testimony to support Mangum's shifting statements.

There's no evidence that Nifong or any of his investigators ever challenged Mangum to explain the contradictions in her versions of what happened on the night of March 13, 2006, at 610 N. Buchanan Blvd. in Durham. Nor did they ever speak with a Duke Hospital nurse who conducted a pelvic examination of Mangum hours after she said she'd been raped.

Instead, fighting for the Democratic nomination for district attorney, Nifong made a series of decisions and inflammatory statements that generated a media firestorm and turned three innocent college students into criminal suspects.

When reporters and camera crews roamed the sixth-floor hallway outside his office, looking for an interview, Nifong obliged, declaring that the rape was racially motivated.

His campaign manager later said that when she'd asked him what he was doing and warned him that he had no idea what effect his grandstanding might have on his campaign, he replied, "I'm getting a million dollars of free advertisements."

Nifong, who's made few public statements since last spring, declined to be interviewed for this report.

Stunned by Nifong's increasingly strident public statements, defense lawyer Joseph B. Cheshire V tried to talk to the prosecutor last spring.

Nifong "is not going to talk with any attorneys while there have been no charges filed, and ... if Joe Cheshire feels that his client should be charged, then he should tell the police department," Nifong's paralegal responded.

Behind the bluster was a crumbling case.

Mangum had said that her attackers hadn't worn condoms, and that one and perhaps all of them had ejaculated. So on March 27, 2006, Durham police investigator Angela Ashby delivered the DNA that an emergency room doctor had taken from Mangum's body a few hours after the party to the State Bureau of Investigation laboratory in Raleigh. She handed over swabs to see whether the DNA taken from Mangum matched that on any of the swabs from the mouths of the 46 white members of the lacrosse team.

Mangum had said her attackers were white.

Between March 28 and 30, forensic biologists at the State Bureau of Investigation tested the swabs taken from Mangum's body. The SBI found no semen, blood or saliva from what Mangum said was a vicious 30-minute assault.

SBI phone logs show that laboratory workers spoke with Nifong on March 30, and the next day, the district attorney turned to an older tool. He met with two of the investigators in the case, Sgt. Mark Gottlieb and Investigator Benjamin Himan, to discuss how to use new mug shots police had taken of the 46 white lacrosse players.

During the previous two weeks, Mangum had viewed photos of 36 players but hadn't identified any of them as her assailants.

"Mr. Nifong suggested we put together the mug shot style photographs into a group since we are under the impression the players at the party were members of the Duke Lacrosse Team and instead of doing a lineup or photographic array, we would merely ask the victim to look at each picture and see if she recalled seeing the individuals at the party," according to Gottlieb's report on the case.

That violated Durham Police Department policy, which requires five photographs of "fillers"—people not associated with the case—for each picture of a suspect. All 46 white lacrosse players were suspects, so the photo array should have had five fillers for every player, or 276 photos. The policy also said that officers unfamiliar with the case should run the lineup, to avoid the risk of suggesting whom to pick.

Nevertheless, Gottlieb, the senior investigator on the case, conducted the lineup late on the morning of April 4, and Mangum picked out four men as her assailants: Matt Wilson, Collin Finnerty, Reade Seligmann and Dave Evans. Mangum previously had told Gottlieb that three men had assaulted her, but Nifong's files contain no evidence that he, Gottlieb or police tried to resolve the discrepancy.

When the lineup was over, Gottlieb and Investigator Michele Soucie went directly to Nifong's office to brief him on the results.

Nifong instructed Soucie to find evidence to back up Mangum's story. He told the investigator "to nail down what victim did on the day before arriving at 610 N. Buchanan so we can show that she did not receive trauma prior to incident—with witnesses."

On April 6, police brought in Jarriel Johnson, a Raleigh man who'd driven Mangum around the area on the weekend before the lacrosse party. In a handwritten statement, Johnson said he'd taken Mangum to at least three hotel rooms in Raleigh and Durham and to a Hillsborough strip club.

Mangum told police that one of those encounters had involved a couple and the use of a small vibrator, which could have explained the only abnormal finding from Mangum's pelvic examination hours after the lacrosse party: diffuse swelling of the vaginal walls.

The absence of DNA evidence didn't matter, Nifong told a forum at North Carolina Central University. "DNA results can often be helpful, but, you know, I've been doing this for a long time, and for most of the years I've been doing this, we didn't have DNA. We had to deal with sexual assault cases the good old-fashioned way. Witnesses got on the stand and told what happened to them. ... It doesn't mean nothing happened. It just means nothing was left behind."

The absence of DNA evidence wasn't Nifong's only problem, however.

By April 11, when Nifong met with Mangum and his investigators, Mangum had given a half-dozen or more conflicting accounts, records show.

She'd picked out four attackers on April 4 but told police and doctors that three men had attacked her. She said Evans, who was clean-shaven, had a mustache. She'd told a nurse at Duke that she had one drink that evening, but she told doctors at University of North Carolina Hospitals that "she was drunk and had a lot of alcohol that night." First she claimed that a second dancer, Kim Roberts, had stolen her money. Then she said Roberts was also a victim.

Nevertheless, on April 12, Nifong filed a motion under seal with Superior Court Judge Ronald Stephens, indicting Reade Seligmann and Collin Finnerty, both Duke sophomores. Three weeks later, he won a narrow victory in the Democratic primary for district attorney.

