The Himan & Gottlieb Replies

Yesterday, I took a look at Durham’s long-delayed formal response to the falsely accused players’ lawsuit. Today, I’ll summarize the filings of former DPD officers Mark Gottlieb and Ben Himan. As I noted yesterday, the filings are a combination of blind denial with a tendency to blame others (chiefly Nifong but also the victims themselves) for Durham’s misconduct. But there are a few interesting items.

The Rigged Photo Array

For perhaps the first time, we’ve learned that senior members of the DPD were informed of the “no-wrong-answers” photo array ordered by Mike Nifong (in violation of the department’s procedures to use five fillers for every suspect). According to Gottlieb, “those senior to him in the chain of command were informed of and did not object to the manner in which the April Photo Array was conducted.”

The wording is not precise, but the implication is that the senior officers were informed before the rigged array occurred. Gottlieb doesn’t say, however, who he informed of the array.

The False Accuser: Then and Now

Gottlieb now admits that “the record of the investigation of Mangum’s allegations includes several witness statements attributed to her that are not fully consistent with one another.” His filing delicately adds that “Mangum was interviewed on March 14 and March 16, 2006, and that she provided a written statement on April 6, 2006, and that her statements were not always consistent.”

But according to his own deposition in the Nifong ethics trial, Gottlieb told the grand jury that “as soon as [former SANE-nurse-in-training Tara] Levicy was able to calm her down, which didn’t take long at all, she never changed her story from that point.”

Why did he—now, by his own admission—mislead the grand jury? Gottlieb, by the way, denies that “he made any agreement not to provide information about prior statements made by Mangum to the grand jury.” 

So did he decide this on his own? And, if so, why?

Nifong: Then and Now

In his filing, Gottlieb denies that “there was any agreement on the part of the City of Durham, the Durham Police Department, the Supervisory Defendants, or individual police officers that Nifong would direct or help direct the police investigation.” Nifong’s outsized role in the investigation, Gottlieb continues, merely reflected the “customary” practice “for law enforcement agencies, including the Durham Police Department, to work cooperatively with the District Attorney’s office.”

Yet in his 2006 “straight-from-memory” notes (which he stands by in his filing, and reminds Judge Beaty serve “the best evidence of their contents”), Gottlieb maintained that as of late March 2006, his supervisors instructed him to take orders on the police investigation from Nifong.

So: which Gottlieb tale is correct?

The Non-Testimonial Order

Both Himan’s and Gottlieb’s filings admit that Gottlieb (as well as Himan and Cline) played a role in fashioning the non-testimonial order, which sought photos and DNA samples from Duke lacrosse players that the DPD had no evidence even attended the party.

Crimestoppers

Himan admits that he assisted Cpl. David Addison in the Crimestoppers poster. But he denies that he “colluded” with Addison. What’s the distinction, given that the poster was both inflammatory and inaccurate? Is he suggested that it was his normal practice to “assist” in the creation of inaccurate Crimestoppers posters?

Gottlieb defends himself on the grounds that he “had an affirmative duty to investigate claims of sexual assault and kidnapping made by anyone within his jurisdiction.” Does that “affirmative duty” include violating myriad procedures?

Four Years Later, Durham Replies

In the past two days, the city of Durham and former DPD officers Mark Gottlieb and Ben Himan have filed their formal response to the falsely accused players’ lawsuit. The responses came four years after the players amended their complaint against the city and its police officers—a time in which the lawsuit was substantially narrowed, thanks to a ruling that embodied the spirit (if not, in total, the outcome) of the race-baiting 4^th Circuit judge Roger Gregory.

The filings are, in many respects, par for the course—deny, deny, deny. To the extent things were clearly done wrong, blame Nifong or Mangum. (Bizarrely, the city’s filing constantly uses scare quotes around the undisputed “facts” of the case.) Cast aspersions against the victims in this case by portraying them as rich out-of-staters. Play off the absurd 4^th Circuit holding (that, because DPD officers were candid with Nifong in disclosing the non-existent nature of the case even as they teamed with him to manufacture inculpatory evidence, they were not legally vulnerable for their actions) by repeating, over and over again, that the police did not conceal any information from Nifong.

All that said, the filings do contain some interesting items. And, in that respect, the three documents provide a reminder of (by all but decimating the case) how the 4^th Circuit’s ruling ensured that many aspects of the DPD’s misconduct likely will remain unknown. I’ll analyze the Durham document here, and the Himan/Gottlieb documents subsequently.

