Detectives conducted the key photo session with the accuser in the Duke lacrosse case with an eye firmly on how it would play in court, according to one description, despite recent assertions by city officials that they weren't expecting her to identify suspects.
The case's supervising investigator, Durham Police Department Sgt. Mark Gottlieb, reported that he and other authorities staged and videotaped the April 4, 2006, session in a way that, in his words, would allow "potential jurors, defense attorneys, prosecutors and other judicial officials" to see for themselves how it unfolded.
The mere fact that Gottlieb had it videotaped made it different from the two failed and unrecorded ID sessions another officer, Investigator Richard Clayton, had conducted with the accuser previously, Brad Bannon, one of the lawyers who represented Evans, said Tuesday.
"It was videotaped for presentation in court," Bannon said. "It's ludicrous on 10 different levels that they're saying it wasn't to identify people."
Gottlieb's summary, along with a separate set of notes from lead investigator Ben Himan, showed that police went to unusual lengths to prepare for the April 4 photo session.
Gottlieb told his immediate commanders, Lt. Mark Ripberger and Capt. Jeff Lamb, that the plan was in the works, and both investigators sought help from colleagues with the crucial PowerPoint presentation. …Gottlieb's photo session with the accuser supplied most, if not all, of the evidence police and Nifong used to indict the three players.
The reports from Gottlieb and Himan show that the plan emerged during the final week of March 2006, as the case was gaining notoriety following media reports about the department's successful attempt the week before to gather fresh photos and DNA samples from 46 of the team's 47 players.
The detectives met with Nifong on March 29 and again on March 31. In the first meeting, the district attorney asked them to contact members of the lacrosse team to see if they'd talk. In the second, according to Gottlieb, he suggested assembling the photos taken the week before and showing them to the accuser "to see if she recalled seeing the individuals at the party.
Gottlieb said he reported the [sic] Nifong's suggestion to Lamb and Ripberger on March 31, and had Himan and Investigator Shanda Williams start working on the PowerPoint. Himan finished the job on April 3, the following Monday, after having Clayton and another investigator, Michele Soucie, review the presentation. The next day, Gottlieb had an office assistant, Van Clinton, look over the presentation again, and then had Clayton and two crime-scene technicians, Angela Ashby and Heather Maddry, help him show it to the accuser.
Once the photo session started, Ashby ran the video camera, which was set up to record both the accuser and the screen of the laptop computer displaying the PowerPoint. Gottlieb set up a separate monitor for the accuser. Clayton took notes and Maddry timed the presentation.
As stated in the report, it was the primary intent of the investigator at the time the photographs were shown to the witness to have her identify which of the individuals she recalls being at the party rather than to identify her alleged attackers. This decision to attempt to identify witnesses rather than suspects was driven primarily by the fact that the witness had failed to identify her attackers in six previous suspect identification processes which were governed by G.O. 4077. For the stated purpose of obtaining her recollection of the individuals at the party who could be of assistance in the investigation, this process was well suited to achieve that goal. The process however was not well suited for suspect identification primarily due to the fact that it was not conducted with the safeguards provided for in the policy. The identification of her alleged attackers in a process not designed or intended to produce such a result created a significant evidentiary quandary for the prosecutor. Regardless of the intent or expectations of the investigator, the resulting April 4 suspect identifications were procured through a process that would significantly reduce the likelihood that they could have survived the defense motions to suppress
their admission into evidence at trial. This issue is magnified substantially given the fact that these photo identifications appear to the strongest incriminating evidence against these young men. It is not lost on the Police Department that regardless of our intentions, the April 4 photo process created the opportunity for the false allegations to be specifically linked to Evans, Seligmann and Finnerty and further played a critical role in the decision by the Durham District Attorney to seek and ultimately obtain indictments of these individuals. Given the ultimate use of the results of showing the witness those pictures on that day, we regret the inadvertent creation of the opportunity to perpetuate false charges against these individuals. Nevertheless, I do not concur with the assertion that the investigators went into the April 4 photo process with the intention, either on their own initiative or at the direction of the District Attorney, to violate G.O. 4077 by inducing the witness to identify her alleged attackers through a less reliable process.
On March 31, 2006, Investigator Himan and his immediate supervisor, Sgt. Mark Gottlieb, met with District Attorney Nifong to update him on the case. During the meeting, investigators inquired as to what, if any, use could be made of the new photographs that were taken as a result of the non-testimonial identification order. The District Attorney suggested showing Mangum all of the photographs in order to see if she could provide any additional information or details about the night in question. Investigators hoped that this would develop some leads, such as potential witnesses, for them since those initially developed in the case were becoming exhausted. In addition, investigators had been unable to determine whether Mangum was impaired on the nightof her alleged attack and, if so, by what substance. Certain date rape drugs, such as Rohypnol and GHB, often result in amnesia of the victim but other substances, such as ecstasy and alcohol, typically do not. If the victim had some recollection of any of the individuals in the photographs, then this could help establish that she was not impaired by a memory altering substance which would then assist in gauging the reliability of Mangum’s allegations.
