The Tonya Harding - Nancy Kerrigan Affair
On January 6, 1994, Nancy Kerrigan was attacked in Cobo Hall in Detroit Michigan. She was prevented from competing in the U.S. Nationals which started the following day. It was later discovered that the attack was carried out by a conspiracy of four men, one of whom, Jeff Gillooly, was the husband of Nancy Kerrigan's chief competitor, Tonya Harding.
The big question became: was Tonya part of the conspiracy? No trial was held. The question was never formally answered. On March 16, Tonya Harding pled guilty to conspiracy to obstruct justice, based on her lying to the FBI to protect Gillooly. After the plea bargain was accepted, she denied any prior knowledge of the attack, but the prosecutor, Norm Frink, said he had additional evidence of her participation in the original conspiracy. The grand jury named her as an unindicted co-conspirator in the attack. The grand jury foreman, David Holt, said there was enough evidence to indict her on all counts.
On June 30, the United States Figure Skating Association banned her for life and stripped her of the National title. William Hybl, the chairman of the disciplinary panel, said that decision was based on: "That she did know about and help plan the assault on Nancy Kerrigan". Speaking about the plea bargain, he continued: "That was the most compelling ... piece of evidence".
Dec. 26: Tonya Harding calls Vera Marano to ask where Nancy Kerrigan trains.
Dec. 27: Tonya Harding calls Vera Marano to get the name of the rink (Tony Kent Arena) where Nancy Kerrigan trains.
Dec. 28: The four conspirators (Jeff Gillooly, Shawn Eckardt, Derrick Smith, and Shane Stant) meet and plan the attack. That afternoon, the calls are made to the Tony Kent Arena.
Jan. 3: Another call is made to the Tony Kent Arena.
Jan. 6: Stant attacks Kerrigan.
Jan. 8: Harding wins the U.S. figure skating championship.
Jan. 10: Harding and Gillooly return to Portland. Gillooly and Eckardt decide on an alibi.
Jan. 11: Eckardt's first interview with the FBI.
Jan. 12: Eckardt's second interview with the FBI.
Jan. 18: Harding's interview with the FBI.
Jan. 19: Eckardt's interview with the press.
Jan. 20: Timothy Daley contacts the FBI about receiving a call asking about Kerrigan's training times.
Jan. 26: First day of Gillooly's interview with the FBI.
Jan. 27: Second day of Gillooly's interview with the FBI. Tonya Harding makes a public statement that she knew after the fact about Gillooly's involvement in the Kerrigan attack but did not notify anyone.
Feb. 1: Gillooly pleads guilty to the attack on Kerrigan and implicates Harding.
Feb. 12: Harding agrees to drop her suit against the Olympic Committee in exchange for being allowed to compete in the Olympics.
Feb. 25: Oksana Baiul wins the gold medal, Kerrigan second, Harding eighth.
Mar. 16: Harding pleads guilty to conspiracy to hinder prosecution.
Jun. 30: Harding is stripped of her title by the USFSA and banned for life from competition.
The evidence in the Tonya Harding case points to the conclusion that she was framed by a conspiracy between Norm Frink (the prosecutor) and Jeff Gillooly (now named Jeff Stone). The main points are:
1. In Tonya Harding's interview with the FBI on Jan. 18, she initially told investigators that she made the calls to Nancy Kerrigan's ice rink. While she was trying to convince them of that, she obviously didn't know that the telephone number had been obtained from directory assistance. (Pages 7 - 10 and 28 - 30 of her FD-302.) She said that the number had been obtained from the USFSA in Colorado. She knew that the investigators had the phone records (that was the reason she was telling the story: to account for those calls), so she had no reason to lie about the way the calls were made. In fact, it was in her interest to make her story match that of the phone records. So, since she couldn't make them match, that meant she didn't know how the calls were made. If she had actually made those calls, she would have remembered calling directory assistance rather than the USFSA. What must have happened was that Gillooly told her what the story would be, but forgot to tell her how the calls were made. So, she assumed they were made the way she usually made them: via the USFSA.
