Attempts to Establish Plausiblity of Potential Frame Victims

Ekstrand explains that before indicting Reade Seligmann and Colin Finnerty, Himan and Gottlieb not only had almost no evidence on which to indict the clearly innocent players, but also had "very little evidence that either Collin or Reade were present at the party at the relevant time" (p. 249). Fearing the possibility "one or both of those young men could immediately prove that they had no opportunity" (p. 249) to commit the alleged crime, "Himan and Gottlieb colluded with Duke Police officers to compel several team members to provide the information necessary to place Collin and Reade" (p. 250) at the party. As we now know, both Colin and Reade could prove they were miles away at the time of the alleged rape, and as Nifong and the officers had feared, Reade presented his impenetrable alibi one day after being indicted, making it clear that they had just indicted one - if not two - clearly innocent people.

The alleged conspiracy took form in two parts, both on April 13, 2006. First, on the morning of April 13, "conspirators whose identities are not as yet known to the plaintiffs sent an email through Breck Archer's 'duke.edu' email account. The email stated, 'I am going to go to the police tomorrow to tell them everything I know'" (p. 250). It seems Ekstrand is alleging that this email was created at the request or demand of Durham Police and may well have been facilitated by cooperation from the Duke Police and other Duke entities. If Ekstrand is correct, the purpose of the email would likely have been to stir up commotion on the team's email list that might have revealed information.

Second on the evening of April 13, Duke Police officers allowed Himan and Gottlieb into the Edens dorms "where most of the sophomore team members lived" (p. 250) in an effort to "develop evidence that Seligmann and Finnerty" (p. 250) were at the party (Reade and Colin were sophomores). The officers "cornered team members in their dorms" (p. 251), but instead of asking about the party, they "only asked who was (and was not) present at the party" (p. 251).

One player targeted by Gottlieb and Himan was Michael Young, who the investigators already knew had not attended the party. Furthermore, Himan "had specifically been told by Young's attorney that he was not to speak with his client" (p. 251). When asked, Young "guessed that Collin [sic] and Reade were both at the party because he did not see them in the dorms until after midnight" (p. 251).

All of this constitutes significant misconduct by the police that was aided and later condoned and justified by the Duke Police. When news broke of this police misconduct, Police Chief Graves publicly acknowledged the Duke Police's participation, condoned the misconduct and even left out the word "alleged" when referring to the rape.

Ekstrand characterizes these actions as a conspiracy "to force the waiver of plaintiffs' and their teammates' asserted constitutional rights" (p. 249).