On April 4, 2006, Sgt. Gottlieb, assisted by another officer and two crime scene investigators, showed Mangum the recently acquired team photographs. In the process of describing her recollection of persons and events at the party, she began identifying certain individuals as potentially her attackers. Officers did not intend, nor were they expecting, Mangum to positively identify her alleged attackers during this process, particularly since she had not done so in any of the earlier photo arrays which contained the individuals she had identified by name or which had been placed at the party and closely associated with its arrangements. Had it been the expectation of investigators that use of the photos in this manner would have resulted in Mangum identifying a suspect, officers would have believed that General Order 4077, “Eyewitness Identification” was applicable and would have acted in accordance with it. Faced with this turn of events, theinvestigator decided to note Mangum’s comments and proceed to show her the remainder of the photographs. Abruptly stopping the observations after such comments could have been construed by the witness as confirmation that she had selected the “right” individuals and could arguably taint either these, or future, identifications.
Cosby: “In just a moment, we’re going to hear from her father in his first national television interview. We’ll be breaking some big and some surprising news in that interview that may bolster the woman’s claims…And the father of the alleged victim in this case speaks out in his first national television interview. He does not want his face to be shown in order to protect the identity of his daughter. He told me what she says happened the night she was allegedly raped. And some big news. For the first time, we’re learning that the woman, his daughter, says she was able to immediately identify three boys in photos supplied by authorities.”
Cosby: Would she be able to ID them?
Travis Mangum: She said she did. She ID’d them to the (INAUDIBLE)
Cosby: Was she able to ID all three?
Travis Mangum: Yes.
Travis Mangum: Yes.
Cosby: No doubt in her mind it was those three?
Travis Mangum: No doubt in her mind (INAUDIBLE)
Cosby: And why is she sure that those are the three?
Travis Mangum: Well, she said she’d know their face.
On March 27, Durham County Defendant-in-Chief Mike Nifong asked the NC State Bureau of Investigation to rush the testing of the 46 Duke lacrosse players' DNA samples taken after Judge Ronald Stephens, "duped” by the factually inaccurate affidavit of Assistant District Attorney David Saacks, granted a non-testimonial order. NC Department of Justice spokeswoman Noelle “The investigation isn’t over” Talley quickly announced that the SBI would eagerly comply. On March 27 and into March 28, Nifong assured the public that DNA evidence would identify the “hooligans.”
"March 27-28: In his first public comments on the matter, Nifong repeatedly expressed confidence—in interviews with MSNBC and with North Carolina stations WRAL and NBC-17—that the DNA evidence produced by the court order would solve the case." Durham-in-Wonderland: What Did Nifong Know, and When Did he Know It?.
At some point on March 28, Defendant Nifong would be informed of the first results from the eagerly expedited DNA tests. There was no semen, blood, or saliva detected by the SBI lab.
"On March 28, 2006, the SBI lab examined the items from the rape kit and was unable to find any semen, blood, or saliva on any of those items." NC State Bar
"March 28, Nifong got DNA test results." Stuart Taylor
Given the findings, Nifong did an immediate and bizarre about face. DNA, which Nifong's office had promised would "immediately rule out the innocent," went from being definitive evidence to totally irrelevant. Later that evening, Nifong would begin his “How does DNA exonerate you?” campaign with two live, nationally broadcast interviews that signaled the start of his continuing effort to downplay the importance of the once urgent DNA testing.
ABRAMS: I assume based on the fact that you requested DNA from 46 of the 47 members of the team that there is DNA evidence that was found that's relevant to the case.
NIFONG: We hope that there will be DNA evidence that will be relevant to the case. We cannot know that for certain until all of the evidence has been tested. MSNBC
COSBY: You know, you say three men. I know that you‘ve gotten DNA for what, more than 40 members of the lacrosse team. Why is that critical? What are you trying to hone in on?
NIFONG: Well, if there is DNA evidence within the victim, then this will enable us to definitely establish who the perpetrators of the offense were. At this point, of course, we don‘t know whether or not there is DNA available to test, but if that is found, then we have—by taking samples from all the members of the lacrosse team who fit profile, we will be able to determine which of those players was the person or which ones of those players were the people who committed the assault. MSNBC
Joe Neff's second installment of the News & Observer’s five part series on the Nifong/Mangum Hoax indicates that, contrary to Nifong’s repeated assertions to the Court, he did claim to have spoken with the false accuser prior to bringing indictments and more importantly, prior to her identification of four “attackers” at the corrupt April 4 identification lottery.
“[Defense Attorney Bill] Thomas said Nifong wouldn't listen: "He said that he had personally interviewed her and had spoke with her at length about this case, and that he fully believed every word she said about this incident, and that he knew a lot more about this case than I did, and that e was going to proceed as he saw fit."
“Nifong was smug and self-assured, Thomas said: "I had 27 years of experience with him, and he was looking me in the eye. He said he had interviewed her, he discussed the details of the case, he believed her and that my view of her as perhaps being a call girl working for an escort service, running around making things up for financial gain, was absolutely false. ... He went on to say what a wonderful person she was. He said she was fully believable, she was intelligent, articulate ... and telling a convincing story about what happened."
City Manager Patrick Baker said Tuesday he didn't know why Gottlieb's report alluded to recording the session for potential jurors and court officials.
In the Police Department's eyes, "that was not a lineup," Police Chief Steve Chalmers said previously, echoing the explanation he and Baker adopted in a May 11 report on how authorities handled the investigation.
Baker said Tuesday that after he learned of the April 4 session, he asked for a second meeting with the detectives, the police attorney, Chalmers and Deputy Police Chief Ron Hodge. This time District Attorney Mike Nifong also attended.
"I asked the question point-blank as to what we were doing, what were we trying to accomplish and why wasn't it done pursuant to [department policy]," Baker said. "And the response that I got from the district attorney was the response that we have put out, that it wasn't a lineup, that it was not looking for suspects."