2. In that interview with the FBI, agent Russell knew what lie she was going to tell (i.e. about the poster - see point #16 below) because Shawn Eckardt had told him. He spent hours nailing it down. Almost immediately afterwards, he told her she was lying. It was obvious that she didn't know how the calls were made. (See point #1 above.) Norm Frink was present at that interview. But eight days later, on Jan. 26, he accepted a statement from Jeff Gillooly in which the most important point was that she had made the calls. It is difficult to see what could have justified his changing his mind.
3. Norm Frink didn't just accept Jeff Gillooly's statement, he gave him a plea bargain in exchange for it. The start of Gillooly's FD-302 makes it clear that the plea bargain was in place before he formally made his statement. This means that there had been negotiations between Frink and Gillooly before Jan. 26. Those negotiations must have made it clear to Frink that the deal was that Gillooly would implicate Harding in exchange for a lighter sentence.
4. Jean Mauer, Frink's assistant in the case, has refused to say that Harding was guilty of involvement in the conspiracy to attack Nancy Kerrigan. She refused to take a position. This is in sharp contrast to Norm Frink, who publicly stated that Harding was guilty. The evidence failed to convince even Frink's assistant.
5. In an interview with a detective, Jean Mauer said that the reasons for not proceeding with the case and accepting the plea bargain included doubts about the reliability of the witness and about the sex of the caller to the Tony Kent Arena. This means that the prosecution was aware of Yvonne Lackenby's statement and its significance. (See point #15 below). It's unlikely that was shared with the defense, because then they would have been unlikely to accept the plea bargain.
Other evidence relating to the attack on Nancy Kerrigan.
6. Jeff Gillooly said that when Tonya Harding called Oregon directory assistance to get the area code for Boston, they didn't give it to her. (Page 18 of his FD-302.) But directory assistance does give area codes.
7. Gillooly also said that after failing to get the area code from directory assistance, he and Harding looked for and found a piece of paper that had been FAXed to Boston and got the area code from it. But the call to Oregon directory assistance was at 4:24 P.M. and the call to Boston directory assistance was at 4:25 P.M. (Harding FD-302 page 28.) That would be consistent with getting the area code from the Oregon directory assistance, but not with looking for a special sheet of paper between the two calls.
8. Timothy P. Daley said he took the call asking for Nancy Kerrigan's practice times. But Gillooly said that when Harding called the Tony Kent Arena and got Nancy Kerrigan's practice times, she commented: "The stupid bitch gave it to me." (Gillooly FD-302 page 18.) Since the comment was so graphic, it's very unlikely that Gillooly forgot the sex of the person Harding supposedly said she was talking to. What must have happened was that Gillooly made the call, remembered he had talked with a woman, and made up the comment he attributed to Harding.
9. Timothy Daley also said that the caller said that the reason for the call was to get a poster autographed. But Gillooly said that when Harding made the call, she only asked for the patch and free style times and if Nancy Kerrigan skated at those times. He didn't mention anything about the poster at that time. He said that the poster story was put together on Jan. 11.
10. Timothy Daley made his call on Jan. 20, two days after Tonya Harding gave her statement to the FBI, and in response to reading about it in the newspaper. Since the news reports mentioned the poster (as the cover story to explain the calls), Daley knew about that before he made his call.
11. In a later interview, Daley denied being able to identify the voice of the caller. He also said he didn't consider the call to be important at the time. This contradicted his earlier statements.
12. In that same interview, Daley said he took the call about 7 PM. Since the call was made at 5:19 Boston time (see point #15 below), this means the call he took couldn't have been the one Gillooly supposedly was referring to.
13. Also in that interview, Daley said he told the FBI when he took that call. This means that the FBI knew that his call couldn't have been the right one. But Daley was called to testify before the Grand Jury anyway.
14. In any highly publicized case, many people will step forward with false testimony, some even with false confessions. One must be extremely skeptical of unsolicited information in such cases.
