Monday, July 09, 2007

General Order 4077

The Bar's exhibit list contains the full text of General Order 4077, the DPD's procedure for handling eyewitness photo ID's. Excerpts from the order are below.

A quiz: how many sections of the edited General Order did Nifong and the DPD violate?




The procedures listed below are based upon recommendations published by the North Carolina Actual innocence Commission which are endorsed by the Education and Training Committee of the North Carolina Criminal Justice Education and Training Standards Commission.


Photographic arrays should adhere to the following set of guidelines:

  • Use an independent administrator. It is preferable that the individual conducting the photographic array should be someone who does not know which member of the photographic array is the suspect. There should not be anyone present during the array procedure who knows the suspect's identity. Only when resources make this practice prohibitive should an independent administrator not be utilized. When it is necessary to conduct a photographic array without an independent administrator, the primary investigator must exercise extreme caution to avoid inadvertent signaling to the witness of the "correct" response.
  • Include a minimum of five fillers (non-suspects).
  • If there is more than one suspect that fits the description of the perpetrator, there can be more than one suspect in the photographic array; however, the fillers should be increased to a minimum of five per suspect.
  • Fillers should resemble the witness's description of the perpetrator in significant features (face, profile, height, weight, build, posture, gait, specific articles of clothing, etc.) or, in the case where a composite is used, based on their resemblance to the composite.
  • When showing a new suspect, avoid reusing the same fliers in arrays shown to the same witness [i.e., photos shown from a previous ID session].
  • Lead photographic arrays with a filler.
  • Witnesses should be given a cautionary instruction that the individual may not be the perpetrator.


Anonymous said...

KC - I know this is oof topic but any chance you will have an Isreal blog while there?

Anonymous said...

The question should be which section didn't they violate.

Anonymous said...

Q: A quiz: how many sections of the edited General Order did Nifong and the DPD violate?

A: According to Nifong and the DPD, none. They are only recommendations and not requirements.

Anonymous said...

What date did General Order 4077 become effective?

As far as your quiz goes since no fillers were used and Gottlieb was not independent of he investigation I would say they violated all the sections of the order.

Anonymous said...

A: all of them!

Anonymous said...

I'm dying to know what is going to happen with civil suits? Someone has to have an idea who/how/when.
There's some major smart people on this blog... what's your guess?

Anonymous said...

Other than Nifong and Durham, there are no civil suits.

Anonymous said...

anon 3:10

Civil suits. Nancy Grace -- slander?

Anonymous said...

KC will be way too busy cruising Israeli chicks to have a blog over there.

KC Johnson said...

To the 2.57:

Your answer "A: all of them!" would disqualify you from Patrick Baker's consideration as the next chief of police in Durham . . .

Inman said...

Out of curiosity, since our legal system does not recognize a difference between the races, could Nifong have use Black, Hispanic and Asian fillers. And even thrown in a few women or female crossdressers? Of course, one would certainly compy with the requirement that: "Fillers should resemble the witness's description of the perpetrator in significant features (face, profile, height, weight, build, posture, gait, specific articles of clothing, etc.) ..."

(The crossdresser might find wearing Duke issue spandex to be particularly inviting.)


Anonymous said...

Would suing City Durham cover DPD and Wilson both(as agent for city?) So LAX3 could get all agents of the city PLUS Nifong personally and separately? I like that.

Anonymous said...

Re: civil suits:

I've said it at least once before here, and I'll say it again:

In the civil action(s), where do y'all think the plaintiifs (the lacrosse players) are going to get jurors, who will deliver all this great justice and retribution against Nifong or the DPD?

We are still talking about the same jury pool that, frankly, could not be trusted to see the light in a bogus, baseless criminal trial against those same players. Do you think these potential jurors have suddenly grown a brain?

Try reading the letters to the editor of the Herald-Sun. The civil suit is loaded with real merit, and cries out for justice, but the reality (all too likely) is that you'd get pin-heads like Carrie T. Smith on the jury, who thinks that Mike Nifong is Jesus Christ. Or even worse, an 88er-wannabe who fancies himself a great intellectual.

Lots of people know the facts, know real prejudice when they see it, and would make great jurors, but good luck getting them seated on a jury.

I hope the civil actions are brought, and that the discovery brings as much humiliation and pain as possible to the defendants.

