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Wednesday, September 6, 2006

Duke Case: Joint Omnibus Motion to Compel Discovery - Background

State of North Carolina, County of Durham
In The General Court of Justice, Superior Court Division
File Nos. 06 CRS 5581-5583, 4331-4333, & 4334-4336

State of North Carolina v. David Evans, Collin Finnerty, & Reade Seligmann, Defendants.

Joint Omnibus Motion to Compel Discovery - filed August 31, 2006, 11:50 AM, Durham County C.S.C.

For Defendant David Evans: Joseph B. Cheshire V. & Bradley Bannon

For Defendant Collin Finnerty: Wade M. Smith, William Cotter & Doug Kingbery

For Defendant Reade Seligmann: J. Kirk Osborn & Ernest L. "Buddy" Conner, Jr.
-------------

Pursuant to N.C.G.S. § 15A-903 and -501; the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; and Sections 19 and 23 of Article I of the North Carolina Constitution, the Defendants, through their undersigned counsel, jointly supplement their previously filed requests for motions to compel discovery. In support, the Defendants show the following:

Background

1. This case arose after Crystal Gail Mangum alleged, in the early morning hours of March 14, 2006, that she was physically and sexually assaulted earlier that night inside the residential home at 610 North Buchanan Boulevard in Durham, North Carolina. That allegation was not immediately made to the woman she left the residence with or to the security guard and three law enforcement officers she initially encountered that night, when she refused to leave the other woman's passenger seat at a nearby grocery store. The initial allegation was reportedly made only after two of those police officers transported the accuser to a facility where she was going to be involuntarily committed. When she reportedly said "yes" in response to a question of whether she had been raped, she was immediately transported to Duke Hospital's Emergency Room for examination. Among the many medical professionals she saw (and who saw her) there between 2:42 a.m. and 1:37 p.m., in-training SANE nurse Tara Levicy and Dr. Julie Manly began interacting with Crystal Mangum several hours after her arrival and completed a standardized Sexual Assault Exam Report (commonly referred to as a "rape kit") during their interaction with her.

2. Within 36 hours of the initial allegations, Durham Police Department Sgt. Mark Gottlieb and Inv. Ben Himan became the lead investigators in the case, with the former serving as the supervising investigator and the latter serving as the primary investigator to whom all others reported. A number of other Durham Police Department law enforcement officers also began to work on the case.

3. On March 16 and 21, 2006, Crystal Mangum was presented with six photo arrays by one of the case investigators, Richard Clayton. The March 16 arrays were also observed by another case investigator, Michele Soucie. The arrays were comprised entirely of 36 of the 47 members of the 2006 Duke University Men's Lacrosse team.

4. Beginning March 27, 2006, a number of evidentiary items were delivered by the Durham Police Department to the State Bureau of Investigation lab for various types of testing, to include (1) hair analysis by L.D. Milks; (2) volatile organic presence testing by Timothy G. Suggs; (3) controlled substances presence testing by Hope Copeland; (4) saliva, blood, and semen presence testing by Rachel Winn; and (5)autosomal STR (short tandem repeat) DNA testing by Jennifer Leyn. Reports regarding the final results of those separate tests were all dated April 10, 2006. The report regarding the DNA test results was provide that same date to the Defendants pursuant to N.C.G.S. § 15A-282 (related to non-testimonial identification procedures).

5. On April 4, 2006, Crystal Mangum was presented with a third photo array in the case. Sgt. Gottlieb presented the photo array, while Inv. Clayton (among others) observed and took handwritten notes. While the results of that procedure were provided to District Attorney Michael Nifong the same day, and while he began publicly discussing the results of that procedure at a campaign event at North Carolina Central University on April 11, Sgt. Gottlieb's typewritten narrative report of that procedure was not provided to the Defendants under § 15A-282 until April 21.

