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Friday, May 5, 2006

Duke Lacrosse Rape: The Faulty Lineup

updated/corrected: May 10, 2006

The Stacked Deck and Four ID's



Reade Seligmann Collin Finnerty 3rd suspect



Defense attorneys said that Durham DA Mike Nifong rigged the lineup used by the police investigators to identify Reade Seligmann as a rape assailant of Crystal Gail Mangum . The defense motion said:
Mr. Nifong proposed that the investigators put together mug shot photographs into a group of only members of the Duke Lacrosse Team. This procedure absolutely violated Durham Police Department's General Order 4077 on eye witness identification which was issued in February 2006, and which was designed to prevent the conviction of innocent persons and reduce the chance of mistaken identification.

Kirk Osborn, a defense attorney representing Reade Seligmann, said that the lineup should be suppressed if the case goes to trial, calling it a "multiple-choice test with no wrong answers."

The defense submitted the transcript from the police lineup with their motion. Here is the section of the transcript where Ms. Mangum identifies Reade Seligmann as one of her assailants:
IMAGE 7 (Reade Seligmann)

Victim:
He looks like one of the guys who assaulted me.

Sgt:
How sure of that are you?

Victim:
100%

Sgt:
You're a 100% sure. Ok.

Victim:
Yes.

Sgt:
How did he assault you? Which one was he?

Victim:
He was the one that was standing in front of me. um...that made me perform oral sex on him.

Sgt:
What else did he do?

Victim:
That was it.

On Wednesday, May 10, 2006, the full transcript of the lineup became available.

The photo identifications made by Crystal Gail Mangum during this "lineup" are currently the only piece of "evidence" linking Reade Seligmann and Collin Finnerty to the rape case.

Ms. Mangum was told she would be looking a pictures of people who the police had reason to believe attended the party. In fact, she was going to be shown 46 photos of all the white Duke lacrosse team members. The police had photographed all 46 white players on March 23rd when they had reported to the Durham police crime lab "to provide identifying information" (DNA).

Four ID's - two at 100%, one at 90%, and one "not sure"


Ms. Mangum identified four mug shots out of the 46 that were shown to her as being her likely assailants. The full lineup transcript shows that Reade Seligmann was image #7 and Collin Finnerty was image #40. She was 100% sure that both men sexually assaulted her.

Ms. Mangum indicated the player in mug shot image #4 looked like one of her attackers, but then said, "I'm not sure."

Ms. Mangum also said one of the Duke player mug shots looked like her assailant without his mustache (image #5). She was 90% sure that the player shown in image #5 was her assailant. Duke lacrosse players are not allowed to have mustaches.

Regarding Ms. Mangum's uncertainty about mug shot images #4 and #5, WRAL reported:

"For her to say, 'I'm not sure,' is very hurtful to the prosecution," said Wake County Chief Public Defender Bryan Collins, who is not connected in any way to the rape investigation. "It doesn't surprise me at all that (a third) person has not been charged."

A fourth photo in the lineup also catches the alleged victim's attention.

"He looks just like him without the mustache," she says, going on to say that she is only 90 percent certain.

Former prosecutor, now defense attorney, Hart Miles, who is also not connected in any way with the lacrosse rape investigation, said that 90 percent might not be beyond a reasonable doubt in the minds of jury members.

"Ninety percent is a lot, but can you be entirely convinced and fully satisfied that someone is guilty if all you have is that particular information?" Miles asked.

The defense is absolutely right that the due process of the defendants was violated. Ms. Mangum had no choice but to identify a Duke lacrosse player, because she was only shown a photo array of white Duke lacrosse players. Even if she was picking at random she would still be picking someone who was probably at the party, since most of the lacrosse players were there. Why weren't a few non-lacrosse player mug shots inserted in the photo array?

There were also two non-lacrosse players at the party. NBC17.com reported:
Defense attorneys also noted that two people at the party who aren't on the lacrosse team weren't included in the photos shown to the woman. Those two people also have never submitted DNA samples to authorities for testing, attorneys said.

The News & Observer reported:
The lineup procedure ran contrary in two fundamental ways to the police department's General Order 4077 on Eyewitness Identification issued in February.

* Policy calls for an independent administrator to run the lineup, not the primary investigator (Sgt. Mark Gottlieb). This avoids any unintentional influence from the investigator.

* The lineup should include five "fillers" -- people who have no connection to the case -- for every suspect, to protect against faulty identification. If an accuser picks a filler photograph, the defense is certain to challenge that witness's reliability.

