Has Anything Changed Since the Duke Lacrosse Case?

Someone asked the question recently...has ANYTHING changed because of the Duke Lacrosse case?

Well...in some ways, yes.

Those of us inside and outside of academia have had the "Rules of Instant and Egregious Condemnation" clarified for us.

1. Three white privileged Lacrosse players accused of raping a Black woman? The three P's apply: POUNCE! PONTIFICATE! PROSLETIZE!

CARPE DIEM!

2. A Black Fraternity guest is accused of raping a white woman? SILENCE.

3. A White but Gay Employee of Duke is accused of pimping out his adopted Black Son? SILENCE.

There would be absolutely no Faculty "Listening" allowed in the latter cases. There is no agenda currency in listening to the agony of a white rape victim or the fear of a poor Black child, sexually exploited by his adopted father. There's no PC teaching moment in it. In fact, the opposite...hence the mandatory group-muffle.

In those last instances the only sound heard on the Duke campus was Kathy Davidson's yawn. Nothing like the incessant public yowls of the Lacrosse case.

We understand now.

The empathy shown for any victim, even a child, must be weighed against the Societal PC Victim Status afforded the Offender....and any Angry Studies Career Protection Points available through incessantly pushing the Metanarrative.

The Duke faculty also understands that if they abide by these rules, and only condemn within these clarifications, their careers will flourish.

So a mutual better understand sans respect does exist.

It's something.

But, how about over at the Durham Police Department? Has anything changed THERE?

Well, in that case, no.

On May 4th 2010 The NC Court of Appeals issued a rebuke of the procedures employed by Durham Detective Richard Clayton, the Durham PD, and the prosecution by overthrowing a conviction and issuing an order for a new trial in the case of STATE OF NORTH CAROLINA v. DEMONTRE ANTHONY SAMUEL
http://www.aoc.state.nc.us/www/public/coa/...df/091230-1.pdf


"Richard Clayton? Now that name rings a bell....a REBUKE?

Oh yes.

Detective Clayton is remembered for his supporting role as one of Sergeant Gottlieb’s investigators in the discredited 2006 Duke Lacrosse Hoax. He was the officer who gave Crystal her first ID attempt on March 16 at her home. Just to review...he showed her four photo arrays of 6 people. Those 24 were ALL members of the Lacrosse Team.

His narrative of the event wasn't submitted until the second round of discovery. This was the first of the violations of DPD General Order 4077 covering ID procedures. Later Clayton was the officer who was sent to arrest Reade Seligmann's alibi witness on trumped up charges, cab driver Moezeldin “Elmo” Elmostafa. Mr. Elmostafa would later testify to what Clayton said to him before his arrest, "The detective asked if I had anything new to say about the lacrosse case. When I said no, they took me to the magistrate..."

Mr. Elmostafa was later exonerated at trial, but nevertheless, he had to endure the injustice of that trial that was without a scintilla of credible evidence or as Stuart Taylor commented was "transparently contrived" and "unworthy of belief."

So what was the basis for this new rebuke of the DPD in the Samuel's case?

One of the main contentions in the Samuel's Appeal Court decision was the introduction of weapons at the trial which also had no scintilla of evidence linking either of the guns to the crimes charged. These weapons came from a search warrant obtained from a questionable ID procedure and subsequent investigation of witnesses who would have conflicting statements to the Police and the Court. These weapons were used to influence the jury decision of guilty.

In the appeal opinion of appellate Judge Linda Stephens and concurred by Chief Judge John Martin it stated;

"..Clayton called Larry down to the station so that Larry “could identify who did it[.]” Larry was shown a photo array created by Clayton containing Defendant’s picture. Larry did not identify his assailant the first two times he viewed the array. Believing that Larry had “paused” at picture number five, Defendant’s picture, Salmon left the room to talk with Clayton. Clayton and Larry’s mother then entered the room to lend “moral support” to Larry. After talking with Larry for five minutes, Clayton and Larry’s mother left the room, and Salmon again showed the photo array to Larry. This time, Larry identified Defendant as the assailant. Salmon went to Clayton’s room with a “smile on his face” to tell Clayton that Larry had identified Defendant in the photo array.

Based on this questionable identification, Clayton obtained a search warrant for Defendant’s home. As a result of the search, the two handguns were found. As discussed supra, there was not a scintilla of evidence linking either of the guns to the crimes charged...."

Now isn't this all very interesting? Was the Duke Lacrosse case one rogue event of "funny business?" Or just business as usual for Durham DPD?

In the civil lawsuit filed 10/05.2010... the exonerated former Lacrosse defendants, Reade Seligmann, Collin Finnerty, and Dave Evans sought to change the methods and manners of how the DPD investigates cases. Specifically it calls for a federal monitor...for a system out of control and seemingly out of integrity.

http://www.wral.com/news/local/story/1896692/

Richard D. Emery, a New York-based civil rights attorney representing Reade Seligmann, one of the plaintiff trio said to an interview to WRAL TV

"The demands here are to protect other people from false accusations that these boys suffered – other people in Durham and other people throughout the country – by using this case as a deterrent," Emery said.

In particular the civil lawsuit demands

"that all eyewitness identification arrays, lineups, and similar procedures conducted by the Durham Police Department, whether formal or informal, and/or of suspects or “witnesses,” conform to the provisions of General Order No. 4077 and be recorded by videotape "

Some have tried to argue this was unnecessary. Durham is doing fine overseeing itself. The NC Court of Appeals certainly gives the lie to that line of defense.

Two years and 9 months have passed since the plaintiffs filed this lawsuit.

The May 4 Court of Appeals rebuke tells us that at the DPD...nothing much , except the unfortunate targets have changed. The circumstances and ID procedure that were one of the root causes of the false arrest of Duke Lacrosse Players and the harassment of the 2006 Lacrosse Team ... were used again in the case against Demontre Samuel.

One of the same officers is even involved.

Once again we hear essentially the same words..

"There was not a scintilla of evidence..."

Still think the DPD is run by the book?

Still think the DPD doesn't need that Federal nanny?

Still think the Civil Suits are just about money?

Well, then, you must be a Duke Professor...fiddling with that "PC Fairness" calculation by which you wish to run your skewed new world.

Hat Tip: sdsgo

Pac Listservers , Durham PD, and Cpl Addison

In our preceding article we introduced Durham PD’s Pac Listservers

Durham’s Partners Against Crime

The Partners Against Crime program promotes collaboration among police officers, Durham residents, and city and county government officials to find sustainable solutions to community crime problems and quality of life issues. It is a community based volunteer organization that promotes and executes safety strategies to prevent crime at the neighborhood level. Each of Durham Police Department’s five police districts has a PAC organization that holds monthly PAC meetings. Durham PD Web Site

More than just a neighborhood listserver the Pac system is divided into five districts throughout Durham. The Durham Police regularly monitor the system for information, post crime reports, and use it as a method of dissemination to reach list members. Former Police Chief of Durham Chambers twice posted explanations of police policy and actions. The City of Durham’s Office of Public Affairs also regularly uses it for Press Releases.

The Pac program started in 2000 with the Pac2 and gradually added the four other police designated districts. Currently Pac2 has over 900 members and the total Pac list(1-5) contains over 2200 members. Pac2 is the dominant list and it senior members are influential in the community and have the stated purpose to improve Durham and fight crime. Some of them are moderators of the neighborhood listservers and some are members of the Durham Roundtable which is an organization of 13 members dedicate to improving Durham by watching over the court system.

In our earlier article “From Wall of Silence to Community Uproar” we detailed how on March 24, 2006 Durham PD Cpl Addison started a series of newspapers interviews and TV appearances which shocked the community with the allegation, stated as fact, a sexual assault happened at 610 N. Buchanan and the 2006 Lacrosse Team was responsible.

John-In-Carolina has an informative series of posts called the Addison Series 1-5. It traces Addison's actions. JinC

As the accusations exploded in the local newspapers and on TV, the listservers around Duke naturally became a forum for members upset about the allegations. They were reacting on the false premise that the sexual actually did happen, that there was an exam at DUMC which proved it, and the team was hiding behind a wall of silence. Posters were incensed at the Team, their parents, Coach, and Duke whom they accused of a cover-up by its inaction. Some of these members complaining were Duke Faculty members.

March 28, 2006

March 28 was a busy day for the City of Durham, the DPD, and DA Nifong.

The Police released the two 911 calls but claim they didn’t know who made the calls. They did!

Mayor Bell Bell said "I suggested that I think they should cancel the rest of the games for the rest of the season. I think that, in itself, would make a statement -- not only to the persons involved, but to the community." WRAL

Coincidentally the investigation suffered the worst blow. SBI Labs informed Officer Himan and DA Nifong that there would be no match between the SANE KIT and any of the Lacrosse DNA swabs because the quick and simple test for semen found nothing. There was nothing to test. For most DAs and Police Investigations it would have meant they were heading in the wrong direction and rhetoric should have been racketed down. No DNA meant her allegations were obviously unprovable and surely no jury would ever convict.

It is alleged in the Ekstrand complaint Senior Durham City Officials, Durham Senior Police Command, and Duke representatives were informed that DNA results didn’t support the accusation of sexual assault and the investigation was in trouble as the false accuser had also failed two ID attempts. Sgt Gottlieb in his depositions said the investigators were briefing those Senior Officials and there were too many meetings to remember.

Unbelievable in the midst of this exculpatory evidence DPD’s Cpl Addison would post the following message to all Pac Servers and label it,

"Hi Priority" with e-mail cc to 34 local media members.

Over 2000 individuals would receive this directly from Cpl Addison in their in-boxes or user groups.

Addison Message

Tue Mar 28, 2006 12:20 pm message # 1066

Durham CrimeStoppers needs your assistance….

On Monday, March 13, 2006 about 11:00pm, the Duke University Lacrosse Team solicited a local escort service for entertainment. The victim was paid to dance at the residence located at 610 Buchanan. The Duke Lacrosse Team was hosting a party at the residence. The victim was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community.

