Friday, July 20, 2007

Summarizing the Day

Mayor Bell opens the committee inquiry--publicly thanks the committee members.

"You have the full support of the Durham City Council as you carry out your duties." The committee is charged with investigating the "conduct" of the DPD and of Mike Nifong.

The purpose is to ascertain the "truth" and to assist the department in avoiding similar problems in the future. If DPD performed correctly, then the Council wants to know that, too.

Chairman Whichard: purpose is to ascertain the "truth" about whether "unconstitutional or otherwise improper procedures" were followed. "The goal is a properly functioning justice system." Importance of producing reliable results and constitutional procedures, with goal of bringing "clarity" and "closure."

Wants people to know that policemen take risks--part of their jobs. "Deeply grateful" to what police do. But must also be mindful that "we have a Constitution. We have statutes." These impose "some restrictions" on enforcing the law. "It is essential to an orderly and just society that the public have confidence" in law enforcement.


Jim Cooney, Joe Cheshire, Bill Cotter, and Brad Bannon are present to represent the players; Cooney is presenting.

Cooney volunteered to do a presentation for the committee; Justice Whichard agreed. Neither Reade Seligmann nor Collin Finnerty had any particular interaction with the police--since they were never interviewed. Dave Evans the only defendant to have interaction with the police. It is undisputed that Evans cooperated with the police completely. Evans offered to take polygraph, was denied, then volunteered to take DNA. Evans didn't have anything of import to offer the committee.

The three clients also were worried about distracting from the committee's focus. Focus is not what happened to the defendants--focus is what happened during the investigation.

Presentation in two parts: what happened, what the false accuser said, background.
Second: 13 areas that committee should look into. Defense doesn't believe it's seen all the documents relevant to any inquiry.

It might be there are adequate explanations for these 13 issues--but if so, the defense never heard them.

Finally, not here as part of civil lawsuits. Defense attorneys are not being paid to be there today. Presenting because they are officers of the court.


Begins with photograph of the "false accuser"--12.30am photo. Mangum is laughing, four minutes after calling escort service, holding purse and Dave Evans' shaving kit.

Urges the committee to look at the AG's report--clear that players were innocent, no credible evidence, AG found evidence DPD never uncovered.

Cooney--described by Joe Cheshire as the "best PowerPoint attorney in North Carolina"--has put together a PP presentation for the committee, running through the AG's report.

"Inconsistencies so significant and so contrary to the evidence"--as the AG noted.

Himan probably the person in the DPD who knows the case best. (Cooney urges the committee to look at the Bar depositions of Himan, Gottlieb, etc.)

Cooney quotes Himan deposition statement: "I came to the conclusion that . . . she was not telling the truth about anything."

Question for committee: "We know three innocent men were prosecuted for a crime that never took place. Did that come about solely because a DA pushed forward unethically, or did that come about because of deficiencies in the investigation"--and were these caused by human error or by systemic problems?

Wants to share with the committee what he did with the SP's--but can't show everything, because Mangum's mental health issues remain under seal. Some 2000 pages of material.

Cooney: when he came onto case, saw that Mangum gave varying statements, so did a checklist. Proved that there were serious inconsistencies in her statements.

Cooney now reviews the who/what/when inconsistencies, laying out the chart below: It examines who allegedly did what to Mangum, as well as the marital status of her “attackers”:
  • A green X corresponds to the story that Mangum told Tara Levicy on March 14, 2006.
  • A blue Y corresponds to the story that Mangum told Gottlieb and Officer Ben Himan on March 16, 2006.
  • A red Z corresponds to the story that Mangum provided in her April 6, 2006 official statement.

















Mangum, in short, described three quite different “attacks.” Of course, when she was asked about the “attack” on December 21, she would come up with a fourth different story. And when the special prosecutors would ask her about the “attack,” she would come up with a fifth, entirely different, story.

Defense consulted Dr. Anne Burgess--one of leaders in rape treatment. Sent her all the records, asked her, and she said: after working with hundreds of rape victims, having worked with FBI, having written a textbook--had never seen a real victim change her story as much as Mangum did. Burgess said there was "something terribly wrong" with what Mangum told the police.