The items:

The False Accuser: Then and Now

Durham now “admits that . . . several witness statements attributed to her that are not fully consistent with one another.” Specifically, here’s how the city describes the wild disparities between Mangum’s initial interview with the police (when she claimed that one of her attackers weighed 270 pounds, gave descriptions that matched none of the people ultimately charged, and said that she was 100 percent sure she saw someone who wasn’t even in Durham that night) and the rigged photo array upon which Nifong and the DPD based charges: “The City admits that Sgt. Gottlieb and Inv. Himan interviewed Mangum on March 16, 2006, that she provided a written statement on April 6, 2006, and that her statements were not always consistent.”

The city further admits that on March 27, 2006, “Inv. Himan expressed concerns to Nifong about Mangum’s credibility.”

Really? When, precisely, did the leaders of Durham PD, who the city admits read these reports, discover this information? Why was this information never communicated to the public while the case was ongoing, especially since the information was available to DPD leaders as of no later than April 7, 2006? And why, perhaps most important, did Matrk Gottlieb (according to his own deposition to the State Bar) tell the grand jury something different—that Mangum was consistent in all of her tales after she encountered former SANE-nurse-in-training Tara Levicy at the hospital?

The Durham response elected not to engage with any of these questions.

Non-Credibility in Describing Nifong’s Role

In its filing, Durham formally denied “that there was any agreement on the part of the City, the Durham Police Department, the Supervisory Defendants, or individual police officers that Nifong would direct or help direct the police investigation.”

This statement makes no sense. Gottlieb’s notes admitted that as of late March, he had been ordered to take direction from Nifong. Thereafter, the record of the case illustrated that DPD officers consistently accepted orders from Nifong, even when he instructed them to violate DPD procedures (the April photo array) or behave in odd ways (look beyond the state DNA lab to hire the disgraced Brian Meehan to provide DNA analysis). If there was no agreement for Nifong to direct the investigation, why did DPD officers accept Nifong at these critical junctures? According to the city of Durham, all of this was merely “work[ing] cooperatively with the District Attorney’s office.”

And if Nifong wasn’t directing the police investigation after March 29, 2006, then who was?

Crimestoppers

In late March 2006, Cpl. David Addison, both as acting DPD spokesperson and in his capacity as Crimestoppers liaison, made a series of inflammatory statements about the lacrosse players. From where did he get his information?

Durham now pulls back the curtain on the process: “The City admits that Inv. Himan and Addison prepared Crimestoppers flyers.” That would be the same Inv. Himan, who more than a week before the poster below appeared, “expressed concerns to Nifong about Mangum’s credibility.”

Why was a DPD employee who had concerns about Mangum’s credibility in private willing to tell the public something entirely different?

Cooperation

The city—in sharp contrast to public statements coming from Durham Crimestoppers in March 2006—now affirms that the three captains “offered” their “cooperation” with police, that they “submitted to individual interviews, and were cooperative.” The city even admits that at least one of the captains offered to take a lie detector test, an offer that was spurned.

The Durham response does not explain why a DPD employee, David Addison, did not tell the truth about the players’ cooperation, nor why Addison subsequently was promoted despite misleading the public.

Cline

The city confirms that Durham’s second disgraced former district attorney, Tracey Cline, came up with the (seemingly unconstitutional) idea for a non-testimonial order against all 46 white lacrosse players, even those that the DPD had no reason to believe even attended the party.

The Shelton Report

The City of Durham admits that “at some point” “some” DPD leaders learned of the contents of Sgt. John Shelton’s report. (Shelton, recall, was the first officer to encounter false accuser Crystal Mangum, and penned a report expressing doubts about her veracity.) When did DPD supervisors learn of the report? Why did they learn of it? Did they, as Shelton has claimed, retaliate against him for penning a truthful document that contradicted the department’s preferred storyline?

The city doesn’t say.

Gottlieb, Himan, and Authority

In 2006, the case was consistently presented as Himan’s (only Himan, for instance, testified at the second grand jury). There was obvious p.r. benefits to this approach, since it allowed Durham to avoid troubling questions of Gottlieb’s past history of selective mistreatment of Duke students.

Now that they’re under oath, however, DPD leaders have admitted that Gottlieb was “in charge of the investigation,” which Durham (in curious wording) describes as “related to a party attended by Duke students in Trinity Park.”

