The Name Game and The Medical Records

In a recent post, we noted that Durham Chief of Police, Steve Chalmers, contradicted the sworn statement of Investigator Benjamin Himan when explaining the rationale for the Hoax lineups conducted on March 21, 2006. Chalmers asserted that the basis for targeting David Evans and Dan Flannery in those lineups was Crystal Mangum's preposterous claim that "Matt" was the real name of "Dan Flanigan."

According to Chalmers:

“By March 21, 2006, investigators had been unable to determine with certainty which persons were actually at the residence the night of the alleged attack. However, they had been able to establish that the two tenants of the home with whom they had spoken on the 16th, Dave Evans and Dan Flannery, had been at the residence the night of the party and that they were the individuals who had made arrangements for the party including hiring and paying for the dancers. By this point, investigators were becoming suspicious as to the accuracy of the names provided by the complaining witness. Officers knew that Dan Flannery had used a false name when hiring the dancers. In addition, records indicated that Magnum had previously alleged that Dan Flanagan (“Flanagan” being the false name provided by Flannery to the escort service) was a fake name and that “Matt” was the individual’s real name.”

In his subsequent affidavit in support of the request for the illegally obtained non-testimonial identification order, Inv. Himan stated, falsely if Chalmers is taken at his word, that the basis for the Fake Name Theory was Mangum's contention that Dan Flannery had used the fake name "Adam."

According to Inv. Himan's affidavit requesting the NIO:

“The victim stated she did not think the names the suspects were providing her were their own. She stated one male identified himself as Adam, but everyone at the party was calling him Dan.”

Regarding the lack of supporting evidence for Himan's statement, KC Johnson notes:

Himan, of course, has never explained how he developed this evidence. Perhaps he was planning a “straight-from-memory” addition to his report at a later stage.

Ignoring the absurdity of a fake name theory based on the assertion that the name in question was real, and while there appears to be no substantiation for Himan's sworn statement, there is a clear source for Chalmers' claim: the medical records from Duke Medical Center printed on March 30, 2006, and provided to Investigator Himan on April 5, 2006. Obtained in response to a subpoena issued by District Attorney Mike Nifong on March 20, 2006, and served at DMC by Sgt. Mark Gottlieb on March 21, 2006, the medical records contain a statement that closely mirrors Chalmers' words.

The accuser told the physicians at the Emergency Room … that "Dan Flanigan" was the person who arranged everything, but that this was a "fake name" and that his real name was "Matt."

Considering that Inv. Himan was not yet privy to the medical records that Chief Chalmers points to as the inspiration for the Fake Names Hoax, it is not surprising that Inv. Himan would need to find or manufacture an alternate explanation to support his affidavit. Curiously, while his lack of access to the medical records forces him to employ an alternate and unsubstantiated basis for the Fake Name Theory, it does not prevent him from presenting the medical records as if they offered him additional first hand knowledge of evidence to support his affidavit.

Himan's affidavit states:

"Medical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally."

Of course, the medical records, which Himan had not yet obtained, clearly contradict this false assertion used to illegally obtain the non-testimonial identification order for both suspects and known innocents who had previously been used as lineup fillers according to Chief Chalmers.

In June 2006, District Attorney Nifong came under fire for claiming to have read these same records prior to their existence. In a June 15, 2006, motion questioning Nifong's false statements, which were contradicted by the medical records he publicly claimed were their source, defense attorneys Joe Cheshire and Brad Bannon wrote:

On March 29, 2006, Mr. Nifong claimed to have read a medical report that, according to discovery, was not printed until March 30, 2006, or retrieved by law enforcement pursuant to Mr. Nifong's own subpoena until April 5, 2006.

The June 15 motion described the timing of DMC's delivery of those medical records to police and prosecutors as follows:

Discovery materials provided to the Defendant on May 18, 2006, trace the following timeline by whic the records of Crystal Mangum's treatment at Duke Hospital on March 14, 2006, were provided to the prosecution in this case.

· March 16, 2006: Durham Police Investigator Ben Himan contacted Nurse Tara Levicy to discuss the "rape kit and examination" of Crystal Mangum. According to Investigator Himan's notes of his activities that day, Nurse Levicy responded "that due to HIPAA laws she was unable to divulge patient information but stated that there were signs consistent with a sexual assault during her test."

· March 20, 2006: Durham District Attorney Michael B. Nifong issued a subpoena to Duke Hospital for copies of the records of Crystal Mangum's treatment at Duke on March 14, 2006, and specifically named Investigator Himan as the person to whom Duke was commanded to produce the subpoenaed records.

· March 21, 2006: The subpoena was served on Duke Hospital [by Sgt. Gottlieb].

· March 30, 2006: The medical records of Crystal Mangum's treatment at Duke Hospital on March 14, 2006, were printed out for purposes of complying with the subpoena. The date and time-stamp indicating when the records were printed is readily visible at the bottom of the Duke Hospital records provided to the Defendant in discovery.

· April 5, 2006: Investigator Himan picked up the subpoenaed record from Nurse Levicy at Duke Hospital.