When Cooney was hired, Reade Seligmann asks him, "Who am I?" Was never entirely clear from Nifong who was Matt, Adam, or Brett.


Issue: what did the attackers look like?

Himan took notes during March 16 interview; then mentions Gottlieb's contrasting descriptions.

"Of course, Sgt. Gottlieb didn't take any notes of the meeting"--report prepared after indictments.

First thought of defense attorneys: did Mangum remember things later? No: Himan made clear that on March 21, she didn't remember anything more.

"We don't know where Sgt. Gottlieb got his descriptions from."

ID process supposed to be governed by G.O. 4077--indpt. administrator, fillers must resemble description, don't reuse fillers, five fillers, administrator should give identical instructions, don't give feedback, and tell witness that suspects not necessarily present in ID array.

March 16: Mangum saying that she was 70% certain of seeing Seligmann at party, but couldn't remember where. That should have ruled him out as suspect.

March 21: doesn't recognize Dave Evans.

Never shown picture of Collin Finnerty: why? Didn't resemble any of the descriptions.

March 31: Gottlieb and Himan meet with Nifong; mugshot photos with suspects-only ID.

Investigation at a dead end by March 31--Mangum couldn't ID anyone, couldn't give any descriptions of suspects, couldn't remember anything further, no semen anywhere in rape kit, other dancer had told police that the accusations were a "crock."

Big question: was this an ID process? Patrick Baker says this wasn't an ID process--just goal was to identify witnesses rather than alleged attackers. No ID process; therefore, G.O. 4077 doesn't apply.

But this doesn't make any sense: Devon Sherwood was at the party. They knew he was at the party. Yet police never showed Mangum Devon Sherwood's picture.

Police also knew there were non-lacrosse players at the party (Boehmler and Saeli); police knew this as of March 28, 2006. Why weren't there pictures included if sole goal was to ascertain witnesses?

If goal was to simply ID witnesses, why would the police have videotaped the 4-4 lineup? And why did the police then not videotape the 3-16 and 3-21 lineups? "What sense does that make"?

If purpose was simply to identify witnesses, why did the police need to show Mangum the picture of Seligmann, since she had already claimed that she was 70% sure of seeing him at the party?

Then fundamental flaw: never show witness the same photos she has already seen. "That's what leads to misidentifications and false identifications."

Finnerty: very tall, obviously. Mangum had never said that person who assaulted her was unusually tall.

"Critical" to look at else who she identified: fourth person, used almost same language as was done with Dave Evans--but no follow-up on the fourth person ID'd.

Brad Ross: Mangum identifies him with 100% certainty twice, the only person done so. But he was in Raleigh--this evidence was presented to DPD.

Chris Loftus: she says she 100% sure she saw him--but he was in his dorm room.

"A procedure that DPD admits didn't comply with GO 4077." Yet this became the sole basis on which Seligmann and Finnerty were indicted. One month later, Seligmann and Finnerty were on cover of Newsweek--as a result of this procedure. Seligmann gets death threats.

All of this evidence DPD either had or could have received before first indictment issued.

Defense doesn't have all of the answers in this--don't know about internal conversations, doubt the defense has received all the correspondence.

After March 24, investigation based toward proving the truth of Mangum's story rather than determining what actually happened.

"In this rush to indict, to cut off an investigation"--don't know what role chain of command had, and how chain of command interacted with Nifong.


Police knew as of March 16, 2006--from Dave Evans' statement--that there were photos of the party. Yet police never executed a search warrant to obtain these photos.

When looking for 20-30 minutes, not possible to find it with the electronic and digital record: shows that there was no opportunity. Police either had all this evidence or knew of its existence before seeking indictments.

Electronic evidence wholly incompatible with Mangum's Dec. 21 story: yet DPD and Nifong treated this story as credible. Police never followed up on evidence presented by Mangum's "driver," Brian Taylor, that determined exactly when Mangum arrived at the party (around 11.40pm).

Cooney also showed the photo of Officers Ben Himan and Richard Clayton at the Elmostafa trial--a visual that effectively demonstrated his general point that the DPD engaged in witness intimidation.

