Excerpts From Mike Nifong's State Bar Deposition, Part 4: Jackie Lopez, Officer of the Court - Reading the SANE Report, or not - Condoms

DIRECT EXAMINATION BY MR. BROCKER:

Q. Do you remember anything in that -- you said you didn't -- you talked about the officers, the impression you got from the officers. Did they talk to you about, regardless of the language they used, that Ms. Pittman had indicated that she didn't think an assault had happened?

A. I don't remember that having come up at that meeting. I mean, I obviously was aware at some point fairly early on that there were discrepancies between what Ms. Pittman said and what Ms. Mangum said, and that there were discrepancies between certain accounts that had been reported by Ms. Mangum, but I don't believe any of that came up at that first meeting.

Q. Okay. Can you give me a general time frame as to when you would have become aware of those things?

A. Within the -- within the first two or three weeks that I had the case probably, I would think. Not necessarily that first week, that was a pretty busy week. But at some point I remember that I asked the question of the officers, the 9-1-1 call that came in, do we believe that that was actually made by somebody, one of the people who was at the party, one of the dancers at the party. And they told me yes.And that was something that I asked because, you know, someone had asked me, some reporter had asked me, and it was something I'd never thought about and I had no clue. I had to tell them that I did not know who it was. And then I asked the officers and they said that they had understood that Kim Pittman had made the call.

Q. Did you ask the officers to see any of the documentation that they had accumulated up to that point at that meeting?

A. I don't believe so. I don't believe that I did at the 27th meeting.

Q. You talked about the first media coming in to talk to you a little after noon on that same day?

A. Yes, sir.

Q. Is that something that had been scheduled before the meeting with the officers or was it scheduled after?

A. No, sir. It was something that after -- I was meeting with the officers, and at some point got a call from my receptionist indicating that there were reporters out here that wanted to talk to me about this case. And I told them that I would, you know, I basically gave them a time frame when I would see somebody and said, who's out there, and I prettymuch put them in order that they came and then tried to speak With them.

Q. Did you have any indication before you met with the officers on the 27th there would be any people there to speak with you on that day or somewhere after?

A. I didn't have any indication, but that would have been -- my expectation would have been that it would have been Monday morning that the Non-Testimonial would have been discovered by the news media, and I anticipated that pretty quickly after that they would be trying to talk to me about it, which is why I had wanted to speak with the officers that morning before anybody had a chance to talk to me.

Q. Okay. I want to ask you about a number of documents, investigatory-type documents and try to get your best recollection as to when you would have seen those or been provided them. If you'll look -- the first one I want to ask you about is the -- I think it's Exhibit 11. We might not have them.

(Recess - 11:17 AM to 11:23 AM)

Q. Do you recognize Exhibit 11 as the sexual assault exam report from the SANE nurse at Duke?

A. Yes, sir, I do.

Q. And that was obtained on March 21st, 2006, it looks like from return service?

A. It does appear that that was the case.

Q. Okay.

A. I was not involved in the direct subpoena of this. And the person who got subpoenaed, Jackie Lopez, at the time was one of the people who worked in the Protection of the Family Unit and they dealt with the cases like this. She would have been the person who when there was an indication they needed to do this, Investigator Himan would have contacted her and she would have generated the subpoena, and then there is -- my signature is on our computer, so it can be generated that way onto the subpoenas themselves, So I don't actually see these documents when they go out. But that's what I would have expected to happen in the office because she or another -- I think she dealt probably with the felony cases. We have two victim-witness legal assistants in that unit, and I would have expected that one of them would have been the one who issued this. That would just reflect that Tracey cline had been contacted.

Q. You did -- you said you did not get any documentation at that March 27th meeting. When wouldyou have actually received or when did you receive this sexual assault report?

A. Well, I didn't receive it all at the same time. I guess the first thing I would say is that the parts of the sexual assault exam report that would be attached to the rape kit, which are, I guess, 541 through probably 550 would have been all that I would have seen initially, and it would not have been until sometime later that the parts 537 through 540, which was the narrative, I didn't see that right away. What I saw at first was the stuff from the actual collection from the rape samples. And I would have seen those, and that would have been shown to me by Mark Gottlieb, I would imagine, but it could have been Ben Himan, but I think probably Mark Gottlieb would have been the one that actually showed them to me. And I don't recall anybody ever specifically showing me the other pages, although they would have -- I mean, like looking bring them to me to look at. They would have been in the materials that when the police report -- a big box containing many folders was brought over for copying for discovery purposes, and I probably did not see those pages by that time.

Q. Okay. So when -- when would you have seen -- let me make sure I understand before we go on. When you said you were initially provided the report, would you say you got pages, what's handwritten down there 542 to 551 or to 550?

A. It would have been through 551, I believe. The stuff that was taken, that was collected, in connection with the sexual assault exam, the things with the rape kit and all, I would have seen that initially. I don't specifically recall having seen, say, for instance, Page 546. But I do specifically recall having seen Pages 542, 3, 4, and I have also seen -- I recall seeing Page 548, 549 and 550 and 551. So those pages, I recall specifically some of those pages, and I can't say specifically that I recall every page. And that would have been some time within the first two or three weeks of this having come to my attention.

Q. Do you have a specific recollection as to when or what date you would have first seen that report?

A. Not specifically, no, sir.

Q. Do you recall making statements to the news media during the first week, the week of March 27th, that you had reviewed or read the sexual assault report?

A. Yes, I believe that I did make -- I believe that I made such a statement during that first week.

Q. And so, would you have actually read it or reviewed it at that point?

A. I would not have reviewed the entire thing, like I said, but I would have seen at least part of it. And you said Sergeant Gottlieb brought that to you?