15. Gillooly said that on January 3, Harding called the Tony Kent Arena to ask if Nancy Kerrigan skated that day. (Gillooly FD-302 page 26.) Yvonne Lackenby, an employee of the rink, said that she took such a call on that day, but the caller was male. (Boston Globe, January 20, 1994.) She said she took the call at about 5:15. The call from the Gillooly-Harding home was made at 2:19 Portland time, which was 5:19 Boston time. (Harding FD-302, page 29). Her statement was reported on January 20 and was made on January 19 or 20. The Jan. 3 date was released when Deputy Sheriff James McNelly filed his affidavit on January 19. The 2:19 time wasn't released until February 1, when the prosecutor made the FD-302's public, at the time of Jeff Gillooly's plea bargain. So Lackenby knew the date the call was made, but not its time. In a later interview, she confirmed that she wasn't prompted about the date and time. This makes her statement very credible, and so greatly supports the contention that Gillooly made that call.
16. Shawn Eckardt didn't mention the calls to the Tony Kent Arena in his statement on Jan. 11, but the next day he said that Gillooly had told him that Harding had made those calls. He also said that Gillooly said that Harding would use the alibi that she called to arrange to get a poster signed. (James McNelly affidavit page 3, item 12.) On Jan 11, before his first statement, he, Gillooly, and Harding decided on the poster story. This means that Eckardt's statement on Jan. 12 about the calls is worthless because he was just repeating the story they had agreed to. So Eckardt's statement doesn't support Gillooly's contention that Harding made those calls.
17. The aspect of Gillooly's story that has the most holes in it is the series of calls to the Tony Kent Arena. The reason he made such an effort to falsify that part of his story is that it was the only overt act he could implicate Harding with. He said he told her that she was guilty because of the calls to the Tony Kent Arena and because she got Nancy Kerrigan's room number in Detroit. (Gillooly FD-302 page 57.) He also said that Harding said that the man who gave her the room number would not remember doing it and would not admit doing it because it could get him fired. (Gillooly FD-302 page 58.) The obvious reason Gillooly made that statement was to lay the foundation for explaining why that man couldn't be found. He had to do that because that man didn't exist. This left the Tony Kent calls as his only support.
18. Shawn Eckardt made a series of incriminating statements to Sarah Bergman and Eugene Saunders in the days immediately following the attack. He even played his tape of the Dec. 28 meeting with Gillooly, Smith, and Standt where they planned that attack. He told them about his involvement in the attack to impress them with his importance. He didn't say anything about Tonya Harding being involved in the plot. If he had known of any involvement on the part of Tonya Harding, he certainly would have mentioned it: it would have made his role seem even more important.
19. Gillooly said that during the week before Christmas week he, Eckardt, and Harding met to discuss the cost of the effort to injure Kerrigan. (Gillooly FD-302 page 4.) But Eckardt said on Jan. 11 that Harding was unaware of the plot against Kerrigan, and in his statement of Jan. 12 he didn't mention this incident.
20. Gillooly said that he had told Eckardt before the Dec. 28 morning meeting not to tell Derrick Smith that Harding was involved. (Gillooly FD-302 page 13.) This implied that Eckardt knew Harding was involved in the plot against Kerrigan. Again, Eckardt said on Jan. 11 that Harding was unaware of the plot against Kerrigan, and in his statement of Jan. 12 he didn't mention this incident.
21. Gillooly said that on Jan. 1 he met with Eckardt in an ice rink, and during that meeting Harding skated up to them and asked Eckardt why the attack against Kerrigan had not been carried out. (Gillooly FD-302 page 24.) This implied that Eckardt knew Harding was involved in the plot against Kerrigan. Again, Eckardt said on Jan. 11 that Harding was unaware of the plot against Kerrigan, and in his statement of Jan. 12 he didn't mention this incident.