6. Also on April 4, 2006, Sgt. Gottlieb was asked by Captain Lamb to create a "timeline of basic events made for this case" to present to "the City Manager to possibly go over with [the City Council]." Sgt. Gottlieb was given a deadline of noon the following day.1

7. Beginning April 6, 2006 (four days before the SBI lab's reports would be completed), a number of evidentiary items that had been in the custody of the SBI lab for testing were transported to DNA Security, Inc. (DNASI), a private lab in Burlington, North Carolina, for further testing. The District Attorney's Office reportedly requested the additional testing based on the ability of DNASI to perform Y-chromosome STR DNA testing a reportedly more sensitive type of DNA testing than the kind the SBI lab is limited to performing. On April 10 (the same day the SBI lab's DNA test results report would be dated and provided to the Defendants), the lead case investigators, Sgt. Gottlieb and Inv. Himan, went with Durham County District Attorney Michael Nifong to DNASI's lab in Burlington to meet personally with Dr. Brian Meehan, the lab director who would be in charge of conducting the additional tests. On April 13, Dr. Meehan asked for and was provided with a limited selection (24 pages) of the underlying data produced by the SBI during its regular autosomal DNA testing. On Aril 19, DNASI notified Inv. Himan that it had "new information regarding [its] tests, but they were not definite." On April 20 or 21,2 Mr. Nifong, Sgt. Gottlieb, and inv. Himan once again traveled to Burlington to meet with Dr. Meehan at DNASI's lab. They were reportedly told that "the information was not definite," but additional analysis of "the fingernails DNA' had "come back with a mixture DNA that had been isolated by the Y-chromosome."3 On May 8, Inv. Himan contacted DNASI and was told that "some of the items were still being tested."4 On May 10, Dr. Meehan asked for another limited selection of the underlying data produced by the SBI in its autosomal DNA testing. He indicated in his request that it might require "a re-analysis of the data."5 On May 11, in response that request, Dr. Meehan was provided with 14 more pages of the underlying data produced by the SBI during its regular autosomal DNA testing.5 The following day, May 12, Dr. Meehan and Dr. W.R. "Bo" Scales dated their report on DNASI's testing, which was delivered to law enforcement in a personal visit to DNASI's lab in Burlington.

8. Discovery reflects that, on April 11, 2006, Crystal Mangum met with three law enforcement officers and District Attorney Michael Nifong at the Durham County Courthouse to discuss the facts of this case. At a hearing in these cases on June 22, 2006, in response to a specific request for discovery of a report of the substance of Ms. Mangum's statements in that meeting pursuant to statutory and constituional law, Mr. Nifong indicated that the Defendants were not entitled to such a report, because the facts of the case were not discussed with Ms. Mangum during the meeting. However, in a typewritten narrative report provided to the Defendants on July 17, 2006, Sgt. Mark Gottlieb indicated that, at 2:00 p.m. on April 11, "the victim and District Attorney Nifong met one another and discussed the case."7 Moreover, Sgt. Gottlieb and Lt. Mike Ripberger were present for all of that discussion, and Inv. Himan was present for a portion of it.

9. On May 3, 2006, Sgt. Mark Gottlieb sent an "update email" to District Attorney Michael Nifong about the case.

10. On May 18, 2006, the State of North Carolina provided the Defendants with initial discovery in these cases in the form of 1278 pages of documents; a 3.5-inch floppy disc containing records related to two cellular phones; two VHS videotapes of recorded identification procedures conducted with Crystal Mangum on April 4 and with Kim Pittman (a.k.a. Kim Roberts, a.k.a. Nikki) on May 11; and a CD-ROM containg various photographs taken pursuant to a non-testimonial identification order entered by the Honorable Ronald Stephens on March 23, 2006, as well as pictures of Crystal Mangum taken by CSI Reid on March 16, 2006, and other pictures taken during the course of the investigation. this initial batch of discovery did not contain any handwritten notes or reports drafted by supervising Investigator Mark Gottlieb except for a copy of the typewritten report of the April 4 identification procedures with Ms. Mangum that had previously been provided to Defendants on April 21. Nor did it contain any handwritten notes or reports drafted by Inv. Richard Clayton (who had, among other investigative actions, conducted the initial identification procedures with Ms. Mangum two months earlier, on March 16 and March 21, and had observed the follow-up identification procedures with Ms. Mangum on April 4). Nor did it contain any handwritten notes or reports drafted by Inv. Michele Soucie (who had, among other investigative actions, observed the initial identification procedure with Ms. Mangum two months earlier, on March 16).

