The Mike Nifong deposition is now available, through Liestoppers. It makes for a fascinating read. Part One of the deposition in today's post; Part Two will form tomorrow's post.
In some ways, the deposition previewed his ethics trial testimony—especially in his consistent claims that he read virtually no documents related to a case that he had claimed was as important as any Durham had ever faced.
In some ways, it did not, as Nifong was far less willing to concede errors, even in his preprimary public statements.
And, in a fitting testimony to the ex-DA’s character, Nifong also used the deposition to try to settle scores with people he has grown to strongly dislike—such as Jackie Brown, Bob Ekstrand, Sgt. Shelton, and Susannah Meadows.
According to Nifong, he became involved initially because he expected the media to ask him about the case. He also implied that he was unaware that Tracey Cline (the ADA who specializes in rape cases) had handled the formation of the non-testimonial order, and that David Saacks’ inexperience in rape cases was one reason he took the case over. Yet it seems inconceivable that Saacks, in his initial conversation with Nifong (on March 23), would not have told the DA of Cline’s involvement. As he did at his ethics hearing, Nifong also criticized the NTO’s language about DNA evidence exonerating the innocent (even though, of course, in the Leroy Samuels case, Nifong himself had used identical language).
Nifong claimed that as of March 27, the only things he knew about the case were what the non-testimonial order contained—a scarcely credible claim, given the media attention the allegations received on March 25 and March 26 and his own stated assertion that anticipated media interest formed a primary reason in his decision to take the case in the first place.
Contradicting the assertions of both Officer Ben Himan and Sgt. Mark Gottlieb, Nifong claimed that he was not given the captains’ statements in their March 27 meeting—although he was aware of them from the two officers’ comments. The meeting, he asserted, focused primarily on the McFadyen e-mail—contradicting the recollections of both Himan and Gottlieb. And again contradicting the two officers’ depositions and Himan’s testimony, Nifong denied that the March 27 meeting included any discussions of Crystal Mangum’s inconsistencies. He recalled asking no substantive questions about the case, nor making any comments about the weaknesses in the evidence, nor commenting, “You know, we’re fucked.”
“It was my impression,” Nifong recalled, “that the officers did not believe [the captains] had been totally truthful in their responses.” Why? Because no one was at the house when officers responded to the first 911 call. Nifong said he became certain a rape occurred because neither Himan nor Gottlieb expressed skepticism at that initial meeting, and because Tara Levicy said there was a rape. The captains, he conceded, were “outwardly cooperative” with police.
Nifong asserted that his initial desire to get up to speed on the case was not related to any eventual prosecution but “because anything in Durham that involves a Duke team and criminal charges is going to get a lot of attention.”
In any case, according to Nifong, “I wasn’t really involved in reviewing written documents” during his preprimary publicity barrage.
Nifong retreated to his later estimate that he only gave around 20 interviews in the preprimary publicity barrage. Using the deposition to settle scores, he said he did give a few interviews to people who dropped by without interviews—such as Newsweek’s Susannah Morrison [sic].
Why did Nifong give the interviews? His rationale changed during the course of the deposition.
1.) During the ethics hearing, Nifong asserted that he gave interviews in the hopes that his doing so would encourage witnesses to come forward. Yet in his deposition, he initially didn’t offer that reason at all—he just said that he wished to accommodate press interest, but eventually became overwhelmed by the requests.
2.) Then, after the lunch break (when, of course, he could have conferred with his attorneys), Nifong suddenly started mentioning the law enforcement purpose for the statement. Doug Brocker, in response, noted that “none of the statements were actually requesting that the players come forward and talk with you.”
True, said, Nifong, but he blamed the media for not reporting his comments accurately.
Brocker: “Describing what had happened to date as a stonewall of silence, how would that have helped people come forward?” Why, Brocker wondered, not just request they come forward?
Nifong: His denunciatory approach would put “pressure” on the players “by their parents and by their colleagues and people like that”—in effect, attempting to undermine their right to silence.
3.) Then Nifong turned to the nature of Durham: “We had allegations of an assault having been made by privileged members of one race against an unprivileged member of another race.” He feared there might be “unrest,” and his public statements could ensure the community the matter was being taken “very seriously.”
He was not engaged in race-baiting, claimed Nifong, but was merely seeking “to assure the members of the community that this case that had this particularly potential unrest-causing aspect” would be prosecuted fairly and “this was not something we were going to sweep under the rug.”
In response to a question from Brocker, Nifong denied that his statements inflamed racial tensions—because, he noted, no racial violence occurred.
