Yesterday’s post examined how the depositions prepared for the Nifong ethics hearing illustrated the Durham Police Department’s inability to evaluate basic evidence. Today’s post will look at how the Himan, Gottlieb, Wilson, and Ripberger depositions reveal a department careless about basic investigative practices and disrespectful of principles of due process.
Basic Investigative Practices
Long before Mike Nifong was disgraced, the “straight-from-memory” Gottlieb notes exemplified the shady practices associated with this case. In mid-July—after defense filings had revealed major problems in Nifong’s case—Gottlieb produced the typed, undated “supplementary case notes,” with handwritten notes confined to two insignificant items from an afternoon in late April.
Gottlieb’s notes contained yawning discrepancies with the rest of the file. He claimed that the photos from this session showed Crystal Mangum with face and neck bruises. And he recalled Mangum giving dead-on descriptions of the three accused players (descriptions that looked a lot like their profiles from the Duke lacrosse website) at the March 16, 2006 interview—even though Himan’s contemporaneous handwritten notes showed entirely different descriptions that in no way resembled either Reade Seligmann or Collin Finnerty.
In his deposition, Gottlieb conceded that he had, in fact, produced the notes straight from memory—asserting that he remembered Mangum giving these dead-on descriptions nearly three months after the date of the interview. The claim, of course, was absurd.
So what happened to Gottlieb’s handwritten notes? As he explained in the deposition,
I did take notes to organize myself and to help Investigator Himan organize the investigation just on my board. And I have a board in my office, it’s a dry-erase board. And, for example, Investigator Himan would say, “I need to have someone look at different things, how we can get a hair analysis done,” And I would put my name next to that. And then he’d say, “I need a background done for this person.” I would assign someone to do that if he wasn’t going to do it. He’d say, “I need a court order to get e-mail records,” put his name next to that, et cetera, et cetera, et cetera. I had asked him and was under the impression that he was taking photographs of the board, and when we finished that we would clear it. That wasn’t done. And I apologize for that.
This explanation was so absurd as to be comical—until remembering that the “straight-from-memory” notes were treated as legitimate evidence by both Nifong and the Durham Police (and, for that matter, the New York Times).
Most cops are compulsive note-takers: how else could they remember events months, or even years, afterwards, if they are called to testify? Surely, therefore, his superiors must have rebuked Gottlieb for such a blatant violation of standard investigative practice. Yet, to date, no evidence exists that anyone in the DPD ever expressed any discomfort with Gottlieb’s peculiar notetaking strategies.
Yet a member of the force did come under investigation for his behavior in the case. The DPD powers that be went after the first officer to encounter Mangum after the lacrosse party—Sgt. John Shelton. Shelton concluded, correctly, that Mangum was likely lying, and he made his opinion perfectly clear, in both handwritten notes and a timely supplementary filing.
For doing so, he was trashed repeatedly in depositions, criticized on the stand by ex-DA Nifong, and—according to the deposition of Linwood Wilson—subjected to an internal affairs inquiry.
So: the DPD did nothing to an officer who, on the surface, appears to have manufactured evidence to try to convict innocent people; and at the same time went after the one member of the force who got things right from the start. That’s quite a record.
Principles of Due Process
In one of the single best lines this case produced, USC law professor Susan Estrich wrote, “There are reasons you follow procedures. In general, they are there to spare outrage.”
This comment certainly applies to the April 4 lineup, in which Nifong ordered the DPD to ignore its own procedures—which required five filler photos per suspect—and produce a lineup confined to lacrosse players. Gottlieb ran the array, told Mangum that she would only see people that the police believed attended the party, and videotaped the proceeding. The whole affair all but invited the accuser, after two failed lineups following procedure, to pick three people.
As could have been expected, the procedural monstrosity directly led to a monstrous result: the indictment, without probable cause, of three demonstrably innocent people. Even so, both the investigators involved in the case and their police supervisors continue to defend the photo array as perfectly proper.
Lt. Mike Ripberger—who supervised both Gottlieb and Himan—said that he “did not have concern” with the suspects-only lineup, either at the time or later. Why not?, asked Bar attorney Doug Brocker. Ripberger: “Because I did not look at this as a lineup or an array to identify a particular suspect or known suspect.”
In other words, Mangum was (1) going to be shown photographs of only people that the police and Nifong had publicly identified as suspects; (2) and asked if she remembered how she interacted with them on the night of the party—(3) at a time when she was claiming that she had interacted with three of them by being sexually assaulted. But that’s not a lineup, according to Ripberger. The lieutenant’s suggestion: even if Mike Nifong hadn’t ordered Gottlieb and Himan to run a lineup contrary to procedure, the department’s officers wouldn’t have followed procedure anyway.
