Eugene Brown, Voice of Reason

City Council member Eugene Brown has been one of the few voices of reason from Durham's political leadership over the past two-plus years. The N&O's Bull's Eye blog recounts this detail from yesterday's City Council meeting, regarding John Shelton--the police officer who saw through Crystal Mangum's lies from the start:

Councilman Eugene Brown told Lt. J.C. Shelton, the Durham police officer who first encountered Duke lacrosse accuser Crystal Mangum and was skeptical of her rape claims, that "I wish the hell we'd have listened to you."

Shelton met an intoxicated Mangum in a Kroger parking lot the night she had been paid to dance at a Duke lacrosse team party. He said loudly after transporting her to Duke Hospital that he thought she was lying about being raped. The N.C. Attorney General agreed more than a year later. The Durham District Attorney lost his job and spent a night in jail for pushing the case, and now the city faces several lawsuits for their roles in accusing three lacrosse players.

At a City Council work session today, the recently promoted Shelton was speaking on an unrelated matter.

As he prepared to leave the podium, Brown said, "I think several years ago you were on duty that fateful night in front of the Kroger's. I just have one thing to say: I wish the hell we'd have listened to you. Otherwise that issue would have been cleared up in a day or two instead of a year and a half."

There was some shifting among council members, and Councilwoman Diane Catotti mumbled something about that being inappropriate while the city is facing litigation.

Minutes later, Brown asked the clerk to strike his statement from the record.

This is the same Diane Catotti who aggressively backed Nifong's election in November 2006; and who, as late as June 2007 (two months after the AG's report) still seemed to think a rape might have occurred; and who went out of her way first to block and then to neutralize any investigation of why the Durham Police so mishandled the case.

No wonder Catotti was troubled by Brown's statement.

The Durham Justice System: A "State of Emergency"

A comprehensive late 2007 report on the Durham Police Department's handling of gang-related activity by Deborah Lamm Weisel and Buddy Howell:

Among its conclusions--none of which would surprise anyone who observed the DPD's performance from March 2006 through January 2007:

Durham has a long-standing reputation as a high-crime city with well-entrenched gangs. Further, the economic needs of Durham’s citizens are longterm and complex, and poverty is deeply rooted in an on-going discourse about race – a discourse that may become more divisive as the population continues to diversify . . .

Durham has a highly politicized environment. During this study, we saw extensive micromanagement of government agencies by elected officials – a political style more typical of very large mayoral cities in the U.S. . . .

A major finding in our assessment is the critical need to build public confidence in the justice system and its response to gangs. While our assessment was entirely detached from the Duke lacrosse scandal, we cannot discount its contribution to further deterioration in public confidence.

Given the backlog of prosecutions, Weisel and Howell and write, "The situation in Durham is egregious and tantamount to a state of emergency. We recommend that the City and County of Durham ask the Governor to provide immediate if temporary assistance in terms of judges, prosecutors, and other court personnel to redress the problem - particularly for gang-related offenders."

Gottlieb Is Out

The practitioner of "straight-from-memory" notes and wildly inaccurate grand jury testimony has left the Durham Police Department. The N&O's Stan Chambers reports that Sunday was Mark Gottlieb's last day on the job. He resigned for what the DPD termed personal reasons.

Connect the Dots

The Durham City Council is scheduled to meet today to consider the proposed civil suit settlement--reportedly $30 million, plus adoption of a host of procedural reforms to ensure the sort of abuses that occurred in the lacrosse case never recur in Durham. As they do so, they might reflect on what exactly transpired between Mike Nifong and Durham employees:

March 24-March 26: In his capacity as official spokesperson of the DPD, Cpl. David Addison made a series of public statements riddled with false assertions about the case. Addison stated, among other things, “You are looking at one victim brutally raped. If that was someone else’s daughter, child, I don’t think 46 (tests) would be a large enough number to figure out exactly who did it”; “Addison said police approached the lacrosse team with the five-page search warrant on March 16, but that all of the members refused to cooperate with the investigation”; There is “really, really strong physical evidence”; and “We’re not saying that all 46 were involved. But we do know that some of the players inside that house on that evening knew what transpired and we need them to come forward.”

March 27: Mike Nifong was briefed by DPD officers Ben Himan and Mark Gottlieb on the holes in the case. He concluded, “You know, we’re fucked.” He then began his own pre-primary campaign of slanderous remarks. No one from the Police Department ever corrected even one false statement that Nifong made.

March 28: Ben Himan met with accuser Crystal Mangum. He never produced a statement about what transpired at the meeting.

March 28: Police Department spokesperson Kammie Michael e-mailed H-S reporter Brianne Dopart and falsely stated that police not only did not know the identity of the first 911 caller from the night of the party, but that police were certain the call did not come from Kim Roberts.

