The Gottlieb Deposition

Mark Gottlieb’s April 19, 2007 deposition is now out, posted in its entirety at Liestoppers; a summary is below.

The highlights:

• Gottlieb admitted that his “supplemental case notes” were, in fact, written months after the events they allegedly described;

• The April 4 lineup was, he suggested, procedurally proper, because none of the lacrosse players were “suspects” at the time;

• The investigation, as of March 22, was not about to end; and before the April 4 lineup had reached a stalemate.

Gottlieb comes across as a figure who plays fast and loose with the rules, and who harbors a deep dislike for Duke students. Although he doesn’t say it explicitly, he also leaves little doubt that he continues to believe a crime occurred.

The “Straight-from-Memory” Notes

Under questioning from the Bar’s attorney, Doug Brocker, Gottlieb conceded that his typewritten case “notes” almost always were not produced contemporaneously. The exception was the transcript of the April 4 lineup.

Nifong-like, Gottlieb offered a variety of excuses for this peculiar note-taking habit:

• He did take contemporaneous notes—on a “dry-eraser board”—but Officer Ben Himan mistakenly neglected to take photos of the board(!) each day before Gottlieb erased its contents;

• He wasn’t really that involved in the investigation, so he had nothing to record;

• Officer Michele Soucie usually took handwritten notes for him;

• He did take contemporaneous notes, of a sort, by radio log, through calling into police dispatch. Even though defense attorneys had requested these recordings be preserved, they, like the “dry-eraser board,” were conveniently erased.

When, Brocker asked, did Gottlieb type up the most explosive item in his memorandum, the alleged descriptions that Crystal Mangum gave of her attackers on March 16?

Answer: Just before he submitted his report to Nifong, on July 14.

How, then, did Gottlieb come up with Mangum’s suspect descriptions?

Answer: From Himan’s handwritten notes, and from his memory—almost four months after the fact—of what Mangum had said.

So, Gottlieb’s story is: He looked at Himan’s handwritten notes of the March 16^th interview sometime in early July. He saw Himan’s notes of what Mangum had said. But he, instead, remembered Mangum giving dead-on descriptions of the three people ultimately indicted, even though Himan’s contemporaneous notes reported something entirely different, and the sergeant had taken no notes of the session.

(This, it’s worth remembering, is the version of the case that the New York Times presented to the world as authentic last August.)

The April 4 Photo Array

Gottlieb conceded that as of March 31, 2006, the investigation had reached a “stalemate.” The idea for the lacrosse-players-only lineup, he noted, came from Nifong, but neither he nor Himan nor anyone else from the DPD objected to Nifong’s scheme.

Gottlieb conceded that he had considered all of the players except for first-name Brett, Adam, and Matt—and Dan Flannery and Dave Evans—to be “fillers” in the March 16 and March 21 lineups. But, he said, the Duke website photos were “military-style,” explaining why Mangum couldn’t identify her “attackers.”

The suspects-only approach in the April 4 lineup, Gottlieb suggested, was justified on two grounds: (1) the police were searching for witnesses, not the perpetrators of the crime; (2) Nifong was testing to see whether drugs might have impaired Mangum’s memory.

Both of these assertions, of course, are preposterous: to accept the first would require believing that the police taped a lineup they hoped would produce witnesses but not lineups they hoped would produce suspects. And the second claim was, simply, baffling, as Brocker pointed out in the exchange below:

Q: How would the photographic presentation that was put together have shed any light on what drugs she may or may not have been under? I’m not following that point.

A: OK. Let’s say you took a date-rape drug that causes amnesia, you wouldn’t be able to identify anybody as, “Oh, I remember him, he was standing outside smoking; I remember him, he was watching television; I remember him, he urinating in the backyard.” They wouldn’t remember anything. Whereas if you are drugged with ecstasy, you would have recall, and that would explain why she was having the physical signs and symptoms of an intoxicant yet still having her memory.

Q. Did Mr. Nifong explain why doing this photographic presentation as opposed to a photographic array that had been done before would be more helpful to bring that point out?

