On Tuesday, 16 May, recently graduated Duke University lacrosse team captain David Evans released the results of a polygraph examination that his lawyer says shows he is innocent of a rape charge for which he was recently indicted. AntiPolygraph.org makes no judgment on Evans’ guilt or innocence, but the polygraph results are evidence of nothing. To begin with, polygraph “testing” has no scientific basis, and the results are easily manipulated through the use of simple countermeasures that polygraphers have no demonstrated ability to detect.
Moreover, under terms of attorney-client privilege, a lawyer can take his client from polygrapher to polygrapher until he “passes” a polygraph examination. The results of any failures can be kept secret. Thus, the results of attorney-brokered polygraph examinations have less than zero diagnostic value, as the only results that will ever be made public are those that favor the client. The main purpose for releasing such polygraph results is to shape public opinion, including that of potential jurors, with “evidence” that would not be admissible in court.
It should also be noted that the computerized scoring algorithm touted by polygrapher Robert J. Drdak was completely discredited by a panel of scientific experts who conducted an independent review.
John Stevenson of the Durham Herald-Sun reports on Evans’s polygraph results in “Lie Detector Report Released”:
Lie detector report released
By John Stevenson : The Herald-Sun
jstevenson@heraldsun.com
May 16, 2006 : 10:36 pm ETDURHAM — In a lie-detector examination he apparently passed, indicted Duke University lacrosse player David Evans said not only that he didn’t assault the accuser, but also that he didn’t see or hear anyone else assault her, nor does he know about anyone else assaulting her.
Evans’ attorney released a copy of the polygraph examiner’s report Tuesday, a day after District Attorney Mike Nifong indicted Evans on one count each of first-degree rape, first-degree sex offense and first-degree kidnapping. The report is not admissible in court.
The polygraph examiner, Robert J. Drdak of Advanced Credibility Assessment Services in Charlotte, wrote attorney Joe Cheshire that he believed “this examination strongly supports the truthfulness of Mr. Evans?.”
Drdak said Evans’ answers were “well within the non-deceptive range” and were cross-checked by two methods. One of those was a computerized scoring algorithm developed by the Applied Physics Laboratory, a nonprofit technology development organization at Johns Hopkins University.
Drdak could not be reached for comment Tuesday evening. According to his résumé, he graduated from Wake Forest University in 1968 and worked for the FBI for 28 years, including 11 years as senior examiner and manager of the agency’s polygraph program in North Carolina.
An assistant in Cheshire’s office said the attorney had nothing to add to Drdak’s conclusions.
Nifong said polygraph results are not scientifically valid. He had no other comment.
Lie-detector results have not been admissible in North Carolina criminal or civil trials since 1983, when the state Supreme Court ruled they were unreliable.
Evans, who graduated from Duke on Sunday, joined two other lacrosse players indicted last month on the same charges: Duke sophomores Reade Seligmann and Collin Finnerty. Each is free on $400,000 bail.
They are accused of raping, sodomizing, beating and strangling an exotic dancer during a lacrosse team party the night of March 13.
Through their attorneys, all three have proclaimed their innocence. Evans took the extraordinary step of making a lengthy statement on live national television just before he surrendered at the county jail, calling the accusations “fantastic lies.”
Certified polygraph examiner William Stanley Lane of San Bernardino, Calif., a past president of California Polygraph, said Tuesday he was impressed by Drdak’s credentials and methodology. “He’s got a great background,” said Lane, who now does lie-detector work for various police departments.
According to Lane, the Lafayette 4000 computerized polygraph system reportedly used by Drdak with Evans was “top of the line.”
Lane said it wasn’t unusual that Drdak didn’t actually use the word “rape” during his questioning of Evans.
“Rape is too strong a word,” he said. “Most examiners wouldn’t use it. You’d be likely to get a false positive.”
“It sounds like the guy knows what he’s doing,” Lane said of Drdak. “But before I say for sure, I would need to see his charts.”
If any charts were compiled by Drdak, they were not released by defense lawyers Tuesday.
During Monday’s news conference, Evans said he had offered to submit to a police polygraph examination, but that Nifong wasn’t interested. Evans then turned to Drdak instead, he added.
Several other attorneys said Tuesday they considered it unusual for Nifong to reject Evans’ polygraph offer, even though results are not admissible as evidence.