Michael’s false assertion, acting in her official capacity as the spokesperson for a Durham government entity, left in place the public impression that the lacrosse players had yelled racial slurs at two innocent black passersby on the night of the party. [This item has not previously been publicly reported, but it’s in UPI.]

In fact, Roberts had told police on March 14 that she made the call, and that she had lied in the call; she reiterated both points in her March 22 statement. Michael has never explained why she provided the public with false information.

March 29: Mayor Bell, City Manager Baker, and Police Chief Chalmers met with Himan. Bell urged the police to wrap up the investigation quickly, because, he later said, he feared racial unrest in Durham. This unrest, of course, had been fueled in large part by the false statements of Addison, Michael, and Nifong, each of whom acted in their official capacities when making these statements. (Neither Michael nor Addison has, to my knowledge, been disciplined for making false statement.) In public, Bell had been downplaying all talk of racial unrest, suggesting that it was a figment of the national media.

In an interview yesterday with Ray Gronberg of the Herald-Sun, Bell claimed that he did not pressure police to make arrests and do so quickly: “I felt it was important to get some resolution relative to the investigation, but I didn’t ask them to forget about thoroughness in doing it.” It is not hard to believe, however, that police officers could have construed his remarks as pressure to make arrests quickly.

Reflecting in May 2006 on this and other late March/early April meetings, City Manager Baker asserted to the N&O, “I’ve had a lot of conversations with the investigators in this case and with officials at Duke, and at no time did anyone indicate [Crystal Mangum] changed her story. If that were true, I’m sure someone would have mentioned it to me.” In fact, Mangum never told the same story twice, and therefore changed her story each time she spoke to an officer. Baker has never explained his rationale for providing the public with false information.

On the same day, ironically, Baker and Bell gave WRAL a completely different version of events, admitting that they were told that at least one officer (presumably Sgt. Shelton) believed Mangum lied. Their reaction? Outrage at Shelton’s behavior, coupled with a request that Police Chief Chalmers investigate the information. Linwood Wilson would later assert that he conducted an internal affairs inquiry into Shelton’s conduct.

March 29: Nifong learned from the SBI lab that there were no matches to any lacrosse players. It is unclear when he and Officers Himan and Gottlieb communicated this information to Bell, Baker, and Chalmers. Baker subsequently told the N&O that Chalmers was exercising vigilant oversight: “I know he always has his Blackberry with him and he gets regular updates about the case.”

March 31: Fresh from his March 29 meeting, Himan, joined by Mark Gottlieb, heard Nifong’s demand to run a third lineup, this one violating city policies (confined to suspects; telling Mangum that it was confined to suspects; letting Gottlieb, someone involved in the inquiry, run the lineup). Senior officers in the DPD did not protest Nifong’s move.

March 31: Appearing on MSNBC, Nifong personally demonstrated the manner in which Mangum was “choked” during the “crime.”

March 31: Bell made a donation to Nifong's election campaign.

April 4: The procedurally improper lineup occurred, yielding the only evidence used to indict Reade Seligmann and Collin Finnerty. Among the other items from the array was Mangum’s recollection of seeing Brad Ross chatting with Kim Roberts outside the house. But Ross was in Raleigh that night—and his attorneys had provided police with unimpeachable evidence of the fact. Nifong and the police ignored the information of Mangum’s unreliability.

City Manager Baker later told the N&O, “I met with the investigators, and I am satisfied we followed every applicable policy.”

Later that spring, Chalmers, Nifong, and Deputy Police Chief Ron Hodge would meet with Baker: all would agree with him that no procedural problems existed with the lineup. Baker later rationalized that the lineup was proper because not all the lacrosse players were suspects on April 4: “That you’re a suspect in the beginning of an investigation for even one day doesn’t mean you’re going to be a suspect in a week or two weeks.” Neither he nor anyone else has ever explained which lacrosse players were not suspects as of 4-4-2006, or how police arrived at that conclusion.

April 5: At City Manager Baker’s request, Gottlieb presented him with a timeline of the investigation until that date. Baker said he wanted the timeline to keep the City Council informed of what occurred.

April 6: Baker withheld the document from the City Council at its regularly scheduled meeting. Yesterday, he told the N&O he did so “because his focus at the April 6, 2006 council meeting was the first seven to 10 days of the investigation.”

At the City Council meeting, according to H-S reporter Ray Gronberg’s article the following day, Baker “told the council the Police Department is following its standard procedures for investigating rape cases.” At this point, of course, Baker already had been informed, by his own admission, of the procedurally flawed lineup.