Then, I hope the cases settle -- because you do NOT want to put your life, or even your financial well-being, in the hands of these bigoted, ignorant, self-satisfied morons.

Anonymous said...

JLS says...,

A key to defeating the argument of the DPD and Nifong to me concerning the lineup is to defeat the year book example. That is the case where they show a victim of a crime a year book or some such photographic record when they have reason to believe the perp goes or went to a particular high school.

The KEY difference in that example with what they did in this case is that if Mangum did not pick one person that threw suspicion on a smaller number of others. In the year book case there are lots and lots of chances for a false accuser to make a wrong pick that is clearly wrong and reveals them to be a liar. That is the purpose of the fillers. There were no such opportunities in this case. Had they used the Duke yearbook, then they would have been ok or at least better in my view as there would have been plenty of chances for Mangum to pick someone who showed her to be a liar.

Anonymous said...

Linwood Wilson would probably help Nifong pay off any judgement by giving him a percentage of sales of his gospel music.

Anonymous said...

JLS says...,

re: anon 3:34

As far as I know Evans, Finnerty and Seligmann do not live in NC. If they were to sue someone, I don't see any reason why they would want to sue in a state where they do not reside. I would think they would sue in federal court in the state where each does reside and draw a jury from that state?

Anonymous said...

A New Yorker could most likely sue (NC-based) Krispy Kreme in the courts of New York, if he's poisoned by a Krispy Kreme donut in Brooklyn. Krispy Kreme does business in NY, and otherwise has substantial contacts there. But...

Jurisdiction against a public entity (or an individual sued in his capacity as an agent for that entity) will be where that entity is located, regardless of whether State or Federal Courts are involved -- if any lawyers disagree, I'd love to hear about it. Plaintiff's residence, alone, is never sufficient basis for jurisdiction.

Anonymous said...

two juries-same defendant,same victims

two trials
two verdicts
two parts of town
OJ Simpson

Anonymous said...

There would have to be a change of venue, since were a civil suit against Durham to succeed, all resident taxes might have to increase. That is the prima facie argument for a site change. A yes answer to the question to a potential juror "do you have any partner or relative on the city payroll, or any partner or relative employed by Duke?" would also be a reason to exclude the juror.

Anonymous said...

JLS - thanks for the great explanation on how the lineup was different than a year book line up. The year book excuse almost sounded reasonable to me until you explained.

Just another reason I read this blog.

Anonymous said...

The players might waive the jury, if the Honorable Judge Hudson were to preside.

mac said...

"When showing a new suspect, avoid using the same fliers..." (don't you mean "fillers?")

May be a Freudian slip, since the same fliers - (photo lineups) - were used repeatedly.
How many times? Seven?

No fillers in the fliers, either way. Flies in the ointment, maybe.

Lucky 7s for CGM! Whooo-boy! (Wonder if she got the number of guesses from Farrakhan?)

gs said...

According to Ronald Hodge, Durham's current deputy police chief, He saw no problems in the DPD.

So the answer is none. (lol)

mac said...

JLS 3:44

Of course, with regard to the "there would have been
plenty of chances for someone to prove she was a liar" comment,
there were plenty of times when it was shown that she was lying,
just using the lineup!

As in:
Seligmann was somewhere else at the time of the "attack."
The mysterious vanishing moustache of Dave Evans.

That's hardly even getting warmed-up!

So many things, that it would be hard to imagine
why no one listened to Sgt. Shelton in the first place!

inman said...


The weight of the evidence suggests a criminal conspiracy to deny the three victims of their rights under the Civil Rights Act of 1964. (An opinion on this from a legal scholar would be appreciated, since I am only offering an informed layman's opinion.)


Now....that's a Federal crime. Good-god-a-mickey-mighty, when are the Federal authorities going to start the well-deserved investigation of Nifong, the DPD, Wilson and the other co-conspirators? How can the Federal government let the mickey-mouse behavior of these small-town Southern hacks stand in the light of a national homogenization of cultural backgrounds and identities?

And justice for all!!! Equal justice under the law. Equal. Again...let me emphasize....EQUAL.

If the national guard could be summoned (in a state whose militia still reports to the Governor) to protect the educational rights of a single Black child, surely the Federal authorities can bring appropriate review to bear on a case with national implications for both Black*** & caucasion.