Durham CrimeStoppers needs your assistance in solving this case. Although, we have received many calls expressing concerns and anger about this incident, we have not received any calls which will allow us to assist in resolving this case. We are extending our plea for information and help to our Duke family, who are also part of our community.

We are asking anyone who has any information which will allow the Durham Police Department to make an arrest in this case, please contact Durham CrimeStoppers at 683-1200. Please feel free to email me at david.addison@... with any information. Please use an anonymous email account. Durham CrimeStoppers will pay cash for any information which leads to an arrest in this case.

"There is no den in the wide world to hide a rogue.... Commit a crime and the world is made of glass"
Ralph Waldo Emerson, Essays

Corporal David Addison
Durham CrimeStoppers Coordinator
Durham Police Department
505 W. Chapel Hill Street

The media recipients were well known columnists and reporters of the News-Observer, Durham Herald-Sun, and local Radio/TV stations. It was a virtual who’s who of the Triangle media community. Coupled with what was alleged to have been said “off the record” it would have supported the false accusations and made it difficult for reporters to provide some opposite perspective to the PD’s campaign of misinformation. No reporter wanted to fight the tide by saying the accusations were baseless, especially when DA Nifong was going “off the record” spreading falsehoods about an exam report which he had never read.

The question remains of Cpl Addison as to whom was he obtaining his information from and was he taking orders? Did it have anything to do with the Police being informed there would be no DNA match? Why was he doing this now when the investigation was in trouble and it looked like a false accusation? This message stated it as fact a sexual assault had occurred.

Additional follow up messages

Addison would not just send this out once, but he would repeat it four more times.

Mon Apr 3, 2006 2:26 pm Message # 1077 (He sends this same message without any changes.)
Mon Apr 10, 2006 8:16 am Message # 1092 (Finally adds Alleges to the accusation)
Mon Apr 10, 2006 8:34 am Message #1094 (Same as above but explains it was at the request of the PD)
Tue Apr 18, 2006 12:48 pm Message # 1106( Same as 1092 above)

Five times he posted this to all of the Pac listservers, not just Pac2, but to all of the police designated districts. Why would he repeat this four more times when he never did that before with Durham's Crimestoppers?

Again as with the Trinity Park listserver these posts had their effect of inciting the community against the Lacrosse Team and backing up the false allegations. The listservers were adamant that something must be done to the Lacrosse Team.

Sgt Gottlieb posts again

Sat Apr 8, 2006 4:31 pm
April 7, 2006
Residents in the neighborhood of 610 N. Buchanan:

The Durham Police Department is continuing its investigation of a sexual assault reported on March 14, 2006. The time period the assault took place at a party at 610 N. Buchanan was from approximately 11:30pm on March 13, 2006 to approximately 12:30am on March 14, 2006. If anyone heard or saw anything unusual in the area please contact the Durham Police District 2 Violent Crimes Investigations Division at (919) 560-4582 and speak to either Sgt. M. Gottlieb at ext. 228, or Inv. B. Himan at extension 229. Durham CrimeStoppers (919) 683-1200 will pay cash for any information leading to the arrest and conviction of any suspects.

You will note that in Sgt Gottlieb's & Cpl Addison's posts they mention 610 N. Buchanan specifically. Early in the formation of the Pac2 listserver debate was raised about the fairness of identifying specific addresses and the conclusion was reached to just use a block address. However both Sgt Gottlieb & Cpl Addison specifically referred to 610. N. Buchanan in all of their posts.

April 10 SBI DNA Release starts to quiet the Mob

With the public revelations of the SBI DNA results by the defense attorneys in front of the Durham Courthouse the list servers started to calm down. DA Nifong was not happy with the defense attorneys for that.

However even the most ardent followers could see the case was very weak. But that didn’t stop Cpl Addison from posting again his allegations. Had the DPD released the DNA exculpatory information when it was known in late March the results would have been much different. The "torches and castrate signs" would have been discarded.

Some would continue on with the ridiculous idea they left nothing behind, but the era of the “lynch lawing” had effectively ended the debate on the listservers. Science was trumping false PR.

However the DPD, City of Durham Officials, and DA Nifong had already done their damage by spread their lies to a local and national audience.

More nefariously the Court, Defense Attorneys, the three defendants, and the general public wouldn't learn until Dec 15, 2006 in testimony on cross examination that Dr. Meehan of DNASI had found multiple non Lax DNA in the false accuser’s swabs with no Lax DNA, and DA Nifong, Sgt Gottlieb, and Inv Himan were made aware of that on April 10, 2006.

Conclusion

In reading the listservers what is noticeable is the absence of regret once the case fell apart. This was to be highlighted after Innocence Day, April 11 2007 with NC AG Coopers declaration that no sexual assault happened. For the most part it was dead silence.

Perhaps it is just human nature and we all join bandwagons, but the 2006 Duke Lacrosse Team deserves an apology from those in charge of the listservers of Durham, especially those who posted against them. As we have said some posters warned others what was happening was wrong and the tepid response was to add an “alleged” to their posts, but it seemed more like CYAing than true innocent until proven guilty.

The Pac2 Listserver was indeed being used as an arm of the Durham PD. Their Officers were posting false and malicious information. 2000 Durham citizens received this with 34 media members being notified by Cpl Addison as Hi Priority. Obtaining a fair trial would have been difficult with so much pretrial publicity by the Police.

As noted earlier these Pac district activities are supported by federal government grants. This should be examined to see if Federal statutes were violated, especially under “MAKING FALSE PUBLIC STATEMENTS IN VIOLATION OF 42 U.S.C. § 1983.”

One Lone Poster Speaks Up

Finally a Durham citizen had this lone remark on Innocence Day April 11, 2007 posted to Pac2

"This afternoon the charges were dropped against the remaining Duke Lacrosse players. Remember how this list-serve (and all of Durham) exploded with the news when the charges were first announced? And now, silence.... I hope that anyone who immediately convicted the Lacrosse players after last year's charges takes some time to reflect on today's dismissal of those charges. As difficult as it can be, part of our job as citizens and certainly as "partners against crime," is to try to stay fair-minded and to try to keep thinking of people as innocent until proven guilty, just as we all hope will happen to us if we're charged with a crime. At this point it appears that the biggest crimes in the case were committed by our district attorney. Ugh.... That, of course, remains to be seen."

Circle the Wagons: Addison gets Promoted

(Video Of Addison's statements on WRAL TV March 24, 2006)

In the face of a massive Civil Rights Lawsuit against the City of Durham and it's Police Department, the PD reacted by promoting one of the defendants from Corporal to Sergant as it was revealed in the Durham Herald-Sun.

Maxwell, a past president of the North Carolina Bar Association and the N.C. Academy of Trial Lawyers, is representing newly promoted Durham police Sgt. David Addison in the federal litigation. Addison is accused of conspiring to wrongfully prosecute Seligmann, Finnerty and Evans. Herald-Sun

Sergant Addison's actions at the start of this Hoax incited the community with false & inflammatory accusations that rapists are loose in Trinity Park. His Public Relations campaign ignited a firestorm of public outcry. The reaction of which is in one of our articles.

On March 24 curious news of the Duke Rape Hoax was released to the media. Cpl Addison appeared on WRAL-TV. He also gave interviews to both the Raleigh News & Observer and the Herald-Sun, spreading the accusations and the false claim of the "wall of solidarity" or "wall of silence." Many of his quotes, as reported, were false and inflammatory.

The lurid details of the assault were a shock to the community, especially to the residents of Trinity Park, where the captains lived at 610 N. Buchanan. A 27 year old Black mother of two and NCCU student was brutally beaten and raped vaginally, anally, and orally for 30 minutes by three white lacrosse players in their midst. The police were reporting the rape as an absolute fact. To make the accusation worse, it was claimed that 43 other players stood by and did nothing to stop it. The extraordinary act of Judge Stephens ordering the entire Duke lacrosse team to submit to 46 separate DNA tests, leaving out the one Black player, gave additional credence to these serious allegations.

The false idea that the team was hiding behind a wall of silence was honestly troubling to many in the community. It caused considerable damage to the team’s credibility. Residents just couldn't reconcile the fact that the players might have been falsely accused with what they were hearing about the brutal nature of the assault from the police. “The lacrosse team refused to cooperate,” so therefore, they must be hiding something, was the conclusion of many. At the same time, the media was bolstering the image of the “victim.” The police knew full well the accuser worked for an escort service, and that the responding officer thought the accuser was" passed out drunk." She had herself admitted her inebriation and her use of the muscle relaxant Flexeril (the night of the party) to the doctors at UNC. Unlike the police, at that time the public did not know of the dancers' conflicting stories, a recantation, or the accuser's long psychological history. Nor did the public know of the prior criminal records of both dancers, or the identity of the person who made the 911 calls. The public did not know, but the police certainly did. Recently we learned that at the same time the candlelight vigils were being held, the accuser was performing her regular stripper routine and signing in clients to the VIP room at the Platinum Club.

From the "Wall of Silence" to Community Uproar to a National Story

John in Carolina has a well documented series regarding Addison's actions.

"On March 28, he even distributed to media and the community a CrimeStoppers "Wanted" poster that included this:

”The Duke Lacrosse Team was hosting a party at the residence. The victim was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community.”

But Addison’s “horrific crime” never happened, and there was no wall of solidarity or silence"to crack. John In Carolina

Read John's entire series.

“The Cpl. Addison Series.”

“Addison Series #1" - "This horrific crime”
"Addison Series #2" - "CrimeStoppers will pay cash"
"Addison Series #3" - "Not my poster"
“Addison Series #4 – “They call it ‘squeezing.’”
"Addison Series #5 - "Major Duke Involvement"

The City has apparently taken a circle the wagons approach to defending against the Civil Lawsuit. One wonders what does it take to make Deputy Chief in Durham?

Professor Anderson tells it like it is

Bill Anderson is a professor of economics at Frostburg State University in Maryland and an adjunct scholar of the Ludwig von Mises Institute. He has been an ardent supporter of the innocence of the Reade, Collin, and Dave. Throughout the life of the Hoax he has claimed their civil rights were being trampled by the deceitful actions of the DA and PD. His columns on LewRockwell.com are eagerly awaited. Today he has released one of his most hard hitting.

