Officer Ben Himan was one of the key players in Mike Nifong’s ethics hearing; his deposition makes for fascinating reading, and covers considerable territory beyond what we heard in court.
The Early Investigation
Asked to describe how the captains behaved on the evening of March 16, Himan was blunt: “Anything that I asked, they did.”
Also, it was apparent to anyone who looked that Kim Pittman Roberts’ March 22 statement was irreconcilable with whatever version of events Crystal Mangum happened to be offering.
Doug Brocker: Even at that point on the 22nd of March, it was fairly obvious to you that either Ms. Mangum or Ms. Pittman wasn’t telling the truth about some of the events that had happened.
That said, it’s clear that--at least early on--Himan was disinclined to believe Roberts. (He suggested that she was minimizing what happened to Mangum as a way of avoiding becoming a witness, and therefore having her own parole violation discovered.) The decision not to rely on a witness whose March 22 statement was largely accurate was a highly unfortunate missed opportunity.
Himan said that Sgt. John Shelton—the officer who first encountered Mangum, and who correctly realized that she was lying—gave him, not Gottlieb or Nifong, a copy of his report, handwritten, in a sealed envelope marked “confidential.” Himan also confirmed that, at Duke Hospital, Shelton told people he thought Mangum was lying.
That said, Himan disagreed with Shelton’s performance, arguing that he failed to show Mangum sufficient “empathy” and that he was overly “confrontational.”
The deposition also notes Shelton’s role in a heretofore unexplained aspect of the case. In May, a Duke report seemingly geared toward attacking the lacrosse players unintentionally aided them by revealing that Duke Police Officer Christopher Day overheard a DPD officer say that Mangum claimed to have been raped by 20 men.
Day’s report was downplayed at the time, however, including by Duke Police. According to the N&O,
Aaron Graves, associate vice president for campus safety and security, said the report was a preliminary account for informational purposes only. Duke police were not directly involved in the investigation into allegations by an escort service dancer that she was raped by three men at a Duke lacrosse party.
Duke officials said the officer did nothing wrong, but Graves added, “We clearly could have done a better job.”
It turns out that Day’s version of events was correct all along, raising questions about why Duke officials didn’t squarely stand behind their officer: he overheard Shelton telling a superior that Mangum at one point claimed 20 men raped her.
Gottlieb informed Himan on March 24, 2006 that everything in the investigation would need to be funneled through Nifong.
The first meeting between the three occurred on March 27. Nifong has claimed the session was confined to a discussion of the McFadyen e-mail, but Himan recalled that Nifong asked for Mangum’s statement (which, of course, at that point didn’t exist), Kim Roberts’ statement, and the captains’ statements. Also, Himan commented that Nifong himself “brought up the discrepancies” in Mangum’s version of events, such as the differing statements on the number of “attackers”—only, in the ex-DA’s case, to try to explain them away.
Himan also reported that Nifong was aware of discrepancies from the police reports even before their initial meeting. He suspected that some of this information had come from Nifong’s then-assistant, Sheila Eason (who Jim Hardin just rehired), whose husband worked for the Duke Police.
In addition to revealing Nifong’s March 27 comment—“You know, we’re fucked”—Himan said that a few days later, Nifong admitted that prosecuting this case would be “very hard.”
Himan, for his part, told Nifong that Mangum appeared to be in pain at the March 16 interview and it looked as if she was telling the truth. Himan eventually would change his mind on this point; Nifong never did.
Confirming Dr. Brian Meehan’s deposition—and casting further doubt on Nifong’s veracity—the Himan deposition recounted how Nifong actively questioned Dr. Meehan about the substance of Meehan’s DNA tests.
Confirming the recollections of Jackie Brown, Himan noted that he could “tell Mr. Nifong wasn’t in the best mood” in the return trip from Burlington on April 10—the day the ex-DA learned of the results showing DNA from multiple unidentified males.
Himan said he wasn’t sure if, at the May 12 meeting, they went over Meehan’s report “line by line,” but Meehan clearly went over each specific item in the report with Nifong—which would, again, suggest that Nifong perjured himself when he claimed to have never read the report.
Himan—like Gottlieb—believed Meehan’s May 12 report was the final report.
The Gottlieb Role
With extraordinary understatement, Himan conceded that Gottlieb’s notes of the March 16 Mangum descriptions differed from his “a little bit.” In fact, Himan’s notes bore no resemblance to Gottlieb’s—in all likelihood because Gottlieb’s were produced nearly four months later, after indictments, and seemed designed to match the three accused players.
Calling into question the claim of Gottlieb and Nifong that Himan was running things and therefore responsible for any shortcomings in the investigation, Himan said that before April 10, he never spoke to Nifong about the DNA test results or the search for an alternative lab to do testing. These tasks, he reported, were handed by Gottlieb and Officer Michele Soucie.