11. Also on May 18, 2006, the Honorable Ronald Stephens entered an order in open court directing all law enforcement officers to preserve their underlying handwritten notes of their investigative activities in the case.

12. On May 26, 2006, Durham Police Department Major S. Mihalch sent a memo to DPD personnel involved in the investigation of these cases directing them "to print and produce to Major L. Russ all email messages sent to or received by you from March 13, 2006 to the present which relate in any way to: the disturbance reported as occurring at 610 N. Buchanan Blvd. on or about March 13, 2006, and the rape reported at 3457 Hillsborough Road on or about the same date."8 The memo gave its recipients a response deadline of June 5, 2006,and went on to threaten disciplinary action for noncompliance. The memo also required anyone who did not provide copies of e-mails to certify they had not, in fact, sent or received any such e-mails.

13. On June 22, 2006 the State of North Carolina provided the Defendants with supplemental discovery in these cases in the form of 535 pages of documents. Those materials did not include a copy of the memo sent by Major Mihalch on May 26 or any of the e-mails produced pursuant to that memo, though the deadline had been over two weeks earlier. While those material did, for the first time, inclued underlying notes taken by Invs. Clayton and Soucie regarding a number of their investigative activities in the case, they did not include their underlying notes of their particular activities related to the initial photo identification procedures with Crystal Mangum on March 16 and 21. While the materials did include an unsigned, undated first-person typewritten narrative regarding those identification procedures, it is unclear who prepared that narrative and when. Moreover, there appear to be handwritten notes by Inv. Clayton for his other investigative activities (including the April 4 photo identification procedures) but not the March 16 and 21 photo identification procedures. Finally, like the materials provided on May 18, the material provided on June 22 did not contain any handwritten notes or typewritten notes drafted by Sgt. Mark Gottlieb, the supervising investigator and first law enforcement officer assigned to the case on March 15.

14. On July 17, 2006, the State provided the Defendants with supplemental discovery in the form of 35 pages of documents: (1) a 32-page typewritten document entitled "Supplemental Case Notes for: Sergeant M.D. Gottlieb"; (2) two pages of handwritten notes taken by Sgt. Gottlieb regarding his activities on one day of the investigation, April 27, 2006;and (3) a copy of an email form Inv. Clayton to Sgt. Gottlieb dated June 26, 2006, about a recent claim by Crystal Mangum's cousin that she (Ms. Mangum) had been offered money "to halt the prosecution," with these handwritten notes by Sgt. Gottlieb: "6/30/06 @ 1155 spoke to Himan. She denies same. States cousin is out of loop & doesn't know where cousin is getting it from." Other than that handwritten notation and the two pages of handwritten notes from April 27, none of Sgt. Gottlieb's underlying notes of his investigative activities had been provided to the Defendants, over four months after his initial assignment to the case. Moreover the 32-page typewritten document, while appearing to follow the format of a timeline base on Sgt. Gottliebs investigative activities that began on March 15, does not indicate how or when the various entries, which conclude on June 30, were produced.

15. Also on July 17, 2006, District Attorney Michael Nifong indicated he still had not received the notes and reports regarding Inv. Ryan Johnson's work with any of the digital items seized in the investigation, including multiple cellular phones, computers, hard drives, digital cameras, and e-mails from Duke University. Mr. Johnson received the phones on March 24; a CD-ROM of e-mails from Duke University on March 31; and the seized computers on April 5. Upon information and belief, DPD returned one of the seized computers to its owner its owner three months ago, through his counsel, on or about May 15.