“In my view, it would be absolutely ridiculous for a prosecutor to ignore a suspect’s request to do a polygraph,” said Durham lawyer Bill Thomas, who represents an un-indicted lacrosse player.
“You get to hear his answers to very serious questions,” Thomas added. “There is no greater investigative tool for a prosecutor and police. I cannot think of a sound reason why law enforcement would refuse a polygraph exam to a defendant or possible defendant. Whether or not you believe the guy being tested, you get a chance to really grill him about what might have happened.”
Meanwhile, Seligmann’s lawyers filed court paperwork Tuesday seeking to preserve cell-phone information that might be helpful to their client. The phone in question reportedly is in a police evidence room, where its battery might die and cause important data to be lost, according to the attorneys.
As a result, they had forensic electronics engineer Roger Boyell submit an affidavit saying how sensitively the phone should be handled.
“To preserve and protect the electronic information contained within the cellular telephone, it is essential to protect this cellular telephone,” Boyell wrote.
Seligmann’s attorneys have contended he has a solid alibi: phone, taxicab and ATM records indicating he was otherwise occupied during the only plausible time, they believe, that a rape could have occurred.
And Raleigh News & Observer staff writers Joseph Neff and Benjamin Niolet report today in “Polygraph Expert: Duke Player Told Truth”:
Polygraph expert: Duke player told truth
Statements tested by ex-FBI agentAttorneys for David Evans made the results of the April 21 polygraph test public Tuesday, one day after a Durham County grand jury charged Evans with rape, sexual assault and kidnapping.“This examination strongly supports the truthfulness of Mr. Evans,” wrote Robert Drdak, the FBI’s senior polygraph examiner in North Carolina from 1988 to 1999.
Evans, 23, of Bethesda, Md., answered “no” to questions posed by Drdak: Did he sexually assault the dancer at the March 13 party? Did he see or hear anything to indicate the dancer had been assaulted?A FBI agent for 28 years, Drdak has conducted more than 2,000 polygraph examinations and specialized in the monitoring of sexual offenders, according to his resume.
The results of polygraph tests are not admissible as evidence in North Carolina courts. The tests’ reliability is a matter of scientific debate.
However, police and prosecutors routinely use the tests as an investigative tool to screen witnesses for reliability.
District Attorney Mike Nifong did not respond to a phone message Tuesday afternoon.
DNA tests could not exclude Evans from suspicion in the case, and the accuser picked him out with “90 percent” certainty.
Evans’ attorneys have already attacked that evidence as unfair and unreliable, but it is unknown what other evidence, if any, Nifong has in the case.
Evans’ indictment followed those last month of Reade Seligmann, 20, of Essex Fells, N.J., and Collin Finnerty, 19, of Garden City, N.Y. They are accused of raping the woman in a bathroom at the 610 N. Buchanan Blvd. house shared by Evans and two other team captains.
The polygraph results are unlikely to change Nifong’s decision to go forward with the case, but Evans and his attorneys say they help prove that no rape occurred at the party.
“I passed that polygraph for the same reason that I will be acquitted of all these charges. Because I have done nothing wrong, and I am telling the truth, and I have been telling the truth from day one,” Evans said Monday, just before he surrendered to authorities at the Durham County jail.
Evans told reporters at the news conference that he had cooperated with police when they served a search warrant on his house March 16, three days after the party. Evans said he and his roommates helped police find evidence and then went to the police station without a lawyer. Evans said he gave police a statement and a DNA sample and gave them access to his e-mail and instant messaging account.
“After that, I asked to take a polygraph which was refused by the Durham Police Department,” Evans said.
Evans said prosecutors have refused to talk to him despite repeated attempts by his attorneys. Nifong and defense attorneys have carried on a feud through statements to the news media. The acrimony continued Tuesday when a judge acquitted another team captain on unrelated charges stemming from a January party at the Buchanan Boulevard house.
A neighbor had called police Jan. 10 when she said she heard someone banging or drumming on trash cans. Officers arrived and cited Evans and Daniel Flannery for loud music at the party.
Judge David Q. LaBarre said prosecutors could not prove that Flannery was responsible for drumming and the police could not show that music coming from the party was actually disturbing the neighborhood. The police also did not give the men a warning before issuing a citation.
“It seems to me this court and all other courts can make better use of its time than dealing with such cases as this,” LaBarre said.