The Nature of “Suspects”
As he did in the ethics trial, Nifong denied that all 46 white players were “suspects,” even though the NTO of March 23 listed them as such. He only confined his public remarks to the team, he suggested, because the captains, in their statements, said the only people who attended were team members.
But this claim, of course, was not true—as came out at the trial, when Brocker pointed out that Dave Evans’ statement explicitly said that non-lacrosse players were at the party. And how does a claim that he initially relied on the captains’ statements explain Nifong’s decision to include in the NTO someone like Brad Ross, who wasn’t even in Durham that night? Nifong never said.
At one point, Brocker very cleverly tripped up Nifong on his own words, by pointing out that even though Reade Seligmann and Collin Finnerty had been picked out by Mangum on April 4, Nifong made race-baiting comments at an April 12 campaign forum:
Brocker: Would you agree then that once a suspect has been identified or somebody has been accused, that it would violate Rule 3.6 to make a statement similar to the ones you’ve made here?
Nifong: I am not really—I’m certainly not an expert in that, but I would—I would certainly—obviously things change under Rule 3.6 as you get further along. These—I believe these—I would justify these under Rule 3. —a part of 3.6. I—I cannot justify any such statements as being appropriate after indictments had been returned or something like that, if that’s what you’re asking. And I did not make any such statements, to my knowledge, after that person was accused.
Because I clearly think that when a person is accused, that does change some of thesome of the Rules or the impact of some of the Rules because some of them specifically refer to an accused. I think 3.8 refers to an accused. And I don’t think that you have an accused until such point as that process has been returned. So there’s a different—there’s a different set of rules that applies up to that. Yes, sir.
Brocker: But I thought you had said in response to a previous question that you believe that once the victim had identified a particular person that you believe they were accused?
Nifong: I said at that point—at that point, I’m getting—I’m getting uncomfortable with the question. [emphasis added]
Nifong claimed that he learned of discrepancies in Mangum’s story and between Kim Roberts’ version and Mangum’s version[s] only “within the first two or three weeks that I had the case”—an extraordinary assertion, given that he had been on national TV multiple times by that point. The testimony of both Himan and Gottlieb held otherwise. He said that he “couldn’t recall” if he even looked at Roberts’ March 22, 2006 statement—which contradicted Mangum’s version of events in virtually every respect—before seeking the first two indictments.
If a trial had occurred, Nifong asserted, he would not have called Roberts as a witness.
In general, he said, he learned about the discrepancies in Mangum’s stories only shortly before indictments, and only from discussions with Himan and Gottlieb.
As to the case-related documents? Again, Nifong asserted that he saw them only within “two or three” weeks of taking the case. The ex-DA conceded that he had seen the Levicy report in the first week, but (preposterously) suggested that he might have only seen part of it, and not the parts that indicated Mangum said no condoms were used.
Anyhow, mused Nifong, he could not say that any point before hr recused himself in January 2007 that he had “carefully read every word” in the report. Moreover (continuing his excuses for his condom speculation), he took Mangum’s assertions that no condoms were used to really mean that she just hadn’t seen any of her attackers put on condoms.
Contrary to the sergeant’s low-keying his involvement in the case, Nifong asserted that in these early weeks, Gottlieb almost always initiated conversations with him, not Himan.
Nifong asserted that he received the Shelton and Sutton reports from the DPD only after obtaining indictments—again, an extraordinary assertion, suggesting that he had no problem going ahead with indictments on wildly incomplete evidence. As to the reference in the Sutton notes that Mangum had claimed five people raped her, Nifong stated that he first learned of this on June 22, when Joe Cheshire highlighted the point in a courthouse press conference.
Amazingly, Nifong asserted that as of the date of the deposition—May 17, 2007—he had not read Sgt. Shelton’s report. Indeed, stated Nifong, he never spoke to Shelton about the case, even though Shelton was the first police officer to see Mangum after the party.
The UNC Hospital report, in which Mangum said that she was “drunk and felt no pain,” which hinted at her psychological problems, and in which she told a different version of events (that she was hit in the face and banged her head on the sink)? Nifong said he didn’t become aware of this report until December 2006—even though it was handed over in the first stage of discovery, on May 18.
Contradicting the assertions of SBI agent Jennifer Leyn—that Nifong was on the phone with her or people from her office several times, and was eager about the DNA results—Nifong suggested that he had only one conversation with the SBI lab, on a date that (of course) he couldn’t remember.
So: forced to choose between conceding he lied to the public or portraying himself as almost unbelievably lazy, Nifong chose the latter.
