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Wednesday, October 11, 2006

Duke Case: Cheshire Letter to Nifong

Oct 11, 2006

Mr. Michael Nifong
Durham County District Attorney
Judicial Building, 6th Floor
201 East Main Street
Durham, North Carolina 27701

Re: State of North Carolina v. Seligmann, Finnerty, and Evans
Durham County Case Numbers 06 CRs 4334-4336, 4331-4333, and 5581-5583

Dear Mike:

We have now received a transcript of the hearing that occurred before Judge Smith on September 22 in the above-referenced cases, and we are working from that transcript to draft an Order for your review and ultimately, Judge Smith's review regarding the discovery issues addressed that day. Consistent with your request and Judge Smith's Order on that date we presume you have been provided with a copy of the transcript for your own review. In the meantime, we have identified more deficiencies in voluntary discovery that we will bring to your attention in this letter and ask you to address before our next court hearing.

As we are sure you will recall, on of the specific items addressed at the September 22 hearing was our request for the production of the substance of any statements made by Crystal Mangum to you and/or law comments Ms. Mangum may have made in her meeting with you, Sgt. Mark Gottlieb, Inv. Ben Himan, and Lt. Mike Ripberger on April 11. At the September 22 hearing (Tr. 22-23), you agreed that we would. indeed be entitled to the substance of any comments made by Ms. Mangum in such a meeting, but you went on to state that she had made no comments:
Your Honor, first let me respond by saying I agree with Mr. Bannon, that they are entitled to any comments made at that situation, in that meeting, to me by Ms. Mangum. He does, however, mischaracterize my response to Judge Stephens. My response to Judge Stephens was that nothing discoverable happened at that meeting. In fact, Ms. Mangum made no statements at all to me at that meeting or to anybody else. ... No statements were made by Ms. Mangum and no questions were asked of her regarding this case, which is a fact. I would state for the court that one reason that was not done at this particular time is that Ms. Mangum was clearly still so traumatized from this offense that I could not see anything that could be served by even speaking to her about the case.
While you not have spoken to Ms. Mangum about the facts of this case on or before April 11, pleading you have filed in this case and recent comments you reportedly made when meeting with a Political Action Committee in an effort to obtain their endorsement of your political campaign indicated that, since April 11, you have spoken to Ms. Mangum about the case.

---------- page 2 ----------

In your "Motion For Order Directing Payment of Costs of Forensic Testing," filed two days before our hearing with Judge Smith, you wrote: "When subsequently asked whether she had knowingly and voluntarily taken Ecstasy on the night she was assaulted, Ms. Mangum told the undersigned District Attorney that she had never at any time knowingly and voluntarily taken Ectasy." The necessary implication is that, as of the date of our hearing before Judge Smith, you had spoken with Ms. Mangum about the facts of the case.

Moreover, in yesterday's Durham Herald-Sun, David Smith, Chairman of the Friends of Durham PAC, stated that you recently met with that Committee in an effort to obtain their endorsement of your campaign and discussed this case with them, reiterating your belief in Ms. Mangum's allegations:
Smith said the subject came up in the candidate interviews, which he said happened Thursday at University Tower. "And we asked Mike Nifong, and one of his comments was that he's the only one that's interviewed this victim," said Smith. "And he feels confident in this case."
It is clear that you have spoken with Ms. Mangum about the facts of this case and that you had at least one such conversation before the September 22 hearing, where you indicated that we would be entitled to a report of any comments she made in such a conversation, but then went on to say that she made no such comments in your April 11 meeting. It is equally clear that we still have no reports of any factual statements Ms. Mangum has made to you in the investigation and prosecution of this case, whether in the presence of others of not.

We have made these requests time and time again. We understand and appreciate that this is not the only case in Durham and you have an office to run. We, too, have an office to run, other cases to work on, and many other professional and personal responsibilities. When, however, you chose to assume control over the investigation and prosecution of this case, you also accepted the attendant responsibilities of producing the materials to which, you have acknowledged in court, we are entitled. We would appreciate your doing so at your earliest possible convenience.

We also note that, in response to your specific request at Paragraph 27 of our Motion to Compel, which requested all to-date handwritten notes and/or typewritten reports of all officers involved in the case you referred to a report you had just provided to us that was written by Linwood Wilson: "[W]hat I did with respect to most of these specific requests was I assigned my investigator, Linwood Wilson, to go to the police department and item by item determine what was available, if it was available to collect it." (Tr.13-14) you went on to explain that Inv. Wilson's report addressed our specific request in Paragraph 27. This exchange followed that representation at Tr.15-16:
THE COURT: But there is some representation in the discovery, then, that by these investigators that all of their notes, handwritten and otherwise, have been provided?
MR. NIFONG: That is correct, Your Honor. That is in the discovery provided today.
Later in the hearing, the subject was raised again at Tr. 68-69
MR. BANNON: One item I did want to return to, and Mr. Nifong might be able to enlighten me about this, as well, is with respect to the notes and reports of the officers. For example, the last note or report that we have from Investigator Himan, who's the lead investigator, is dated May 15, the middle of May. I just wanted to clarify the issue with respect to continuing duty to disclose the notes and reports and they may also exist in this-
Mr. NIFONG: Your Honor, I believe they are, there are computer printouts of all that and those are updated. And it's, part of that is going to be unnecessarily duplicative but I can't really control that so I just gave them the whole thing. But yes, Investigator Himan's report has been updated and printed out with respect to that. And that, obviously, is part of a continuing duty to disclose. And I furnished the whole thing just so nobody will say at some time later that some of it got changed. So they can have all that.
---------- page 3 ----------