At the meeting, Council member Diane Catotti termed Mangum's allegations “both appalling and horrific.” Catotti later would go out of her way to frustrate any independent inquiry of the DPD's misconduct in the case.

April 10: Nifong, Gottlieb, and Himan met with Dr. Brian Meehan, who told them that not only were there no DNA matches to any lacrosse players, but that Mangum’s rape kit yielded matches to at least four unidentified males. This information was withheld from the public until December 15, 2006.

April 11: Hodge informed MSNBC that “I don’t think we would be here if it wasn’t (a strong case).” Hodge has never revealed the basis for his assertion.

The new elements in this timeline (in bold) came from just one document. Can you imagine what will spill out if the city is forced to enter into the discovery process in a civil suit? And what more evidence would federal investigators need of a conspiracy to deny civil rights?

Herald-Sun: Criminal Inquiry to Come?

The Herald-Sun is reporting that DA Hardin has requested that AG Roy Cooper open a criminal investigation into the conduct of Mike Nifong and perhaps others in the lacrosse case. Noelle Talley, Cooper's spokesperson, has confirmed the request, which applied to "anyone who acted "under the color of law enforcement"--possibly Nifong, police officers, Linwood Wilson, and (perhaps) Tara Levicy.

Nifong's one-day trip to jail on Friday, in short, could be a preview of things to come.

Charns Speaks Out

At John in Carolina, Durham attorney Alex Charns--among the first to home in on the extent of the DPD's misconduct--analyzed the city's legal vulnerabilities and reflected on what might have been.

He noted,

If DPD, for instance, had launched an Internal Affairs investigation of violations of its own procedures during the Apr 4 “no wrong choices” photo lineup with the accuser; and taken some steps to punish the officers involved, that would be evidence DPD and the city didn’t just stand by and do nothing when policies and procedures were violated.

The same would hold if city manager Patrick Baker had investigated, and there had been consequences for those who violated policies and procedures, as well as apologies to the students.

Instead of any of that, the city’s denied wrongdoing. By refusing to admit misconduct by some Durham officers and their supervisors, it’s put itself in just about the worst possible position it could be in today.

[The full interview is here.]

Chronicle On Target, Again

For those who missed it, a great editorial in today's Chronicle about the suspension of the Whichard Committee inquiry.

The conclusion:

Although financial liability concerns may prevent City Council from continuing its external investigation of the lacrosse case, too much is at stake and too many questions remain unanswered for City Council to relent in its pursuit of the truth.

At the very least, the DPD's investigation procedures need to be examined independently. To lay this issue to rest without further examination of DPD is to willingly obliterate our already uneasy faith in our city's police department.

Read the entire piece here.

Durham Statement

Here is the official statement from the City of Durham on the potential lawsuit:

The City of Durham’s Attorney’s Office has been contacted by phone by attorneys retained by the three players to represent them in a pending lawsuit. In a subsequent letter, the attorneys requested that the City retain all documents and communications that may have any relevance to the case. In response to that request, the City Attorney’s Office notified relevant personnel of the need to preserve any and all communications, which is standard procedure when there is a possibility of litigation.

As required when the City receives a claim or an actual legal complaint, the City notified its excess insurance carrier, the Insurance Company of the State of Pennsylvania. The City has since received written notification from the carrier confirming receipt of the notification of a claim stemming from the Duke Lacrosse investigation. In that communication, the excess carrier further reminded the City of its contractual duties to cooperate under the provisions of the policy, which would include not engaging in activities that might compromise a subsequent defense of an action against the City.

Based on that recommendation, the activities of the Committee to Investigate Durham Police Department in the Duke Lacrosse Case are in a “holding pattern” until after City Attorneys meet with the former lacrosse players’ attorneys on September 5. On September 6, City attorneys will provide a follow up briefing for city council members in a special closed session meeting.

Whichard Committee in Jeopardy?

ABC-11's Tamara Gibbs is reporting that a threat from the city's insurer to terminate the policy might lead to the suspension of the Whichard Committee, which was charged with investigating the DPD's mishandling of the lacrosse case.

Gibbs:

Sources tell Eyewitness News the insurance company, which would pay for a potential lawsuit settlement, threatened to suspend the city's policy if it didn't reconsider the Duke Lacrosse Investigative Committee. We're told the company sent its request by fax last Thursday. The city's policy would cover up to $5 million in the event of a lawsuit.

Of course, had the committee's inquiry not moved at such a glacial pace, this threat would be irrelevant.

Coleman: Durham Likely Will Settle

Yesterday’s Herald-Sun made public the two sides in the civil suits against Durham. On the one side: two of the nation’s most powerful attorneys, Williams & Connolly’s Brendan Sullivan and Barry Scheck of the Innocence Project. On the other: Durham’s city attorney, the appropriately named Henry Blinder, who certainly appears to have had blinders on as the Police Department ran roughshod over procedures last year. Durham has a $5 million insurance policy to cover liability from civil suits.