The April 4 Lineup
Nifong conceded that he knew of the two previous lineups (March 16 and March 21), but denied their usefulness, since the photos were taken from the Duke website.
He had told the police that he wanted to be consulted before the photos from the non-testimonial order were used.
Nifong denied that the April 4 lineup violated Durham procedures: “we didn’t even have a suspect, so I didn’t see any way that we could do a lineup in the usual sense.” (The fact that his office had publicly identified all 46 white lacrosse players as suspects—and that he had done so repeatedly in his preprimary publicity barrage—apparently didn’t count.) He also denied instructing Gottlieb to tell Mangum that the lineup would contain only people the police believed were at the party.
Then, in the next paragraph, Nifong conceded that he knew there would be a “motion to suppress” this lineup—which was the reason he ordered it videotaped—suggesting that Nifong knew exactly what he was doing in structuring a “no-wrong-answers” lineup.
Even though there was never any mention before December that Mangum’s identification of Dave Evans as having a mustache actually referred to Evans having 5:00 shadow, Nifong claimed that he had a chat with Gottlieb almost immediately after the lineup in which Gottlieb suggested just that. No record of this conversation, of course, survives.
Nifong asserted that he “discounted” the March 16/March 21 photo arrays. Why? Because of Michele Soucie’s report that Mangum had said, “This is harder than I thought it would be.” In other words: he didn’t get the result he wanted, so he decided to ignore it.
Why, Brocker wondered, did Nifong not ensure that another lineup was done, one that conformed to Durham Police procedures? He didn’t know, Nifong said—that was the police officers’ job, not his.
The Mangum File
To gauge Nifong’s interest in ferreting out the truth, Brocker asked the ex-DA about his meetings with Crystal Mangum, the sole witness in a one-witness case.
Brocker: Did you have -- in your Interrogatory Answers, you identified a number of meetings that you had with Ms. Mangum -- meetings that you had with Ms. Mangum?
Nifong: I believe four.
Brocker: The first one being on April 11th?
Nifong: Yes, sir.
Brocker: 2006. And the last one being on either January 11th or January 12th, 2007?
Nifong: Sometime in January, 2007. Yes, sir.
Brocker: Did you ever talk to her about, during any of those meetings, about the facts of the case or the allegations that she was making?
Nifong: Not specifically, no, sir.
Brocker: Did you ever ask her about any of the inconsistencies that had come to light in her statements about what had happened?
Nifong: No, sir.
Brocker: And did you ever discuss with her any of the evidence that had come to light which arguably was contrary to the allegations she was making?
Nifong: No, sir.
Brocker: Did you discuss with her the lack of DNA that was found from the lacrosse players on any of the rape kit items or on her clothing?
Nifong: No, sir.
Brocker: Did you discuss with her the other DNA that was found by DNA Security on her either on the rape kit or on the clothing that did not match the lacrosse players? Nifong: No, sir. I didn’t discuss any of these things with her.
Nifong claimed that Jim Hardin told him that he would not get to be appointed a judge unless Nifong agreed to become the DA. Nifong asserted that he never sought the position, because he liked trying cases. He added that the two main contenders for the post were Tracey Cline and Marvin Waters, but that Easley worried about the political fallout of having to choose between the two, and saw Nifong as an acceptable compromise choice.
Nifong denied that he had ever agreed that he would not stand for election before accepting the point—although, of course, Easley has declared otherwise.
Nifong asserted that he ran in part to block Freda Black from the position, but also because he had a “vision” for the office (which he doesn’t define in the deposition). He fired Black, he said, because of a perception that she was overpaid vis-à-vis the amount of work that she did; because some people had left the DA’s office rather then deal with her; and because key figures in the Police Department disliked Black.
Nifong claimed that he wanted to run a positive campaign, “despite the urgings of Jackie Brown”—a sign of just how angry the ex-DA was at Brown’s later decision to help his opponents. He complained that Brown had too many conflicts with his wife, Cy Gurney, and said that he took her on only because she would help appeal to lower-educated voters.
Nifong repeatedly blamed Bob Ekstrand for not ensuring that his clients “cooperated” with police.
As he did in the hearing itself, Nifong used his deposition to blast the one member of the DPD who got the story right from the start—Sgt. Shelton, who clucked Nifong, “did not seem to appreciate that this was a very serious situation.”
In general, Nifong complained, the DPD was slow to get him reports—especially Shelton.
Much like Gottlieb, Nifong admitted that he, too, looked at blogs, and specifically referred to an early timeline post (probably the one on Johnsville News) that proved prescient in the end.