22. Jeff Gillooly said that when Tonya Harding met him shortly after she finished giving her statement to the FBI, she told him that she hadn't implicated him and that he believed her. But she had just finished telling the FBI that he was guilty. She must have been embarrassed and she couldn't have hidden that. Gillooly had been married to her for five years and had dated her for three years before that, so he knew her inside out: he knew that signs of embarrassment meant that she was lying. By saying that he believed her, he made himself seem more sympathetic (he loyally stood by his wife) and he got a chance to see her statement before he made his.
23. Shawn Eckardt is the only corroborating witness for Gillooly's allegation that Harding was involved in the conspiracy to injure Nancy Kerrigan. But Eckardt first said (on Jan. 11) that Harding wasn't involved at all. When he changed his story (on Jan. 12), he only said that Gillooly had told him that Harding had made the calls to the Tony Kent Arena, so Gillooly was still the only source of information against her. Eckardt changed his story again (on Jan. 19) to corroborate Gillooly's story at other points, but that happened later, after Gillooly had discovered that Harding had betrayed him. This gave Gillooly a chance to contact Eckardt and tell him what the new story would be. Since Gillooly used Eckardt as a supporting witness at four points in his story (see points #16, #19, #20, and #21 above), it's not credible that Eckardt simply forgot about Harding's involvement when he gave his first statement. It's also very unlikely that he was lying to protect her, because at that time he was implicating everyone in sight.
24. Shawn Eckardt gave his statement to the Oregonian on Jan. 19. By talking with the press rather than his attorney, he put himself at a disadvantage: he couldn't bargain with the prosecutor for his information. The only one that benefited from that was Jeff Gillooly: he was able to adjust his story to match Eckardt's. By claiming that he believed Tonya Harding when she denied implicating him, Gillooly deflected investigation from Jan. 19, the day he contacted Eckardt, because he supposedly didn't turn against her until Jan. 25 or 26.
25. On Sunday, Jan. 30, Kathy Peterson, the owner of the Dockside Saloon and Restaurant found a bag of garbage in the restaurant's dumpster that didn't belong there (Mitch Gelman in Newsday Feb 3). She found notes about the Tony Kent Arena (apparently based on Harding's calls to Vera Marano), as well as other documents pertaining to Harding and Gillooly. To analyze this event, we need to ask who, what, where, when, why, and how.
a. What. The garbage was what it appeared to be. I.e. it was not a forgery. It included the stub of a check from the U.S. Figure Skating Association, which would have been difficult to forge.
b. When. Since it was discovered Sunday morning, it was placed there late Saturday night (Jan. 29) or early Sunday morning.
c. Where. The garbage dumpster was a 40 minute drive from the home of Gillooly and Harding. It obviously originated at their home.
d. Who. Tonya Harding moved out of that home immediately after she gave her statement to the FBI. (Gillooly FD-302 page 55.) When she returned for her things, she was always accompanied by a third party. (Gillooly FD-302 pages 55 and 58.) This means that Jeff Gillooly was the only one with access to the garbage bag. So he was the one who put it into the dumpster. Also, if Harding had been the one who had put the bag there, she would have had to sneak out of the apartment she was sharing with Stephanie Quintero, break into the house occupied by Jeff Gillooly, and then, after disposing of the bag, sneak back into Quintero's apartment. Finally, Gillooly never reported the bag missing.
e. How. Jeff Gillooly took the garbage bag late Saturday night, drove 40 minutes, and dropped it off in an anonymous looking garbage dumpster.
f. Why. This is the most baffling aspect of this case. If Gillooly had wanted to implicate Harding, he could have just turned over the evidence to the police. If he wanted to get rid of the evidence, he could have burned it in a sink or flushed it down the toilet. In addition, most people don't think about their garbage as a source of incriminating evidence: they tend to think that once it's thrown away, it's gone. Out of sight, out of mind. It's hard to see what might have prompted him to think about his garbage.