Reporter Ray Gronberg asked Jim Coleman to analyze the strength of the falsely accused students’ case: “Clearly, there was wrongdoing. The city needs to assess the extent of it, and decide whether it bears responsibility. My guess is it will conclude it does.”

The move, Coleman noted, came as no surprise: “That was the whole point of why this case was so extraordinary. These were not run-of-the-mill, poor, unconnected people. These are students who could command the very best lawyers in the country.”

Both Coleman and Duke Law professor Erwin Chemerinsky pointed to the city’s likely vulnerability under the Civil Rights Act of 1871, which allows people to sue in federal court over “the deprivation of any rights, privileges or immunities secured by the Constitution.”

Such suits are often confined to rogue police officers, but in this case the 2007 actions of key Durham officials are likely to prove very costly to the city’s long-term financial health. The city’s key area of vulnerability, Coleman noted, is the procedurally tainted April 4, 2006 lineup, in which ex-DA Nifong instructed the police to violate their own procedures and confine the lineup to suspects.

Coleman told Gronberg that the officers “had an independent obligation to handle this thing according to their own polices, and they've pretty much acknowledged they didn't do that. And, obviously, that had some pretty serious consequences. The students wouldn't have been indicted if they didn't run that flawed identification process.”

Indeed, given the decimation of Brian Meehan’s findings in the December 15 hearing, it’s now evident that the results of the flawed ID process constituted the only evidence used to indict the three specific people ultimately targeted.

In the last four months, in depositions before the State Bar and in a public report, the decision to override procedures has been justified, on the record, by:

• City Manager Patrick Baker
• Police Chief Steve Chalmers
• Lt. Mike Ripberger
• Sgt. Mark Gottlieb

In short, the Baker/Chalmers/Ripberger/Gottlieb quartet have made the students’ case for them, by affirming that the decision to override procedures was not the result of a rogue act but instead a calculated decision that the entire leadership of the Police Department backed, either at the time or subsequently. Perhaps Blinder should have taken off his blinders before allowing the quartet to make such statements on the record.

According to Gronberg, “Coleman added that the city could also be liable for false statements impugning the players that police made knowing they were ‘wrong or they were reckless.’”

This claim would seem to place in the crosshairs Cpl. David Addison, who dominated the local media last March with a string of demonstrably false statements about the players’ actions and the evidence in the case.

• “You are looking at one victim brutally raped. If that was someone else’s daughter, child, I don’t think 46 (tests) would be a large enough number to figure out exactly who did it.” (WRAL, March 24)

• “Addison said police approached the lacrosse team with the five-page search warrant on March 16, but that all of the members refused to cooperate with the investigation.” (Herald-Sun, March 25)

• “We’re asking someone from the lacrosse team to step forward . . . We will be relentless in finding out who committed this crime.” (N&O, March 25)

• “Addison said police can’t force samples from anyone they believe to be implicated in a crime. But he said that, in this situation, there was ‘really, really strong physical evidence.’” (Herald-Sun, March 25)

• “We’re not saying that all 46 were involved. But we do know that some of the players inside that house on that evening knew what transpired and we need them to come forward.” (ABC, March 26)

• “Although we have received many calls expressing concerns and anger about this incident, we have not received any calls which will allow us to assist in resolving this case. We are extending our plea for information and help to our Duke family, who are also part of our community.” (WRAL, March 28)

Addison and the DPD have repeatedly refused public comment on why the corporal chose to go public with false or misleading statements.

The bottom line: Durham has no case.

Whichard Committee Update

The N&O's Matt Dees reports that "it likely will be several weeks if not more before the panel appointed to scrutinize the police department's handling of the Duke lacrosse case will meet again."

The committee's counsel, Wade Barber, told Dees that he is still going through the case file; Mayor Bill Bell observed, "We said from the start we didn't want to sacrifice speed for thoroughness . . . I don't want anybody to rush to judgment to try to meet some artificial time table we really don't have."

The delay, of course, eliminates any excuse the committee might have for not being thorough in its conclusions.

Liddicott: No Comment

Yesterday, I e-mailed the Broward County Sheriff’s Office media division with two questions for Chief Roy Liddicott. I asked,

That report stated that the DPD had received “undue criticism” for its handling of the lacrosse investigation, and suggested that the Attorney General’s report was “expected to validate the police department’s involvement and speak favorable of its actions.” Now that the report has appeared, does Chief Liddicott see the document as “validating” the DPD’s actions?