After Flannery’s acquittal, Assistant District Attorney Ashley Cannon said she expects the case against Evans to go forward.
Brad Bannon, one of Evans’ attorneys, thought it was a waste of time to pursue the minor charge against Evans.
“It would be fairly astonishing if the case wasn’t dismissed in light of Judge LaBarre’s ruling here today,” Bannon said.
Staff writer Joseph Neff can be reached at 829-4516 or jneff@newsobserver.com.
This case is logically equivalent to the Mallard case (http://www.psych.utoronto.ca/~furedy/Papers/ld/Mallardverdictpol.doc) in that a friendly polygraph was employed to try to prove innnocence. I also noticed that the same garbage-in computer program was used, which is garbage even if one accepts the rationale of the polygraph: it’s just ignorant psychophysiological mismeasurement).
All this, of course, has no bearing on whether, in fact,, the accused was innocent or guilty, but, as in ancient Rome, so in North America in particular, too many people believe in this modern version of entrails reading.
This case is flawed in more ways than the Mallard case:
Blind to evidence
On Monday, May 15, a Durham County grand jury handed up a third indictment in the nothing-short-of-notorious Duke rape case. This latest indictment charges the lacrosse team’s captain, David Evans, with first-degree rape, first-degree sexual assault, and first-degree kidnapping.
The charges against Evans are identical to those handed up last month against fellow players Reade Seligmann and Collin Finnerty. Still, this final indictment does come as a bit of surprise. As I detailed in a prior column, the cases against Seligmann and Finnerty appear quite weak. As I’ll discuss in this column, the case against Evans may be even shakier. It’s true that the grand jury did return indictments against Evans, and previously against the other two. It’s also true that the District Attorney, Mike Nifong, is forging ahead — seemingly undeterred.
But Nifong’s judgment has been poor all along- and the old adage that a D.A. can get a grand jury to “indict a ham sandwich” shouldn’t be forgotten. Without defense attorneys there to test the prosecutor’s evidence via the invaluable process of cross-examination, weak evidence can be made to look pretty convincing. It’s not the grand jury’s fault; it’s just the reality that if you only hear one side, you tend to believe it.
At least a ham sandwich has some weight to it. As I’ll explain in this column, the Evans indictment – like the two that preceded it – does not. The very evidence that may have convinced the grand jury – accuser identification and new DNA evidence – is just the kind that will ultimately fall apart when defense attorneys finally do get to cross-examine the witnesses presenting it.
The Mounting Evidence in Favor of Defendants’ Innocence
All three defendants in the Duke lacrosse case have unfailingly and repeatedly proclaimed their innocence – Evans doing so most eloquently, on behalf of all three men, in a brief public comment following his being formally charged.
In fact, in a highly unusual move, newly indicted defendant Evans went to so far as to volunteer to take a lie detector test at the direction of law enforcement. When the D.A. refused, Evans enlisted a top polygrapher to administer the test anyway. He passed.
Thus far, the defense camp has come forward with a host of seemingly reliable, exculpatory evidence -evidence that will be admissible in court, and that is likely to sway a jury. I’m not talking about, maybe, kinda, sorta, or could be, exculpatory evidence either. I’m talking about weighty evidence – receipts, photos, phone records, alibi witnesses, an absence of DNA, and now actual DNA – that directly supports the defendants’ claims of innocence.
A plethora of proof supporting a defendant’s claim of innocence – not just the government’s failure to carry its burden of proof beyond a reasonable doubt — is a rare pearl in the practice of criminal defense. It should cause the D.A. to reassess his case.
The Problems with the Accuser’s “Identification” of Evans
In my prior columns, I discussed the problems with evidence against Seligmann – who has strong evidence supporting an alibi – and, to a lesser extent, against Finnerty. The evidence against Evans is also weak, maybe even more so.
Evans reportedly was not initially indicted, with the other two, because the accuser couldn’t identify him with certainty (only with “90 percent certainty,” in her words) from a photo lineup. Ten percent doubt sounds like a lot like reasonable doubt to me – and perhaps, at least initially, it sounded that way to D.A. Nifong too. And if the accuser herself has reasonable doubt, how can a prosecution go forward?
The accuser’s lack of certainty is even more worrisome in light of the fact that the photo lineup was grossly biased. It included only Duke lacrosse players – meaning that the accuser had no choice but to select a Duke lacrosse player if she were to select anyone at all. And this photo lineup was apparently the sole means of identification for all three defendants.
