The Himan & Gottlieb Replies

Yesterday, I took a look at Durham’s long-delayed formal response to the falsely accused players’ lawsuit. Today, I’ll summarize the filings of former DPD officers Mark Gottlieb and Ben Himan. As I noted yesterday, the filings are a combination of blind denial with a tendency to blame others (chiefly Nifong but also the victims themselves) for Durham’s misconduct. But there are a few interesting items.

The Rigged Photo Array

For perhaps the first time, we’ve learned that senior members of the DPD were informed of the “no-wrong-answers” photo array ordered by Mike Nifong (in violation of the department’s procedures to use five fillers for every suspect). According to Gottlieb, “those senior to him in the chain of command were informed of and did not object to the manner in which the April Photo Array was conducted.”

The wording is not precise, but the implication is that the senior officers were informed before the rigged array occurred. Gottlieb doesn’t say, however, who he informed of the array.

The False Accuser: Then and Now

Gottlieb now admits that “the record of the investigation of Mangum’s allegations includes several witness statements attributed to her that are not fully consistent with one another.” His filing delicately adds that “Mangum was interviewed on March 14 and March 16, 2006, and that she provided a written statement on April 6, 2006, and that her statements were not always consistent.”

But according to his own deposition in the Nifong ethics trial, Gottlieb told the grand jury that “as soon as [former SANE-nurse-in-training Tara] Levicy was able to calm her down, which didn’t take long at all, she never changed her story from that point.”

Why did he—now, by his own admission—mislead the grand jury? Gottlieb, by the way, denies that “he made any agreement not to provide information about prior statements made by Mangum to the grand jury.” 

So did he decide this on his own? And, if so, why?

Nifong: Then and Now

In his filing, Gottlieb denies that “there was any agreement on the part of the City of Durham, the Durham Police Department, the Supervisory Defendants, or individual police officers that Nifong would direct or help direct the police investigation.” Nifong’s outsized role in the investigation, Gottlieb continues, merely reflected the “customary” practice “for law enforcement agencies, including the Durham Police Department, to work cooperatively with the District Attorney’s office.”

Yet in his 2006 “straight-from-memory” notes (which he stands by in his filing, and reminds Judge Beaty serve “the best evidence of their contents”), Gottlieb maintained that as of late March 2006, his supervisors instructed him to take orders on the police investigation from Nifong.

So: which Gottlieb tale is correct?

The Non-Testimonial Order

Both Himan’s and Gottlieb’s filings admit that Gottlieb (as well as Himan and Cline) played a role in fashioning the non-testimonial order, which sought photos and DNA samples from Duke lacrosse players that the DPD had no evidence even attended the party.

Crimestoppers

Himan admits that he assisted Cpl. David Addison in the Crimestoppers poster. But he denies that he “colluded” with Addison. What’s the distinction, given that the poster was both inflammatory and inaccurate? Is he suggested that it was his normal practice to “assist” in the creation of inaccurate Crimestoppers posters?

Gottlieb defends himself on the grounds that he “had an affirmative duty to investigate claims of sexual assault and kidnapping made by anyone within his jurisdiction.” Does that “affirmative duty” include violating myriad procedures?