To solve such a baffling mystery, we must consult the world's greatest detective: Sherlock Holmes. The story Silver Blaze introduced the idea of the "dog that didn't bark". The point is that sometimes the most important piece of evidence isn't what is present, it's what is absent: what should be there but isn't. Sometimes the hole is more significant than the donut. If you see a table with a jigsaw puzzle with a piece missing on it, the relevant question might not be: "Why is that jigsaw puzzle on that table?" but rather: "Why is that piece missing?" This is the only explanation of why the entire bag was thrown out rather than the supposedly incriminating pieces in it.
This gives us the tool we need to resolve this question. What was missing from the garbage bag that would make Gillooly want to get rid of it? To answer that question, we must look at what happened shortly before the bag was found. Since the bag was found Sunday Jan. 30, we should look at the days immediately preceding it. What we find there is Jeff Gillooly's interview with the FBI on Wednesday, Jan. 26, and Thursday, Jan. 27. At the start of the second day of his interview with the FBI (Jan. 27), Gillooly said that Harding found pictures of Nancy Kerrigan in two magazines. (Gillooly FD-302 page 19.) "Gillooly was going to take the entire magazine to Eckardt, but Harding told him that their name and address was on the mailing label. Gillooly said one of them tore the cover off of the magazine and put it in the garbage. Gillooly was asked if he still had the garbage, and he stated he may have it and would check. Gillooly said if he could locate the cover of the magazine, he would arrange to give it to Agent Russell."
Now we can put the pieces together. After the interview, on Friday or Saturday, Gillooly checked, and found the garbage. It didn't have the magazine cover (because the incident never happened), so he needed to dispose of the garbage bag secretly. He couldn't burn it in the sink: there was too much material; besides, the plastic would have left soot on the ceiling and walls. He couldn't flush it down the toilet: it was too big. He couldn't just throw it out, because he and his garbage can could still be under surveillance. So, on Saturday night, he waited until late, probably about 2 or 3 in the morning, then put the bag in his car, drove around, checking for car headlights to make sure he wasn't being followed, and looked for a place to get rid of the bag. He couldn't just dump it in someone else's trash can, because it would have been too obvious: the owner might have checked. He couldn't drop it on the street, because the police might check it to see who was littering. So, he drove around until he found a place where an extra garbage bag wouldn't attract much attention: a commercial dumpster. Since it had lots of bags in it already, one more wouldn't attract any attention. So, he stopped the car, looked around, got out of the car, threw the bag into the dumpster, got back into his car, and drove home, checking to make sure he wasn't being followed. When he got home, he breathed a sigh of relief: that problem was solved. I wish I could have seen the expression on his face when he heard the news that the bag had been discovered. All that careful work down the drain, just because of that stupid woman! But, he couldn't do anything, so he just waited. Nobody made the connection between the bag and his statement, because they were concentrating on the contents of the bag, ignoring the bag itself.
Because people were concentrating on the small things, everyone overlooked bag. This is like the case where an employee was suspected of stealing from his employer. Every day they checked his wheelbarrow when he left, but they never found any company property in it. It turned out he was stealing wheelbarrows.
Or the case of the smuggler: each time he crossed the border, customs agents searched his car thoroughly, but never found anything. Of course, he was smuggling cars.
26. Gillooly said that on Dec. 26 he asked Harding to call Vera Marano to find out Kerrigan's home address and the rink where she trains. (Gillooly FD-302 page 8 - 9.) He said Harding said she would use getting the poster signed as a reason for the information, also she could say she had a bet. Gillooly said that he said that she should say that she needed the information to find out Kerrigan's training time, to compare it to her own. Vera Marano said that when Harding called her, Harding said the information was to settle a bet. (Vera Marano FD-302 page 2.) When Gillooly gave Harding instructions to lie, she followed his instructions. (See the alibi that was put together Jan. 11.) This would be the only case where she used her own story instead of following Gillooly's story. Also the story that the information would be for comparing training times is inherently more plausible than the story that it would be to settle a bet. This makes it unlikely that Gillooly told Harding to tell Marano the story about comparing training times.
