Durham City Council Takes One Step Forward and Two Steps Backward

The Durham City Council: (sitting from left to right) Mayor Pro-Tem Cora Cole-McFadden, Mayor William V. "Bill" Bell, Diane N. Catotti, (standing from left to right) Howard Clement, III, Eugene A. Brown, J. Michael Woodard and Thomas Stith, III.

In a special meeting held on Friday, the Durham City Council approved Mayor Bill Bell’s proposal for a twelve member committee, comprised of law enforcement representatives, defense attorneys, and private citizens, to conduct a review of the police department’s participation in the Durham Hoax which led to the wrongful indictment of three innocent men for crimes that never occurred. In response to the deceptive report furnished by Durham Police Chief, Steve Chalmers, and City Manager, Patrick Baker, the City Council had previously adopted, by a 6-1 vote, a resolution to move forward with a second review of the department’s shortcomings. Friday’s meeting represented a tangible step toward fulfilling the City Council‘s resolution to commission an independent review. While positive action was taken by the City Council, Friday’s meeting also raised additional concerns and left other key questions unanswered.

Approving the nomination made by Mayor Bill Bell, the City Council selected former NC Supreme Court Justice Bill Whichard to head the Durham Hoax investigation. As chair of the committee, Justice Whichard brings an unimpeachable reputation for integrity and public service that promises to give the review a much needed impression of credibility and authority.

Published reaction to Whichard’s leading the review included:

"I think Judge Whichard is an ideal person to help us with this committee," Councilman Michael Woodard said. "He has great legal experience, a keen mind, a love of this community - his hometown." WTVD

"He certainly has the credentials, educational intellect to lead this committee, but more importantly he wants to do it," said Bell. News 14

Whichard described his expectations for the investigation as follows:

In one sense this committee is about the past. Its function is to attempt to ascertain and report the truth about events that are now history. In a broader, more significant sense, however, it is about the future. Its overriding purpose is not just to identify any improprieties or mistakes that may have occurred in the handling of the lacrosse players` cases, but to assist local law enforcement in avoiding such in the future.

I look forward to working with the mayor, the City Council and the committee in this endeavor. LS

According to Mayor Bell’s proposal, the twelve member committee will be comprised of law enforcement officials, criminal defense attorneys, and community persons. In addition to Justice Whichard, four law enforcement officials were also approved by the City Council. Thankfully, the suggestion by an unnamed councilperson for one of the law enforcement officials to be a member of rogue District Attorney Mike Nifong’s office ("Another council member has recommended a member of the Durham District Attorney's Office or the State Conference of District Attorneys." WTVD) was rejected in favor of three current and one former police chief. The four chosen law enforcement officials - Chief Darryl Stevens of Charlotte; Chief Jim Fealy of High Point; Chief Pat Norris of Winston-Salem; and former Chapel Hill Chief Gregg Jarvies - were among those suggested by North Carolina Attorney General Roy Cooper and SBI Director Robin Pendergraft after the AG spurned the mayor’s request for an SBI review.

A brief review of the backgrounds of the four selected police chiefs indicates each seems well suited for the review ahead of them.

Chief Stevens was one of six law enforcement representatives on the initial NC Actual Innocence Commission established by NC Supreme Court Chief Justice Beverly Lake in 2002. The NCAIC, whose mission in part was defined as “develop potential procedures to decrease the possibility of conviction of the innocent in North Carolina” is “nationally recognized as a model for effectiveness and reform” according to the Innocence Project. In 2003, the NCAIC issued recommendations for eyewitness identification procedures that directly contradict the procedures employed by the Durham Police Department in framing the Duke Innocents.

Upon becoming Winston Salem's Police Chief in 2004, Pat Norris was also named to the NC Actual Innocence Commission, which continues to meet every six to eight weeks. Shortly thereafter, Chief Norris announced that her department would implement the lineup recommendations of the Chief Justice’s Actual Innocence Commission. Earlier this year, Norris instituted a computerized photographic identification procedure which exceeds the NCAIC recommendations by including seven fillers for each suspect.

Chief Pat Norris of the Winston-Salem Police Department and other officers demonstrated yesterday how the police department would use a new, computer-based photo lineup that a state commission says can help avoid wrongful identifications by witnesses to crimes.

