Excerpts From Mike Nifong's State Bar Deposition, Part 3: Saacks, the NTO, and the Hijack

DIRECT EXAMINATION BY MR. BROCKER:

Q. I understand. And when you became the District Attorney, did you appoint David Saacks as your Chief Assistant?

A. Yes, sir.

Q. And he still operates in that capacity?

A. Yes, sir.

Q. David was a witness for me a number of years back in a State Bar matter involving an attorney here in Durham, so I got to know him a little bit. Tell me about -- I want to switch -- I appreciate the information about your background, but I want to switch and talk about the Duke lacrosse cases, and --

A. I'm actually almost looking forward to that.

Q. Tell me what your first knowledge was of that investigation, I guess it would have been at that point.

A. My first knowledge was when I came out of the -- my office has two doors, and the one that is closest to the corner of the building opens up on an area with a few machines -- a copy machine, a shredder, and things like that. I came out the -- I guess it was the 23rd, the day that the Non-Testimonial order was completed, to use the copy machine. And somebody had left the -- I don't remember if it was the original that was in the tray or something, but anyway, I saw a Non-Testimonial order with a lot of names on it, which I had never seen before. And so, I picked it up and looked at it and saw what it was. It was a Non-Testimonial Order essentially for the Duke lacrosse team, and it involved a sexual assault, and I immediately sought out Mr. Saacks because his signature was on it, to find out what was going on.

Q. Okay. And what did you talk to Mr. Saacks about?

A. Basically just, you know, what is this case? And he told me that he had received a call from either Detective Gottlieb or Investigator Himan, Sergeant Gottlieb or Investigator Himan, that they had come over to apparently talk to Tracey about the case first, and that he had handled it because she was not available when they came over with the information, but that they had brought the draft of the Non-Testimonial Order with them and that he had assisted them and presented that to Judge Stephens and obtained the Order. And because of the nature of what was in the Non-Testimonial Order, I thought that this was likely going to be something that would -- when it became public, as I knew that it would, since the Non-Testimonial would have to be returned, would likely garner significant media attention. Although in retrospect, I would have to say that I never expected it would garner the attention that it did. And so, I called I guess, District Two. I don't remember who exactly I spoke with. It could have been the captain. District Two captain would have be Jeff Lamb, or it could have been Sergeant Gottlieb or Investigator Himan, but just indicated that I would like to be kept abreast of any developments in the matter, and also that if they needed any further advice in the case, to come directly to me. Ms. Cline was our normal adult sexual assault prosecutor, but I wasn't sure that Mr. Saacks had actually ever been involved in such a case. And so, I decided that it was probably going to be a case that would get enough attention that I probably needed to handle it. And so, I just said that all the other inquiries, rather than come over here and just talk to the first DA that's available, just talk to me about it.

Q. Okay. At the time -- was that -- do you know if the date was on -- I think the Non-Testimonial was signed on the 23rd?

A. I believe that's correct,

Q. Do you know if you saw it on the 23rd or the 24th? Do you have any recollection?

A. I'm pretty sure that I saw it on the afternoon of the 23rd, late in the afternoon at which time it had probably already been served, and I don't know if it had already been executed or what, because I'm not sure exactly what time the lacrosse players actually showed up for that but it had probably already been -- I imagine all of the samples had been taken by the time I got it. It was probably around 4:00 o'clock on the afternoon of the 23rd.

Q. Okay. And then did you speak with the person in District Two at the Durham Police Department on that same afternoon?

A. Probably the next day. And I say that because I don't believe, you know, after I saw it, I had to talk with David. The police department phones are generally not manned after 4:30 in the afternoon. And if you have somebody's cell phone number, you can get them directly, and I did not know any of these people's cell phone numbers, but the desk phones themselves, nobody is answering after 4^.30, it just goes to an automatic system. So I am pretty certain that it was the next day that I actually spoke with somebody at the police department.

Q. When you decided to go ahead and -- I guess, is it fair to say from your answer, that when you talked with Mr. Saacks, you decided to go ahead and handle that case yourself directly and you would be the primary prosecutor on the case?

A. I don't know that I had made that decision specifically then; but, I mean, I was certainly aware that we were in the middle of an election. I expected that this was a case that the media was going to have some interest in, and for that reason, I figured that I was likely going to be asked about the case. That someone was going to come to me at some point and the media got this information because the Non-Testimonial order was turned in, but somebody was going to want to know about it. And so, I said, well, I probably need to be the person involved with the case, and I don't think that there was a decision necessarily at that point because I wasn't sure what, I mean, I knew the allegations, but I didn't know really what else we were going to have. So I'm not sure that I made the decision that I would prosecute it until I had actually spoken with the police investigators themselves, which would have been the following Monday. I think that all I was trying to do that week was establish myself as the person to be contacted if somebody needed to talk about the case. And I did say that I would like to be - to be briefed on the case about the extent of the investigation, and that was done on Monday morning, the 27th, I guess.

Q. Okay. I want to come back and talk about that. Was there any discussion with Mr. Saacks or anybody else about -- and you'll have to pardon me because I'm not a criminal lawyer -- about whether the NTO could have been returned under seal, given the nature of the allegations that were in it?

A. Not at the time. I mean, obviously, Judge Stephens, on his own, sealed some of the subsequent things that were turned out. As I indicated, I did not find out about any of this until after it had already been served on the players and probably executed. I'm not sure. But I did not seek to do that at the time.

Q. Okay.

A. I can't say that I really thought about it at the time.

Q. I want to just ask you about something and I'm going to let you look at -- we've got a notebook here of potential exhibits to discuss, and I will just direct you to which one. There is a report on Sergeant Gottlieb's notes, which I think is Exhibit 204.

A. I have Exhibit 204.

Q. If you would go to Page 6, which is on the bottom, right-hand side there?

A. Bottom right-hand? Okay. Okay. I see what you're saying.

Q. There is an entry above that 3/24/06?

A. Yes, sir.

Q. He writes, "Captain Lamb" -- Sergeant Gottlieb writes, "Captain Lamb, met with me and advised District Attorney is going to be running and prosecuting this case in the event criminal charges are sought. He said to continue with our investigation but to go through Mr. Nifong for any directions as to how to conduct matters in this case." And he also notified -- Captain Lamb also notified him to make sure he was kept up-to-date, his command staff. Is that an accurate reflection of the conversation you had with the police department as to what you told them?

A. Well, it makes me believe that it probably was Captain Lamb that I spoke with. But I never would have said that we were going to be running the case. I may have said that I would probably be the prosecutor if the case were prosecuted. I don't recall that. I certainly told him that I wanted to be kept abreast of developments in the case and that if there was anything that the police department needed that it should come --- that request should come directly to me.