Also, did the Chief believe that the notetaking approach outlined by DPD Sgt. Mark Gottlieb—keeping contemporaneous notes on a dry-eraser board, which were accidentally erased—is reflective of “ a credit to our profession and a definite asset to the City of Durham,” as his report described the DPD?

The Media Relations Division has just replied: “On behalf of Chief Liddicott, we respectfully decline your request for an interview.”

It seems as if Chief Liddicott isn’t too eager to stand behind his work.

"A Credit to Our Profession"

Any effective whitewash requires a large amount of white paint—which the CALEA reaccreditation report for the Durham Police Department has provided in abundance.

A three-person team led by Chief Roy Liddicott, who oversees the force at the Fort Lauderdale-Hollywood International Airport, produced a report that sometimes read as if written by the Durham Visitors’ Bureau. Portraying the DPD as an innocent victim of the lacrosse case, the accreditors concluded that the department “is a credit to our profession and a definite asset to the City of Durham.”

The report did note that the department “recently took some undue criticism for the Duke Lacrosse team rape investigation outcome.” [emphasis added] How, exactly, did the CALEA team reach this conclusion? Remarkably, Liddicott and his colleagues cited the Attorney General’s report, which laid out how the DPD had a role in obtaining charges for a crime that never occurred against three demonstrably innocent people. According to the CALEA staff, however, this report was “expected to validate the police department’s involvement and speak favorable [sic] of its actions.”

Steve Mitchell, the CALEA program manager for the Durham team, informed me that the accreditors did, in fact, read the Attorney General’s final report, despite the awkward wording of the clause quoted above. (Mitchell added that the CALEA accreditors did not read any of the depositions produced during the Nifong disciplinary hearing, even though those depositions were available before the report was made public.) Chief Liddicott did not respond to a request asking how he concluded that Cooper’s report validated the DPD’s performance.

Both CALEA and DPD representatives conceded that the department’s image had suffered some blows over the past 16 months. Who was to blame for this development? The media(!). (If only all reporters could be as gullible as Herald-Sun editor Bob Ashley . . . ) According to the report, the DPD “does everything it can to encourage good relations with the local media.”

As Liddicott, et al., explained,

The Durham Police Department also has a full time public relations manager (Ms. Kim Walker) who also assists with the media events from time to time. Ms. Walker was interviewed and she also mentioned the spotty relationship with the local media much of which she blames on the fall-out from the Duke Lacrosse Team rape case. The media is of the opinion that the agency has withheld information from them about this investigation, which is not accurate as they (Durham P.D.) are restricted from releasing certain information until the Attorney General releases its investigative report. Ms. Walker feels that when the agency is permitted to speak candidly about the case that its relationship with the media should improve drastically.

On April 27, the day after the AG’s office released its report, the N&O ran a highly critical—but also on-target—editorial about the DPD’s performance in the lacrosse case. The department’s response? Said spokesperson Kammie Michael, “The Police Department has no comment.” Apparently the DPD wasn’t too eager to “speak candidly about the case” after all.

What information was the DPD “restricted from releasing” before the AG’s report appeared? These items, alas, remain a mystery.

Other portions of the report seemed closer to fiction than a candid assessment of the police force everyone has seen in action over the past 17 months.

• “There was significant improvement in file maintenance during this assessment. It is quite evident that the principles of accreditation have become an agency culture and how they do business.”

This, about a department that, in the highest-profile case in its history, featured a sergeant who claimed to have kept contemporaneous notes on a dry-eraser board that he didn’t realize was being erased.

• “They are working hard to reestablish their standing in the community and are making great strides.”

This, about a department that, when given the opportunity to take a hard look at its performance in the case, instead produced the Baker/Chalmers report—which was so transparently a whitewash that it generated outraged reaction from every member but one of the City Council.

• “Their property and evidence control function is one of the best this team has seen and should be held up as a model for other agencies.”

This, about a department that “accidentally” destroyed incident tapes that defense attorneys had requested be preserved.

• “The agency is providing an exceptional level of service in all areas of law enforcement. They are staffed with totally professional individuals that are 100 percent committed to the mission of the agency and to doing their best for improving the quality of life for all residents of and visitors to Durham.”

This, about a department that admits to a “separate-but-equal” justice system in which some “visitors to Durham”—namely, Duke students—are punished differently for the same offenses than are full-time Durham residents.

• “The Durham Police Department is very committed to the ideals and principles related to Bias Based Profiling and as such, train all its personnel on this topic. They provided their lesson plan and a sign in sheet in the files as additional proof. They teach this at their recruit academy as well as during annual in-service training for existing officers.”

This, about a department one of whose officers (Gottlieb) told a Duke student and U.S. citizen of Serbian heritage, “Do you need to speak to your consulate? We can deport you.”

