Did Sgt. Smith Forget His Memory Pills?

The Liestoppers forum has posted the deposition transcript of Duke police first sergeant Gary Smith. Smith’s name would be known to people who followed the case very closely as the Duke employee who, in violation of FERPA, handed over the lacrosse players’ keycard information to the DPD—and then, at least according to the implied Duke version of events, initially didn’t tell anyone what he did.

Perhaps Sgt. Smith needed to take a few of Grandma’s pills before being deposed. Over the course of the session, he claimed that he could not recall:

1. ·         Whether he had ever worked with Mark Gottlieb before the lacrosse case;
2. ·         From whom he “heard rumors” that Gottlieb was biased against Duke students;
3. ·         The contents of former Duke PD office Christopher Day’s report, from which Smith claimed to have initially learned about the lacrosse case;
4. ·         Whether Officer Day considered Crystal Mangum’s allegations credible;
5. ·         Whether Officer Day changed his initial accurate report (as he did, seemingly under pressure from higher-ups at Duke);
6. ·         Whether the case was initially a subject of conversation in the Duke PD;
7. ·         Whether there was, in fact, any conversation about the case in the Duke PD in the early days;
8. ·         Whether he had ever supplied e-mails to the DPD;
9. ·         Whether or not he supplied prior reports about the lacrosse players to the DPD;
10. ·         Whether Gottlieb requested from him the names and contact information of the lacrosse players, or whether he supplied this information on his own initiative;
11. ·         What role DPD captain Phyllis Cooper had in his being appointed the “sort of” (his words) lead investigator on the case (on that matter, he deemed his memory “wishy-washy”);
12. ·         How many investigators were employed in the Duke PD at the time of the lacrosse case;
13. ·         Whether he had any conversations with Capt. Cooper about the case;
14. ·         Whether or not Duke had previously declined to exercise jurisdiction over alleged crimes in rental properties the university owned;
15. ·         How he described, to his Duke superiors, the information he supplied to Sgt. Gottlieb;
16. ·         What type of assistance he gave to Gottlieb later in March, which Gottlieb had commented on in his typed “notes” (on this point, Sgt. Smith claimed that too much time had passed for him to remember what he did with Gottlieb on what was doubtless the biggest criminal case of his career);
17. ·         Whether DPD officers entered into the “private residence” of Duke students in Sgt. Gottlieb’s nighttime excursion into the Duke dorms, when Gottlieb was trolling for information outside the presence of the students’ counsel;
18. ·         Whether he gave to the DPD two additional reports about the lacrosse players, as the Gottlieb notes claimed;
19. ·         Whether he ever had a conversation with Gottlieb about what Crystal Mangum told the DPD;
20. ·         Whether or not he had ever supplied the DPD with students’ FERPA-protected keycard information on any case other than the lacrosse case;
21. ·         What basis he used to select the students whose FERPA-protected keycard information he voluntarily turned over to the DPD;
22. ·         Whether he turned over Devon Sherwood’s FERPA-protected keycard information to the DPD;
23. ·         Whether he counted how many names were on the lacrosse roster;
24. ·         The nature of his conversations with his DukePD superiors over whether FERPA applied to the keycard information;
25. ·         When he spoke to his DukePD superiors about whether keycard information was FERPA-protected (he said it was simply too long ago for him to remember this critical conversation);
26. ·         Whether he referenced the lacrosse case in his conversation with DukePD superiors about whether keycard information was FERPA-protected;
27. ·         Whether in a late-March conversation with his DukePD superiors he admitted that he had turned over the keycard information;
28. ·         Whether he asked his DukePD associate, Sgt. Stotsenberg, not to reveal to anyone else that Smith had turned over the keycard information (Smith had already confessed his violation to Stotsenberg, who initially was the only DukePD officer to know of the keycard turn-over);
29. ·         Whether he had ever discussed with Stotsenberg the possibility of a deposition in the lacrosse case civil suits;
30. ·         Whether any such conversations referenced the keycard information.

Sgt. Smith also claimed not to have known at the time of the allegations that:

1. The three captains voluntarily gave police statements;
2.  The three captains offered to take polygraph tests;
3. Duke owned the house that the three captains rented;
4. What Gottlieb was thinking when Sgt. Smith informed Gottlieb that the keycard information was likely FERPA-protected;
5. In 2007, his superiors were discussing whether he should be disciplined for turning over the FERPA-protected keycard information.

When he occasionally shook free of his memory-induced haze, Smith did make a few damaging admissions.

1. He admitted that he wouldn’t give the DPD social security numbers of Duke students, because that’s “private” information. (Why the FERPA-protected keycard info didn’t also apply under this standard Smith did not say.)
2.  In a question about his assisting Gottlieb during his nighttime excursion into the lacrosse players’ dorms, he suggested that he saw no problem, as a DPD officer, in helping the DPD ferret out Duke students for questioning even though he knew these students were represented by counsel. Then, however, under effective questioning, Smith admitted it would not have been “proper” for Gottlieb to have entered the students’ dorm rooms as part of his interrogation project.
3. Smith admitted that the Duke PD didn’t follow its own procedure regarding the Gottlieb nighttime excursion; those procedures require that “all requests for interviews of students by the Durham police will be coordinated with [DukePD] Director Dean.” He offered no explanation as to why procedures weren’t followed.
4.  He admitted that he had volunteered to supply Gottlieb with the FERPA-protected keycard information.
5. He admitted that he made a conscious decision not to tell his DukePD superiors that he had turned over the FERPA-protected keycard information—because, he admitted, he was afraid he might get in trouble.
6. In his e-mail to Gottlieb suggesting that he get a subpoena for the improperly turned-over keycard record, he admitted that he blind-cc’d Duke PD director Dean, which he didn’t regularly do—suggesting that the DukePD leadership was involved in the after-the-fact scheme to concoct a legal rationale to turn over the keycard information. (He said he didn’t remember who told him to blind-cc Dean.)
7. As to whether he had an obligation to inform the Duke students whose rights he had violated about what he did, “It never occurred to me.”
8. He had—and as of December 2011, still has—“no opinion” about the “integrity” of the Nifong-Gottlieb investigation. Wow.
9. The “courts” found that the falsely accused players “weren’t guilty, and that is sufficient for me.” In fact, of course, the Attorney General exonerated the players, and deemed them innocent, not simply not guilty.

Nothing in the Smith deposition should give any confidence in the integrity of the DukePD.