27. Gillooly also said that after the call to Vera Marano, Harding said that Marano had said that Kerrigan trained at the Skating Club of Boston. (Gillooly FD-302 pages 9 - 10.) But Marano said she said she didn't know where Kerrigan trained and would try to get that information. (Marano FD-302 page 2.)
28. Gillooly said that on Dec. 27 Harding talked to Vera Marano, who told her the exact name and spelling (Tony Kent Arena) of the rink where Nancy Kerrigan trained. (Gillooly FD-302 page 10.) But when Tonya Harding tried to prove she made the calls to Nancy Kerrigan's rink (see point #1 above), she didn't know the name of the rink. When she was asked to identify the calls she supposedly made, she picked calls to the USFSA in Colorado Springs, saying that it was to get the telephone number of the rink where Kerrigan trained. When she was asked to find the calls to the rink, she couldn't find them. When the calls to Boston were pointed out to her, she said they were probably calls to Dorothy Baker, because that was the only person she knew in Massachusetts. This means that she had forgotten about the call to Marano. But if the call had been made in order to advance a conspiracy to injure Kerrigan, it's extremely unlikely she would have forgotten. This means she didn't know the real purpose of the call.
29. The three main characters in this case, Tonya Harding, Jeff Gillooly, and Shawn Eckardt, each had a different style of lying. Tonya Harding lied impulsively, when she found herself in an embarrassing situation. This usually resulted in unbelievable lies. For example, she once tried to explain to her mother why she was late getting back from a date by saying that she had been kidnapped. Shawn Eckardt lied to make himself seem important. This also usually resulted in unbelievable lies. For example, he claimed to have done anti-terrorism work at a time when he would have been 16 (Rolling Stone issue 686/687, page 86). Jeff Gillooly lied methodically, telling carefully crafted stories. These stories were often quite elaborate. This made them more convincing, because a very detailed story, with lots of dialog, is more convincing than a sketchy one. The problem with his lies is that although they were initially more psychologically appealing, their mass of details made it more likely that they would contradict a known fact. That shows up in this analysis.
30. If Tonya Harding wasn't involved in the plot, why did she make the call to Vera Marano? The story that it was to settle a bet is a typical Tonya Harding lie: not very plausible (in order to make a bet on something so specific, she would at least had to have known the name of the arena, so that she could bet for or against it), and probably made on impulse. On the other hand, the story that the purpose was to get information about training times is a typical Jeff Gillooly lie: it sounds very plausible. So, what happened was that Gillooly told Harding that story, i.e that he wanted to get Nancy Kerrigan's training times for comparison purposes. That sounded sneaky to Harding, she felt embarrassed, so she made up the story about the bet on the spot. Gillooly must have been annoyed by that, because she trashed his well thought out story, but there was nothing he could do: he couldn't tell her to tell Marano his story, because then he would have had to have told her that it was just a story.
31. Gillooly said that on Jan. 17, he told Harding to tell her lawyer the truth, but Harding refused. (Gillooly FD-302 page 54.) But this was during the period when Harding was following Gillooly's instructions. (This ended the following day, Jan. 18, during Harding's interview with the FBI.) It is more likely that Gillooly told her not to tell her lawyer the truth. If she had told the truth to her lawyer, he would not have allowed her to tell the story that supported Gillooly.
32. There have been reports in the tabloids that Tonya Harding failed lie detector tests. The tests pick up signs of embarrassment. Harding must have been embarrassed by questions about the plans that Gillooly and Eckardt made about the attack on Kerrigan, because it meant that she had overlooked a huge plot being hatched right around her. Another possibility is that she was still concealing the real purpose of her call to Vera Marano: to get training times to get a competitive advantage.