Finally, and perhaps most disturbingly, the accuser is reported to have said that Evans’s photo “looks just like [one of my assailants] without the mustache.” According to Evans’s defense lawyer, Evans has never worn a mustache. And party photos support this contention.
For all these reasons, the accuser’s identification testimony is likely to be destroyed upon cross-examination.
The Problems with the New DNA Evidence
Besides the accuser’s testimony, prosecutors also presented to the grand jury the results of a second round of DNA testing.
Readers may recall that the first round of DNA testing was, if anything, exculpatory: There was no DNA match whatsoever linking any of the forty-six lacrosse players whose DNA was taken, to the accuser.
Following those results, D.A. Nifong reportedly hired a private lab to re-test certain samples. In so doing, the new lab found a possible connection between defendant Evans and the accuser’s discarded fake fingernail, found in the trash bin inside the bathroom.
To begin, it’s awfully odd that the fake fingernail found its way into the trash bin in the first place, if a rape really occurred, and if the fake fingernail broke off during the victim’s struggle, as she claims. No victim would clean up after her accusers; she would flee the scene. And if a culprit had the presence of mind to clean up — realizing that the fake fingernail might be evidence against him — surely he wouldn’t just drop it in the trash can in the very room where the rape occurred, for police to easily find.
Significantly, too, defense attorneys claim the DNA material was found on the front of the nail — not on the underside, where it would logically have lodged had the accuser scratched and clawed at her attackers as she claims.
But even putting these points aside, the DNA connection to Evans is weak. To begin, this isn’t remotely close to the kind of “match” you may be familiar with from CSI – the kind where the odds of a false positive are infinitesimally small. Indeed, “match” here is a misnomer. All that can be said is that the DNA is “consistent” with DNA voluntarily supplied early on by Evans.
Shocking? Hardly. Evans lived in the house, and therefore may have, from time to time, blown his nose, swabbed an ear, or otherwise disposed of DNA-laden waste into that very trashcan.
Moreover, it was reportedly Evans himself who fished the fake nail from the garbage, voluntarily handing it over to police and maybe, just maybe, shedding some skin cells in the process.
As for direct evidence of sex, there is none; none from any of the forty lacrosse players, that is.
While the second round of DNA testing proved that semen was found inside the accusers vaginal cavity, spokespersons close to the defense are confident the source of the semen is the accuser’s own boyfriend.
In sum, after cross-examination, there is little, if any, chance that a jury will give weight to this DNA evidence. It clashes with the accuser’s own story, and it’s as fully consistent with Evans’s innocence as it is with his guilt.
The D.A.’s Unusual Hostility to Even Viewing Defense Evidence
Defense lawyers have repeatedly implored District Attorney Nifong to meet with them and to examine the evidence that favors the defendants. But Nifong has said no – with an attitude that boils down to, “Talk to the hand.”
That’s unusual. More often than not, prosecutors are quite open to exchanging – or at least being entertained by – the defense’s evidence. After all, it provides them with a valuable preview of what the defense’s case may ultimately look like in court. Prosecutors are legally required to turn over certain evidence to the defense, but no obligation runs the other way. And since the defense goes second, prosecutors may not be able to effectively counter defense “surprises.”
For prosecutors, meeting with the defense is thus typically a win-win situation: If they are convinced to drop the case, then that’s embarrassing – but far less than as a loss at trial would have been. If they aren’t convinced to drop the case, they’ve gotten a precious new edge at trial. And either way, both the reality and appearance of fairness to the defendants are enhanced.
Giving a defendant a lie detector test, in contrast, isn’t a win-win situation: It may hurt prosecutors’ case if the results are released to the public. (Lie detector results are rarely – if ever – admissible in court.) But at the same time, a lie detector test – while risky, and far from perfect – is likely to get prosecutors closer to the truth, which is supposed to be what they are after.
As noted above, in this case, Evans claims Nifong refused to give Evans a lie detector test. (He ultimately took one himself, and passed.) In my professional experience, a prosecutor’s refusing to administer a lie detector test to a defendant is nearly unheard-of. The defendant’s answers – and the lie detector’s response to them – may provide the prosecutor with a road map to what his vulnerabilities on the stand may be.