A. Yes, sir, I believe that he did. The thing I say is I don't recall seeing just Gottlieb at any one time, but usually Gottlieb and Ben Himan would come together during this period of time. And I don't specifically recall any times when only one of them came, but it is possible, because I knew Mark prior to this time and did not know Ben prior to this time. Usually the person who initiated the conversations with me would be Mark. So when they came over, he would usually be the one who was talking, which is why I say he probably gave it to me.

Q. So, just to make sure I am clear on it, sometime during the week of March 27th, you would have seen or reviewed the pages of Exhibit 11, numbered 542 through 551, which is what was actually in the rape kit?

A. I'm sorry, I wasn't sure.

Q. No, that's okay. I just was asking whether during the week of March 27th you reviewed the Exhibit 11, pages, the handwritten pages, 542 through 551?

A. I believe that is probably the case. I can't say with perfect certainty that I saw it on that specific date, but I think that was probably the case.

Q. But if you were making statements to the news media that you had read the report, at least by that time, you would have reviewed those pages of the report?

A. I would have at least -- I would have at least seen those pages, yes. I would have at least, you know, seen something from that.

Q. And you don't believe that you initially got or reviewed the handwritten portions of the sexual assault report, which is 537 through 540?

A. Yes, sir, I believe that is correct. I did not initially see those.

Q. Do you know why you didn't get the whole -- why you didn't look or didn't get the whole thing? A. No, sir.

Q. Were they done -- during the standard procedure, are these done simultaneously or is this typically done ---

A. Well, the part that goes into the rape kit is what I usually see. I don't -- I don't know why, I mean, maybe is that I just didn't ask for enough stuff when I -- if I didn't see everything. There's no way for me to say why I was only given certain pages and not others. Maybe Sergeant Gottlieb didn't have all of these pages. All I know is that I don't believe that I saw this -- I certainly did not read this narrative in here during that first week.

Q. All right. If you will look on Page 551, the last page?

A. Yes, sir.

Q. That is one of the pages that you would have had access to?

A. Yes, sir.

Q. And on that under Roman Numeral I, Arabic 1 there, it says, "Brief account of the assault." Do you see that?

A. Yes, sir.

Q. And it says, "patient sexually assaulted by three men at party. Persons unknown. Vaginally, erectally and orally assaulted. No condoms used."

A. Yes, sir.

Q. And then down on 11, it says, "Was a condom used?"And there's a box for "yes" and "no" and "not sure," and the person who filled this out had checked, "no," on that? Yes, sir.

Q.Do you recall whether you reviewed the entire report during the week of the 27th?
A.The entire report, meaning?

Q.The pages that you've already said that you were provided by Sergeant Gottlieb, Pages 542 through 551?

A.I'm not sure that I understand. When you say, "I reviewed it," did I -- if you're asking did I carefully read every word on these pages, I can't say that I did.

Q.Did you get a copy of the report or were you just shown it and read it and give it back?

A.It was in Gottlieb's possession. I did not get a copy at that time. The first time that I had a copy, I believe, was when Sergeant -- Investigator Himan brought over all of the files for copying for discovery purposes, which would have been after the indictment or sometime after.

Q. Sometime after April 18th -- April 17th?

A. Yes, sir. Well, actually I say after -- yeah, we didn't complete the discovery at that time until we actually turned it over on May the 18th. So sometime between that date and May the 18th is when it was turned over would have been when I actually had my own copy.

Q. Did you ever request that they bring you copies of the documentation prior to that?

A. I don't recall.

Q. You would agree this assault report, exam report, is a relatively important document in this prosecution; is that a fair statement?

A. Yes, sir. I think in terms of prosecution absolutely. Yes, sir.

Q. Were you aware during that first week, the week of the 27th, that Ms. Mangum had claimed that no condoms had been used during the assault?

A. I don't specifically recall, but I was probably aware of that. But I can't say that I recall reading that statement, but I certainly had access to those, so I probably was aware that she had said that.Q. Did you read -- we talked about what was
on Page 51, did you actually read that page that week?

A. Again, I probably did. I cannot say specifically that I did. I was -- I recall being particularly interested in the diagram, which is Page 544, and the description of, you know, where she felt injuries and soreness and things of that nature. I was looking at that.

Q. The -- by the week -- by the 27th of March, the Non-Testimonial Order had already been obtained and the samples had been obtained from all the lacrosse players?

A. Yes, sir.

Q. Wouldn't it have been an important fact, even at that stage since you were seeking DNA evidence, about whether or not a condom may have been used in the attack or not?

A. Well, I don't know really how to answer that question. obviously, it is something that's got to be dealt with at trial. My experience is that victims don't always know if a condom is used. And about the only way that a victim could know if a condom was used would be to see somebody actually put one on. So if a victim says that no condom was used, I usually take that to mean that she did not see the assailant put a condom on.

Q.What experience is that based on, that conclusion?

A.Well, generally speaking, I have -- when I have dealt with rape victims in the past, you know, did he use a condom? Well, I don't think so. You know, why did you -- well, I didn't see him put one on. And that's the kind of response that I usually get when I talk to victims like that. Sometimes they do see a condom put on. Generally speaking, the condom, when condoms are used, it's my experience it's more often to be in a date rape kind of situation. But there's certainly no absolute it's always this way one way or the other.

Q.Do you remember when you would have seen the remainder of Exhibit 11, the handwritten portion from Nurse Levicy?

A.Not specifically

Q.Do you know if you got it before the indictments, first set of indictments, on April 17th?

A.I don't know. I know that I would have gotten it by the time, you know, May 18th, which was the second indictment and the first discovery, but I can't say that I got it before the 17th