At the June 22 hearing, Defendant Nifong confirmed that there were no additional medical records other than those provided to Inv. Himan on April 5, 2006. In response to Nifong's meek denial, Joe Cheshire responded:

“I assume that what that means is that when Mr. Nifong was telling the press that condoms may have been used or that there were other medical - - that he had seen medical reports that indicated that some sexual assault had happened prior to the time those reports were actually printed or subpoenaed, that there are no reports that he actually saw, that those things don’t physical – that there are no reports different from what he has given us.”

While it may appear that Chalmers and Himan are pulling Nifongs by suggesting alternatively that investigators based the Fake Name Theory on records they did not possess until 16 days after the theory was hatched (Chalmers) and that medical records supporting the false accuser's fraudulent claims had already been obtained 14 days before they were (Himan), Sgt. Mark "No Notes" Gottlieb offers a possible alternate explanation. In his "Body of Evidence" Hoax resurrection attempt, the New York Times' Duff Wilson notes notes that Sgt. Gottlieb claims to have gotten a sneak preview of the medical records while serving the subpoena on March 21, 2006.

On March 21, a week after an African-American woman charged that she had been raped by three white Duke University lacrosse players, the police sergeant supervising the investigation met with the sexual-assault nurse who had examined the woman in the emergency room. The sergeant, Mark D. Gottlieb, reviewed the medical report, which did not say much: some swelling, no visible bruises.

By March 21, 2006, the only member of the Hoax "investigation" who had access to the medical records that Chalmers claims were the basis for the Fake Name Theory was Sgt. Gottlieb who, we are asked to believe, took no handwritten notes during his review of those records or during his interview with DUMC Nurse Tara Levicy. Yet, four months later, the notes-averse Gottlieb produced a suspiciously convenient, fill-in-the-blanks, straight from "memory," 33-typed page supplemental case report.

Joseph Neff of the News & Observer described the misrepresentations in Gottlieb's home grown Supplemental Case Notes in an article in September.

The lead investigator in the Duke lacrosse case wrote that a Duke Hospital nurse said the accuser had been subjected to "blunt force trauma" consistent with a sexual assault.

Sgt. Mark Gottlieb made this observation in a typed, single-spaced, 33-page summary of the case handed to defense lawyers in July. It is not clear when it was written.

Parts of Gottlieb's account differ at key points from medical records, other investigators' notes and other documents in the prosecutor's files.

...

Gottlieb's account provides new details on what the detective said he uncovered in the crucial first month of the investigation, before any indictments were handed down. Some information is not found in previous documents produced by District Attorney Mike Nifong.

Directing the investigation, Gottlieb ordered up lineups, interviewed suspects and executed search warrants.

Gottlieb's account contradicts notes and documents generated earlier in the investigation, according to Wade Smith, a Raleigh defense lawyer who represents Finnerty. ...

Smith was troubled by the lack of handwritten notes from Gottlieb, who produced only two pages of handwritten notes to accompany his 33-page typed account. Those two pages, taken on April 27, described a search for a lab to conduct hair analysis.

"This is a pristine white document that fell out of the sky four months later," Smith said. "Where are his notes? How can you interview the most important witness you've ever interviewed in your life and not take notes?"

Gottlieb wrote that on March 21, he took a subpoena to Duke Hospital and interviewed the nurse who examined the accuser for evidence of sexual assault. Gottlieb produced no handwritten notes of this interview.

Accepting Chief Chalmers' assertion that the origination of the Fake Name Theory on March 21 is based on records and noting that the only known records that support Chalmers' claim are the medical records to which only Sgt. Gottlieb was privy to by March 21, the conclusions can be drawn that Himan's contrary "Dan is Adam" statement is not the genuine inspiration for the Fake Name Hoax and that Sgt. Gottlieb returned from DUMC armed with the idea. As the only member of the investigation to have access to "medical records and interview[s] obtained by subpoena" prior to the NIO request, Sgt. Gottlieb also appears to be the only possible source for Himan's misrepresentation of those records in support of the illegal non-testimonial identification order.

It should be noted that North Carolina courts have consistently upheld the acceptability of affidavits which present the findings of an officer other than the affiant.

"The police officer making the affidavit may do so in reliance upon information reported to him by other officers in the performance of their duties." State v. Harvey, 281 N.C. 1, 8, 187 S.E.2d 706, 711 (1972)

In each of the several cases we have researched to date, the investigators including information obtained from other officers in affidavits to obtain warrants and non-testimonial identification orders invariably, honestly, and unlike Himan, identify the second hand evidence as such while refraining from adding weight to their claims by presenting the information as if they have personal and trustworthy knowledge. Although the Courts have routinely accepted affidavits from officers presenting information obtained by other investigators when identified as such, it's difficult to imagine that they envisioned the ruse employed by Himan and Gottlieb to enable the Durham Hoax.

Given the absence of attention to the deceptive affidavits by Chief Chalmers in his report to the Mayor and City Council, the impression left is that underhanded tactics such as these are as acceptable in Durham as including witnesses in lineups as fillers and subjecting known innocents to non-testimonial identification orders and indictments.