Why There Will Be No Criminal Investigation in the Duke Case

"The daily page of the Liestoppers blog says it all: Time it has taken Roy Cooper to start a criminal investigation: 124 Days, 19 Hours, 28 Minutes, 49 Seconds. The clock ticks continuously, and by the time readers see this, more time will elapse.

In fact, the clock might as well tick forever, for there will not be any criminal investigation at all, not from the State of North Carolina, and certainly not from the federal government. None...." LeeRockwell.com

Professor Anderson's entire article is a must read for those who wonder why, despite the overwhelming amount of evidence of prosecutorial and police misconduct, US Attorney Anna Mills Wagoner and NC Attorney General Cooper have not acted. Those entrusted in our government waffled in fear of political consequences.

It is now apparently in the hands of of the civil attorneys. We wish them well. We support them fully. As Ben Bradlee might say, "It's only the Constitution of the United States which is at stake!"

Parsing The Duke Lacrosse Suit

Stuart Taylor Jr, co-author of Until Proven Innocent, commented on the recent filing of a Civil Lawsuit against the City of Durham, DNASI, and fourteen individuals. His full article was in The National Journal.com/TheGate

"I have no doubt that Dave Evans, Collin Finnerty and Reade Seligmann will amply prove the heart of their claims, which are as follows:

The prosecution of the lacrosse players over the course of a full year was "one of the most chilling episodes of premeditated police, prosecutorial, and scientific
misconduct in modern American history."

As many as 10 Durham police officers and two hired DNA experts along with Nifong "knew that these charges were completely and utterly unsupported by probable cause, and a total fabrication by a mentally troubled, drug prone exotic dancer whose claims, time and time again, were contradicted by physical evidence, documentary evidence, other witnesses, and even the accuser herself. In their rush to accuse, Defendants willfully ignored and were deliberately indifferent to overwhelming evidence of Plaintiffs' actual innocence."

"Instead, Defendants used the accuser's inconsistent and demonstrably false allegations as fuel for a media campaign to obtain indictments and win a hotly-contested election at the expense of the three innocent Duke lacrosse players. With a community and a nation thus inflamed and clamoring for indictments of Duke lacrosse players, but with no evidence that any players had actually committed a crime, Defendants set about to fabricate such evidence [and] conspired to conceal... exculpatory evidence in order to charge and convict Plaintiffs on 'facts' they knew to be untrue."

Critics of the lawsuit ignore the mountain of evidence that is
already in the public record supporting each and every one of these
allegations."

Explosive details In Lawsuit

The lawsuit charges that the first Durham PD investigator, B. Jones, concluded there was no evidence and decided to close the case on March 15th . However Gottlieb took it over on that same day while working "off Duty" at City Hall.


1. Gottlieb Takes Over the Investigation

80. On March 14, 2006, responsibility for investigating Mangum's rape claim was assigned to Investigator B. Jones. On or about March 15, 2006, Jones concluded that there was no evidence to proceed with a criminal investigation and that the file would be closed.

81. At that point, however, Durham Police did not close the investigation, but instead reassigned the investigation to Defendant Mark Gottlieb.

82. Upon information and belief, Gottlieb was known to supervisory officials in the City of Durham and the Durham Police Department as having a history of selective and malicious prosecution, false arrest, excessive use of force, manufacturing of evidence, and filing of false police reports against students at Duke University. Upon information and belief, Gottlieb was so notorious in his dislike of Duke students that he had even been reassigned from covering the Trinity Park neighborhood around Duke University because of his prior misconduct and abhorrent record with respect to Duke students. The house where the party occurred, 610 N. Buchanan, is located in Trinity Park.


Also on March 16th Gottlieb and Himan knew Crystal Mangum worked at the Platinum Club. That was never revealed in their published notes.


91. On or about March 16, 2006, Gottlieb and Himan interviewed Mangum. During this interview, they learned that Mangum was an exotic dancer who performed at a club called “Platinum” in Hillsborough, North Carolina, and also an “independent contractor” who worked on occasion through Angels Escort Service.

Details of Undisclosed Police Document Revealed in Durham Herald-Sun Article

Durham Herald-Sun Reporter, Ray Gronberg, dropped a bomb on the City Council's meeting scheduled for this Thursday with the report of an undisclosed police document that "investigators talked with the accuser more than they disclosed previously, and that Mayor Bill Bell and other high-ranking city officials convened two days before a stalled case got a jump start with a photo lineup that violated policy."

It also details that Investigator Himan interviewed the false accuser, Crystal Magnum, more than he reported and did not reveal in his notes.

Police document details lacrosse events
By Ray Gronberg : The Herald-Sun

DURHAM -- A police document detailing new information about the Duke lacrosse case investigation reveals that investigators talked with the accuser more than they disclosed previously, and that Mayor Bill Bell and other high-ranking city officials convened two days before a stalled case got a jump start with a photo lineup that violated policy.

Bell urged police to expedite a resolution to the case partly because he worried that racial unrest could erupt, he acknowledged Tuesday. That fear was hidden from his public statements at the height of the Duke lacrosse case when he expressed confidence in Durham's racial unity and condemned national media portrayal of black-white tension.

A copy of the police document -- labeled "Timeline of events for council" but kept so tightly under wraps that it may never have reached elected officials -- was obtained by The Herald-Sun.

Among other data entries, the timeline said Ben Himan, Durham's lead detective in the Duke lacrosse case, spoke to the accuser on March 28, 2006. That discussion isn't mentioned in the case notes of either Himan or his supervisor, Sgt. Mark Gottlieb.

According to the document, Bell met with Himan March 29, 2006, two days before authorities agreed to conduct a photo lineup that violated city policy but prompted indictments of three innocent men.

Documentation shows City Manager Patrick Baker and former Police Chief Steve Chalmers were at the discussion. It occurred in a regularly scheduled Wednesday morning meeting that allows Bell, Baker and Senior Assistant to the City Manager Reginald Johnson a chance to confer about the city's business..." Herald-Sun

The article also reports about another high level meeting when the case was stalled and makes clear that City Manager Baker, Mayor Bell, high level City of Durham Officials, and Duke University Officials were discussing the investigation which would result in three innocent Duke Lacrosse players being indicted for a crime that never happened. At that time all 46 Lacrosse players were being investigated and being publicly scorned in the community and on campus by the Duke Professors called the 88. Wanted posters of the Lacrosse Team were later distributed on campus. It raises the question was justice denied the entire Lacrosse team to "solve" a potential racial community upset over a crime which didn't happen.

A racial problem that was created by the false accusations of Crystal Magnum and repeatedly in the inflammatory remarks of Durham PD Crime-stoppers Cpl Addison on WRAL TV, in the Durham Herald-Sun, and the NewsObserver. Those comments would claimed a young Black college student, mother of two, who was dancing for the first time before a group to support her children, was brutally raped orally, anally, and vaginally. They would later prove to be totally false as declared by NC AG Cooper.

The article reports.

"Bell's morning meeting with Himan and Chalmers was only the first high-level conference about the case to occur on March 29, 2006.

That afternoon, Himan and Gottlieb conferred with Baker, Chalmers, Deputy Police Chief Ron Hodge, a police attorney and two Duke officials, Aaron Graves, associate vice president for campus safety and security, and Duke Police Director Robert Dean. After that, the detectives met with Nifong.

The timeline -- compiled the following week by Gottlieb with help from Himan and Investigator Michele Soucie -- shows Himan met again with Nifong on March 30, 2006. Himan and Gottlieb also met with Nifong on March 31, 2006, a key date in the investigation. That is when Nifong told the detectives to show the accuser a photo lineup that omitted "fillers" -- images of people who weren't on the lacrosse team. Such a lineup violates policy because any pick would have been a lacrosse player..."

This article comes at an unfortunate time for the City Council as it is scheduled to discuss the terms of a settlement with the threatened civil rights lawsuit by attorneys representing Evans, Finnerty and Seligmann.

The deadline for the City's response is Friday Oct 5.

(Reporter Ray Gronberg - LieStoppers tips its hat to you!)

Inv. Ben Himan’s Typed Notes, Part 4 (January 13 - April 4, 2007)

1/19/07 - Contacted by Ange Ashby, she advised me that the property had come in from ASR Data and that she had put it into property.

[04/25/2007 22:34, Himan, 447, DPD)] 1/25/07 1622hrs - Was called by DNA Securities in reference to buccal swabbing that was in evidence.

1/25/07 1626hrs- Contacted CSI supervisor Ashby asking for someone to make arrangements to pick up evidence. She stated that she was going to have someone pick them up by next week.

1/25/07 1628hrs - Contacted DNA Securities back and advised them that CSI Ashby would be making arrangements to pick up the evidence.

2/2/07 - Signed item 129 out of property and transferred property to SBI agent Michael Smith at 3320 Gamer Rd. Building 188, Raleigh, NC 27610.

2/13/07 1245hrs - Went to Brian Taylor’s address, no one answered the door. Left business card in door.

2/15/07 1210hrs - Went to Brian Taylor’s address and was able to talk to him regarding where he went after he dropped Crystal off. He stated he think he dropped her off around 1115 to 1125. He then drove directly to the gas station. He described it as the one across from North Point Mall. I asked him if there was a Burger King across from it and he stated yes. I then drew a map on a paper to describe where it was and he pointed to the gas station that he went to. I asked what he did and he stated that he got gas. I asked him if he used a credit card or paid in cash and he stated he thinks he paid with his credit card. He stated that he went into the station and paid with a credit card. He said the amount was probably around 10-15 dollars because he filled it probably half way since it was almost empty. He stated that he used his State Employee Credit Union Visa credit card number xxxxxxxxxxxxxxx and his account number is xxxxxxxxxxx.

2/15/07 1340hrs - I went to Han-Dee Hugo’s #77 fast fare gas station located at 1203 W. Club Blvd. I talked to the manager Allen Ivy about getting information on a receipt. I told him that person had told me that they paid for gas with a credit card and he stated that if they paid in the store that he could find it but if he paid outside he wouldn’t be able to get the receipt. I left Brian Taylor’s name and credit card information and contact information for me.

