N&O Calls For Accounting of DPD Lapses

In an editorial today, the News & Observer shines the spotlight onto the Durham Police Department's role in the Nifong/Mangum Hoax. Questioning the role of the DPD in enabling the Hoax, the N&O demands a voluntary accounting of the department's professional lapses by Chief Steve Chalmers. While the N&O fails to cite the DPD/Crimestoppers "horrific crime" flyer, the DPD's false public statements that fueled the 911 Hoax, and the Wall of Silence Hoax, the editorial does question the corrupt lineup lottery, Sgt. Mark Gottlieb's homegrown notes, and the department's acquiescence to Nifong's "pressures."

Just the facts

Obscured in the hubbub following the dropped charges in the Duke lacrosse case has been the disappointing role played by the Durham Police Department. The department's own procedures were swept off the table by a district attorney determined to prosecute what seemed to be a shaky case from the start.

Because the alleged incident occurred during a party off campus, in a house rented by members of the team, officers with the Durham police, not Duke University's own police force, investigated after exotic dancer Crystal Gail Mangum claimed she had been raped by three Duke lacrosse players. Early in the investigation the department followed a suggestion by the DA, Mike Nifong, to abandon its photo identification policy.

The policy requires five "filler" photos -- of people not linked with the case -- for each photo of a suspect. Nifong said Mangum should be asked to identify the attackers from 46 photos that included only members of the lacrosse team.

As The N&O's Joseph Neff reported recently in his thorough retrospective on the case, a detective discussed the unusual lineup procedure with his supervisors. Inexcusably, no one objected. The policy also says that an officer unconnected to a case should conduct photo lineups, to avoid the risk of an officer familiar with a suspect influencing which photo is fingered. But Sgt. Mark D. Gottlieb, lead investigator in the Duke case, presented the photos to Mangum.

Separately, The New York Times reported last year that Gottlieb acknowledged taking few handwritten notes for what is considered a critical part of a criminal investigation, the so-called chronological report. Instead, he relied mostly on his memory and other officers' notes.

Nifong at a later point took over leadership of the investigation from the Durham police. By necessity, the police department and district attorney's office work together on criminal cases. But each has its distinct mission, and must hew to it if justice is to be properly pursued. It's possible that department brass felt, accurately, that the case was a political hot potato. But they shouldn't have let the DA's office do the department's job.

Had Durham officers insisted on following well-established policies, and resisted Nifong's pressures, the case might have been shortcircuited and the ordeal might not have dragged on as long as it did. As it is, Nifong is having to defend his own performance in disciplinary proceedings before the State Bar, and his law license is at risk.

With state Attorney General Roy Cooper deciding that all remaining charges against the three athletes should be dropped (Nifong himself had dismissed charges of rape after first obtaining indictments), the spotlight has been on Nifong's mishandling of the case. But the police department bears some of the blame. Chief Steve Chalmers now should offer an accounting of his department's professional lapses; explain what, if any, discipline has been meted out; and detail what safeguards have been put in place to keep such lapses from occurring again. If Chalmers balks, his bosses, City Manager Patrick Baker and the City Council, should insist.

To date, DPD Chief Chalmers has been nearly entirely silent on the department's complicity in the Nifong/Mangum Hoax. In July, however, Chalmers did suggest, in a rare public sighting, that certain, unspecified issues had been addressed internally. Despite his suggestion, Chalmers, at the time, refused to elaborate while expressing a duty to protect the "integrity" of the investigation and promising to provide "evidence" to "bring about a conviction."

"Everything that we've seen written in the papers and heard, certainly we've addressed that internally, and we're prepared to address it in court," he said.

The chief says that he anticipated criticism would come with the high-profile case.

"The main thing that we're trying to do is protect the integrity of the investigation, to present a case that is not biased or has not been compromised," Chalmers said. "Our responsibility is to investigate the case, to protect the integrity of the case, and when the time comes, provide the evidence that we've gathered in a court of law to bring about a conviction." WTVD

While it remains unclear how one protects the integrity of a law enforcement Hoax, we look forward to Chief Chalmers response to the News & Observer. Hopefully, it will exceed his July response to a similar suggestion:

"And I didn't think that that could be done, by actually discussing going tit-for-tat with the media." WTVD

While an internal accounting of DPD's role in the Hoax has merit, other's have asked for an outside investigation into possible criminal conduct within the department. The most recent demand for an external investigation came from attorney Michael Cornacchia in a letter to Governor Mike Easley and Attorney General Roy Cooper. Cornacchia wrote:

It has been said that the institution of ethics charges against Mr. Nifong is sufficient to address the situation. This is not so. This forum only will determine if the codes governing the conduct of attorneys, generally, and district attorneys, specifically, have been broken by only Mr. Nifong. It will not, and cannot, address the conduct of the members of Mr. Nifong's office, the officers of the Durham Police Department and others such as Mr. Meehan.

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The third request is that a special prosecutor be appointed, either an attorney in private practice of the highest caliber and integrity, or members of General Cooper's Special Prosecution Unit who demonstrated their professionalism so well in their recent investigation, Once appointed, a special prosecutor can seek court approval for the convening of an "investigative grand jury" pursuant to NCGS Section 15-623, There is ample predicate for this. After all, General Cooper has found that Mr. Nifong and the Durham Police Department arrested and prosecuted three innocent, young men for crimes that did not occur. With the impaneling of such a grand jury, a special prosecutor can subpoena witnesses and documents and conduct an investigation under grand jury secrecy to determine whether there have violations of criminal statues including, but not limited to, possible violations of North Carolina's official "misbehavior in office" statutes (NCGS Sections 14-230 and 23 i) and false reports to law enforcement agencies ( NCGS Section 14-225). Those whose roles must be examined include Mr. Nifong, the Chief investigator for his office, Lindell Wilson, Sergeant Mark Gottlieb, Investigators Benjamin Himan and Michele Soucci, their Durham Police Department commanding officers and Brian Meehan of the DNA Security Lab who admitted, under oath, that he agreed with Mr. Nifong to withhold what Mr. Meehan knew to be exculpatory evidence and submit a false DNA report.

At the recent State Bar hearing on Defendant Nifong's failed motion to dismiss, the State Bar also noted interest in learning more about the Durham Police Department's role in the Hoax. At the hearing, DHC Chair F. Lane Williamson noted:

And then, suffusing all of that is, what was his intent, which of course, we can only draw from the circumstances. As you know, you can't usually have direct evidence of intent. But, you know, that's going to be an issue. So we're going to need to hear, of course, from Mr. Nifong. We're going to need to hear, I assume, from Dr. Meehan and we're going to need to hear from, I believe it was, members of the Durham Police Department that were in meetings there, and whoever else may shed light on those issues.