The Defense Strikes Back

The latest defense motion has received relatively little media attention, but it's now available on-line, and provides a host of new insights into D.A. Mike Nifong's unraveling case.

Among the highlights:

• On April 4, Durham City manager Patrick Baker (the same Patrick Baker who would later speak to all DPD officer to ensure their accounts of the investigation were all the same) gave Sgt. Mark Gottlieb 24 hours to produce a timeline of the investigation, which he could present to the City Council. The timeline, in turn, wasn't included in discovery.

• There are no handwritten, contemporaneous notes of the first lineup (March 16, 21), in which the accuser identified none of the then-six suspects in the case, including Dave Evans.

• Gottlieb produced handwritten notes for one day of the investigation (April 27) but for no other days. No reason was given for this pattern.
  

• Five months later, the DPD still hasn't completed its examination of the players' computers and email accounts.

• The accuser was hardly unknown to the DPD: apart from her 2002 arrest, she was involved (in what capacity is unclear) in at least four other cases since 2000, involving such matters as DWI, larceny, and child molestation.

• The police were ordered in June to produce all of their e-mails related to the case, but still haven't done so.

• Even though he asserted in court that he didn't discuss the case in an April 11 meeting with the accuser, Nifong apparently did so--at least according to Gottlieb's notes.

• On the night of the incident, the accuser spent 40 minutes at the Durham Access Center, where she made her initial claim of rape. She spoke to three people at the center. Five-and-a-half months later, police apparently haven't spoken to two of the three people that dealt with the accuser on the night of the incident. They claim to be unable to locate one of them, and haven't even tried to look for a second.

What's the significance of this filing?

• The Gottlieb/Nifong alliance might be a marriage of convenience, but any partnership between inherently unethical figures is always unstable. Gottlieb's report essentially claims that Nifong lied to the court on June 22, when he asserted that the April 11 meeting with the accuser had nothing to do with this case. Why would Gottlieb undercut Nifong in this fashion? In the end, he seems most determined to look out for himself. Besides Nifong and Gottlieb, there were three other people at the meeting (the accuser, Gottlieb's partner, and another police officer). Nifong might be willing to bet that the other three will lie if the meeting's subject is investigated, but Gottlieb isn't.

• Gottlieb, it's worth remembering, has done this once before: in his transcript of the April 4 lineup, he went out of his way to indicate that Nifong ordered the DPD not to follow its own procedures in the lineup. As with the comment on the April 11 meeting, Gottlieb recognized there were other parties who knew about this matter, and so his chief goal seemed to be to cover himself from future liability. If, as it should, this case ends with Nifong's disbarment, that line in the Gottlieb transcript will play a critical role in Nifong's fall.
  

• The tension between D.A. Nifong and de facto Police Chief Nifong is apparent. The defense motion notes two occasions (regarding the April 11 meeting and regarding meetings between Nifong, Gottlieb, Himan, and the DNA lab) when Nifong has tried to cite the "work product" rule of attorneys to avoid handing over material to the defense. That's normally a solid argument--but not in this specific case, when it's clear that Nifong was serving not only as D.A. but also overseeing the police investigation. Discovery laws mean that the latter isn't privileged material.

• Though better than nothing, North Carolina's open discovery law isn't working as it should. The material that the defense demands be turned over (e-mails, handwritten notes of key investigators, the computer analyses) should have been produced long ago. The open discovery measure was designed to prevent just this kind of behavior--the prosecution dragging its heels and not giving the defense access to all evidence related to the case. If the law is going to work, state judges need to start compelling prosecutors to abide by its terms.

Thanks to Liestoppers for scanning the motion.