Norris announced in May 2004 that the department would adopt guidelines from the Chief Justice's Commission on Actual Innocence.

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Until now, Winston-Salem police have generally used lineups that were paper based, and witnesses could choose from six photos. Witnesses viewing the new lineups can choose from eight photos and will use a computer to make their selections.

Witnesses will view each photo separately on the computer screen to make their selections. The length of time a witness spends looking at each photo, the selected photo and other information are recorded in a computer-generated report as part of the process.

If a witness fails twice to make a selection after viewing each photo in the lineup, the process ends.

Norris said that her department is one of the first police departments in the state to use the computer software for witness identification.

"The software does the whole procedure for us, so there is less human error involved," Norris said. "It will improve the reliability of eyewitness identification."

Additionally, the officer administering the photo lineup will not know the suspect's identity. The commission said that investigators who know the suspect's identity could inadvertently tip off a witness.

In addition to her recognition of the dangers of corrupt identification procedures, Chief Norris fits well with the committee in light of the recently concluded Winston-Salem City Council commissioned review of the wrongful conviction of Darryl Hunt. which addressed many of the same issues facing the Durham Hoax committee and directly impacted her department.

Ironically, it was Patrick Baker who secured participation by Chiefs Stevens and Norris. Both have championed proper lineup procedures, unlike Baker who has repeatedly defended the corrupt procedures employed in the Durham Hoax. It will be interesting to discover the Chiefs' take on Baker’s public adoption of Defendant Nifong’s defense of the crooked lineups that helped manufacture charges against the Duke Innocents.

High Point Chief, Jim Fealy, is another great fit for the Durham Hoax Committee. In particular, Chief Fealy rates inclusion for the integrity demonstrated by his willingness, contrary to Durham Police Chief Chalmer's reluctance, to turn one of his officers over for prosecution when he discovered that false statements were made in an affidavit to secure a search warrant.

Charges of cocaine trafficking against three area people were dropped Wednesday because of an "invalid search warrant," according to court records.

The State Bureau of Investigation is examining the case and allegations that a High Point Police Officer provided false information.

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But on Tuesday, a group of High Point police officers found inconsistencies in a fellow officer’s report. The group notified police Chief Jim Fealy, who notified the Forsyth County District Attorney's Office and the SBI. TL

We look forward to the prospect of Chief Fealy reviewing the false affidavits offered by DPD investigator Benjamin Himan and ADA David Saacks.

Former Chapel Hill Police Chief Gregg Jarvies also brings relevant experience to the Durham Hoax Committee. In 2003, Jarvies was faced with allegations of witness intimidation by two of his own officers. In response, Jarvies, unlike Durham's Steve Chalmers, immediately investigated the allegations, moved to terminate one officer and suspend another when the allegations were substantiated. Jarvies then released his findings and actions in full to his concerned community.

"The allegations have been substantiated." That statement, drawn from an eight-page report by Chapel Hill Police Chief Gregg Jarvies, sharply summarizes the findings of his department's internal investigation into a teenager's claim that Detective John Moore "misrepresented himself as an agent of an FBI task force" while probing computer problems at Chapel Hill High School on May 2.

The report, which also describes actions and statements by two other police officers involved in computer crime cases, was prompted by a May 28 report in The Independent. It was released late Monday night when, in a rare move, the Chapel Hill Town Council voted to publicly disclose the investigation and related personnel decisions. In the document, Jarvies concludes that "Moore's behavior was unacceptable, was in direct violation of department policies, and is representative of detrimental personal conduct." In addition, Jarvies wrote that, "In my opinion, Moore's actions on May 2 were not consistent with federal law," and included as an addendum to his report the law against impersonating government agents.

Consequently, the report reveals, Jarvies decided to fire Moore, a 12-year veteran of the police force. But Moore pre-empted the chief, Jarvies reports: "On the morning of June 5, as I was presenting a termination notice to Moore, he tendered his resignation." IW

With this experience, Jarvies appears well suited to examine the intimidation of defense witness Elmostafa and any other complicity the DPD may have had in the activities of Mike Nifong's designated fixer - Linwood Wilson.

While the first five selections for the Durham Hoax Committee offer promise, the game plan for rounding out the committee has raised concerns.