• “The Durham Police Department is committed to an ongoing and transparent relationship with the community.”

This, about a department whose acting public spokesperson, Cpl. David Addison, made repeated, false statements of fact to the community in March 2006, and then issued an inflammatory, guilt-presuming “Crimestoppers” announcement—actions that the department has refused to explain, despite repeated requests that it do so.

• “The Durham Police Department produces several in depth and detailed organizational charts annually, or as needed. These charts clearly delineate lines of authority and responsibilities. Chief Chalmers spoke during the compliance panel reviews about the agency’s policy as it relates to the description of the organization and the corresponding organizational charts. All the functions within the department are described as to what they do, whom they report to and what their goals are. All unity of command issues were clearly articulated.”

This, about a department that ceded authority eight days into an investigation to the district attorney, an action that violated each of these “detailed organizational charts.”

That decision, however, appears not to have troubled the Liddicott accrediting team. The report blandly noted that “the Durham Police Department works closely with the prosecuting attorney and keeps victims informed of the status of their cases.”

When asked about Nifong’s ordering the police to produce a lineup that violated their own procedures—and the police following the order—Liddicott “explained how a police department anywhere has a relationship with its prosecuting attorney’s office and they work together.” The department’s using this rigged lineup, according to Liddicott, did not reflect “negatively on the agency’s ability to meet the standards of accreditation.”

How reassuring.

What did concern the accrediting team? Liddicott, et al., pointed out that “all officers are required to utilize seat belts while driving any police vehicle.”

They also rejoiced at how Durham, once known as the Bull City, “is now known as the ‘City of Medicine.’” They gushed that “CEO” Steven Chalmers had more than 30 years on the force, “with his true passion being Community Oriented Policing.” They reported that (unnamed) people from other local police forces called in to give such comments as, “I totally support their efforts”, “I recommend they be reaccredited”, “Top notch agency that works under difficult circumstances and does an outstanding job”, and “They have been through a lot and deserve a lot of praise.”

---------

As virtually every defense attorney involved in the lacrosse case has noted, the DPD has many good officers--people who do their best under difficult conditions, uphold standard procedures, and attempt to treat all fairly. By asserting that the DPD is staffed by “totally professional individuals that are 100 percent committed to the mission of the agency,” Liddicott and his colleagues tarred all of the force’s good officers with the brush of Gottlieb, Addison, and (the perpetually absent) Chalmers.

“After the exit interview,” Liddicott wrote, “the team was driven to the Raleigh/Durham International Airport by Sgt. Shelton for our departing flights.” Liddicott didn’t say whether the team chatted with Shelton about how Linwood Wilson investigated him after the sergeant, despite peer pressure, held to his—correct—opinion that Crystal Mangum was a liar.

But we can be sure that Shelton was wearing his seat belt.

The Gottlieb Files

Last week brought unusual news from the Whichard Committee: not only has the second meeting of the committee not yet been scheduled, but City Manager Patrick Baker said he didn’t even know if Sgt. Mark Gottlieb would testify.

Given Gottlieb’s performance in this case, anything less than a full-scale, public questioning of the sergeant would render the committee useless.

Gottlieb, it’s worth remembering, entered this case with a disturbing record of having arrested ten times as many Duke students, all for trivial offenses, as the other three District Two supervisors combined in the months before the lacrosse party. More problematic, several students leveled credible allegations of misconduct—ranging from lying on the stand to excessive use of force to discrimination based on ethnicity.

Despite this behavior, no evidence exists that the DPD took disciplinary action against Gottlieb. Indeed, in a September 2006 interview, Capt. Ed Sarvis stated that Gottlieb was following official DPD policy—implicitly suggesting that the department wanted more officers like the rogue sergeant, at least in dealings with Duke students.

Gottlieb, as we all know, claimed to have retained no contemporaneous notes; in his Bar deposition, he stated that he had “a dry-erase board” in his office, and “was under the impression that [Ben Himan] was taking photographs of the board, and when we finished that we would clear it. That wasn’t done.”

In July 2006, he nonetheless produced a 33-page, typewritten memorandum, which described in minute detail conversations from months before. In his deposition, he admitted that he wrote most of this memorandum in early July, just before its submission.

There are only two logical explanations for the “dry-board/straight-from-memory” notetaking style:

1.) Gottlieb is stunningly incompetent.

2.) The Gottlieb memorandum attempted to obstruct justice by manufacturing inculpatory evidence.

The second explanation seems to be the far likelier one. The “straight-from-memory” memorandum contradicted other material in the discovery file on at least eleven occasions. The memorandum contradicted the handwritten or typed notes of Officer Himan. Of Officer Soucie. Of Officer Reid. Of the UNC doctors.

