Postscript: The Gottlieb Response

Representing Mark Gottlieb, attorneys Edwin M. Speas and Eric Stevens hold their client free of any civil liability. “Since Sgt. Gottlieb,” they write, “did not have authority to ‘initiate’ or ‘continue’ a criminal prosecution, and since he provided all relevant information to the District Attorney, Sgt. Gottlieb cannot be held liable for the actions and decisions of the District Attorney or the grand jury.”

What’s the worst that could be said of him? That “Sgt. Gottlieb conducted an aggressive investigation motivated by his desire to produce identifications and arrests in response to pressure from his superiors.” Borrowing from the class-baiting tone of the Durham response, Speas and Stevens add that “Sgt. Gottlieb has always been careful, as he was in this case, to investigate alleged violent crimes fairly and thoroughly without regard for the social status, race or gender of the victim or perpetrator of the alleged crime.”

It’s All Nifong’s Fault

Reflecting a common approach in the responses, Gottlieb’s attorneys blame everything on Nifong. They contend,

The independent decisions of the District Attorney to charge Plaintiffs—and the grand jury to indict them—fully insulate Sgt. Gottlieb from any federal civil liability to Plaintiffs under Section 1983, particularly when the Amended Complaint affirmatively alleges that Sgt. Gottlieb shared all material information with the District Attorney.

The attorneys continue,

In light of clear case law establishing that an officer is not liable under Section 1983 when he discloses all relevant information to the prosecutor and the prosecutor makes an independent charging decision, Sgt. Gottlieb is entitled to the protection of the qualified immunity doctrine because he had reason to believe he satisfied any duties he owed to Plaintiffs when he shared all relevant information with the District Attorney.

Reinventing History

Like the Durham response, the Speas/Stevens memorandum describes a past that few who followed the case would recognize. They observe,

A public official performing discretionary acts can be liable for wrongdoing only (1) if the wrongdoing occurs outside the scope of official authority or if the conduct is (2) malicious or (3) corrupt. For purposes of public official immunity, an official acts with malice only “when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.” An act is wanton if it is done with a wicked purpose or with reckless indifference to the rights of others.

It would seem that this description fits Gottlieb to a T. The administrator of the rigged April 4 lineup, the person who (by his own admission) gave false testimony to the grand jury, and then the author of the “straight-from-memory,” obviously transcribed notes could certainly be described as doing “that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.”

The Gottlieb attorneys don’t see it that way. Instead, they suggest that the most unfavorable interpretation of Gottlieb’s conduct would suggest that “Sgt. Gottlieb cut corners in a high-profile rape investigation in response to pressure from his superiors to crack the case,” and that he never “intended his actions to be prejudicial or injurious” to the plaintiffs.

This is a preposterous assertion. If Gottlieb’s actions weren’t intended to be prejudicial or injurious to plaintiffs, what would be? Not according to Speas and Stevens. Remarkably, they imply that the lacrosse players might owe Gottlieb a debt of gratitude: “Due in part to information gathered by the DPD, the Attorney General dismissed all charges against Plaintiffs and declared them innocent in a statement issued April 11, 2007.”

No Harm, No Foul

Speas and Stevens (understandably) dance around Gottlieb’s admission (in his testimony to the Bar) that he gave false information to the grand jury. They point to case law claiming absolute immunity for anything he said to the grand jury, without commenting one way or the other on the truthfulness of his testimony.

Yes, they concede, Gottlieb presided over a lineup that violated Durham norms, but he didn’t incur civil liability for doing so, because “no constitutional right of Plaintiffs was violated because the identification procedure was not used in a criminal trial.”

And, in one of the Speas/Stevens memorandum’s most revealing passages:

Assuming arguendo that alleged witness tampering could be a Constitutional violation when there was no criminal trial, there is no plausible factual allegation that any alleged acts of witness tampering were material in obtaining the indictment against Plaintiffs. Indeed, there is no allegation that Elmostafa or Shelton ever recanted their statements that were helpful to the defense. Similarly, though Plaintiffs allege that officers conducted “ambush” interviews of Duke students, there is no plausible allegation that those interviews affected the prosecution. Finally, though Plaintiffs assert that Sgt. Gottlieb fabricated information in his “Supplemental Case Notes,” the Amended Complaint alleges that that those notes were prepared long after the indictments were issued, and there is no plausible allegation that the Supplemental Notes had any effect on the prosecution.

In other words, Gottlieb might have done terrible things, but they didn’t help Nifong, so he shouldn’t be held liable.

The Upside-down World of Durham

The most peculiar items from the Gottlieb memorandum come in the sections where his attorneys paints the sergeant as a typical North Carolina law enforcement officer. Speas and Stevens reason that “there is a fine line between legitimate law enforcement tools that police officers use everyday and the actions characterized as wrongful in the Amended Complaint.”

Yes, Gottlieb might have presided over an eyewitness ID session that flagrantly violated Durham norms—but “it should be noted that courts in North Carolina have upheld convictions of criminal defendants who were identified in procedures similar to those described in the Amended Complaint.”

The sergeant deserves qualified immunity, Speas and Stevens continue, since it wouldn’t “be clear to an objectively reasonable officer that his conduct violated the Plaintiffs’ constitutional rights.”

The attorneys also get in a jab at the attorney general (who noted that no evidence existed to substantiate Crystal Mangum’s claims). Gottlieb’s investigation, according to his attorneys, “produced both inculpatory and exculpatory information.” What was the “inculpatory” evidence? Mangum’s (uncorroborated, wildly varying) statements to the workers at the mental health facility, to medical personnel at Duke Medical Center and to Sgt. Gottlieb and other members of the DPD.

Next: the Addison response.