Himan also noted that Gottlieb and Soucie, not he, initially briefed Nifong on the results of the procedurally flawed April 4 lineup.
In other words, on the two critical items of the investigation—Meehan’s DNA lab and the April 4 lineup—Gottlieb, not Himan, was the DPD’s point person with Nifong.
That fact alone makes it a little unsettling to see Himan represented by the same attorney who is representing Gottlieb.
The UNC Medical Report
Mangum traveled to UNC Hospital on March 15—and told a very different story than she did before or than she would later. She was “drunk and felt no pain.” During the “attack,” the “assailants” hit her in the face, causing her to fall backwards and hit her head on the sink.
Himan—and even Gottlieb—understood that this version of events contradicted any of the stories Mangum had told them, so Gottlieb asked her about it. Mangum’s response? “Crystal said she doesn’t recall ever making those statements to them.” Amazingly, both the DPD and Nifong appear to have taken Mangum at her word on this point.
The UNC medical reports also referenced Mangum’s psychological history. Himan, however, could not recall Nifong ever discussing Mangum’s mental health before seeking indictments.
A final item on this issue: even Himan and Gottlieb recognized that the UNC report was potentially very harmful to their case. Yet in Duff Wilson’s August 25 New York Times magnum opus, Wilson portrayed the UNC medical report as favorable to Nifong.
Again illustrating who was making the key decisions, Himan heard of the decision to seek indictments against Reade Seligmann and Collin Finnerty from Gottlieb—who had been told this by Nifong.
Himan’s response, as he would later testify, “With what?”
According to the deposition, both Gottlieb and Himan protested the decision to indict Seligmann; Nifong overruled them.
Himan never heard directly from Nifong why it was so important to move forward with indictments at the April 17 grand jury session; indirectly, he heard that Nifong preposterously asserted that school would soon be out, and the players would be leaving the state.
According to Himan, Linwood Wilson said that Nifong had tasked him with “re-interviewing” every witness in the case. And, indeed, Wilson appears to have “re-interviewed” virtually everyone involved, including police officers.
Asked about Wilson’s role, Himan noted, “To begin with, to be honest, I didn’t understand why Linwood was coming in.” After May 8, he said, “my main point was Linwood Wilson. I mean, he got his direction from Mr. Nifong.”
Asked about the genesis of Wilson’s December 21 interview with Mangum, Himan replied diplomatically, “He gave me an explanation that he wasn’t going over there for an interview.” Himan, however, had accompanied Wilson in all previous interviews with Mangum. When Himan read Wilson’s report, he said, “It didn’t make any sense, she changed her story completely.”
Nifong dismissed the rape charges at 11.37am, on December 22. He called Himan to relay the news sometime between 11.15am and 11.30am that morning.
At the January 10, 2007 “re-interview” with SANE nurse Tara Levicy, Wilson, not Himan, raised the question of Mangum’s possible condom use—after the Bar had charged Nifong with fraud and misrepresentation for his springtime musings about possible condom use.
Levicy, of course, obliged, remembering ten months after the fact that, despite her contemporaneous notes, Mangum actually was uncertain about whether her “attackers” had used condoms.
The January 11, 2007 Nifong-Mangum Meeting
Himan picked up Mangum to bring her to the DA’s office on January 11—for, he assumed, a follow-up interview in which he, Gottlieb, and Linwood Wilson would explore with her the contradictions in her December 21 version of events.
Instead, she was brought into Nifong’s office for a lengthy period—Himan guessed around 90 minutes. Nifong told her that he was recusing himself,* but stressed the tough path ahead. The clear implication: Nifong wanted Mangum to drop the case, so he wouldn’t have to turn it over to the attorney general’s office.
There had been rumors about Nifong’s recusal floating in the weeks before the ex-DA handed the case over, “and I remember Mr. Nifong saying he wasn’t going to let someone take it away from him.”
When he changed his mind, Nifong said he did so because “the media had already thought badly of him, and he didn’t want the jury in Crystal’s case . . . to judge Crystal by Mr. Nifong’s actions.”
As to the defense, Himan noted, “It was unbelievable how much stuff they actually turned over to the Attorney General’s office”—pictures, documents, alibis, receipts. Nifong, Himan conceded in response to a question from Doug Brocker, could have had access to all this information.
Asked what he believed by the end of the investigation, Himan responded,
I came to the conclusion that she had made up—that she was not telling the truth about anything. That she was improvising everything that she has said. That everything she was contradicted with, she would make up improvisation of what actually happened—of why this happened, why this didn’t happen.
By the end of the case, Mangum was accusing Himan of being paid off by Duke, as part of her general claim that Duke—the same institution whose activist faculty had portrayed the players as racists and likely rapists and whose president had said “if they didn’t do it, whatever they did was bad enough”—had manipulated the evidence to ensure the players’ innocence.
Of all the stories that Crystal Mangum told, this one might have been the strangest.