Each and every one of these contradictions produced a version of events more favorable to Mike Nifong’s case.

The current DPD strategy is to “blame Nifong.” But Mike Nifong didn’t order Mark Gottlieb to produce the “straight-from-memory” memorandum. That document was all Gottlieb’s work.

To review the sergeant’s performance over some key dates of the investigation:

March 16, 2006: Gottlieb and Himan interviewed Crystal Mangum at her home; other officers showed her a photo array, using lacrosse players not named Matt, Adam, or Brett as fillers. Still another officer, R.A. Reid, photographed Mangum.

1.) Himan’s handwritten notes, produced on the spot and thus well before any indictments, had Mangum describing one attacker as a “white male, short, red cheeks fluffy hair chubby face, brn”; a second as “heavy set short haircut 260-270”; and the third as “chubby.” None of these descriptions even remotely resembled Collin Finnerty; and could have resembled Reade Seligmann only if Mangum had Seligmann weighing 50 pounds more than he did.

On the other hand, Gottlieb’s memorandum, produced well after indictments, recalled Mangum giving dead-on descriptions of the three accused players—descriptions that were very close to the three players’ profiles from the Duke lacrosse website.

2.) Himan’s notes made no mention of Mangum claiming the players robbed her—indeed, Mangum had consistently claimed in the initial days after the party that Kim Roberts had robbed her.

On the other hand, Gottlieb’s memorandum, produced well after indictments, recalled Mangum claiming that “after the men raped her, one of the men took her purse from her.”

3.) Himan’s notes portrayed Roberts as a conspirator in the rape, since Mangum “stated that Adam dragged her to the car and wiped her off with Nicki.”

On the other hand, Gottlieb’s memorandum, produced well after indictments and a time when Roberts was viewed as a fellow “victim,” made no mention of this claim. The sergeant did, however, recall Mangum denying that she had much to drink that evening, and claiming “I was screaming so loud” as she was choked during the “attack.” Himan’s contemporaneous notes had no such recollections. Gottlieb’s item, of course, was produced after Nifong had gone on national TV to demonstrate the chokehold.

4.) In the photos from this session, Officer Reid reported that Mangum had only a cut heel, a cut toe and bandages on both knees.

On the other hand, Gottlieb’s memorandum, produced well after indictments, claimed that “Reid stated she had the onset of new bruises present” on her face and neck.

March 23, 2006: The 46 white lacrosse players arrived at the Durham Police Department station for the photo and DNA session mandated by the non-testimonial order. Gottlieb told several players, by name, how different they looked from their Duke website photographs. In his deposition for the Bar, however, he claimed that he couldn’t recognize any of the players, except the captains, as of early April. And in his “straight-from-memory” memorandum, he made the almost comical assertion that he devoted himself on this day to ensuring that the players were comfortable and shielded from the media.

March 27, 2006: Gottlieb and Himan met with Nifong for the first time, to discuss the case. Though the inquiry was eleven days old, the police hadn’t checked into Mangum’s background, to see whether she had filed a rape claim previously. (They never would conduct such a check.) Nor had they taken an official statement from her. Nor had they asked her about the discrepancies between her claims and Kim Roberts’ official statement, which was given on March 22.

March 31, 2006: Gottlieb and Himan met with Nifong to set up the flawed April 4 lineup. According to Gottlieb’s memorandum, “Mr. Nifong suggested . . . we were under the impression the players at the party were members of the Duke Lacrosse Team.” Even though the police had learned on March 28 the names of the two non-lacrosse players at the party, Gottlieb didn’t inform the DA of this fact.

April 4, 2006: In violation of the DPD’s General Order 4077, Gottlieb, the officer supervising the investigation, ran the suspects-only lineup. Even though Mangum claimed that photos 4 and 5 both looked like one of her attackers, Gottlieb asked different follow-up questions regarding the two identifications. (The ID of Dave Evans received much more detailed questions.) Though he subsequently claimed that the session was intended only to have Mangum identify witnesses (or to determine if she was on ecstasy the night of the party), Gottlieb wrote that he taped the session so a “jury” could subsequently see it.

April 5, 2006: All officers involved the investigation met. According to Officer Soucie’s notes, they decided on items to be done before any arrests were made, including interviewing Devon Sherwood and interviewing Mangum’s two “drivers.” (No one in the DPD seems to have found it at all unusual than an unemployed woman without a college degree had two private drivers.) Despite the decision to do so, the police never interviewed Sherwood; their interviews with the “drivers” yielded material harmful to the case. Gottlieb’s memorandum contained no mention of this meeting, a remarkable omission given his ability to remember intricate details of an interview with Crystal Mangum that had occurred 20 days previously.