Another investigative issue: from where did the DPD obtain evidence that the players were calling each other by their numbers? Neither Mangum nor Kim Roberts had ever made such a claim, no other evidence so existed, yet it appeared in the police affidavit for the March 23 NTO.


Back from lunch, Joe Cheshire is addressing the Whichard committee.

Notes he has tried criminal cases in 85 NC counties. "A North Carolinian in my heart, a lawyer in my heart. I am enormously proud of being a North Carolinian, and I am enormously proud of being a lawyer."

Very proud of his record and the record of his family in its commitment to civil rights. Joseph Blount Cheshire, I and II were ministers who integrated their churches (in the pre- and post-Civil War eras). Cheshire III was an early lawyer for NAACP.

Praises "political courage" of Bell in setting up committee. "Really good things can come out of bad things"--opportunity to grow from mistakes.

Inquiry could benefit not only Durham but could aid justice throughout NC. Unquestioned that Nifong a "rogue prosecutor"--but hopefully justice will be stronger.

Real victims of sexual assault hurt by this case--set back their cause 5-10 years.

Certainly the defendants and their families were victims.

Other victims:
  • Duke University (though "they may have played some part in this");
  • law enforcement;
  • justice system in NC--need to ensure that all citizens have "faith and trust" that justice is being done;
  • community of Durham "victimized terribly"--just watch cable TV to find this out;
  • state of North Carolina--NC actually a forward-looking state. But "the Duke lacrosse case backed us up in the minds of a lot of people who want to think of us as a backwater place";
One other critical victim: race relations was a "huge victim" in this case--Mangum "knew the explosive capability of those words"--what effect it would have in Durham--took the city back 30 or 40 years. "Let me just be clear: Nifong pandered to race."

"All of the evidence is that in that house that night not one single slur was uttered" (despite, of course, what Duff Wilson and the NYT continue to maintain);

Two racial slurs: Roberts initiated, then one player uttered it back.

People who wanted to make it a racial case did so--national media, Nifong, others whose self-interest motivated by race-agenda.

Basic questions:

Mangum a "very ill young woman, but she is a false accuser." Believes that she "knowingly and willingly" made racial statements to make her story more believable.

"How is it possible that a person could give that many inconsistent statements and not have the DA interview them or not have a law enforcement officer go over the inconsistencies?" Has practiced law for 34 years in NC and has never seen anything like it. Most police officers don't like to charge innocent people.

"It doesn't take a rocket scientists to put mental health records together with multiple diverse statements" and figure out that Mangum was not credible.

Police didn't even try to get electronic records--no one in law enforcement tried to create timeline.

"At some point in time, you have to ask yourself why?" Bissey never interviewed, Mangum's employers never interviewed.

DNA--no way you could possibly have attacks as Mangum described and leave no DNA. Police several times heard there was no DNA, yet did nothing about it, didn't go back and recheck her story. Indeed, these officers "had to know" that Nifong was lying when he repeatedly told court that Dr. Meehan didn't tell law enforcement anything beyond what was in the report.


Strongly urges the commission to "really pay attention to Sgt. Gottlieb. I am just absolutely flummoxed" by the fact that in this case--and the only people working on case were Himan (who was young and did what he could) and Gottlieb. "Where were the experienced investigators?"

"It appears to me that the Police Dept. was so excited to get rid of this case" to Nifong "that they just handed it to him" and "Pontius Pilate-d it."

Gottlieb: "This supervising sergeant was the most experienced police officer in this case"--first officer assigned, last to provide a report. Urges them to look at 32-page typewritten document--although he says he never took any notes.

Gottlieb "simply a document designed" to cover up--Gottlieb report not supported by any other contemporaneous handwritten notes. Did he make it up? At the very least, this question must be asked.

Potentially "enormously egregious misconduct, bordering on criminal conduct."

Then go from there to the lineups--a no-wrong-answer lineup.

Police helped to create atmosphere stoked by Nifong.

Basic story: what was described as a racial gang rape, with a DA saying it was true, and then an investigation that "simply stopped with her initial statement" and Tara Levicy's report. DA then took over case and made himself police investigator, decision made to charge, and then everything that happened was designed to justify that charge--not to see that justice was done, but to justify that charge.