16. On July 18, 2006, undersigned counsel Brad Bannon, Buddy Conner, Bill Cotter, and Kirk Osborn were given an opportunity to review the investigative file and physical evidence in these matters at the Durham Police Department. Present at the review were CSI Angela Ashby and lead case investigator Ben Himan. Counsel discovered in the investigative file the following items had not been provided to the Defendants in discovery:

a. Major Mihalch's May 26 memo directing the preservation and production of all e-mails sent in or from case investigators. The version of the memo sent specifically to CSI Asby was located in her file of case materials, along with copies of 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 Durham Police Department criminal case description history regarding Crystal Mangum, 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 Ms. Mangum 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 Durham Police Department case numbers in which Ms. Mangum was somehow involved:

Dated of Case No. Srce. Inv. Description
Incident
8-30-2000 00-030547 ARRS PRIS Driving While Impaired
9-17-2000 00-032879 OFFN SUSP Larceny
10-25-2000 00-037545 OFFN OTHR Family/Minor-other offenses
4-26-2004 04-011166 OFFN CMPL Child Molestation

Other than the investigation of the above-referenced case, the Investigative file in this case does not contain any underlying substantive reports of any of Ms. Mangum's previous interactions with the criminal justice system that resulted in the assignment of a Durham Police Department case number.

17. Also on July 18, 2006, when undersigned counsel requested to view items contained in the rape kit box, CSI Ashby indicated that counsel would need a court order to unseal the box for that review.

18. On July 19, 2006, undersigned counsel Brad Bannon contacted Sgt. Mark Gottlie by telephone to inquire about his underlying handwritten notes in the case. Sgt. Gottlieb indicated that the two pages of handwritten notes from April 27, provided on July 17, represented the entirety of his handwritten notes in the case. Sgt. Gottlieb also indicated that he had provided a two-and-half-inch thick stack of e-mails about the case to Major Russ. Indeed, Sgt. Gottlieb's typewritten narrative indicates that he "did a search" of his e-mails and "turned same over to Major Lee Russ as ordered" on June 2, 2006, just three days before the deadline to do so.

19. On August, 4, 2006, undersigned counsel Brad Bannon spoke with District Attorney Michael Nifong, who indicated that he had no objection, on behalf of the State of North Carolina, to an order unsealing the rape kit box for review by counsel for the Defendants.

20. On August 25, 2006, during a meeting among the Honorabe W. Osmond Smith III, District Attorney Michael Nifong, and undersigned counsel for all Defendants, Mr. Nifong indicated thate he had recently received a fax copy of a toxicology report indicating that Crystal Mangum's system was negative for the prsence of any controlled substances. Mr. Nifong indicated that he would provide copies of the report to the Defendants through their counsel. As of the date of the filing of this motion, that report has not been provided to undersigned counsel.

21. Also on August 25, 2006, Mr. Nifong indicated that he had recently received what he characterized as an "incomplete" report from Inv. Ryan Johnson regarding Mr. Johnson's work with the cell phones, computers, digital cameras, and e-mails from Duke University. Mr. Nifong indicated that he would follow up with Inv. Johnson and seek a more complete report.

Authority For Motion To Compel (Next Section, page 5)

1 See discovery, Bates Stamp (BS) page 1839.
2 Inv. Himan's typewritten investigation narrative put this meeting on April 21 (see BS 1242), while Sgt. Gottlieb's typewritten investigative narrative puts this meeting on April 20 (see BS 1845).
3 See BS 1242.
4 See BS 1250.
5 see BS 252.
6 see BS 353-367.
7 see BS 1841.
8 Because a copy of this memo was not provided to the Defendants in discovery, there is not a Bates Stamp reference page for it. Accordingly, the Defendants are attaching a copy of the version of the memo sent to CSI Ashby as Attachment 1.

source:
Joint Omnibus Motion to Compel Discovery [LieStoppers]

Duke Lacrosse Case [TJN Archives]

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Paul Krugman - NY Times

The Big Picture - Barry Ritholtz

naked capitalism - Yves Smith

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