With seven selections remaining, the City Council has decided to allow each of its seven members to make one selection, while attempting to adhere to a strict race and gender quota as proposed by pandering councilwoman Diane Catotti who faces a reelection bid this year.

The demand for diversity came from Councilwoman Diane Catotti who, last week, was the only council member to vote against launching the investigation. She said Friday that given the initial appointments, the remainder of the slate should include two white women, three black women and two black men, thus leaving the panel 50 percent black and 50 percent female.

"This case raises so many race and gender issues it's important to have that parity," she said, conceding that the panel's eventual composition might vary by "one or two" from her ideal. …

At Friday's meeting Bell began assigning members to look specifically for people fitting the gender and racial profiles Catotti suggested. H/S

In addition to demanding race and gender guidelines that would exclude any white male defense attorneys or community members from the panel, while also prohibiting the inclusion of any male or female non-black minorities, regardless of qualifications, Councilwoman Catotti has threatened to select as her representative on the committee a counselor from Durham’s Crisis Response Center.

At the council meeting, Catotti announced that she would use her selection power to name someone from the Durham rape crisis center. DiW

In fairness to Catotti, the inclusion of a rape counselor on the committee was not an original thought. While NAACP member Catotti has taken quite a bit of heat for the suggestion, multiple media reports cite Mayor Bell as the initiator of the idea.

The council wants to create a 12-member panel comprised of law enforcement experts, criminal defense attorneys and community members. Mayor Bell has suggested adding a representative from a rape crisis center to the panel. WTVD

The council also agreed with Bell's suggestion that one community appointee be a rape crisis counselor. Catotti said she'd take the lead in finding one. H/S

Regardless of whose idea it may have been initially, the inclusion of a representative from the Durham Crisis Response Center is troubling. Not only has DCRC issued a public statement rejecting AG Cooper's Declaration of Innocence, but the Center has also provided sexual assault response and investigation training to the police department the committee will be charged with investigating. Both factors undermine the stated intention to create an independent and objective review of the Durham Police Department.

From the DCRC website:

DCRC RESPONDS TO THE LACROSSE DECISION

Aurelia Sands Belle, Executive Director
April 11, 2007

Today Attorney General Roy Copper announced the decision of his office not to pursue charges in this case. It is always the prosecutor’s perogative whether or not to move forward with a case. The circumstances from which these charges arose – a party where women were hired to gratify young men – only served to denigrate men and women and further reinforce harmful stereotypes. The fact that underage drinking took place at this party highlights the reality that alcohol is a well-known aggravating factor in sexual assault, especially on college campuses.

Rape is not sex ; it is an act of violence and it dehumanizes all involved. This dehumanization is further emphasized by the differences in race, gender, and class.

DCRC offers support to all survivors of sexual trauma, recognizing the level of courage it takes them to report rape. Our concern is that this situation has made it more difficult for other victims to come forward for the help they need and the justice they deserve. According to a national study called, “Rape in America” (1) victims are reluctant to report rape for fear of being blamed by others, their families finding out about the rape, other people finding out, and their names being made public by the news media. The false reporting rate for rape is not significantly higher than the false reporting rate for any other major crimes.

The publicity around these events has served to re-traumatize some; therefore, it is important to remind the community that DCRC continues to serve past and present survivors of sexual assault through non-judgmental support and advocacy. Our services are free and confidential (in English and Spanish) and are not contingent upon victims filing police reports; however, we will assist them in this process if they so choose. Volunteers and staff are available through our 24-hour crisis line 919-403-6562.

Sexual Assault Investigation Training for Durham City Officers
Throughout the summer and fall of 2003, DCRC staff spent every Monday and Tuesday with a group of veteran officers from the Durham Police Department. Over 367 officers received 12 hours of intensive training on victim presentation, offender profiling, forensic evidence collection, and effective interview and response protocols for sexual assault crimes.

In addition to training at least 367 Durham police officers and further presenting a conflict of interest, the Center also provided instruction to another potential civil suit defendant, Duke University Medical Center.

New Hospital Response Protocols for Duke Health Systems
Throughout the fall of 2003 and spring/summer of 2004, DCRC worked with an interdisciplinary team to create a Domestic Violence Screening and Response Protocol for Duke and Durham Regional Emergency Departments. DCRC assisted in the training of all ED staff in both hospitals-over 30 training sessions for hundreds of nurses, physicians, EMS personnel, and nursing assistants. DCRC also developed an information packet for patients who disclose trauma-over 500 packets were distributed in the first year.