Picture of this story is treatment of Elmostafa.


Whichard: asks Cooney about the Baker/Chalmers report claim that defense attorneys were responsible for not providing information to DPD.

Cooney: at start of the case, everyone assumed that three residents were prime suspects. Seligmann first finds out that he's a prime suspect when he's told he was being indictment.

Then, before end of April, Osborn filed out detailed notice of alibi. Police knew about this--which is why the police go to Elmostafa.

Cheshire: Evans, without counsel, gave full statement to police. Then Nifong, as lead investigator in case, wouldn't talk to them.

Cooney: he and Nifong met early December--prepared to bring Reade Seligmann into meet with Nifong and police. Nifong: "As long as she can identify him, this prosecution will go forward." Why would defense deal with the officers when it was Nifong making all the decisions?

Bill Cotter: "We were getting the idea that people were cheating"--"so determined to convict these boys that they're not playing by the rules. That was our biggest fear in this case."

Cooney: responsibility clearly vested in Gottlieb and Himan. Couldn't identify any other officers in the case--clear that they were reporting to Nifong.

Whichard: was attempt on Elmostafa initiated by DPD?

Cooney: warrant discovered by Linwood Wilson; Wilson made it clear to Himan that Nifong wanted Elmostafa arrested; Himan goes to someone in chain of command to ask if reasonable; Elmostafa asked if he wanted to stand by this story.

Chief Pat Norris asks about alleged internal affairs inquiry into Sgt. Shelton--Cooney: no indpt. evidence other than Linwood Wilson's testimony. But it is clear that Linwood Wilson did go around and interview people who worked with Shelton that night.

Cheshire: police and Nifong statements created "enormously dangerous" atmosphere.

Cooney: key documents: AG's report; Himan's notes; Sgt. Gottlieb's "report"; suppression motion lineup contains all the key documents; Himan and Gottlieb depositions to State Bar; Linwood Wilson deposition; Nifong deposition.

Cotter: read Roberts' and Mangum's statements side by side.

Chief Pat Norris: wants timeline of police actions from start to end.

Aurelia Sands Belle (whose statement suggests that a rape might have occurred) had no questions of the defense attorneys.

Kenneth Spaulding: as case progressed, "I was very concerned about not hearing from Chief of Police . . . It is not the job of defense attorneys to see that law enforcement does its job." Felt Chalmers was "missing in action." Wants Chalmers as a witness before the commission.

It appears, unfortunately, as if members of the commission believe that Himan and Gottlieb were both trying to get information to Nifong, and were trying to do the right thing. Gottlieb, of course, was not doing so.

In the second round of questions, Sande Bells is asking a question, as to any evidence of Mangum's intoxication.

The role of Sgt. Shelton appears to be quite interesting to law enforcement members of the commission. Cotter praises Shelton--first officer on the scene and he figured out the case. Suspects that all people up in the chain of command believed Shelton.

Judge Barber (committee counsel) questions:

Cooney: no specific request by DPD to interview Seligmann alone.

First two arrays didn't comply in that the "fillers" were all lacrosse players--but in other respects complied with G.O. 4077.

Barber: What should a good police chief do to protect the integrity of his department?

Cooney: importance of following chain of command.

Barber: question of police veracity?

Cooney: "integrity" of report and reporting system re Gottlieb--report seemed to do exactly what NYT article said it did--closed holes in case.

Have concern about claim in affidavit that Duke players were calling each other by numbers.

Chief Pat Norris: her questions, of the entire panel, seem to be the most impressive--she seems to understand exactly what needs to be asked.

Whichard: next step in the process seems to be hearing from police. The week after next they will confer with the Police attorney and set up the next meeting.

City Council has made it clear if the commission needs to exercise subpoenas, can do so.

Mayor Bell personally sat through the entire session--an important statement of political support.


Anonymous said...

Thanks to the committee for moving forward and to Mayor Bell. The good people need time and support to repair the damage. I appreciate their efforts.

Anonymous said...

This blog puts all others to shame! What a wonderful explanation of events.

Anonymous said...

How can brother Cooney use the name Gottlieb and the word integrity in the same sentence? You hit on one who cannot possibly know the meaning of the word much less live it.