A. All I can say is he didn’t ask for a photographic array. He was dealing with, my understanding, he was asking for this to see what she recalled and what she didn’t recall.

Q. OK. Just to make sure I’m clear, it was Mr. Nifong’s decision to conduct this photographic presentation as opposed to having her provided photographic arrays as had been done before?

A. Yes.

Gottlieb saw no problem with his running the April 4 array because, he said, he didn’t really know the identities of any of the players, except for the captains. That claim, however, flies in the face of his behavior when the players came to the police station to comply with the non-testimonial order. Then, he identified several of the players by name and said that they didn’t look like their Duke website photos. In short, there’s every reason to believe that Gottlieb knew the identities of each and every member of the team before the April 4 session.

Mangum, he further asserted, did what she was supposed to do in the April 4 session, describing what each person she identified did to her. He denied that she identified four attackers, didn’t explain why sometimes he asked follow-up questions and sometimes he didn’t, and suggested that a suspects-only lineup wasn’t all that unusual in the DPD.

After repeated questioning from Brocker, Gottlieb eventually conceded that he could not recall another of his cases in which indictments resulted from a photo ID that hadn’t followed procedure.

Blame Himan

At least eight separate times in the deposition, Gottlieb asserted that the case was Himan’s, not his. Despite this claim, however, the sergeant managed to discuss his involvement in the case for more than six hours—on topics ranging from interviewing the three captains to chatting with SANE nurse-in-training Tara Levicy to running the April 4 lineup to attending the three meetings with Dr. Brian Meehan.

Overall, moreover, Gottlieb’s blame-Himan defense proved (unintentionally) devastating for Nifong, since the sergeant admitted that Himan was responsible for turning documents over to Nifong—fortifying Himan’s DHC testimony that Nifong was fully aware of the inconsistencies in Crystal Mangum’s stories as of March 27.

Nifong’s Role

Gottlieb reiterated the explosive revelation in his case “notes” that on March 24, 2006, his immediate superior, Capt. Jeff Lamb, told him to coordinate all matters related to the investigation with Nifong; and “to make sure that everything that was done was approved by the DA’s office, and basically to follow their leads.”

And, Gottlieb continued, after March 24, 2006, that’s exactly how the investigation was run.

This testimony contradicts Nifong’s contrary claim, under oath, during his disciplinary proceedings; it also suggests that the Baker/Chalmers report that the DPD was always in charge of the investigation was, in fact, a whitewash.

Bob Ekstrand Was Right

In the days before March 22, attorney Wes Covington (whose clients were unclear—he told the captains he wasn’t officially their lawyer) had arranged for all the members of the team to be questioned (without counsel, and without telling their parents) by the DPD. This visit, he intimated, would end the case—each player would be asked a question or two, just to close out the file.

Duke, Gottlieb continued, was a willing participant in this scheme to bring its own students in “under the radar.”

Once he found out about this plan (from team captain Dan Flannery), Ekstrand suspected a trap. He was right.

Gottlieb admitted in the deposition that the DPD intended to “see if they would allow DNA. See if they would allow photographs, et cetera.” Those, of course, are steps to expand an investigation, not bring it to a close—as would happen the next day, after the DPD secured the procedurally fraudulent non-testimonial order.

Tracey Cline

Gottlieb was even clearer than Himan on the origins of the NTO: after speaking with Tracey Cline, “the district attorney’s office thought it was a good idea to go ahead and do a Non-Testimonial.”

This raises the question, once again: what “reasonable suspicion” did Assistant District Attorney Cline, who remains in the employ of the DA’s office, have to believe that Brad Ross, one of the subjects of the NTO, should be considered a “suspect”?

Gottlieb also claims that Nifong told Mangum that “he would be working very closely with Ms. Cline.”

The Seligmann Indictment

Gottlieb confirmed Himan’s testimony to the Disciplinary Hearing Committee completely: that Himan believed that the department didn’t have enough evidence to indict Seligmann, that Gottlieb communicated Himan’s concerns to their superiors in the DPD, and that Nifong dismissed them, arguing that if the police believed one aspect of Mangum’s stor(ies), they should believe her entire stor(ies).