2/15/07 - about a half hour he called back and stated he found a receipt.

2/15/07 1430hrs - I went back to the store and Mr. Ivy gave me the receipt. The receipt had a charge for gator-xfac for $1.39 - the date was 3/13/06 - 2343:56. I told him I would bring back a copy for him and he stated that it was fine.

2/15/07 1445hrs - I called Brian Taylor and asked if he paid inside or out, he stated that he went in the store. I asked if he had bought a gatorade there, he stated yes, that he knew be went into the store but he bought gas outside.

2/15/07 - I later returned and gave the manager a copy of a property receipt for the receipt he had given to me.

2/21/07 1136hrs - Met with Crystal Mangum, Mary Winstead and Jim Comm. This was the first time that Crystal had met with in person. All three were introduced and all of them talked about themselves regarding family and experience. Crystal spoke about her family, Richard who is 7 and Arians who is 6 and the baby Kayla Murchison. Crystal Mangum stated that she was enrolled at NCCU and taking 13 credits this semester, she stated she thought she was around 21 credits shy of her degree. She stated that she planned on going into nursing. Questions were brought up about what medicine she has been on and what medicine she is taking. Her medicine is Depakote and Seriquil and her doctor at UNC Family Practice is Dr. Roberts. She stated she was prescribed the Depakote and Seriquil [at] Holly Hill and was assisted in admittance from Dr. Roberts. She stated she was admitted to Holly Hill in July 05 due to loss of job and being depressed.

Reference any jobs, she stated she worked as a med tech at Eno Point Assisted Living and left due to a disagreement with the supervisor. Reference her starting as a dancer, she called Tammy in the phone book, started around Feb 25, 06 at Platinum. Reference working for the escort agency, she met a girl at Burger King.

Reference any problems at Platinum, she stated she had a problem with Passion because she had danced with one of her boyfriends. She stated she last worked at the Platinum Club for an album release party, March 20th. Or March 25th.

Reference to any medicine she was taking during the incident, flexeril was mentioned but she did not take it that night. She took the flexeril for back pain

2/22/07 1205 - Called Brian Taylor and asked if he could get his records from March 13, 2006 regarding his gas purchases.

2/26/07 922 - Left message for Iris Hicks regarding information on getting students information.

2/27/07 935hrs - Called Tara Levicy- left message

0956 - Tare called back left message in voicemail about her schedule.

2/27/07 - called Ira Hicks registrar at NCCU in reference to getting school records.

2/27/07 1022hrs - Ira Hicks called back and left message regarding procedure to get records.

2/27/07 1316hrs - Contacted Brian Taylor about getting financial statement from credit union, he said he had forgotten about getting the information but would get it

2/28/07 933hrs - Arrived at Crystal Mangum’s residence at 19 Dauphine Place in reference to collecting a buccal swab from (kayla) the baby.

2/28/07 0942am - Had Crystal write a release for her college records from nccu.

2/28/07 - Called Mark Simeon - left message to contact me reference Kim Roberts.

2/28/07 1111hrs - Arrived at NCCU registrars office. Gave release to Joyce Kovalik associate registrar - she gave me transcripts, class schedule from spring of 2006 and fall of 2006.

3/1/07 915hrs - Called Brian Taylor - left messages regarding bank statement.

0923- Called Mark Simeon - left message call back

0929 - Called Dominoes - no answer

0943 - Mark Simeon called back reference interview.

3/2/07 - Called Brian Taylor - talked to his friend who stated that he had gone to work. Called his work and spoke to him and told him that I needed those records as soon as he could get them.

3/2/07 - Called Mark Simeon - left message reference time and date of interview.

3/6/07 - Message was left on voice mail by Mark Simeon, advising that the time and date of interview conflicted with Kim Roberts work schedule.

3/8/07 - Met with Mary Winstead and Jim Coman in reference to interview with Linwood Wilson.

3/9/07 - Spoke with Mr. Rick Renehan, who is a lawyer representing his niece Meagan Renehan. He called and set up an appointment for 1600hrs.

3/9/07 1638hrs - I spoke with Meagan Renehan 10/8/86. I was on a three way call with her lawyer/uncle Rick Renehan. He advised me that she went to Bucknell. It was a brief conversation and she dated him her freshman and sophomore year of high school. She stated they have --- friends ever since. I asked her if she ever received a call from Reade Seligman, March 13 - 14 2006. She stated that she didn’t even know that he called, he didn’t leave a voicemail. She stated she was in Cancun, Mexico and her lawyer/uncle Rick Renehan also advised she was in Mexico. The last time she talked to him was a couple of weeks ago. I asked if she ever talked about the night of the incident March 13, and 14. She stated he only spoke briefly and no details, but he stated “it never happened”. I asked why Reade Seligman was calling at that time of night, and she responded “I don’t know”. I thanked her for her time and Mr. Renehan time and ended the interview.

3/11/07 1425hrs - Mary Winstead and Jim Coman arrive and are brought up to second floor cid conference room for an interview with Kim Pittman. Mr. Simeon arrived and advised me that he thought his client might be late and he was wondering about the day light savings time that had adjusted on the same date. Kim Pittman arrived and both Mr. Simeon and Kim Pittman were signed in at the desk. I escorted Mr. Simeon and Kim Pittman up to the second floor where Mr. Coman and Mrs. Winstead introduced themselves. Mr. Coman began with what the intention of the interview was, if she could shed some light on some of the discrepancies in “Precious” Crystal Mangum’s statements she had made. Kim Pittman became visibly upset and started questioning why she was even them - she stated that she had already given a statement. Mr. Coman emphasized that he just wanted to clarify some of the information that had been given to him. She then stated that if they needed her testimony and wanted to talk to her they would have to subpoena her. She asked her lawyer if she had to be there, and I advised her that it was totally voluntary. She then got up and stated she was leaving. I escorted her down to the first floor where i took her visitor and badge and signed her out.

3/15/07 0818hrs - Called Ally Carter 11/22/87, she stated she knew Reade Seligman from dating him in high school. She stated she went Oak Knoll all girls high school. I asked her about Reade Seligman calling her, the early morning of March 14. She stated doesn’t remember talking to him on that specific date, but she talks to him “1000” times a week and they are very good friends. I asked if she has talked to him since and she stated yes. I asked her if he every talked about the incident and she stated briefly. He (Reade) stated that he was 100% innocent. She stated that he did not talk about the party or anyone else. She stated that he seemed normal when she did talk to him. I thanked her for talking to me and the ended the phone call.

3/15/07 1032hrs - meeting with the attorney general Mr. Cooper, Mary Winstead and Jim Coman at 610 N. Buchanan Blvd. Jeff Potter of Duke University and Arnold Spell of Allenton Management had previously arranged with the attorney generals office to open 610 N. Buchanan blvd.

3/20/07 - Contacted Sgt. Shelton - left message with the accreditation department to contact me.

3/20/07 - Sgt. Shelton called back, said the afternoon or tomorrow would be fine to meet with the attorney general’s office. Appointment was set up for on 3/21/07 at 930 am.

3/20/07 - Left message for Sara Falcon on voice mail. She later called back and asked that the attorney generals office call her preferably in the morning. Between 8-9.

3/20/07 - 684-8111 called Duke Hospital, paging service, left number and contact information with them to contact Dr. Julie Manly. They advised she still works there.

3/20/07 1348 - contacted Days Inn at 300 Dawson Street, spoke to Veeral Bhagat. I asked him if he would be able to look up information regarding a person who stayed at the hotel on March 12. Gave the information of Crystal Mangum and he verified that she stayed there on March 12. I asked if he could fax me the information.

3/21/07 1200 - Called Macy’s due to Brian Taylor’s phone temporarily being disconnected, was unable to reach him.

1320hrs - Called Kate Hendricks from Duke University and asked about contact information for Dr. Julie Manly. Kate Hendricks late called back with contact info for Julie Manly 208-xxx-xxxx.

1540hrs- Contacted Julie Manly, she stated she would call back with her schedule to see a good time would be to meet with the attorney general’s office.

3/22/07 - Contacted Mr. Bhagat Days Inn in reference to check in times and check out times, he stated that their system did not have any time management capabilities during this time, they have since changed there program to record check-in and check-out times.

3/22/07 0957hrs - contacted Dr. Manly, left voicemail to contact me reference her schedule.

3/22/07 1115hrs - meeting with Tom Eagan, and Brent Saeli, and attorney general’s office at station 2. SBI agents took handwritten notes.

3/28/07 - was advised by AG’s office of a piece of property that they had just received. I went over to the AG’s office and met with Mr. Coman and Mrs. Winstead. Mr. Coman showed me a video of Crystal Mangum that Kevin Coleman and taped. In it is showed Crystal who appeared to be impaired, the way she moved and spoke gave me that characterization. At one point on the tape it appeared that she told the person taping that she was “a cop”. It showed her walking around and stumbling with one shoe on.

3/29/07 0924hrs - Picked up Crystal Mangum with Officer Sutton, transported her to SIM lab, where she met with Mr. Coman, Mary Winstead, Greg Tart, Mike D. SBI took handwritten notes.

3/30/07 - went over DNA evidence with SBI lab at attorney general’s office.

3/30/07 - timed the distance to go from Handee Hugo’s at 1203 west club. It was .6 miles to go to arrive at 610 n. Buchanan blvd. It took approximately 1 minute 30 seconds to travel that distance at the posted speed limit. Traffic was low in that area.