Tom Inman

*** I refrain from the term "African American" since in a true anthropologic and evolutionary context, we are all "African" American. Also....Please, in no way am I suggesting that the Fundementalist Southern extreme right wing creationist view be attacked. Their view is also protected under the Civil Rights Act.

Anonymous said...

The LAX3 are probably better off without the Feds stepping in to investigate. The state has had two investigations (AG and Bar) each finding that the prosecutor acted recklessly. The City investigation of the DPD might shut down if the feds stepped in. Also, how could the LAX3 do any better than having their own attorneys be witnesses on their behalf? The ALX3 would be better served by letting Durham hang itself. Then with the AG report, Bar decision, and DPD investigation report, sue the City and cite their own findings.

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Anonymous said...

Come on KC -- how many times do you have to be told. The 4/4 lineup wasn't a lineup at all -- it was a procedure. A procedure to identify witnesses -- that's all. The fact that they used the procedure to indict is a mere technicality. The fact that they didn't use it to interview the identified witnesses, another mere technicality. The fact that it was recorded so that it would play well for the jury.... Really, just trying to identify witnesses.... really....

Anonymous said...

At least Linwood Wilson is SAVED. That is more than can be said by or about his detractors.

inman said...

A layman’s analysis of the plain language of the Civil Rights Act of 1964:

"SEC. 202. All persons shall be entitled to be free, at any establishment or place (such as the Durham Courthouse or the Durham Police Station), from discrimination or segregation of any kind (surely the exclusion of any other race but Caucasion in the photo line up constitutes a clear example of discrimination – if other races had been included, then CMG could have observed in her photo ID sessions that a particular Black or Hispanic or Asian filler was not the alleged perpetrator – but to not even include such fillers clearly is a violation of this section --- plus, there are many folks of Black ancestry who appear, for all practical purposes, as Caucasian ) on the ground of race (I don’t think there are many commenters on this blog who don’t think that race was a central issue), color, religion, or national origin, if such discrimination or segregation is or purports to be required by any law *** (Was the line-up required by law? Didn’t the DPD, in effect, acknowledge that the particular de facto photo ID (line up) sessions were required by law. Haven’t they stated with substantial hubris that it was in compliance with the law? How can it be in compliance with law if it not required by law? They clearly thought it was required – on three occasions. Accordingly, how could it fall outside the phrasing of this Section 202?), statute, ordinance, regulation, rule, or order of a State or any agency or political subdivision thereof.
SEC. 203. No person shall (a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive, any person of any right or privilege secured by section 201 or 202, or (b) intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person with the purpose of interfering with any right or privilege secured by section 201 or 202, or (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 or 202. (comments added)

*** Also, if not required by law, then would it not be possible for a segregationist to make an “optional” segregation available in public places? By, for example, posting signs such as “Whites Only –Optional” and “Coloreds Only – Optional”? Although not “required” this would still have a chilling effect.

Anonymous said...

In University of California v Bakke, Allan Bakke claimed his civil rights as a white male had been violated. The court agreed and he was accepted into the medical school. Though it was a landmark case that a white man could have his civil rights violated, to this day Bakke refuses to be interview about his experience.

Anonymous said...

Only God and the person knows if they are saved. The rest is speculation. I'm not aware that he has ever asked the Duke 3 and all his 'victims' for forgivness.

I think he knows that if there is unresolved sin in his life, he will go to HELL. The problem with many of us, we think we have lots of time the 'make things right.' Of course we don't anticipate getting run over by a truck.

Anonymous said...

What is the possible relevance of the prior post? Anyone?

Anonymous said...

Well, the independent administrator is almost optional, so maybe they didn't exactly violate that one....

says David Jay

Anonymous said...

Thanks for posting General Order 4077 again, K.C.! I had read it a few times months ago, right after the 4/4/06 lineup became public knowledge. What is interesting in re-observing these things is to look at how Nifong, in the interim, has attempted to frame his responses.

For example, we are all aware that Nifong and Gottlieb, in their depositions, claimed that the 4/4/06 lineup wasn't a "photo lineup." Yet, G.O. 4077 does not specifically deal with "photo lineups." It deals with any type of "Eyewitness Identification" or "Photographic arrays."