The Durham Police policy also follows federal guidelines:
U.S. Department of Justice guidelines on using photo identifications call for using a photo array that includes only one suspect and at least five "fillers," or other people who generally fit the witness' description of the perpetrator, for each array.

Therefore according to the Justice Department and Durham Police Department's policy; if Ms. Mangum was going to look at mug shots of all 46 white Duke lacrosse players the lineup should also have had 230 "fillers" (5 x 46) for a total of 276 photos in the computer lineup.

Legal experts generally agreed the lineup procedure was flawed. MSNBC reported:
Larry Pozner, a defense attorney for 32 years and the former president of the National Association of Criminal Defense Lawyers, agreed that the procedure was flawed.

I thought it was a stacked deck,” said Pozner, who lives in Denver. “It didn’t matter who she picked. She was always going to be picking someone on the team.”

sources:
Long road ahead in Duke lacrosse rape case [msnbc.com, May 7, 2006]
Full Transcript of police lineup [wral.com]
Transcript Suggests Alleged Rape Victim ID'd Four Duke Lacrosse Players [wral.com, May 10, 2006]
Defense Questions Photo ID Of Duke Lacrosse Players [nbc17.com, April 21, 2006]

Here are the relevant portions of the lineup transcript:

--------------------------TRANSCRIPT---------------------------------
3/31/2006 1223
Investigator Himan and I met with Durham Co. DA Michael Nifong in reference to doing a photographic line up with the new mug shot style photographs obtained during the Non-Testimonial Order procedures conducted on March 23, 2006 at the Durham Police Forensics Unit. Mr. Nifong suggested we put together the mug shot type 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 line up or photographic array, we could merely ask the victim to look at each picture and see if she recalled seeing the individuals at the party. If in fact she could recall, just let us know how she recalled seeing them from that night, what they were doing, and any type of interactions she may have had or observed with a particular individual.

1340
I arrived back a District 2 and gave Capt. Lamb and Lt. Ripberger an overview of the conversation with the DA. I also discussed with them my idea to take the photographs and place them into a Power Point presentation. I explained to them that I would assign the set up of the presentation to Investigator Williams and Himan.

1437
I sat down with Investigator Williams and Himan and taught them how to put together a Power Point presentation since neither one of them had that experience. I asked them to set it up using the IR number, create blank item number slides in between corresponding photographic slides. They had access to each of the mug shots with the Lacrosse Players names on a copy of a CD provided by the Durham Police Department Forensics Unit.

4/3/2006 1235
Investigator Himan made contact with me and advised e the Power Point presentation was completed.

4/4/2006 1011
I set up a desk in the briefing room of the District 2 Substation and placed Investigator Williams laptop computer on top of the desk. In addition, I borrowed a full size computer monitor from the secretary's office and attached it to the laptop. By setting up the computer in that fashion, I was able to show the victim the pictures of the players believed to be at the party, while Forensic Investigator Ashley Ashby wa able to photograph her reaction (facial and body) while observing the individuals. simultaneously, the photographs that were being observed by the victim on the opposite side of the desk from me, were able to be displayed on the laptop so potential Jurors, Defense Attorneys, Prosecutors, and other Judicial Officials could witness both the victim, her reactions, and the photographs in real time as the victim was seeing them I checked out the display, had the District 2 Executive Assistant Van Clinton look at the pictures to give me her impression of how the photographs looked as a presentation. She stated it looked very professional, and there was no particular individual who appeared to be more or less noticeable than anyone else.

1125
The victim arrived at the District 2 Substation. She was greeted, asked if she needed anything to drink, or needed to use the restroom before we began. She used the restroom while ID finished setting up the video system.

1129
I sat down with the victim in the briefing room at the conference table and explained to her were going to sit in the far side of the room at the desk and look at people we had reason to believe attended the party. I told her when she sat down she would only be able to see a screen on the monitor showing the introduction of the presentation. I explained to her during the time she was looking at each picture she should merely tell me who she remembered seeing at the party, or tell me if she did not recognize seeing an individual at the party. I explained to her it was very important not to say anyone was present at the party if they were not, or say they were if she could not recall they were present. I also told her it was important to tell us if she recalled seeing a particular individual at the party and to let us know how she recalled seeing them from that night, what they were doing, and any type of interactions she may have had or observed with a particular individual. She agreed. I told the victim if she need to stoop for any reason during the presentation, we could stop during one of the in between slides that merely gave the name of the upcoming slide (i.e.: IMAGE 1) I also explained to her that we would show the slides (mug shots for only one minute, and would not return to (view) the individual slide after it was shown. During the time I spoke with the victim and explained to her how the viewing would be done Investigator Clayton, CSI Ashby, and CSI Maddry were present. Investigator Clayton took basic hand written notes, CSI Ashby ran the audio video recorder, Sgt Gottlieb changed the slides and asked questions to the victim in direct correspondence to her statements, and CSI Maddry kept time for Sgt. Gottlieb on the amount of time (one minute) a mug shot was being shown.

