"Typical"

In the Wonderland that is Durham, defense attorneys are responsible when the police and prosecutor bring charges without probable cause; procedures to ensure reliable eyewitness ID’s can be tossed aside if they seem likely to prevent an accuser from identifying anyone; and the behavior of the Durham Police Department in the lacrosse case was “typical” of how it approaches all its cases. So wrote City Manager Patrick Baker and (the perpetually absent) Police Chief Steven Chalmers in a report published yesterday.

The April 4 Lineup

On March 31, Mike Nifong instructed police to violate their own procedures and construct a lineup confined to the publicly identified suspects in the case—the 46 white lacrosse players.

Here’s how Baker rationalized the decision,

It was the primary intent of the investigator at the time the photographs were shown to the witness to have her identify which of the individuals she recalls being at the party rather than to identify her alleged attackers. This decision to attempt to identify witnesses rather than suspects was driven primarily by the fact that the witness had failed to identify her attackers in six previous suspect identification processes which were governed by G.O. 4077. For the stated purpose of obtaining her recollection of the individuals at the party who could be of assistance in the investigation, this process was well suited to achieve that goal.

Police Chief Chalmers agreed:

Investigators hoped this [procedure] would develop some leads, such as potential witnesses, for them, since those initially developed in the case were becoming exhausted. [It’s worth noting that as of March 31, the police still hadn’t even spoken to Crystal Mangum’s two “drivers,” nor in any way tracked down what she had done in the 72 hours before the lacrosse party.] If the victim [sic] had some recollection of any of the individuals in the photographs, then this could help establish that she was not impaired by a memory-altering substance.

These statements are preposterous.

(1) At least three people that the police knew attended the party (Devon Sherwood and two white non-lacrosse players) were not included in the April 4 lineup. If the goal was simply to identify witnesses, why would the DPD confine the lineup to suspects?

(2) At no point before obtaining the first two indictments was Kim Roberts shown the April 4 photo array. If the goal was simply to identify witnesses, why did the DPD not show the lineup to Roberts as well as Mangum?

(3) On March 16 and March 21, Mangum already had been shown the photographs of 36 lacrosse players. She had recognized four with 100 percent certainty as attending the party, and one (Reade Seligmann) with 70 percent certainty. Why did police believe that two weeks later, her memory would suddenly improve if shown photos of the same 36 people?

(4) If the April 4, 2006 lineup actually was designed to identify “witnesses,” presumably police would have sought out for interviews those whom Mangum identified as attending the party. Yet, if anything, police did just the opposite. They went out of their way not to speak to attorneys representing Seligmann and Collin Finnerty. More troublingly, in their procedurally improper sojourn to Duke’s Edens Hall, police did speak, at some length, with one player (as the Chalmers report notes). When Mangum saw that player’s face on April 4, here was how she responded: “I don’t recognize him.” So much for using the April 4 lineup to develop “new leads” for witnesses.

(5) The Baker/Chalmers claim is ridiculous on its face. The duo is asking the mayor and city council to believe that—three weeks after the alleged “attack”—Nifong and the police designed a special procedure in the hopes that Mangum would remember who gave her a drink or took photos, but not who attacked her for a 30-minute period.

(6) Finally, the Baker/Chalmers report is contradicted by Gottlieb’s summary of the April 4 interview itself. The sergeant began the interview by telling Mangum she would view photos of “people we had reason to believe attended the party.” The police, in short, already had a list of the “witnesses.”

Brad Bannon summarized the problem: “They're saying: 'We really weren't using this to develop information to charge people, but we used this as the only information to charge people.’ It really begs an independent inquiry. Someone outside the Durham Police Department needs to investigate the Durham Police Department's handling of this case. Everyone who has touched this case has said that it was wrong from beginning to end, but there's no one held accountable for it being wrong. So, how can it be wrong and no one be wrong?”

Exculpatory Evidence

Baker professed himself “deeply troubled by the repeated allegations that the Durham Police Department investigators were not interested in discovering the truth in the matter or as the Raleigh News and Observer put it, ‘did not pursue basic evidentiary trails to learn what happened at the lacrosse party.’”