April 6, 2006: Mangum finally gave her official statement, in which she asserted (for the first time) that three other lacrosse players dragged Roberts away from the door at the start of the “attack.” Even though the official version now had Roberts as a witness to the start of the “crime,” Gottlieb made no effort to re-interview Roberts before seeking indictments.

Early April 2006: The DPD received the medical file from UNC, which recorded Mangum saying that she was “drunk” and “felt no pain” on the night of the “attack”—even though SANE nurse-in-training Tara Levicy had based much of her analysis on her belief that Mangum supposedly was in pain and was not drunk. Mangum also claimed to have been hit in the face and pushed backwards into the sink, on which she hit her head, details that didn’t appear in her March 14, March 16, or April 6 versions of events.

When asked about these discrepancies in his Bar deposition, which occurred in spring 2007, Gottlieb—astonishingly—replied, “This is not a report that I have had time to review.”

April 10, 2006: Gottlieb joined Nifong and Himan in the first meeting with Dr. Brian Meehan, in which Meehan told them that while no matches to the lacrosse players’ DNA existed, there were matches to unidentified males. With the exception of Mangum’s “boyfriend,” the DPD never learned the identity of these males.

April 17, 2006: Gottlieb testified before the grand jury that indicted Seligmann and Finnerty. In his Bar deposition, Gottlieb said that he told the grand jury that “as soon as Nurse Levicy was able to calm her down, which didn’t take long at all, she never changed her story from that point.”

In fact, as the chart below shows, Mangum told Durham law enforcement three stories in which she had different people doing different things to her; different numbers of people doing different things to her; and, actually, different things being done to her.

. . . . . . . . . . . Oral . . . . . Anal . . . . . . Vaginal . . . . . Married

Matt . . . . . . . .X . . . . . . . YZ . . . . . . . XZ . . . . . . . . X

Brett . . . . . . . . - . . . . . . .YZ . . . . . . . .YZ

Adam. . . . . . . XY . . . . . . .X . . . . . . . . .- . . . . . . . . . .Z

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 Himan on March 16, 2006; a red Z corresponds to the story that Mangum provided in her April 6, 2006 official statement.

In making its indictments, therefore, the grand jury relied on Gottlieb’s false assertion that—despite transforming Kim Roberts from a criminal to a fellow victim, and despite alleging that different people did different things to her, and despite sometimes claiming to be drunk and sometimes not, and despite changing her mind on whether first-name aliases were used—Mangum “never changed her story” between the time she first encountered Tara Levicy to the time that Gottlieb spoke to the grand jury.

April 21, 2006: Gottlieb joined Nifong and Himan in their second meeting with Dr. Meehan, who told them that the DNA of Dave Evans—and two percent of the male population of the United States—couldn’t be excluded as among the mixture on Mangum’s false fingernails, which were found in Evans’ trashcan. In his Bar deposition, however, Gottlieb recalled Meehan stating that the odds of the fingernail DNA not being Dave Evans’ were “one in 900-some trillion.” He gave no evidence of having read the Meehan May 12 report, which would have cleared up his misconception.

April 27, 2006, 3.38pm and 3.54pm: According to Gottlieb’s sworn statement to the Bar, this 17-minute period represented the only time in the entire investigation in which he kept contemporaneous, handwritten notes. The item recorded: an unsuccessful search for labs that might test Mangum’s hair.

That’s the Gottlieb record in the case:

• Misrepresenting facts to the grand jury;
• Producing a “straight-from-memory” memorandum that appeared designed not to record the truth about the investigation but to fill holes in the prosecution’s case;
• Failing to investigate obvious items that might contradict one or all of Mangum’s stories;
• Violating standard police procedure in not keeping contemporaneous notes.

Sgt. Gottlieb remains on the beat in Durham. No record exists of any disciplinary action having been taken against him.

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.

The Defense Thirteen

The 13 issues identified by the defense attorneys as worth exploring for the Whichard Committee:

1. Who's in Charge?

2. Sergeant Shelton

3. Moez Elmostafa

4. The DPD Public Statements

5. Sergeant Gottlieb's Supplemental Case Notes

6. The DNA

7. The Search Warrant Affidavit

8. Jason Bissey

9. When Did They Plan and Cover-up

10. The False Accuser's Weekend

11, Her Work Schedule

12. Was She Drunk?

13. The "Identification" Process

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.

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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.

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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.

	Oral	Anal	Vaginal	Married
Matt	X	YZ	XZ	X
Brett		YZ	YZ
Adam	XY	X		Z

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.

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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.

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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.

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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.

Question Session

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.

More from Cheshire

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.