The City Council's adoption of both Catotti's race/gender quota and suggested nomination of a counselor from the Durham Crisis Response Center was met with immediate criticism from defense attorneys and Hoax commentators.

That stipulation drew criticism Friday from supporters of David Evans, Collin Finnerty and Reade Seligmann, the three Duke lacrosse players indicted on what Cooper determined in April were false charges of rape, sexual assault and kidnapping.

"We have the Police Department and the attorney general and Mr. Nifong in his weird [April 12] apology all confirming there wasn't a rape, and now we have this requirement that someone be from the rape crisis center?" asked Brad Bannon, a lawyer for Evans who like others on the players' defense team contends that government misconduct drove the lacrosse case. "I don't understand that."

Bannon also took issue with Catotti's contention that racial issues are central to the investigation.

"I always thought race was inappropriately injected into this case from the beginning by the district attorney with his comments," he said. "Race didn't need to be the factor it became." H/S

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Some race-obsessed Durham City Council members want strict diversity on the panel it is forming to look into the Durham Police Department’s role in the Duke lacrosse case investigation... This reminded me of what former Reagan Interior Department Secretary James Watt said almost 25 years ago that got him fired:

"He made the most odious comment of his career in defense of his widely criticized decision to authorize the sale of more than 1 billion tons of coal from federal lands in Wyoming. He argued that he was immune to criticism because members of his coal-advisory panel included “a black … a woman, two Jews, and a cripple.”

The blunt-speaking Watt was making fun of the diversity and quota obsession that was just beginning to show itself in American society, but, as we have since learned, only liberals can joke about race and diversity and get away with it. Just ask Hillary Clinton and Joe Biden...

Unfortunately, the council agreed to Mayor Bill Bell’s bonehead suggestion that a rape-crisis center member be added to the panel. Now, I’ve known a lot of rape-crisis advocates and most were a little bit crazy when it came to men. To them, every man is a potential — if not an actual — rapist. What possibly could have prompted Bell to make such a suggestion? That’s like putting a KKK member on a diversity panel, just to get the opposing view. Jon Ham

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The H-S reports that the hard quota idea came from none other than Councilwoman Diane Catotti, who remarked, "This case raises so many race and gender issues it's important to have that parity." Does it make any sense to have the one member of the Council who opposed any inquiry at all be the guiding force on such an important issue?...

This hard quota arrangement is disturbing in a number of ways. First, it fails on its own terms. According to Durham’s population figures, more than 11 percent of the city is neither white nor African-American. Under a hard-quota philosophy, that 11 percent total entitles citizens from other races to one member (8 percent) of the 12-person commission of inquiry.

Second, one of Mike Nifong’s critical contributions to the lacrosse case came in his injection of race into the case. The disgraced DA took over personal command of the investigation on March 24, 2006. That’s the same day that Cpl. David Addison began his campaign of public slandering against the lacrosse players. Then, on March 27, when Nifong joined the publicity barrage, he repeatedly played the role of racial demagogue. The police and Nifong even elected to mislead the public to highlight the alleged racial angle of the alleged crime—as when Nifong and Kammie Michael suggested that someone other than Kim Roberts made the first 911 call, thereby creating the public impression that the lacrosse players hurled racial slurs at two innocent black women who just happened to be walking by the house.

By calling for a committee evenly divided along racial lines, the Council has effectively endorsed Nifong’s reasoning that the case should be examined primarily through the prism of race....

Third, the purpose of this inquiry is not to retry the lacrosse case, although it appears that one Council member, Diane Catotti, is eager to do so. Catotti vehemently opposed even having an inquiry, and also denounced her colleague, Thomas Stith, for demanding that Mike Nifong resign.

At the council meeting, Catotti announced that she would use her selection power to name someone from the Durham rape crisis center, since the lacrosse case itself dealt with race and gender issues. Of course, there isn’t a scintilla of evidence to suggest that the police improperly treated Crystal Mangum because of her race or gender.

What’s the mindset of people who work at the Durham crisis center? On March 16, in an interview with ABC’s Law & Justice Unit, one such figure, Leah Ottinger, spoke out.