THE COURT: All right.
MR. BANNON: That concludes the notes, the underlying notes, as well, I'm sure.
THE COURT: I don't think I need to remind you folks what your duties are. Sometimes folks don't know what their duties are, what the rules are so they need to be reminded. But you folks know. And you're under continuing order to comply, as well.
In light of those exchanges and representations on September 22 and our review of the supplemental discovery materials you provided that day, we note that the materials do not include the following; (1) handwritten notes by Inv. Himan of his activities in this case following May 15; (2) a report, whether in the form of handwritten notes or typewritten narrative, of any activities by Inv. Himan after June 26; or (3) a report, whether in the form of handwritten notes or a typewritten narrative, of any activities by Sgt. Gottlieb after July 14.

Read together, we can only take Inv. Wilson's report and your representations to the Court on September 22 to mean the following:
  1. After taking extensive notes of his investigation activities until May 15, Inv. Himan took no handwritten notes of his activities after that date;
  2. Inv. Himan has not engaged in any activities in this case since June 26; and
  3. Sgt. Gottlieb has not engaged in any activities in this case since Juy 14.
If any one of those three conclusions is not true, we are still missing significant discovery materials to which we are entitled. For example, you pleading filed September 20 indicates Inv. Himan received the negative results of the toxicology tests on July 26 and reported them to you, yet his updated typewritten activity report, provided on September 22, ends on June 26, and it says nothing of any case-related activities in which he may have engaged in the entire months of July, August, and September.

Finally, as it relates to any investigative or fact-gathering activities by your office's investigator, Linwood Wilson, we note that he stands in no legally distinguishable position from any other law officer who has gathered facts or engaged in official activities in the investigation and prosecution of this case, and we are equally entitled to reports of his activities. Accordingly, we respectfully request reports of all such activities in which Inv. Wilson has engaged.

In conclusion, we renew our multiple requests for the substance of Ms. Mangum's statements to anyone involved in the investigation and prosecution of this case, including you, and we renew our multiple requests for the to-date handwritten notes and/or typewritten reports of all investigators and fact-gathering activities in which law enforcement officers - including Sgt. Gottlieb, Inv. Himan, and Inv. Wilson - have engaged in this case.

In the meantime, we will continue to work on a draft Order for Judge Smith based on the transcript of the September hearing and will forward it you when we complete it.

Sincerely,

CHESHIRE PARKER SCHNEIDER
BRYAN & VITALE

Joseph B. Cheshire, V

Bradley Bannon

sources:
Cheshire Letter to Nifong [wral.com]
Sept 22, 2006 Hearing Transcript [wral.com]

Articles discussing this letter:

Defense in Duke rape case keeps swinging, MSNBC, Oct. 12, 2006 - Susan Filan offers her legal analysis:
The D.A. is not withholding crucial evidence from the defense

Because the parties are under a "gag" order now, the only way the defense can continue to try their case in the media and not in the courtroom is to file motions or write letters that become part of the court file which is a public record...

The D.A. is not withholding crucial evidence from the defense. My position is the D.A. may have a work product privilege which precludes him from having to disclose the contents of his conversations with witnesses when preparing their testimony for trial.
Defense wants report on accuser, NewsObserver.com, Oct. 12, 2006 -
Attorneys for Dave Evans sent a letter to Nifong on Wednesday saying that they are entitled to a report of anything the woman told the district attorney about the night the woman said she was raped by three Duke lacrosse players. The letter, signed by lawyers Joseph B. Cheshire V and Bradley Bannon and filed in court, seeks to pin Nifong down on whether he has heard the accuser tell her story.

The attorneys for the players have highlighted several inconsistent accounts from the woman as evidence that her accusations are false
Attorneys press Nifong again on lacrosse case, Herald-Sun.com, Oct. 11, 2006 -
In a letter Wednesday, lawyers Joe Cheshire and Brad Bannon again said they have reason to believe Nifong may be withholding the information from them.
Blogs discussing the letter:

Caught By His Own Words [LieStoppers, Oct. 11, 2006]
No Notes Wilson [LieStoppers, Oct. 12, 2006]
New Defense Move [KC Johnson, Oct. 11, 2006]

Calculated Risk

MishTalk - Mike Shedlock

Paul Krugman - NY Times

The Big Picture - Barry Ritholtz

naked capitalism - Yves Smith

Pragmatic Capitalism

Washington's Blog

Safe Haven

Paper Economy

The Daily Reckoning - Australia