33. Late on Jan. 8, Detective Dennis Richardson of the Detroit Police Department approached Harding and Gillooly and asked to speak to them. (Gillooly FD-302 page 42.) They said they would talk to him later, probably Monday, Jan. 10. The following day, Sunday, Harding skated her exhibition. Her performance was nearly flawless, and she was obviously enjoying herself. (That exhibition was rebroadcast later.) That meant she was not under any stress and was not distracted during that performance. But if she had been involved in the plot and knew she would soon be speaking to the police about it, then it would have been on her mind and affected her performance.
34. After the attack on Nancy Kerrigan, Tonya Harding said she looked forward to skating against her in Lillehammer and would "whip her butt." If she had been involved in the conspiracy, she would have been trying to conceal her involvement: she would have said something more conciliatory.
The evidence in the Tonya Harding case, not relating to the attack
35. Although she was accused of participating in the plot to attack Nancy Kerrigan, Tonya Harding actually pled guilty to conspiracy to hinder prosecution. What is the evidence on this point? At the time she agreed to tell the false story, she was with Jeff Gillooly and Shawn Eckardt. Both made it clear that they very much wanted her to go along: their freedom was at stake. Eckardt had boasted (on other occasions) of his capacity for violence; he was the one who had argued for killing Nancy Kerrigan. Eckardt also outweighed Harding 3 to 1 (315 lbs to 105 lbs). Gillooly had been accused of spousal abuse in Harding's request for a restraining order. In addition, her story of abuse was supported by two independent witnesses:
a. Jenna Halase Dumas, who lived with her when she started seeing Gillooly, was quoted by Hugh Dellios in the January 16, 1994 edition of the Chicago Tribune: "She'd come over with bruises on her neck and bruises on her upper arm, like he had grabbed her," Dumas said. "He was real abusive."
b. Michael Pilska, her former fiancÚ said in the TV special "Shattered Glory": "Tonya told me on several occasions of Jeff physically abusing her, and I saw on several occasions the physical results of that".
The most reasonable explanation is that she was physically intimidated.
36. This leads into the next argument: the entrapment defense. For a prosecution to succeed against the entrapment argument, the prosecution must show predisposition. In this case, the act showing predisposition is her agreement to tell the story. But if that agreement had been coerced, then the predisposition disappears.
37. Normally, asking questions isn't considered entrapment. But in this case, the interrogators knew exactly what lie she was going to tell - Shawn Eckardt had told them - and they asked questions specifically to elicit that answer.
38. An odd aspect of Harding's interview with the FBI on January 18 was that after her attorney (Robert Weaver) had taken an hour and a half break and returned to say that his client had lied, he didn't ask for immunity before allowing her to continue.
39. On January 18, Tonya Harding confessed to lying to protect Jeff Gillooly. Yet, the prosecutor made no move to prosecute that charge until her plea bargain on March 16. This implies that the prosecutor considered this a trivial charge and was interested only in the conspiracy to attack Nancy Kerrigan. This might explain why Weaver didn't bother to ask for immunity to that charge.
40. Detective Pitton of the Portland Police Department said in an interview that cases where wives lie to protect husbands are usually not referred for prosecution. He said that, among other factors, it would depend upon:
a) The seriousness of the underlying crime (e.g. homicide would be more likely to result in a prosecution for hindering prosecution than a simple assault).
b) The importance of the witness (e.g. whether there were any other witnesses).
c) When the lie was corrected (how long the investigation was delayed).
Obviously, in this case all three factors favored Tonya Harding.
41. Sgt. Stearns, the Public Information Officer for the Portland Police Department, said in another interview that when a witness lies to a police officer and then corrects it during the same interview, the officer frequently doesn't even include that in his report.
42. Since cases such as this one are apparently never prosecuted, desuetude could be argued. That argument almost never works, but when used in conjunction with other arguments (entrapment, coercion), it could make the difference.
43. Selective prosecution is another possibility. It also almost never works, but it could be used to support the other arguments. It could also be used with an argument of malice on the part of the prosecutor. (See points #1 - 5 above.)