In answer to the blog's main question: Wasn't there something in G.O. 4077 providing that "actual darts shall not be used in said procedure"? If that is the case, then Nifong didn't literally violate that principle....


The civil suit will be in federal court because no plaintiff attorney wants to be in Durham state court for the reasons stated above. The suit cannot be filed in New York or New Jersey (except maybe against Nancy Grace, national newspapers) because, as the poster above stated, the defendant's residence or the situs of the tort rules.

I've filed federal suits against local governmental units, and I was not granted a change of venue because of the apparent conflict a juror/taxpayer might have. Most judges think that voir dire will cure all problems! Of course, my cases DID NOT involve national attention, all of the local media outlets, unprecedented amounts of local governmental corruption, the involvement of most of the major employers in the area, etc....

K.C., I actually laughed at the 3:26 post before I noticed that you had penned it!


Ed "Gregory" Haskell, Ph.D., M.O.O.!

Anonymous said...

If a dirtbag like Wilson is SAVED, I want no part of it.

inman said...

Is Gregory an intelligent cow? "M.O.O?" If so, should Rudy be informed?

Anonymous said...

to 7:55

Anonymous at 7:07 claims to know Wison is saved, unlike his "accusers "

mac said...

I believe in Jesus Christ.
I believe in the resurrection of the crucified Christ.

It's harmful when we claim to be Saved, then lie, cheat, steal,
lie about others, harm others, and do all the things we blame others for

Luke 11:46 is a good Scriptural description of Mr. Linwood Wilson; so is Luke 11:52.

Look it up: it might be good for you.

Anonymous said...

You know, when Mangum (according to Wilson) latterly said, "That looks like one of them except the perp had a five-o-clock shadow."
But that makes no sense even on its own terms. I mean, most guys have a little facial hair appearing every day. It is not a fashion statement or a chosen mark of identity. And a five-o-clock shadow does not change a mans facial profile. I cannot imagine anyone using the phrase, "If he shaved off one days beard growth he would look like my assailant."
It is just one more transparent attempt to push forward a total hoax.

Anonymous said...

Nifong and the Durham PD's defense to this has been, "Yes, but it wasn't a photo lineup, it was only a _________ (insert ridiculous excuse)"

The problem is that this lineup was the SOLE evidence that lead to the arrest of Reade, Dave and Colin.

They can't have it both ways. Either it was a photo lineup and all of their procedures were violated (in which case you throw out the entire thing) OR it wasn't a photo lineup which means the identifications she made are to be thrown out.

Either way you should reach the same conclusion if you have any logic.

The DPD can't say "it wasn't a lineup" and then turn right around use the information from that non-lineup.

Anonymous said...

Mac 9:37 Good post

Anonymous said...

Is Duke a state school?

inman said...

Yes Duke is now a state school:

State of denial ... with the administration, Brodhead and the 88's denying any complicity or ill-conceived actions or words.

State of confusion ... with the BOT and Broadhead not knowing on which political wind to adjust the sails.

State of equilibrium ... good, bad and evil are finally in balance.... 2 to 1.

State of catharsis ... purging itself of the impurities visited upon it by recent events.

State of paralysis ... not knowing how to assuage leadership guilt about failures and false belief.


Duke is a "state" school.

Anonymous said...

7:07 "The 4/4 lineup wasn't a lineup at all -- it was a procedure. A procedure to identify witnesses -- that's all. The fact that they used the procedure to indict is a mere technicality. The fact that they didn't use it to interview the identified witnesses, another mere technicality. The fact that it was recorded so that it would play well for the jury.... Really, just trying to identify witnesses.... really."

That's a good analysis of the 4/4 lineup. I would add, why did they need to "identify witnesses?" Didn't they already know that the lacrosse team was at the party? How does showing her the pictures of the lacrosse team add to their list of potential witnesses?

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Anonymous said...

9:47 / 10:00

Duke is indeed a university located in NC. It is NOT a school within the UNC system, if that is your query. Thus, the UNC Trustees/Board (Erskine Bowles is head) does not govern Duke's actions, etc. Sadly, a rather milgue-toast BOT is attempting to run the school. Tuition (full freight) is ~ $45,000/year vs.
UNC system schools `$15 - 20,000 - or so I've been told.

Anonymous said...

I agree. This case really does address the moral decline in the U.S.

