Postscript: Reflections on the Responses

Some thoughts on the responses of Durham, Durham officials, and DNA Security:

1.) Civil lawsuits are no substitute for a federal criminal inquiry.

This was a case in which at least five people—Mike Nifong, Mark Gottlieb, Tara Levicy, Linwood Wilson, and Dr. Brian Meehan—appeared to conspire to use the tools of the state to manufacture evidence for a crime that never occurred. It’s difficult to imagine a more serious abuse of a local government’s authority.

Yet the Department of Justice rejected the request of AG Roy Cooper for a joint federal/state criminal investigation into the matter, and it appears that the state lacks the power to launch an investigation on its own.

It’s possible, of course, that the civil lawsuit will yield depositions and, ultimately, testimony that will expose the full extent of misconduct that occurred in this case. But, as the various responses revealed, most of the defendants (Nifong is the exception here) might be able to get some or even all of the claims against them dismissed on procedural grounds.

2.) The City of Durham still appears to believe that its handling of the lacrosse case was proper, and that no reforms are needed in its law enforcement practices.

It’s worth remembering that the recent court filings weren’t the city’s first official responses to the lacrosse case. That came in May, when then-City Manager Patrick Baker and then-Police Chief Steven Chalmers released a 12-page report describing as “typical” the DPD’s performance in the case.

In that report, the duo defended the April 4 lineup—the only evidence used to indict Reade Seligmann and Collin Finnerty—as wholly proper, even though it violated DPD procedure in virtually every respect. The suggestion: the DPD didn’t have to follow its own procedures; and, perhaps, regularly violates them.

Baker and Chalmers preposterously blamed defense attorneys for the DPD’s participation in the indictment of demonstrably innocent people. They defended the DPD’s decision not to ask Crystal Mangum about the myriad contradictions in her multiple stories. And they offered contradictory recollections on whether Durham Police officials had allowed Mike Nifong to usurp control of the police investigation.

At the time, the Baker/Chalmers report attracted widespread ridicule, even from the “hear-no-evil/see-no-evil” Herald-Sun editorial page. Yet the report, in many ways, provided the template for the city’s official response to the players’ civil suit.

Much like the Baker/Chalmers report, the city’s official response was contradictory on Nifong’s role in supervising the investigation. On the one hand, the city’s response deemed it “nonsensical” to claim that Nifong directed the investigation. On the other hand, the city’s response consistently asserted that Nifong and Nifong alone deserved all blame for decisions made in the case—including, presumably, the decisions to run the flawed April 4 lineup, not to ask Mangum about the myriad inconsistencies in her stories, and to ignore exculpatory evidence in the case. Just like Baker and Chalmers, the city’s attorneys never addressed the contradictions inherent in their position.

3.) The grand jury—considered by the framers as an opportunity for the people to check the power of an abusive state—now functions as an enabler of governmental abuse.

The 25 rape cases before the lacrosse case handled by the DPD and Mike Nifong’s office had one thing in common: in each of the 25, the police had arrested the suspect as soon as the DPD believed it had enough evidence to make a charge.

In the lacrosse case, however, a different approach was followed: even though police had all the “evidence” they ever would possess against Reade Seligmann and Collin Finnerty on April 4, 2006, they made no arrest. Instead, the DPD and Nifong waited nearly two weeks, until the next meeting of the grand jury—at which Gottlieb, by his own admission, gave false testimony, suggesting that Mangum had told consistent stories from the time she first encountered Tara Levicy on March 14, 2006.

It wasn’t hard to figure out what motivated Nifong and the DPD: under a quirk in North Carolina law, a defendant who’s arrested before a grand jury indictment is entitled to a probable cause hearing. A defendant who’s first indicted by the grand jury has no such right. So, in this case, the grand jury was used to eliminate the only real legal check on Nifong’s ability to secure an indictment.

The responses by both Durham and several individual members of the DPD revealed the continuing harm of the grand jury system. Each cited case law to suggest that a grand jury indictment provides a near-absolute defense against a 4^th amendment civil claim. The fact that Mark Gottlieb—by his own admission—gave false testimony to the grand jury might provide an opening to the falsely accused players. But it’s ironic, to put it mildly, that for a second time in this case, the grand jury could function as enabler of a massive violation of civil liberties.

4.) The responses feature breathtaking descriptions of “normal” law enforcement work.

DSI attorney Robert King appeared to assert that DNA Security was not obligated to produce a report that adhered either to its own company protocols or North Carolina state law regarding DNA tests resulting from an NTO. He equated the lacrosse players suing DSI for not following the law or its own protocols as merely a complaint that the plaintiffs “do not like the way that the report was written.”

Cpl. David Addison went on what could be called a defamation spree, spewing demonstrably false information about the case through his capacity as DPD public spokesperson. How did his attorney describe this conduct? As demonstrating Addison’s “duty to the public to serve and protect it.”

Linwood Wilson’s response conceded that the former investigator took “actions might have lead to a deprivation of a constitutional right or [were] otherwise illegal.”

In its response, the city of Durham maintained that “its officials’ and police officers’ conduct was consistent with federal and state law and was motivated by the belief that any serious crime reported by a resident of the City should be thoroughly investigated without bias in favor of or against any person on the basis of race, gender, or socioeconomic status.”

Is it “consistent with federal and state law” to: (1) run photo ID processes that violate the department’s own standards; (2) have at least one of the city’s officers give false testimony to the grand jury; (3) conduct a rape investigation in which the medical officer who performed the rape exam (Julie Manly) was never interviewed by the police; (4) seek a non-testimonial order against people that police officers didn’t even know were at the scene of the “crime”; (5) wait more than three weeks before obtaining the official statement from the “victim”; (6) produce a months-after-the-fact police memorandum contradicting all other police reports and seemingly designed to fill in existing holes in the case?

Does the city of Durham understand “federal and state law”? Its response suggests not.