I then stopped at 608 North Buchanan Blvd in reference to speaking with Derek Lee Anderson 7/24/82. Mr. Anderson was working outside and recognized me when I arrived. He invited me inside and spoke to Mr. Anderson in reference to 3/13/06. He stated that he had been outside on his porch around 2 or 3 in the afternoon and noticed the neighbors at 610 N. Buchanan Blvd drinking playing “washers” in the back. He saw multiple people outside that day and it increased as the night came on. He estimates 20-30 people were there that night. He stated that they were pretty loud that night. He stated he last saw them in the back yard around 9-10 pm he knows it was dark out then: they had been playing washers for about 7 his now. He went back to his room and started typing on a typewriter that he had just received. He stated that around 1140hrs he was starting to type a letter to a friend when he got up to get a drink from the refrigerator, he noticed at that time that they had finally stopped playing “washers”. He is not for certain but he didn’t think he saw anyone outside at that time, but the crowd that was outside was not there anymore. Mr. Anderson stated that he went back to his room and continued typing. He stated that he was unable to hear anything the rest of the night, his stereo was on and his manual typewriter is pretty loud. He stated around 130 am he went out into the living room and talked to Jason Bissey who then told him about the incident that happened outside of the apartment and the neighbors, Mr. Bissey had told him two strippers arrived and later on arguments between the strippers and the neighbors. Mr. Anderson stated that he didn’t know the neighbors personally. He stated that he knew they were lacrosse players but never really talked to them. He stated he had made small talk with them but they never showed any interest in speaking to them. His only problem that he noticed on a regular occurrence is that none of them knew how to park a car. They shared an alley and it always seemed to be blocked

4/4/07 900hrs - arrived at 19 Dauphine Street in reference to prior arrangement to pick Crystal Mangum there to take her to Raleigh to speak with attorney general’s office Jim Coman, Mary Winstead, and Greg Tan. I arrived at the house with Inv. R.D. Clayton. When we arrived, I went to the front door where i was greeted by Mrs. Pettiford. I asked if Crystal was there and she said “no”, I asked her if she knew where she was, she stated “no”. I advised that i had talked to Crystal yesterday and she had told me to pick her up here. She stated she would try to call her. I went back outside and tried calling Crystal on her cell phone, no one answered and I left a voice mail for her to call me back. I called Mary Winstead due to our appointment was 1000 and it was around 925hrs, I advised her that Crystal was not there. It was agreed for me to wait to see if Crystal showed up.

At around 930hrs Crystal arrived in a vehicle nxa7182. She was dropped off by an unknown male. She was sifting in the passenger seat, i walked up to the vehicle and i asked if her if she was ready. She stated that she was and got out. I opened the back door to my vehicle and she stated that she was going to go in the house and drop some things off. She went in and about 10 minutes later came out, i noticed that she was not walking as she has normally walked, Inv. Clayton started talking to her and when she got to the driver side of the door to get in, i stopped her and asked if she was ok. She stated that she was fine; i noticed that her eyes were wondering, and her demeanor was different then any time i have been around her. I had her sit down and i started to ask her questions, she was answering as though she was intoxicated. I asked Crystal if she had taken any medication. She told me that she had taken ambien last night, i asked her what time she took it at she replied that she had taken the ambien at 6pm, she stated she just started taking the 5mg tablets instead of the l2mgs. I asked her if she had been drinking earlier and she stated “no”. I got close to see if i could smell any alcohol on her. I did not smell any odor of alcohol coming from her breath or body. I again asked her if she was ok, and she stated to me that she was fine.

I felt that there was some kind of impainnent with Crystal, I called Greg Tan (SBI) to advise him of the situation. Agent Tart advised that he would call Mr. Coman and Mrs. Winstead. Agent Tart later called back and advised to see if we could meet at Station 2 instead. I told him that would be fine. I asked Crystal if she wanted to go to Station 2 and have the attorney general’s office meet us there. She agreed and we transported her to station 2. On the way to station 2, I asked her how her little boy was - she stated “oh I thought he was here”, she later stated he was fine and they were out of school. I then asked her if she thought any more about going to school again (as we passed nccu), she stated that she thinks about it everyday. I asked her what she was going to do. She stated she was planning on moving. I asked where she was planning on moving to. She stated she was moving out of the country, i asked her where she was planning on moving to she stated she was going to move to amsterdam, i asked if she knew someone or had family there. She then started laughing and stated that she was kidding and was moving miami.

We got to station 2 and we slowly walked to door. She got in station 2 and i escorted her to the conference room. She asked where the restroom was and i showed her where it was. It was about 10-15 minutes she was in there and we had our female secretary go check to see if she was ok. As she was going in to check, Crystal came out. She sat down in a chair at the conference table and I turned on the TV, I started flipping the channels and she decided to watch tv (food network). I asked her if she wanted anything to drink or eat. She said she wanted a drink, I got her a mountain dew. She finished one of them and she asked for another one and a straw. I got her another mountain dew and a straw. She watched tv for a little bit and she looked at the clock and it was about 1030hrs, she stated that they were late, I told her that the original plan was for her to meet there in Raleigh. Shortly thereafter Mrs. Winstead, Mr. Coman, and Agent Tart arrived. They started to ask her some questions. They noticed that she was impaired and asked to do some tests. Crystal stated that she didn’t think she was impaired and she felt like she usually does. Agent Tart took handwritten notes of the interview .(the interview was also video recorded) in the interview Crystal consented to have a blood sample taken, arrangements were made and a nurse Pam King arrived and took a blood sample. A medical release form was also obtained from Crystal.

It was agreed that Crystal be taken back. I asked her where she wanted to be taken to, she stated Dauphine Street. At 1 158hrs we left Station 2 - while in the car she stated that she had messed up again, i asked her what she was talking about. She stated that she messed it up and that she was kicked out of the meeting. I told that it was probably a good idea to get some sleep and that the medication she was taking shouldn’t be mixed with alcohol. She agreed and stated that she did need sleep. We arrived at 19 Dauphine St. At 1214hrs; Inv Clayton and I assisted her in getting out of the car. Inv. Clayton went in front of her to open the door to the residence, she was walking to the stairs and i asked her to grab onto the side rails of the steps. She grabbed onto them and put one foot on the steps, Inv. Clayton was helping her up the stairs when he told me to grab Crystal. Her body went limp and she fell back into me. I lifted her up and Inv. Clayton assisted her to my vehicle and I called 911.

I advised communications of the situation and engine 4 and medic 8 arrived. I advised both units of the medication she had been taken the way she had been acting. I advised them that she said she had eaten a small breakfast and i advised them that i witnessed her drink 3 mountain dews in my presence. The medic unit arrived and took possession of her medication that was in her purse they advised me they were going to take her to Durham Regional. Ms. Pettiford her aunt that lives at 19 Dauphine Street rode in the ambulance with her. Throughout the night i periodically checked on Crystal and spoke with her cousin and boyfriend Mathew Murchinson. I later spoke to Crystal while she was in the hospital and she advised me that they thought she was dehydrated and she also advised me that the doctor had told her she had overdosed on the pills. Crystal told me she had told the doctors about taking the pills to early, and that she thought she had just taken the pills to early in the day.

I advised Greg Tart and Mary Winstead of Crystal’s condition. I was notified by Mrs. Winstead in the morning that the ag’s office was going to be making an announcement regarding the dropping of the charges against dave evans, reade seligmann and collin finerty. I contacted crystal on or around 830. I advised her that the ag’s office wanted to me with her again and she said she couldn’t do meet with them today. I advised that it was very important that they meet with her today. I asked why she could meet and she stated that she a meeting set up by Mrs. Winstead. I advised her that we would check about rescheduling the meeting for her. She said ok and l asked her if she was going to have her phone on and she said she would. On or around 10.1 called Mrs. Winstead about meeting with Crystal - she stated that she had talked with the counselors and that Crystal had told them that the media was out side of her house and that she would be able to make the counseling meeting. I advised Mrs. Winstead that i could go pick Crystal up and make arrangements to make sure she got to her appointment and then i could take to her meet them afterward.

Officer Macfaydyen and I went to Crystal’s reported residence of 19 Dauphine Street. I tried to call Crystal and no one answered, i then called her aunt Mrs. Pettiford. Mrs. Pettiford stated that Crystal was not there and she hadn’t been staying there. I asked her where she could be and she didn’t know. I tried multiple times calling Crystal and leaving multiple messages. 1 then went to 2518 Barrack Dr.. Where she had stated that her children were sometimes watched. I noticed the same vehicle in the back of the house that dropped her off. I drove up in the driveway and spoke to an unknown female; she stated she didn’t know where Crystal was. I told her that i knew she had been staying here and the female stated that she had left, I asked her when and she stated, last night. I then asked who took her, she replied “I don’t know”. At that point it was apparent that they were not going to tell me where she was. I then left the driveway and parked my vehicle down the street to call the ag’s office and m) supervisors. I advised the ag’s office of what was going on and they advised me they had left multiple messages and text messages to contact them. They also advised me they had contacted 2518 Barrack residence and had spoke to someone at the house who said they would give her their messages. I also contacted an unknown person at the Barrack residence and advised them if they saw or heard from Crystal to contact me.

I then contacted her cousin Ms. Pettiford's 31 year old daughter who seemed close to Crystal and had traveled with Crystal on another appointment. I contacted her and stressed the importance of meeting with Crystal. I asked if she would talk to the family at 2518 Barrack to see if we could locate crystal. I went to dauphine street and picked up her cousin. We then went back to 2518 barrack to see if she could find out where crystal was. I drove up the drive way and the same female came out the front door and confronted the cousin at the doorway. About 5 minutes later the cousin came back and stated she had told her they didn’t know where she was. A vehicle that was there had left. I then drove the cousin back to 19 dauphine street; on the way there 1 asked if she knew how to get a hold of Matthew Murchison. She called the number that was given for 2518 barrack street (XXX-XXXX). She spoke with a person and they stated that they didn’t want to give the number to her that they would call him and tell him to call us, i again gave them my number and pager to call.

I dropped the cousin off and went back to Station 2 and advised the ag’s office and Capt. Lamb that I could find crystal. At around 1355hrs I received a call from Crystal, she asked “what is going on” I told her that i had been looking for her for over 3.5 hours, she stated “oh, i dozed oft”, I stated that the ag’s office wanted to meet with her. I asked her if she was going to be by her phone she said yes. I called the ag’s office and advised them i had received a call from crystal. They said they wanted to meet her and to sec if she would come to station 2. I called Crystal back and i asked her if I could pick her up and she stated yes. I asked her where she wanted me to pick her up. She stated at dauphine street. I told her that I was going to be there in 15 minutes, she stated she would be there. Officer Macfadyen and I went to 19 dauphine street again and I arrived at around 1415hrs and crystal was not there. I spoke to the cousin who asked why i was back. ] told her crystal had asked us to come here to pick her up. I waited and listened on radio to the attorney general Roy Cooper announce that his office was dropping the charges on david evans. Collin Finnerty, and Reade Seligmann.