With all due respect to the N&O, this charge came from someone considerably more significant than the paper’s editorial board. The attorney general’s report was clear-cut: the meetings between the special prosecutors and Mangum were “apparently the first time these questions of inconsistencies were asked formally.”

In a case with no physical evidence, no corroborating witnesses, and an accuser who constantly shifted her story, any police force interested in “discovering the truth” would have pressed Mangum on her inconsistencies before moving forward. Yet not only did the DPD fail to do so, but Baker publicly asserted that this matter was no problem. On May 10, 2006, the city manager stated, “I’ve had a lot of conversations with the investigators in this case and with officials at Duke, and at no time did anyone indicate the accuser changed her story. If that were true, I'm sure someone would have mentioned it to me.”

Mangum, we know now, never told the same story twice. It appears, therefore, that either: (a) Baker was lied to by police officers; or (b) Baker himself misled the public.

Who do Baker and Chalmers blame for the DPD’s failure to look for exculpatory evidence? Incredibly, they point the finger at the defense attorneys. “While I have seen media accounts suggesting that defense counsel made numerous attempts to present the District Attorney with their exculpatory evidence, no such attempt was made by defense counsel to present this information to the Durham Police Department despite numerous requests and opportunities to do so.” Chalmers added the long-since discredited claim that the players constructed a “wall of silence.”

Defense attorneys had little difficulty dismissing such allegations. Jim Cooney reminded Baker that “Kirk Osborn provided all sorts of exculpatory evidence not only to the DPD but to the world—it was called a Notice of Alibi defense. Rather, than investigate it, the DPD decided to arrest one of the alibi witnesses—how is that for caring about the truth? The DPD was in possession of Dave Evans’ camera since 3/16 and never bothered to look at the digital photo that showed Precious dancing at 12:02a, proving Reade’s alibi. Finally, the most important exculpatory evidence in this case was the DNA from all 46 lacrosse players which the DPD had by the end of March and which they then proceeded to ignore.

In strong language, Joe Cheshire stated, “For Patrick Baker to say that justice was delayed because we refused to share evidence with the man that his police department allowed to take on the case (is) a bald-faced lie . . . This is another attempt by the people in Durham responsible for this travesty of justice to engage in revisionist history in order to excuse their incompetence.”

Brad Bannon similarly dismissed Baker’s claim as “absolutely false,” and he reviewed the myriad occasions in which defense attorneys had sought to provide exculpatory evidence to the person directing the investigation—Mike Nifong—only to be rebuffed. Bannon also discerned the bizarre assumptions behind Baker’s statement, which implied that a citizen must prove his innocence once a charge—no matter how non-credible—is made. "It's not the failure of the defense attorney to provide information to the state,” he noted. “It's the failure of the state to investigate Crystal Mangum or her background.”

The DPD’s Role

Baker struggled in describing how much authority the DPD possessed in the case. The city manager claimed, “In this case, the Durham Police Department worked directly with both the Durham District Attorney and the Office of the Attorney General and coordinated their efforts with each of the relevant prosecutors. In both instances the role of the investigator was to assist the prosecutor in investigating and developing the case.”

Yet, as Jim Cooney noted, the Durham Police Department was not the chief investigating arm of the special prosecutors. “It is also quite amusing,” he wrote, “for Patrick Baker to suggest that the DPD remained ‘in charge’ of the investigation when it was transferred to the Special Prosecutors. I am sure that the SBI would find that interesting. Anyone who worked with the Special Prosecutors knows who was in charge—and it was not the DPD.”

Likewise, both Baker and Chalmers denied that Mike Nifong usurped control of the investigation. What of Gottlieb’s statement that he was ordered to report to Nifong for direction after March 24, 2006; or the evidence presented by the N&O that the Durham Police did just that?

Durham authorities responded to these items, which failed to fit their preconceptions, as they did with all such inconvenient evidence from Day One of the lacrosse case: Baker and Chalmers simply ignored them.

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That Durham’s city manager and police chief described as “typical” both the relationship between the police and prosecutor in this case and the performance and goals of the police in this case cries out for an outside, independent investigation of the DPD.