Ottinger, who had just left her job at the Durham Crisis Response Center, dismissed the possibility that Mangum’s myriad, mutually contradictory stories suggested that Mangum was lying. Assault victims, she declared, “don’t clearly remember the event right away. It’s not unusual and it doesn’t mean they are lying . . . When people have been through a trauma—a car crash is a good analogy—it can take them time to reconstruct the facts in their minds. Plus, sexual assault is uncomfortable for anyone to talk about.”

Whatever the ultimate outcome of the AG’s inquiry, Oettinger asserted, “that doesn’t mean a crime didn’t happen that night.” DiW

While the race/gender quota and the inclusion of a rape counselor from an organization with a vested interest in the outcome of the investigation offer cause for concern, the City Council's indecision over granting subpoena power to the committee and apparent unwillingness to exercise their own lawful power of subpoena to compel testimony and production of records threaten to make the investigation an exercise in futility.

"I think it's important for us to be able to get to the truth," Councilman Mike Woodard said. "And if subpoenas and putting people under oath helps us get to that, then I think it's something we need to give this committee the power to do." WRAL

Another focus of Friday's council discussion was whether the committee would have the power to subpoena witnesses and compel sworn testimony.

Durham's charter specifies that both City Council and the manager have the power to investigate city affairs and in the process subpoena witnesses, administer oaths and force the production of documents. What is unclear is if they can delegate that authority to the committee.

"I don't know if we could give the committee that power," Assistant City Attorney Karen Sindelar said. "My initial inclination is no."

Council members nonetheless asked Sindelar to have city attorneys look into the matter and offer a formal opinion.

The worry is that without subpoena power and sworn testimony, prospective witnesses would be free to refuse to testify or even to lie.

"You're going to get to the truth a little more quickly and clearly if you have subpoena power and can put people under oath," Bannon said. "If there isn't any consequence for lying, you can't have as much faith in the process as you can if a person is under oath and knows if he lies he's going to be subject to the laws of perjury." H/S

The inability of the Sykes Administrative Review Committee to compel testimony prohibited the investigation into the wrongful convictions of Darryl Hunt from reaching a definite conclusion on whether Hunt was framed.

An answer to that question may never be known, even after a panel of volunteers investigated for more than a year what went wrong in the case. The panel, called the Sykes Administrative Review Committee, put their findings into the report, which includes interviews with former police officials and other witnesses related to the case.

The report, made public last night, makes no explicit statement that Hunt was framed. It wasn't possible to come to a definitive conclusion on that, City Manager Lee Garrity said last week, because the panel was hamstrung in its ability to talk to people. It had no subpoena power and therefore had to rely on people volunteering to talk about the case. W/S Journal

In Winston-Salem, most of the major players, including several police investigators and all but one of the prosecutors, in the wrongful conviction of Darryl Hunt refused to testify before the committee. The list of uncooperative witnesses included: Tom Keith, Forsyth County District Attorney; Judge William Reingold, former Forsyth County Assistant District Attorney, Eric Saunders, chief Forsyth County Assistant District Attorney; Don Tisdale, former Forsyth County ADA and original Hunt prosecutor; and Dean Bowman, Assistant Attorney General in the special prosecutor's office and prosecutor at Hunt's second trial. In addition to the former and current members of the District Attorney's office who refuse to testify, the following Winston Salem police officers also declined to help the committee uncover the truth: Det. Earl Biggers, Cpt. Gid Cornatzer, Det. Carter Crump, Sgt. Furman Mason, former Police Chief Joe Masten, Sgt. Jerry Matthews, Cpt. Mike McCoy, Det. Bill Miller, Polygrapher Barry Owens, Lt. Jerry Raker, Det. Bobby Spillman, Sgt. David Walker, Det. Mike Wilkins, and Det. Richard Nifong. Dan Stone and Brenda Dew Bissette of the State Bureau of Investigation also refused to cooperate.

If the Durham Hoax Committee faces the same impediment, similar results can be expected. Without the power to compel testimony from District Attorney Nifong and his accomplices, the committee, regardless of its composition, will inevitably fail to fulfill its assumed charge to identify the failures of the Durham Police Department and make recommendations designed to ensure that a similar injustice does not befall equally innocent men and women in the future.