After the announcement, I was still at dauphine street waiting for Crystal, it was about and 1 .5 hr I waited and crystal called during that time crystal had called her cousin and said that she would be there shortly. Crystal called my cell phone and lasked if she was coming still. She stated “I don’t think I am going to show up today”. I said ok, she then asked how she could get her phone and purse. I advised her there was a process and I had to get permission to release the property. She then hung the phone up on me. I went back to station 2 and spoke with Mary Winstead, Jim Coman and Agent Tart. I received a call again from crystal asking if she could come and pick up her property I advised her again that there was a process. She then hung the phone up.

Titus Played the Fool (Last update 11:38PM)

Just when we thought nothing could surprise us in Durham’s now closed production of the Theatre of the Absurd, the Nifong/Mangum Hoax again stretches the bounds of amazement.

It appears that the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) protected key card records of Duke University students which District Attorney Mike Nifong sought by subpoena 0n May 31, 2006 were actually provided to the Durham Police Department, and in turn to the ex-DA, on March 31, 2006. Although Nifong had access to the records for months, he pretended to seek them with his subpoena and then, incredibly, argued vigorously for their production in a July court hearing.

A review of the case notes and State Bar deposition of Sgt. Mark Gottlieb reveals that the private key card records were obtained from Duke University without a court order and in violation of FERPA. Gottlieb's deposition also reveals that the information provided illegally by Duke University contributed to the indictment of Collin Finnerty while leading directly to the indictment of Reade Seligmann. The key card date, illegally obtained and purposefully misconstrued by Sgt. Gottlieb, offered the only "corroboration" presented to the Grand Jury of Seligmann's presence at the scene of the imagined crimes.

At approximately 3:00PM on March 31, 2006, Duke Police Investigators Sgt. Gary Smith and Sgt. Greg Stotsenberg delivered a report on the key card activity of the Duke University lacrosse team to Sgt. Mark Gottlieb of the Durham Police Department.

Sgt. Gottlieb’s homegrown notes indicated:

3/31/2006...1500
Inv. Smith and Stotsenberg from Duke Police drove up to the District 2 substation as I was leaving. They had three reports they delivered reports to me requested by us. Two were for staff at Duke who are being harassed due to this case (Duke reports #2006-1548 and 2006-1515), and one is a key card report for the team members on 3/13/06 to 3/14/06.

In his State Bar deposition, Duke hunter Gottlieb indicates that the information provided by Sgt. Smith and Sgt. Stotsenberg was used to manufacture the appearance of corroboration of the false accusations against Reade Seligmann and Collin Finnerty.

With Mr. Finnerty, we were able to show that he was at the party and that she had identified him. And we had the time cards, per se. I don't know what exactly you would call it, but each student has a magnetic card that if they go in the parking lot or dorm room or buy food, whatever, if they use that card it leaves an electronics stamp. And we had a document showing that he arrived back at the dorm at the time as the of the people who we knew were at the party. So we were able to put together information to at least corroborate, one, he was there; two, he met the description; three, she was able to show him; the SANE nurse's report was consistent with a sexual assault. So we had something to work with there for an indictment.

With Mr. Seligmann, we never had anything to tie him to the party directly. Meaning, when we asked the players, you know I had asked the two about the list, the two that I asked never placed him at the party, and the third guy never placed him at the party. And, yes, he met the physical description. But strictly looking at a picture and saying, "That's the man who raped me," Ben was very concerned. We knew that he came in close to the same time that the other players came in. So it wasn't out of the question that he was at the party.

In response to State Bar prosecutor Doug Brocker, Gottlieb notes that the information provided by Smith and Stotsenberg was presented to the Grand Jury in his pitch for indictments against Seligmann and Finnerty for crimes that never occurred.

Q. And what did you testify to at the Grand Jury?

A. I told the facts of what's documented in my report. … I spoke to them about the time cards issues. …

Sgt. Gottlieb states that the key card information obtained from Duke Police was shared with former District Attorney Mike Nifong.

And then the same document, 204, if you go to page 1825, my number 11, at 1500 hours, Investigators Smith and Stotsenberg drove to District Two and they they gave me reports number 1548 and 1515 and one key card report for the team members from 3/13 and 3/14. So those are the Duke reports that Mr. Nifong would have access to.

On May 31, 2006, two months after Duke Police provided the student’s private information to Sgt. Mark Gottlieb, Durham County District Attorney Mike Nifong issued a subpoena for the records that Sgt. Gottlieb admits Nifong had access to.

Investigator Ben Himan's notes include a reference to receiving the subpoena from Nifong's office.

5/31/06 - Received subpoenas from Candy Clark in reference to key card access.

On July 17, 2006, attorneys for the un-indicted players, believing that Duke University had not already released the information it was obligated to protect, objected to the release of the student’s private information in a hearing to quash the subpoena before Durham County Superior Court Judge Kenneth C. Titus.

"The return of the subpoena, your Honor, directs the university to deliver the records requested or commanded to the Superior Court Judge’s chambers in the Durham County Judicial Building, 6/4, in Durham…The university’s counsel’s office at Duke was heads up enough, your Honor, to comply with the provisions of FERPA and informing Mr. Krom of the existence of the subpoena…we contend for the reasons stated in our motion that the subpoena does not comply with the provisions of FERPA and the Code of Federal Regulations cited in our motion and also alluded to on the face of the subpoena itself." - Tommy Manning

"There’s no question that the information that the DA is attempting to subpoena is covered by FERPA, its educational information, its educational records, and they’re clearly covered.

"The reason for FERPA is two-fold, the first is to give students access to their records but the second most important reason that applies here is to ensure the privacy and confidentiality of his records. There are some exceptions that apply and in the regulations one exception is a court order or a lawfully issued subpoena." -Bob Thomas

"I would like to emphasize however that FERPA establishes a congressional conclusion that the privacy rights that are attached to things like medical records and other personal information like banking records would also apply to educational records. As such, what happens in a case like this when somebody is approaching the court with an order compelling the disclosure of private, federally protected information that the individual that’s seeking production must show the court some need, some individualized, particularized need for those records. In addition that individual needs to show the court that that need overrides that federal conclusion that these records are important and the confidentiality is important. It must be preserved, not at all costs, but it must be preserved diligently against assertions of need that are not sufficient to override it. Essentially, this question asks this court to balance the need of the requesting party with the established privacy rights of the individuals, the students involved here and this court has no way of doing that today because the court does not have the fundamental tool that is used to articulate the need. There’s no affidavit and our courts have said long before FERPA and even outside of the scope of FERPA and in cases you have before you entering superior court order is a leading case, that there must be an affidavit or similar evidence and by that I take the court to mean similarly sufficient and certainly sworn testimony of some kind. A witness, under oath would do but, it seems the proper vehicle is an affidavit and its clear, obviously, there is no affidavit here." -Bob Ekstrand

At the hearing, former District Attorney Nifong argued for the State's right to obtain the records without revealing that the information was already in the State's possession.

"The subpoena that was issued is a sufficient subpoena for Duke University through the office of council Kate Hendricks to comply with as long as they give notice. As I indicated to the court before we started here, there was nothing secretive, there was nothing underhanded, there was nothing suggestive other than the fact that we may need to have some of these young men here as witnesses…we’re not trying to investigate them. We’re not trying to say that there are crimes that we want to prove that they are guilty of. … And with respect to the card access, we want to be able to confirm what they tell us about where they went afterwards because that’s what that shows - the times that people went into dorm rooms and things like that. We’re not asking for anything but that 24 hours surrounding this event. We haven’t asked for any other records. This is not a fishing expedition. This is an attempt to put the State in a position to try this case."

Not only does Nifong fail to note that he was already in possession of the protected records but he also argues quite deceptively that his request should be allowed because he asks for the records to be delivered to the Court and not directly to him. With a straight face, the practiced dissembler suggests that the students privacy would be protected since a judge would first review the records before allowing the DA access. Adding insult to injury, Nifong hypocritical mocks the attorneys as he concludes his argument.

With respect to the arguments that were made about the return of the subpoena, I would submit to the court that it’s certainly very different to say on the one hand that a party to a case cannot have a subpoena duces tecum issued to have those documents delivered to that party and to say that you can’t have them delivered to the Court. This is, by the way, what the DA’s office does in all cases of medical records the very same kind of subpoena is issued. I would submit that there are more privacy issues involved in medical records than there are in what we’re requesting here. This is the way subpoenas are done for every court case that we have involving medical records. They’re delivered to the Judge’s chambers. Which means, automatically, the step that they’re talking about where you have to have a judicial official overlook that to make sure that the State isn’t getting something it’s not entitled to is taken care of. If the records come to the Judge, there are no Judges in my office. I can’t say ‘give me those records’. I have to get them from the Judge who can review the records.

…And, they don’t have you know anything other than the 5th amendment right at this point, not to incriminate themselves because they’re not charged with any offense. And, I know that it looks sometimes over the course of the last few months that some of these attorneys were almost disappointed that their clients didn’t get indicted so they could be part of this spectacle here in Durham. And that’s the situation, we only indict based on our evidence we can’t indict everybody but we are entitled to present a case to the citizens of Durham whereby they can determine what occurred in this case.

On July 21, 2006, Judge Titus ruled that the State was not entitled to the information which he stated was protected by FERPA. Noting that there was no materiality or necessity shown to overcome FERPA with respect to the key card information, Judge Titus quashed the subpoena and issued a protective order.

The News & Observer described Titus's ruling as follows:

A judge stopped District Attorney Mike Nifong's quest to get key card records for unindicted Duke University lacrosse players and decided Friday that the prosecutor was only entitled to the players' home addresses.