Although he said that DNA didn't matter, Nifong arranged for a private lab, DNA Security Inc., to run tests on the final samples from the rape kit. The results were the same: Mangum had no DNA from the lacrosse players, but the lab found DNA on her body from at least four unidentified men.

The DNA might have provided evidence on who, if anyone, had assaulted Mangum. Nifong and Brian Meehan, the lab's director, however, agreed that the lab wouldn't report that the rape kit had found DNA from those men.

Nifong showed no interest in finding out whether anyone who wasn't a Duke lacrosse player had assaulted Mangum. When Jim Cooney, the lead attorney for Seligmann, reminded Nifong that cell phone records, an ATM surveillance photo and dorm records showed that Seligmann had left the party minutes after the two dancers stopped performing, Nifong replied: "There is no such thing as an airtight alibi."

"There is nothing you can show me that will change my mind," Nifong said, according to Cooney.

Defense lawyers were preparing to ask a judge to throw out Mangum's identification of the defendants because of the flawed lineup procedures and to ask for the trial to be moved from Durham.

One of Cooney's colleagues on the defense team, Brad Bannon, also had been concerned about the DNA evidence since May 15, when his client, Dave Evans, was indicted, because tests didn't rule Evans out as a possible source of DNA found on false fingernails that had been found in a trash can in Evans' bathroom.

Bannon pushed Nifong to open his investigative file, which Nifong was required to do under a new state law. Judge W. Osmond Smith III ordered Nifong to turn over all documents and raw data from DNA Security, and on Oct. 27, Bannon received 1,844 pages of technical documents.

It didn't take long for the defense lawyers to find the conflicts in Mangum's stories, the flawed photo lineups and statements from the second dancer at the party that the rape charges were a "crock." It took Bannon a month to decode the documents from DNA Security: The lab had found DNA from at least four unidentified men on Mangum and in her underwear.

Nifong had never disclosed these results, even though North Carolina's new discovery law required him to hand over "a report of the results of any examinations or tests conducted by the expert," and he'd done nothing to identify or investigate these other men.

Bannon filed his findings with the court and Nifong two days before a hearing scheduled for Dec. 15. Before the hearing, Nifong, defense lawyers and Judge Smith met privately in a small conference room next to the grand jury room.

Nifong said he didn't know about the withheld results, and when the hearing began in open court, Nifong made a similar statement: "The first I heard of this particular situation was when I was served with these reports—this motion—on Wednesday of this week. ... It's crucial that everybody have access to all of the evidence in this case."

Nifong called Brian Meehan of DNA Security to the stand. When Meehan said that he and Nifong had agreed not to report the results of all tests and examinations, some supporters of the Duke players burst into applause. The prosecutor looked ashen, resting his face in his hands or staring down at the table. His DNA expert had become a witness for the defense.

On Dec. 20, Nifong received a letter from the North Carolina State Bar informing him that a new grievance had been filed accusing him of withholding the DNA evidence.

The next day, Dec. 21, Nifong's chief investigator, Linwood Wilson, went to an undisclosed location and met with Crystal Mangum. According to Nifong's files, this was the first time that the district attorney's office had talked with Mangum about the case.

Hired in December 2005 as a coordinator for pursuing bad check charges at a $23,453 annual salary, Wilson had started working on the lacrosse case in May. Nifong later promoted him to chief investigator and gave him a 66 percent raise, to $39,000.

One of Wilson's chief tasks was to confront witnesses who might undercut the prosecutor's case. According to Nifong's files, Wilson had met with the owner and employees of the Platinum Club in Hillsborough, where Mangum danced. He'd dug up an old misdemeanor warrant on Moezeldin Elmostafa, a taxi driver who backed Seligmann's alibi, and told Durham police to arrest him.

But when he questioned Mangum on Dec. 21, he didn't probe Mangum's prior statements or sort out her numerous contradictions.

Instead, Wilson emerged with a story rich with new or previously unknown details that seemed to patch the publicized holes in the case.

The rape was over by midnight, not 12:45 a.m. One of the defendants, Dave Evans, had used three fake names: Dan, Adam and Brett. Seligmann had used two: Adam and Matt. Mangum couldn't remember whether Collin Finnerty had used one. She didn't know whether penises were used to rape her. Roberts, the other dancer, had stood at the open bathroom door as Mangum's attackers wiped her off with a towel.

But Mangum's new account created new contradictions. If Wilson's report was accurate, Mangum had been on the phone with her escort agency and her father while she and Roberts were dancing, and Seligmann was on the phone with his girlfriend while he was assaulting Mangum.

The next day, Nifong called Benjamin Himan, the police department's lead investigator on the case, and told him that he was dropping the rape charges because Mangum was no longer 100 percent certain that a penis had been put in her vagina.

Nifong's case had collapsed. The "rogue prosecutor," as North Carolina Attorney General Roy Cooper described Nifong, never tried to find out what happened at 610 N. Buchanan Blvd. in Durham on the night of March 13, 2006. He was bent only on proving that three Duke lacrosse players had raped Crystal Gail Mangum.

When Cooper announced that he was dropping the charges against Reade Seligmann, Collin Finnerty and Dave Evans, Mike Nifong was in Winston-Salem with his attorneys.

He was preparing to defend himself against being disbarred.

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(Craig Jarvis of The News & Observer contributed to this report. Neff reports for The News & Observer.)

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(c) 2007, McClatchy-Tribune Information Services.

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