With their immediate superior displaying such a cavalier attitude toward procedure, it’s little wonder that Himan and Gottlieb did as well. In their depositions, both asserted that the April 4 event wasn’t a “lineup” since they were only seeking to identify potential witnesses among the lacrosse players. Gottlieb added the peculiar rationale that the procedure also would test for whether Mangum was given a date-rape drug.
The duo conceded, however, that the March 16 and March 21 photo arrays--in which Mangum was shown photos of lacrosse players named Matt, Adam, Brett/Breck, Dan Flannery, and Dave Evans, with five other lacrosse players serving as fillers for each array--were lineups, and therefore covered by the General Order regulation.
This explanation means that Dave Evans was considered:
- a “known suspect” from March 16 until at least March 21;
- not considered a suspect at all as of March 31 (and perhaps earlier) until April 4;
- conveniently viewed as a suspect again sometime after April 5.
No one from the Durham PD has ever explained what new information the department received between March 21 and March 31 that prompted Himan and Gottlieb to abandon their earlier assumptions that Evans (as well as Flannery and the players named Matt, Adam, Brett/Breck) were the known suspects.
In effect, then, as things now stand, the DPD’s position on lineups amounts to the following: General Order 4077 requires five filler photos per suspect, as a way of guarding against false identifications. But in tough cases, or in cases where an accuser or witness can’t identify anyone, the department will just ignore the procedure and confine the lineup to suspects. To cover themselves, they will say that the purpose is to identify “witnesses” and that the people previously identified as suspects no longer are considered so. Maybe the lineup will get thrown out in court, but unless the defendant has an attorney of the quality of Jim Cooney—the architect of the December 14 suppression motion—it’s unlikely a judge would also bar the accuser/witness from making an in-court ID, which could well suffice to get a conviction.
The Ripberger/Gottlieb/Himan thesis leaves two and only two options for any fair-minded investigative committee: either the DPD is full of incompetent people, including high up the chain of command; or the department knew exactly what it was doing in constructing a procedurally flawed lineup, and concocted the “search for witnesses” story as a cover. (Both explanations are also possible.)
That the April 4 lineup was intended to identify people to arrest, not to produce witnesses, is obvious both from its structure and how it was used:
1.) Even though police did not tape the first two lineups, which unquestionably were designed to produce people to arrest, they did tape the April 4 lineup, with Gottlieb’s notes revealing an expectation that a jury would then be able to view the proceeding.
2.) If the goal were to prompt Mangum to identify witnesses from the party, it’s hard to explain why police would have excluded from the lineup three people (Devon Sherwood and two non-lacrosse players) that officers knew attended the party but who Nifong or his office had publicly ruled out as suspects.
3.) Despite the Ripberger/Gottlieb/Himan trio’s claims that the department didn’t have to follow procedure because the lineup was designed to provide openings to identify witnesses, no evidence exists that police ever used the lineup for the purpose of speaking to potential witnesses.
a.) Had the lineup actually been intended to produce witnesses, for instance, the police should have called up Brad Ross to say that Mangum had noticed him “standing outside talking to the other dancer,” and asked what else he saw at the party. Instead, of course, it was Ross’s attorneys who provided evidence to the police that Ross actually had been in Raleigh for the party’s duration. Since the police don’t appear to have taken Mangum’s ID of Ross as a witness seriously, this information had no effect on their actions.
b.) And had the lineup been intended to produce witnesses, the police should have confined their efforts in the April 13 nighttime sojourn to the Edens dorm to those who Mangum recalled seeing at the party. In his justification for the suspects-only lineup, Himan declared, “We were trying to get it narrowed down to who we cold go speak to or who we should go speak to . . . narrow our investigation down t see who she does recall, who does she remember.”
Yet in that trip to Edens, police spoke to one and only one lacrosse player at any length—Michael Young. Here was the relevant portion of the April 4 lineup regarding Young:
IMAGE 2 (Michael Young)
Mangum: I don’t recognize him.
So: (1) the police taped the April 4 lineup—for the “jury”—and didn’t tape other, procedurally proper lineups; (2) they claimed to be using the lineup to search for witnesses, but excluded from the lineup three people they knew were present at the party; (3) despite the stated claim that the lineup’s purpose was to narrow the list of people with whom they could speak, the only lacrosse player with whom they spoke at length between April 4 and the indictments was someone that Mangum didn’t recognize in the April 4 lineup.
On the surface, then, it appears that the DPD not only blatantly violated its own procedures, but also concocted a not-too-believable tale to cover up for its misconduct.
How could any fair-minded committee not be horrified by such a record?