Evidence relating to probable cause
44. In order for a suit for malicious prosecution to succeed, it is necessary not just to show malice on the part of the prosecution, but also to show that there was no probable cause. The fact that the Grand Jury was willing to indict and that they needed probable cause to do so, can be taken as proof that probable cause existed. However, if the evidence presented to them was fraudulent, it is still possible to argue that there was no probable cause.
45. The main evidence was the statement of Jeff Gillooly. But the uncorroborated statement of a co-conspirator is not admissible as evidence. So his statement was not enough by itself to establish probable cause. In addition, the inconsistencies in his statement (see especially points #6, #7, #15, #25, #26, #27, and #28 above) made it obviously unreliable.
46. The main corroboration for Gillooly's statement was supposed to be Shawn Eckardt. But when Norm Frink was asked about possible collusion between Gillooly and Eckardt, he said that he hadn't planed to use Eckardt anyway.
47. Another problem with using Eckardt to corroborate Gillooly's story is the obvious set of inconsistencies in Eckardt's story. See especially points #18 and #23 above. These inconsistencies are particularly damaging because they pertain directly to the points that Eckardt was supposed to corroborate.
48. Norm Frink has pointed to the note retrieved from the garbage can as important evidence. But the only part of that note in Harding's handwriting was the spelling of the Tony Kent arena. This only showed that she made the call to Vera Marano to get the name of Nancy Kerrigan's rink. Since she never denied making that call, the note actually supported her story.
49. This leaves the Vera Marano call itself as the only piece of evidence to support the prosecution. By itself it doesn't come close to being probable cause. But it also indirectly supports Harding's story because it supports the point that she didn't make the calls to the Tony Kent arena. See point #28 above.
Evidence still to be collected
50. Intersport Television had a tape of the last practices of Tonya Harding and Nancy Kerrigan on Jan. 6 before the attack on Nancy Kerrigan. If Harding had known about the impending attack, then she would have been under stress, and that would have affected her performance. The sources of stress would have been:
a. The attack would have affected her position greatly.
Anything that is uncertain and that would have a big impact on one's welfare tends to cause stress.
b. It had a greater potential for loss than for gain.
Worrying about how expensive a car repair will be causes more stress than waiting to find out if you won the lottery. In this case, if she had known about the pending attack, she would have risked prison.
c. She would have had no control over it.
Riding in an airplane is more stressful that driving a car, because the driver controls the car but the passenger can't control the airplane. In this case she would have had to depend on others to do the job right.
d. It would have been imminent.
The closer the deadline approaches, the greater the stress. For example, if you are planning to ask your boss for a raise, your stress level will rise as you get closer to the time you plan to do it.
e. It would have been her first such experience.
Obviously, the more practice you have with something, the easier it becomes.
This makes that tape the Zapruder film of the Kerrigan attack.
51. Rolling Stone (July 14-28, 1994, page 87) reported that Tonya Harding was interviewed by the Detroit Police and the FBI for 4 hours on the morning of Jan. 10, 1994. But Gillooly stated that they only asked her general questions about skating. (Gillooly FD-302 page 44-45.) A summary of that interview would be useful.
52. It should have been obvious from the beginning that Harding wasn't involved. She was extremely impulsive. It would have been in character for her to get mad at Nancy Kerrigan and hit her herself. But using intermediaries and waiting weeks for the result wasn't her style.
53. When a witness gives a statement it usually doesn't tell you much about what actually happened. Rather, it tells you what he wants you to believe and what he thinks he can get away with.
Remember Gil Grissom's comment in the TV show CSI: "I tend not to believe people; they lie. The evidence never lies."
54. It could be argued that Norm Frink was simply an unwitting accomplice of Gillooly. After all, Gillooly was a good con artist. But if Frink was deceived by Gillooly, it was because he wanted to be deceived. This was the most publicized case of his career and Harding was the celebrity involved.
55. This was an extremely high profile case. It made headlines around the world. If a miscarriage of justice could happen under those circumstances, with everyone watching, you have to wonder what's happening in the low profile cases.