At a conference call including Gottlieb, Capt. Lamb, and Lt. Mike Ripberger, Nifong informed them that enough evidence existed to move forward with an indictment against Seligmann.

Gottlieb: “I told him our concerns and basically he made the decision.”

Gottlieb’s Memory Problems

For a man who admitted composing his case notes “straight from memory,” Gottlieb seems to have an awfully poor memory. For instance, he stated that he couldn’t remember any specific details from the March 27 meeting, the first time that he and Himan briefed Nifong on the case.

Eventually, however, under detailed questioning from Brocker, Gottlieb conceded that he and Himan comprehensively briefed Nifong on the status of the investigation, and that this briefing probably occurred on the 27^th, or earlier.

Gottlieb on Mangum

Gottlieb repeatedly claimed that Mangum had been consistent in her stories from March 14 through December (if this sounds very much like a claim in Duff Wilson’s widely ridiculed August New York Times story, it should).

Brocker then asked him about Mangum’s claims in her March 15 visit to UNC—when she asserted that she was “drunk” and felt no pain, and in which she stated that during the “attack,” one of the “attackers knocked her down, causing her to hit her head on the sink.

Gottlieb’s response? “This is not a report that I have had time to review.”

He and Nifong made the perfect team.

In describing his March 16 interview with Mangum, Gottlieb repeated the classic line from his notes: “She was having a difficult time ambulating.” And, much like Nifong, Gottlieb repeatedly described Mangum as “the victim” during his deposition.

Meehan

Gottlieb was positive that Nifong attended all three meetings with the lab director. Why? Because “I am not a scientific person as far as understanding things,” and Meehan “was going through a lot of information that was over my head; I wasn’t quite understanding it.”

When the meeting occurred, Meehan went over the printouts showing the unidentified male DNA. But Gottlieb retained no memory of it, because “I was completely lost.”

At the second meeting, Gottlieb recalled Meehan “going on and on and on about what has been done, again, in scientific terms that when you sit there long enough, and you’re just lost.”

His being “lost” yielded a remarkable recollection—that, he guessed, Meehan said the odds of the fingernail DNA not being Dave Evans’ was “one in 900-some trillion.” In fact, Meehan said that Evans was among 2 percent of the entire population whose DNA might be in the fingernail mixture.

Keeping in mind that Meehan is (as Lane Williamson put it) “Mr. Obfuscation,” shouldn’t a figure with nearly 20 years on the force be able to understand the role that DNA would play in this case?

The sergeant did, however, provide two pieces of information utterly damning to Nifong. First, he noted that at both the April 10 and April 21 meetings, Meehan had gone through the results of every test that he had done.

Second, when asked about the May 12 report, he said, “It was my impression that what we got was the final report.” Indeed, claimed Gottlieb, Meehan discussed how he would testify about the report in trial.

The Origins of the McFadyen E-mail

The special prosecutors told at least one member of the team (during his interview) that they believed that the captains’ computers were not the source of the McFadyen e-mail (as I had previously believed).

That leaves only two possible sources: one of the players (extremely unlikely) or someone at Duke. In a throwaway line, Gottlieb revealed that the McFadyen e-mail was forwarded not just to CrimeStoppers but to Capt. LaVarge of the DPD. The DPD’s policy is never to ask from where CrimeStoppers gets its information—but by forwarding the e-mail to LaVarge, “that does away with the confidentiality.”

Gottlieb commented that the department did try to find out who forwarded the e-mail, but didn’t seem to know the results.

Stray Items

Gottlieb confirmed that Deputy Police Chief Ron Hodge—a current contender for chief—was fully involved in the chain of command on case-related decisions.

The sergeant confessed that he “looked at blogs” during the case.

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All told, this was a chilling deposition, given by a figure who continues to believe that he did nothing wrong in obtaining indictments against three demonstrably innocent people for a crime that never took place.

[Note: the Sunday roundup will be moved to tomorrow's post.]