The writing below this point is a conversation between the Victim and Sgt. M.D. Gottlieb. The name of the persons believed to be at the party have been added for the prosecution and defense; however, they were not on the screen or placed on the presentation. Neither Sgt. Gottlieb or Crystal Gail Mangum could have seen the names in any way.

KEY FOR THE TRANSCRIPT:
Sgt = M.D. Gottlieb Victim = Crystal Gail Mangum

Sgt:
Tuesday April 4, 2006 at 11:35 in the morning. I am sitting here with Crystal Gail Mangum a victim from 610 N. Buchanan; IR 06-8310

The screen showing is the introductory screen with the Durham Police report number and address 610 N. Buchanan.

Sgt:
Ms. Mangum would you mind saying your name and date of birth.

Victim:
Crystal Gail Mangum, July 16, 1978

Sgt:
What we are going to do is show you some slides. During the time we're showing you the slides, we are going to give you one minute for each photograph. We can talk about it afterwards or while you're looking at it. Whatever you'd like to do. You will see one photograph and then a blank

Sgt Continued:
screen just with a Item number. Another photograph and then another blank screen. Understood?

Victim:
Yes

IMAGE 1

Victim:
I don't recognize him.

Sgt:
Ok.

Sgt:
Ready for the next?

Victim:
Yes

IMAGE 2
I don't recognize him.

Sgt:
And I am just going to go the entire full minute on these.

Victim:
Ok.

Sgt:
Ok, and if you don't recognize them just wait until the full minute is up and say I don't recognize them.

Victim:
Um huh.

Sgt:
OK

Sgt:
Ready for the next?

Victim:
Yes.

IMAGE 3

Sgt:
Did you recognize him?

Victim:
Yes

Sgt:
How did you?

Victim:
He was sitting on the couch in front of the television.

Sgt:
And this was at the party at 610 N. Buchanan?

Victim:
Yes.

Sgt:
Next Image.

IMAGE 4

Sgt:
Did you recognize that person?

Victim:
He looked like Bret but I'm not sure.

Sgt:
Who is Bret?

Victim:
One of the guys that assaulted me.

Sgt:
One of the guys that assaulted you? Ok.

Victim:
Um hum.

IMAGE 5

Victim:
He looks like one of the guys who assaulted me sort.

Sgt:
Ok. How um, how sure of it are you on this image?

Victim:
He looks just like him without the mustache.

Sgt:
Ok, so the person had a mustache?

Victim:
Yes.

Sgt:
Percentage wise, what is the likelihood this is one of the gentleman who assaulted you?

Victim:
About 90%

IMAGE 6

Sgt:
Do you recognize that person?

Victim:
No.

IMAGE 7 (Reade Seligmann)

Victim:
He looks like one of the guys who assaulted me.

Sgt:
How sure of that are you?

Victim:
100%

Sgt:
You're a 100% sure. Ok.

Victim:
Yes.

Sgt:
How did he assault you? Which one was he?

Victim:
He was the one that was standing in front of me. um...that made me perform
oral sex on him.

Sgt:
What else did he do?

Victim:
That was it.

NOTE: Inv. Clayton motioned for me to repeat that for him.

Sgt:
He was the one that was standing in front of her that made her perform oral sex. 100% sure that would have been IMAGE #7.

IMAGE 8

Victim:
I don't recognize him.

Sgt:
Ok.

[... ]

IMAGE 40 (Collin Finnerty)

Victim:
He is the guy who assaulted me.

Sgt:
What did he do?

Victim:
He put his penis in my anus and my vagina. (The victim's eyes were pooling with tears)

Sgt:
Was he the first or second one to do that?

Victim:
The second one.

Sgt:
Is he the one that strangled you or not?

Victim:
No.

Sgt:
So that is the gentleman who put his penis in your anus; picture #40.

IMAGE 41

Sgt:
Do you recognize him?

Victim:
No.

Sgt:
Do you need some tissues? I can see your crying.

Victim:
No, I'm fine.

Sgt:
Um, you said you don't recognize him. And...Getting back one slide to the gentleman who put his penis in your anus. How sure of that are you?

Victim:
100%

Sgt:
100%

IMAGE 42

Sgt:
Do you recognize him?

Victim:
No.
[...]

Full Transcript of police lineup [wral.com]

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