Just as meeting with the defense previews the defense case for prosecutors, administering a lie detector can preview the defendant’s testimony, as well as his on-the-stand demeanor, showing prosecutors what kind of a witness he will be. (Confident? Nervous? Shifty? Solid?)
I can’t help but believe that, were any of these defendants to assert that they had proof that a crime was indeed committed, this district attorney would be all ears. Suppose, for instance, that Seligmann or Evans were to turn on Finnerty, to try to save themselves – surely Nifong would happily hear them out. So how can the prosecutor justify, then, turning a blind eye to evidence of any of the accused’s innocence?
If There’s A Card Up the D.A.’s Sleeve, the Law Requires Him to Play It Soon
Some pundits have suggested that the only explanation for the District Attorney’s pressing on in the light of strong evidence that the defendants are innocent, is that he has a card up his sleeve. If so, then he needs to show that card, pronto.
The discovery statutes in North Carolina – as in most states – do not allow prosecutors to play “hide the ball.” This is a judicial proceeding, not a magic show. So D.A. Nifong will have to reveal this evidence sometime before trial.
He ought to opt to reveal it right now – to give the defense a chance to counter it. When evidence suggesting innocence is as strong as it is in this case, it’s wrong to just let the case go to trial and “see what the jury says.” These three young men’s live will be forever affected, even if they are acquitted. Even an arrest leaves a scar; the scar of trial is far deeper.
D.A. Nifong should listen to the defense, and should drop the case unless he has strong evidence supporting the accuser. Moreover, if he does have such evidence, he should show it to us now. The defendants have been forthcoming – especially Evans, who volunteered to, and then did, take a lie detector test. The prosecution should follow their example.
Duke Lacrosse Rape Accuser Mentioned No Condoms Were Used
It seems the defense keeps finding more to support their side of things, with each new piece of information they get. Now from that stack of 1,300 papers, they have discovered that the stripper accuser mentioned no condoms were used. No condoms and…
The stripper’s body was completely void of any sign of a sexual assault (except for signs of recent vaginal and anal from her boyfriend). The alleged crime scene was completely devoid of DNA.
It is impossible that a crime scene with three drunk men in a small enclosed room with a fighting and clawing woman being orally, virginally, and anally penetrated not leave any DNA evidence of urine, blood, vaginal fluid, sweat, fecal matter, scat smears, saliva, tears, or semen… especially if condoms were used. How would they take off the condoms during all this chaos without spilling, smearing, or touching the content inside or outside of the condom?
When investigators questioned the stripper after DNA tests on the semen found inside her vagina and rectum didn’t match any of the Duke players, the stripper admitted to having had sex with at least three men around the time of the alleged rape. The stripper named her boyfriend and two men who drove her to Duke.
When questioned, the “drivers†said they would drop her off at several places, including hotel rooms.
It appears that the stripper has sex with men for rides to her strip shows…Nasty!
Police investigating the Duke University lacrosse team on rape allegations “omitted” notes from a second dancer at the party, who told authorities the alleged victim had been drinking, was acting “crazy” and that her colleague’s accusation was a “crock,” a defense attorney said Thursday. In court documents filed Thursday, attorney Kirk Osborn said that Durham, North Carolina, police “intentionally, deliberately and/or recklessly omitted” information from a probable cause affidavit — information Osborn says would have persuaded the judge not to file felony charges against three of the players. The district attorney’s office did not return a call seeking comment.
http://lawdogbehindthebadge.blogspot.com/2006/06/latest-on-duke-rape-case.html
http://johninnorthcarolina.blogspot.com/2006/06/duke-lacrosse-how-da-and-some-police.html
http://moneyrunner.blogspot.com/2006/06/more-on-duke-rape-case-second-dancer.html
Another police note obtained by the defense says the alleged victim acknowledged having two beers before arriving at the party and that she and Pittman both had a rum and coke after their arrival.
The accuser also told police that she used a vibrating sex toy during a dance in a hotel room for a male and female, but she told police that she had not had sex in the week before the party, the note says.
However, a male friend of the accuser said that he had sex with her that week and that he drove her to three other sexual encounters, according to the friend’s statement.
Osborn also claims in the court documents that the nurse who examined the alleged victim was in training and not yet certified.
http://www.cnn.com/2006/LAW/06/08/duke.lacrosse/index.html?section=cnn_topstories