The Rigged Photo Array

Durham announced that it “denies that the April Photo Array was governed by General Order 4077,” which required five filler photos per every suspect.

Why? Durham refuses to say.

The Grand Jury

The city cites North Carolina law to shield Gottlieb and Himan from any misleading testimony they might have given to the grand jury—a reminder of how the grand jury process, at least in North Carolina, not only fails to protect innocent defendants, but actually harms them.

Durham further claims that “the prosecution of Plaintiffs was supported by probable cause.” That the city could claim that “probable cause” existed to indict people who were (as the state ultimately admitted) actually innocent speaks volumes as to how the city of Durham defines “probable cause,” at least in cases where it’s politically useful to obtain indictments.

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Perhaps the most chilling line from the city’s filing was the following assertion: “Plaintiffs’ own conduct was a superseding/intervening cause of any injury or damage sustained by Plaintiffs.”

Reade Seligmann and Collin Finnerty attended a party they played no role in organizing and drank some beer. According to one of the largest cities in North Carolina, that “conduct” was the cause of their being indicted for a crime that never occurred, thanks to “evidence” gathered by the DPD and Mike Nifong.

The Grand Jury

Today’s Charlotte Observer brings an eye-opening article—including quotes from Joe Cheshire and Jim Cooney—about the sorry nature of North Carolina’s grand jury system. An institution that supposedly protects the rights of the accused, Cheshire and Cooney both suggest, does no such thing.

The article focused on the case of Randall Kerrick, a North Carolina police officer who killed an unarmed, African-American man. A Mecklenburg County grand jury initially declined to indict Kerrick, but the attorney general (who’s prosecuting the case because of a conflict of interest in Charlotte) then took the case to a second grand jury, which returned an indictment for voluntary manslaughter.

The scandal came in the daily record for the grand jury that indicted Kerrick. That day, it heard 275 other cases, and returned indictments in all 275. In an interview with the paper, Cheshire termed the “entire system . . . a joke,” noting that “there is absolutely no living, breathing person with any kind of intellect who believes that a grand jury could consider and vote on 10 complex issues in the period of time that they use to deliberate on hundreds.” Cooney added that grand juries no longer protect the accused, but instead function by handing “out indictments like they’re boxes of popcorn.”

Cheshire also revealed some information about the lacrosse case grand jury, reporting that he had heard the body returned indictments—again, for a crime that never occurred, and in the police manufactured inculpatory evidence—in all of four minutes. ABC’s Law & Justice Unit had previously touched on some of the grand jury’s attitudes.

It’s worth recalling, moreover, that the grand jury that indicted Reade Seligmann and Collin Finnerty did so on the basis of false information. As former DPD Sgt. Mark Gottlieb confessed in his deposition for the Nifong ethics trial, he told the grand jury that Crystal Mangum never changed her story about the night of the party after she got to the hospital. In fact, the false accuser and now-convicted murderer never told the same story twice. What might have happened, for instance, if Gottlieb had told the grand jury that Mangum had identified four, rather than three, perpetrators in the rigged departmental photo array? Or if she twice claimed to have recognized a lacrosse player that wasn’t even at the party?

By the way, absent Gottlieb’s revelation, we never would have known the grand jury was presented with incorrect facts, since in North Carolina, there’s no record of what’s said to the grand jury.

The Observer also features UNC professor and former federal prosecutor Richard Myers, who said that he “believed” in the institution of a grand jury to protect citizens’ rights, just as he believed in the value of a fire extinguisher.

The comparison is hard to take seriously; indeed, two examples from the lacrosse case demonstrate how grand juries can actually harm the accused. First, if Mike Nifong hadn’t gone to the grand jury, he would have needed to pursue a probable cause hearing. And so, in the midst of the primary campaign for DA, grand jury secrecy prevented the public from knowing the weakness of the prosecutor’s case.

Second, the 4^th Circuit panel used the excuse of the grand jury (operating from false information) indictment as one of the grounds for letting the city of Durham off the hook in the civil suit filed by the falsely accused players.

But apart from the specifics of the lacrosse case, grand juries can harm anyone who’s indicted, since too many people poorly understand the judicial system, and assume that a grand jury indictment implies guilt. Nonetheless, you’d expect a major newspaper—such as, for instance, The Guardian—to have a sense of what grand juries do. It appears not—as this item from Brad Bannon’s Tumblr reveals.