Nifong said in court this week that every member of the team who attended a March party that ended with allegations of rape was a potential witness and that the key card records could help corroborate whatever testimony the unindicted players give. Attorneys for the team members convinced the judge that Nifong had not shown a good reason to reveal federally protected school records of students who are not accused of a crime.

But the prosecutor wanted the university to hand over key card records for those unindicted players, possibly to try to track their movements after the party ended.

Titus ruled that Nifong had not shown a good reason to obtain those records from the university.

Defense lawyer Bill Thomas said the key card records are just as protected by federal privacy laws as grades and other academic records.

"The state had no business foraging through the the educational records of these innocent young men," said Thomas, who represents one of the unindicted team captains.

"He's asking for my client's confidential records. I don't know what his motive is or what he's trying to do," said Tommy Manning, who represents one of the players.

It is difficult to assign a motive to Nifong’s attempt to subpoena records he already possessed. The only possibility that comes to mind it was an effort to provide a legal basis for having the records so that he could use them at trial in the same manner that they were used before the Grand Jury.

By not disclosing that the records were already in hand, Nifong effectively made a mockery of the court proceedings. Rendered moot by the prior production of the information without a court order, Judge Titus’s July decisions had no substance. His protective order protected no one.

Pending further research, it is unclear what may be the specific legal significance of presenting illegally obtained evidence to the Grand Jury in order to obtain indictments against innocent people for crimes that never occurred. Absent a criminal investigation by the DOJ or SBI, it is a safe guess that, in this particular instance, the consequences for the duplicitous tactic will be nothing. It also remains unclear what the legal or civil ramifications for violating FERPA will be for Duke University.

Hat tip: Newport

Update:

"Supreme Court Holds No Private Right To Money Damages For FERPA Violations" - Miller, Canfield, Paddock and Stone, P.L.C., June 2002

Just about every educational administrator is familiar with the Family Educational Rights and Privacy Act (FERPA), the statute that prohibits educational institutions that receive federal funds from releasing education records without consent. Compliance with FERPA can be difficult and tedious, but administrators can rest a little easier now. The Supreme Court ruled last week that FERPA does not create private rights enforceable in a lawsuit to obtain money damages.

The issue arose in a suit against Gonzaga University by student "John Doe." Doe planned to become a public elementary school teacher after graduation, and was required to obtain an affidavit of "good moral character" for state certification. Doe was denied the necessary affidavit after the university�s "certification specialist" investigated a rumor that Doe had engaged in sexual misconduct. The specialist contacted the state agency responsible for teacher certification, identified Doe by name, and released other information as well.

Doe filed suit against the university and the specialist asserting a variety of claims, among them, the allegation that the defendants had violated his rights under FERPA by releasing personal information to an "unauthorized person." The jury awarded Doe a verdict of $1,155,000. Of that amount, $450,000 was awarded on the FERPA claim, $150,000 in compensatory damages and $300,000 in punitive damages. The state court of appeals reversed the FERPA verdict, holding that the statute does not create individual rights. The state supreme court reversed that decision, and reinstated the jury's FERPA verdict.

The Supreme Court granted the university�s petition to hear the FERPA issue in order to resolve a split among state and federal courts. Noting that these divergent opinions all rested on the same Supreme Court precedents, the Court admitted that its prior guidance had not been a "model of clarity."

The legal question in the case was whether FERPA creates private rights that can be enforced via another statutory vehicle, 42 U.S.C. 1983. Section 1983 permits plaintiffs to sue defendants who act under color of State law for the deprivation of "rights, privileges or immunities secured by the Constitution or laws of the United States." The Supreme Court held that FERPA does not create private rights, and, consequently, that no enforcement action was possible under section 1983.

The critical language in FERPA states that "[n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records . . . of students without the written consent of their parents to any individual, agency or organization." The Supreme Court was not persuaded by the common sense argument that a statutory prohibition against releasing education records creates a personal right to privacy in those records. Rather, because FERPA is phrased in terms of prohibiting federal funding, the Court held that no private remedy exists for a violation of the Act. "Unless Congress speaks with a clear voice and manifests an unambiguous intent to confer individual rights, federal funding provisions provide no basis for private enforcement by section 1983." Rather, the sole enforcement mechanism is through the centralized review procedures established by the Secretary of Education�which include the possibility that federal funding may be terminated if the institution is substantially out of compliance.

What makes FERPA different from Title IX (which, as most folks know, does create private rights that can pursued in a suit for money damages)? The "individually focused" terminology of Title IX: "No person shall be subjected to discrimination." This statute, according to the Court, is phrased with an "unmistakable focus on the benefited class" thus justifying the inference that a private right is created.

We'll never know, of course, whether Congress intended such fine distinctions in statutory language to result in such significant differences in the remedies available to those who claim that recipients of federal funds have violated federal law. What is clear is that FERPA violations cannot result in private suits for money damages. Before administrators rest too easily, however, they might want to recall that $705,000 of John Doe's jury award was for state law contract and tort claims. Of course, the fall-out from the FERPA violation in Doe's case was more dramatic than that in most instances of disclosure. The case nonetheless remains a reminder of the risks involved in handling and disclosing private records.

Gonzaga University & League, Roberta v. Doe, John - Joe Tone & Lee Pitts, Medill News Service, Medill School of Journalism Northwestern University, June 23, 2004

Subject: Family Educational Rights and Privacy Act (FERPA), student records

Questions presented

May a student sue a private university for damages under 42 U.S.C. @ 1983 to enforce the provisions of the Family Educational Rights and Privacy Act (FERPA), that disqualify from federal funding educational institutions that have a policy or practice of permitting education records to be released to unauthorized persons?

Brief

In October of 1993, Julia Lynch had concerns about how her school handled cases of rape and sexual assault. While at first, she merely told a friend Ð a fellow student at Gonzaga University, a small Jesuit school in Spokane, Wash. Ð about her concerns, her opinion has spiraled into a muddled question about the privacy rights of students.

In Lynchs conversation, she identified two students in Gonzagas education program. She said that the students, who would later be identified in a lawsuit simply as John and Jane Doe, had a sexual relationship, and that Jane Doe had complained about being sexually assaulted by John. That conversation, which took place in an office at the schools education department, was overheard by Roberta League, a teachers certification specialist at the school. League recognized Johns name, and two days later, told Dr. Susan Kyle, Gonzaga's director of field experience for student teachers.

The two began a full-scale investigation, and eventually met with Jane. She declined to make a statement, but also refused to deny any allegations.

In February, 1994, after further investigation by League, Kyle and others, Dr. Corrine McGuigan, the dean of the school of education, concluded that ""there was sufficient evidence of a serious behavioral problem to preclude her from signing the moral character affidavit supporting John Doe's application for teacher certification.""

John Doe sued Gonzaga in state court for defamation, negligence, breach of educational contract and invasion of privacy. Under the Federal Civil Rights Act, he also sought damages for Gonzagas violation of rights granted by the Family Educational Rights and Privacy Act (FERPA). Created in 1974, FERPA was designed to protect the privacy rights of students by prohibiting schools from receiving federal dollars if, by policy or practice, they release educational records or personal information without the students consent. If the student is under 18, the school must have his or her parents consent in order to release information.

On April 1, 1997, a jury in Spokane County Superior Court awarded John Doe more than $1.1 million, including $450,000 for violation of his rights under FERPA. On appeal, the decisions on claims of negligence, breach of contract and invasion of privacy were reversed, while the Washington Court of Appeals remanded the case for a new trial on the issue of defamation. The appeals court ruled there was nothing highly offensive, as necessary, to award damages for invasion of privacy, and also that communication among Gonzaga faculty could not be considered publication, as necessary for a claim of defamation.

The Washington State Supreme Court unanimously affirmed the dismissal of the negligence complaint, but reinstated the damages initially awarded for defamation, invasion of privacy, breach of contract, and the violation of FERPA rights Ð a decision attorneys for both sides say is important for universities and students all across America.

In the courts decision concerning FERPA, it relied on the testimony of Adelle Nore, an investigator for the Office of the Superintendent of Public Instruction (OSPI), the state agency that certifies teachers. University personnel often contact the OSPI to seek advice about students of concern. From Nores testimony, the court determined that Gonzaga personnel often called OSPI to discuss John Doe and revealed personal identifying information within those conversations.

""Substantial evidence supports a determination that Gonzaga had a ""policy or practice"" of disclosing personally identifiable information contained in education records in violation of FERPA,"" the decision reads.

The court then needed to determine whether John Doe, because his FERPA rights were in fact violated, could seek damages under a separate statute, the Federal Civil Rights Act (42 U.S.C. 1983).

""To determine whether a particular statutory provision gives rise to a federal right,"" the decision reads, ""a court must examine the following three factors: (1) whether Congress intended the provision in question to benefit the plaintiff; (2) whether the right protected by the statute is so Ôvague and amorphous that its enforcement would strain judicial competence; and (3) whether the statute imposes a binding obligation on the states."" Given those factors, the court determined that a student could seek damages after a violation of rights granted to him by FERPA, a question which has never before been addressed by the U.S. Supreme Court.

The attorneys in the case disagree widely about whether, by violating FERPA, the school violated section 1983 of the federal Civil Rights Act.

Gonzagas attorney, John G. Roberts, says making the jump from one act to the next carries ""very high consequences,"" and ""not just to Gonzaga, but to universities around the country."" He says FERPA is solely about federal funding.

""It doesnt talk about federal court action,"" he says. ""Nothing in it says anything about the right to seek damages.""

But Laurel H. Siddoway, the attorney for John Doe, says ""FERPA has all of the characteristics"" of similar acts under which the U.S. Supreme Court has determined one could, if his or her rights were violated, seek damages.

On Jan. 11, 2002, the U.S. Supreme Court granted certiorari in the case, limiting review specifically to the first question in Gonzaga University's petition: whether John Doe can seek damages for the violation of rights granted to him by FERPA.