Anonymous said...

Personally I have never figured out if CGM is disturbed or evil. From what I can tell Cooper was unable to make that distinction also and since he would have the burden of proof if he charged Magnum he played it safe and did not charge her.

mac said...

Let's put it this way, with regard to charging Nifong, CGM et al:

If a prosecutor can indict a ham sandwich,
why can't he indict a Haman Sleaze on Lie?

(sorry to bring that one over from the other day, but...)

Anonymous said...

Mangum isn't disturbed. She's a black whore who saw an opportunity to make money. Right now she's pissed because 3 white boys got paid and she didn't. It shouldn't be over-analyzed. She belongs in prison.

inman said...



Anonymous said...

Linwood Wilson is a rock star!

inman said...

T the risk of being characterized as redundant...

"Linwood Wilson is a --- sedimentary, igneous or metamorphic example of a phenomenon that converts helium to hydrogen in a permanent nuclear reaction?

Surely that's what you mean -- pea brain."



Anonymous said...


Surely, you jest. N.C. Central is also a fine school and proud member of the UNC umbrella of schools.

N.C. Governor Easley attended law scool at NCCU.

What else can you say?

(Southport Marina patronage comes to mind....)

No justice, no peace said...

Interpreting Bodies, Duke Course WOMENST 163S

Course Synopsis
"How the body has come to define the human in language, law, science, politics and economics. The body's relation to identity and subjectivity. The representation of the body in particular cultural discourses and the social history and dynamic in which that representation has taken place."

Afghan girls traded like currency...

"Despite advances in women’s rights and at least one tribe’s move to outlaw the practice, girls are traded like currency in Afghanistan and forced marriages are common. Antiquated tribal laws authorize the practice known as “bad” in the Afghan language Dari — and girls are used to settle disputes ranging from debts to murder..."

“Nobody treats them badly,” Malik Niaz said confidently, stroking his long white beard. “Everyone respects women.”

"...A girl is often beaten and sometimes killed because when the family looks at her, they see the killer. “Because they lost someone, they take it out on her,” Naderi said."

One wonders how gender studies provides anyone the skills to solve real problems.

Maybe some pot banging in Kabul will get things rolling?

inman said...

For the record... I am quite certain that NCCU is a fine school.

I am certain that there are many well respected graduates who cast a favorable light on their alma mater. And I also think that most of its actions and statements in the recent travesty were well intentioned. For, if I remember correctly, NCCU officials show substantial restraint.

Anonymous said...

Re: Inman @11:00

Well said regarding much NCCU admin.

Though beg to differ re NCCU student reactions.

No justice, no peace said...

Does NCCU have an AAAs department? What about a Woman's Studies department?

Why, isn't that an oddity?

"For the record... I am quite certain that NCCU is a fine school." Inman you may be on to something.

Anonymous said...

I saw that women's studies course taught by Rudy.

Is there any way I can give her a raise and an endowed chair, because I think she's brilliant. This is a very important course for all Duke students to experience.

Mary Rudy
a k a Mom

inman said...

Re: 11:12 reaction to my prior statement:

Yes...some of the NCCU student reaction may have been injudicious... but under the circumstances, I will give them the benefit of the doubt. They weren't the pot bangers without any racial prerogative. They weren't the Black Supremecist "New Black Panthers" (Dr. Huey P. Newton is rolling in his grave.) These kids were wooed by the media and the notion of identity politics. I.E. They were conned.

The students of NCCU were also victims of this charade. White or Black or Red or Yellow. No matter, they were victims of Nifong's crusade.

Gary Packwood said...

No justice, no peace 11:15 said...

...Does NCCU have an AAAs department? What about a Woman's Studies department?
I suspect only flagship state universities and wealth private universities have sufficient resources to shoot themselves in the foot with a comprehensive array of Anger Studies departments.

To whom much is given, much is .....

Ralph Phelan said...

"Good-god-a-mickey-mighty, when are the Federal authorities going to start the well-deserved investigation of Nifong, the DPD, Wilson and the other co-conspirators? "

Write your Congressmen!

Whoops, need some non-sexist terminology here ... Write your Congressthieves!

Anonymous said...

I tried to get both our NC US Senators to show some integrity, but they remain strangely silent. You don't suppose they don't give a damn? No, that couldn't be....