Analyzing the Defense 13

Friday’s defense presentation laid out thirteen issues upon which the Whichard Committee could focus.

The issues, in turn, divide into three categories: investigative failures; procedural failures; and possible abuses of power.

Investigative Failures

The defense attorneys identified five principal failures of basic investigation—caused, as Jim Cooney speculated, by the intent of both the DPD and Mike Nifong to prove the truth of Crystal Mangum’s story rather than to determine what actually happened.

“In this rush to indict,” Cooney concluded, the department decided “to cut off an investigation.”

Three of these failures flowed from the DPD’s decision to accept wholeheartedly Mangum’s word (or whatever version of the truth she happened to be offering at that point in the investigation). As a result, as Cooney pointed out, the DPD never:

• conducted a detailed interview with Jason Bissey, to help establish a timeline;
• did any substantial checking into Mangum’s rather robust activities in the weekend before the party, which would have more than explained a finding of “diffuse edema on the vaginal walls”;
• looked into Mangum’s work schedule, and discovered that she went back to “work” very quickly despite her false claims of trauma;
• reconciled her disparate statements about the amount and effect of alcohol (and prescription drugs) that she consumed the night of the party.

Moreover, once the DNA results showed the presence of DNA of multiple unidentified males (including that of her three acknowledged sexual partners), the police never asked Mangum who these unidentified males might be.

A host of other items fall under this category, such as:

• the failure to re-interview Kim Roberts before indictments, after Mangum’s April 6 statement described Roberts as a witness to the beginning of the “attack”;
• the failure—as Officer Michelle Soucie’s April 5, 2006 notes stated needed to be done—to interview the one non-suspect lacrosse player, Devon Sherwood, who police knew attended the party. Sherwood would never be interviewed by law enforcement until the AG’s office took over the case.

Of course, to committee member Aurelia Sands-Belle (whose April 11 statement strongly implied that a rape might have occurred), such investigative practices might be acceptable, since the “victim” must be believed. But hopefully the other 11 committee members will recognize the extraordinary impropriety of such an incomplete inquiry—whether it flowed from incompetence or malevolence.

Significant Procedural Errors

Cooney’s presentation concluded—in great detail—about the procedural violations associated with the April 4, 2006 lineup, which violated Durham regulations in just about every manner possible.

The most alarming aspect about the April 4 lineup is that even now—after the lineup led to the indictments of three innocent people for a crime that never occurred—no one in the DPD has acknowledged that the lineup was procedurally flawed. Indeed, they have done just the opposite. Police Chief Chalmers (in the Baker/Chalmers report), Lt. Mike Ripberger (in his Bar deposition), Sgt. Mark Gottlieb (in his Bar deposition), and Officer Ben Himan (in his Bar deposition) each asserted that the April 4 lineup was procedurally proper.

As JinC has pointed out, the record of an official police spokesperson (Cpl. David Addison) giving out false information to the public is unacceptable. Yet no record exists that Addison was disciplined in any way for his false and inflammatory statements.

Committee members appeared most interested in the third procedural irregularity—namely, an investigation that did not follow the established chain of command. The tone of some comments, however, suggested a fundamental misreading of this issue, a suggestion that the failure came in Chalmers and his underlings failing to stand up for the police—who wanted to do the right thing.

The more appropriate line of inquiry would be to ask why the chain of command didn’t use the power they had to ensure that Gottlieb, et al., conducted a thorough investigation, instead of leaving the holes outlined above.

Possible Abuses of Power

Finally, five of the defense issues deal with possible abuses of power—indeed, possible criminal misconduct. As with the improper April 4 lineup, no one in the DPD has acknowledged any error.

The Gottlieb “supplemental case notes” should—in and of themselves—be enough to earn the sergeant a pink slip. As Bill Cotter noted Friday, “We were getting the idea that people were cheating . . . [they were] so determined to convict these boys that they’re not playing by the rules. That was our biggest fear in this case.” Nothing better exemplified that fear than the sudden appearance of the “straight-from-memory” notes that conveniently plugged holes in Nifong’s case.

But take Gottlieb at his word: he thought his contemporaneous notes—dutifully penned on a dry-eraser board, he claimed—were being preserved by Officer Himan photographing the board at the end of every day. And for more than three months, in the highest-profile criminal case in the city’s history, Gottlieb never noticed that Himan, in fact, wasn’t taking snapshots of the dry-eraser board. Any police department should consider such behavior totally unacceptable.

Cooney raised four other issues involving possible abuses of power. The arrest of Moez Elmostafa certainly looks like witness tampering—especially since the five principal figures involved each gave different, and in some cases mutually contradictory, explanations for the decision. The alleged Linwood Wilson internal affairs inquiry into Sgt. Shelton appears like little more than an abuse of government power to punish a whistleblower. The NTO affidavit claimed that evidence existed that the players called each other by their numbers at the party—but no such evidence was in the possession of the police. And the entire affair raises the possibility of a cover-up.

These five items all beg for a federal criminal inquiry.

Other Issues

Two other issues—possibly not central to the Whichard Committee’s charge—nonetheless deserve an examination.

First: the relationship between the DPD and the Duke Police. This issue should have been comprehensively explored by the Bowen/Chambers Committee. But the politically correct duo appeared interest only in information that would cast the lacrosse players in an unfavorable light, and so ignored the matter altogether.

The Bar depositions, however, revealed that Duke officers met on several occasions with their DPD counterparts before the April 4 lineup. No clear record exists of what transpired at these meetings.

Second: the DPD’s handling of SANE Nurse-in-training Tara Levicy. In her initial conversations with police, Levicy implied that she, rather than Dr. Julie Manly, conducted the critical portions of the SANE exam; stated that Mangum exhibited the effects of “blunt force trauma”; and asserted that Mangum’s behavior and injuries were consistent with a sexual assault.

All of these items, it turned out, were wrong. Yet police (and Nifong) appear to have accepted Levicy’s word without question. Did that decision reflect official DPD policy in dealing with SANE Nurses (or SANE Nurses-in-training)? If so, it would seem that the policy needs a second look. And why did the police never interview Dr. Manly? Was it because they feared Manly might contradict the testimony of Nurse-in-training Levicy?

The committee, in short, has a massive record of dubious behavior to examine.