On June 20, 2002, the Court sided with the university, 7-2, in determining that FERPA granted no enforceable individual rights, and, therefore, individuals cannot seek damages under section 1983 of the Federal Civil Rights Act.

Chief Justice William Rehnquist, writing for the majority, said ""FERPAs nondisclosure provisionsÉhave an aggregate, not individual, focus, and they serve primarily to direct the Secretary of Educations distribution of public funds to educational institutions.""

The majority concluded that Congress enacted FERPA to put in place a mechanism to tie educational institutions receipt of federal funding to their ability to follow certain guidelines regarding the dissemination of student records.

This administrative means of enforcement provided to the Secretary is ""two steps removed from the interests of individual students and parents and clearly does not confer the sort of individual entitlement that is enforceable.""

Rehnquist concluded that in provisions enacted by Congress to guide federal funding ""where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit.""

The Court further stated the ""mechanism that Congress chose to provide for enforcing these provisions"" further precludes any individual right to action. Schools can only lose funding if they display repeated failures at protecting private records. Since a school cannot lose funds for one violation, an individual should not gain the right to sue from that single violation. In conclusion, Congress did not intend for ""private suits to be brought before thousands of federal- and state-court judges, which could only result in the sort of Ômultiple interpretations the Act explicitly sought to avoid.""

Justices Stephen Breyer and David Souter concurred in the decision because the statutes ""broad and nonspecific"" language ""leaves schools uncertain as to just when they can, or cannot, reveal various kinds of information."" Breyer warned that allowing private suits could lead to ""interpretations that invariably favor confidentiality almost irrespective of conflicting educational needs or the importance, or common sense, of limited disclosures in certain circumstances, say, where individuals are being considered for work with young children.""

In dissent, Justice John Paul Stevens argued that the very title of the Family Educational Rights and Privacy Act creates individual rights. Stevens, joined by Ruth Bader Ginsburg, said the statute indeed has an individual focus, as there are a ""substantial number of references to rights"" in FERPAs 10 subsections. Stevens added that while every lower court opinion regarding FERPA has determined that the statute creates individual rights, Congress has not moved to overrule these decisions by revising the law. Thus, ""the court departs form over a quarter century of settled law in concluding that FERPA creates no enforceable rights.""

Stevens claimed that the majoritys logic wrongly creates a pecking order of rights by crafting a new category of second-class statutory rights."" He concluded that creating ""such a hierarchy of rights is not only novel, but it blurs the long-recognized distinction between rights and remedies.""

"Investigation and police practices" - Georgetown Law Journal, May 2001 by Beck, Seanna M, Bowman, Chad R, Metzler, Theodore R, Gonzalez, Iris Y, Et al

Collateral Uses

Even if no exception to the exclusionary rule applies, the government may still use illegally obtained evidence in contexts outside of the prosecution's case-in-chief. For example, the government may introduce tainted evidence in federal civil tax proceedings, habeas proceedings, grand jury proceedings, civil deportation proceedings, parole revocation proceedings,and at a defendant's sentencing hearing.

"Criminal Law and Procedure" - Daniel E. Hall, Published 2003, Thomson Delmar Learning

The exclusionary rule works to prevent the admission into evidence of any item, confession, or other thing that was obtained by law enforcement officers in an unconstitutional manner.

The evidence must be obtained by the police in an unlawful manner. However, if a private citizen working on his or her own obtains evidence illegally and then turns it over to the police, it may be admitted. People hired or authorized to assist the police are considered agents of the government, and therefore the exclusionary rule applies to their actions.

The exclusionary rule does not apply to pretrial matters. A defendant may not challenge a grand jury indictment because the grand jury considered illegally obtained evidence.

Video of contrived hearing on Nifong's subpoena to "obtain" key card data:

Click to view WRAL video

Timeline:

March 27, 2006: Sheila Eason requests information from Duke Police

Hi, Lt. Best. As we discussed on the phone, Mr. Nifong, our DA wants any and all details documented in writing concerning the incident involving the alleged gang rape by the Duke Lacrosse Team members of Crystal Mangum….All details, even though they may seem insignificant, may add together to help us with this case. Thank you for your assistance with this matter.

March 27, 2006: Nifong, Himan, Gottlieb possibly discuss obtaining emails and additional "stuff" from Duke

Brocker: What else, if anything, do you recall discussing with Mr. Nifong during this initial meeting?

Himan: I think we discussed possibly -- I don’t know the initial meeting. But I know we started talking about getting court orders for e-mails and stuff like that for Duke University.

March 29, 2006: Gottlieb & Himan meet with DPD Police Chief Steve Chalmers, City Manager Patrick Baker, DPD Deputy Chief Ron Hodge, an attorney for the Durham Police Department, Duke University Associate Vice President for Campus Safety and Security Aaron Graves, Duke University Police Director Robert Dean.

The two detectives met on March 29 with Baker, Chalmers, Hodge, a police attorney and two Duke University officials -- Associate Vice President for Campus Safety and Security Aaron Graves and Police Director Robert Dean.

Baker on Tuesday said the March 29 meeting allowed him to hear from Gottlieb and Himan first-hand, to make sure they and Duke police were working smoothly together... H/S

3/29/06 - 1300
Inv. Himan and I were summonsed to a meeting at Police HQ to discuss the case with the Durham Police Command Staff, Duke Police Command Staff, City Manager, and the Police Department Legal Advisor. - Gottlieb

March 31, 2006: Duke PD delivers key card data to Sgt. Gottlieb. Gottlieb notes that key card information was "requested by us."

Inv. Smith and Stotsenberg from Duke Police drove up to the District 2 substation as I was leaving. They had three reports they delivered reports to me requested by us. Two were for staff at Duke who are being harassed due to this case (Duke reports #2006-1548 and 2006-1515), and one is a key card report for the team members on 3/13/06 to 3/14/06.

April 17, 2006: Gottlieb presents the illegally obtained key card data to the Grand Jury.

With Mr. Finnerty, we were able to show that he was at the party and that she had identified him. And we had the time cards, per se. I don't know what exactly you would call it, but each student has a magnetic card that if they go in the parking lot or dorm room or buy food, whatever, if they use that card it leaves an electronics stamp. And we had a document showing that he arrived back at the dorm at the time as the of the people who we knew were at the party. So we were able to put together information to at least corroborate, one, he was there; two, he met the description; three, she was able to show him; the SANE nurse's report was consistent with a sexual assault. So we had something to work with there for an indictment.

With Mr. Seligmann, we never had anything to tie him to the party directly. Meaning, when we asked the players, you know I had asked the two about the list, the two that I asked never placed him at the party, and the third guy never placed him at the party. And, yes, he met the physical description. But strictly looking at a picture and saying, "That's the man who raped me," Ben was very concerned. We knew that he came in close to the same time that the other players came in. So it wasn't out of the question that he was at the party.

...I told the facts of what's documented in my report. … I spoke to them about the time cards issues. …

April 24, 2006: Himan asks Nifong to add the names of all lacrosse team members to the subpoena.

4/24/06 1157hrs - Mr. Nifong contacted me in reference to the subpoena that was to be given out. I asked that all names be from the lacrosse team be added to those subpoenas.

May 31, 2006: Himan receives subpoena from Nifong's office.

5/31/06 - Received subpoenas from Candy Clark in reference to key card access.

July 17, 2006: Sgt. Gottlieb's homegrown notes, including the reference to the illegally obtained evidence, are finally turned over to the defendants.

July 17, 2006: Judge Titus conducts fake hearing on motion to quash subpoena ordering production of records already in the government's possession as if the records had not yet been obtained illegally by the government.

July 18, 2006: Defense attorneys inspect the files of the Durham Police Department and discover evidence that had been withheld from discovery. In an August motion detailing the withheld evidence, no mention is made of the key card data.

Defense attorneys Brad Bannon, Buddy Conner, Bill Cotter, and Kirk Osborn reviewed the investigative file and physical evidence "in these matters" at the DPD. CSI Angela Ashby and lead investigator Ben Himan were present. Counsel for the defense discovered the following items in the investigative file which had not been provided to the defense in discovery:

a. Major Milhaich's May 25 memo directing the preservation and production of all e-mails sent to or from case investigators. The version of the memo sent specifically to CSI Ashby was located in her file of case materials, along with e-mails to and from her about the case which were obviously produced in response to the memo and retained in her own file. Those e-mails had also not been provided to the Defendants in to-date discovery.

b. A computerized criminal history and DPD criminal case description history regarding [the AV], which was sought and produced on April 11. In addition to listing the alleged rape charges in this case (DPD case number 06-008310) and the original felony charges and ultimate misdemeanor dispositions of cases that arose against [the AV] on June 21, 2002, regarding the theft of an automobile followed by a high-speed chase and felony assault on a law enforcement officer (DPD case number 02-060468). the documents also listed the following DPD case numbers in which [the AV] was somehow involved:

Date of incident Case No. Srce. Inv. Description
8-30-2000 00-030407 ARRS PRIS Driving while impaired
9-17-2000 00-032879 OFFN SUSP Larceny
10-25-2000 00-037545 OFFN OTHR Family/minor-other offense
4-26-2004 04-011166 OFFN CMPL Child molestation

Other than the investigation of the above-reference case, the investigative file does not contain any underlying substantive reports of any of [the AV's] previous interactions with the criminal justice system that resulted in the assignment of a DPD case number.

[Joint Omnibus Motion to Compel Discovery, paragraph 16, filed August 31, 2006]

July 21, 2006: Judge Titus issues meaningless protective order and order quashing the subpoena.

July 28, 2006: Nifong dumps Judge Titus by agreeing to have the cases declared exceptional. The special designation removed Judge Titus from the case and paved the way for the appointment of Judge Osmond Smith.

Court officials have taken steps toward having the Duke rape case declared "exceptional," which would allow a single judge to schedule and manage the cases against three lacrosse players.

Durham Trial Court Administrator Kathy Shuart said the parties in the case have agreed in principle to the designation, which would remove the case from Durham's case management system. Instead of monthly court hearings being set, a single judge, who would be appointed by state judicial officials, would decide when to hear motions or call the parties into court, Shuart said. N&O