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Saturday, June 17, 2006

Duke Lacrosse Scandal: Nifong Lies & Deception

updated: 1:00 p.m., June 17, 2006 - The Phantom Subpoena

This defense motion filed on Thursday, June 15, 2006 by the attorneys for David Evans documents the contradictory medical reports for Crystal Gail Mangum and the lies and deception that D.A. Mike Nifong is perpetrating.

County of Durham, State of North Carolina v. David Forker Evans, Defendant



This case arose after Crystal 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, by members of the Duke University Men's Lacrosse Team. As noted in the Defendant's previously filed discovery motion, that allegation was not immediately made to the woman she left the residence with or to the three law enforcement officers she initally encountered that night, when she refused to leave the other women's passanger seat at a nearby grocery store. The initial allegation was apparently made after two of those police officers transported the accuser to a facility where she was going to be involuntarily committed, although reports by those police officers of their activities that night do not appear in discovery, and records from the facility--while subpoenaed on April 5, 2006--do not appear in discovery. And, after the accuser made that inital rape allegation, she was transported to Duke Hospital's Emergency Room.

Treatment of Crystal Mangum at Duke Hospital on March 14, 20061

1 All Duke Hospital medical records of Crystal Mangum's treatment on March 14, 2006 which were provided to the Defendant in discovery, are attached under seal to this Supplemental Discovery Motion as Attachment 1. Those records are the source material for the information about Crystal Mangum's treatment at Duke Hospital cited in this section.

After her arrival at Duke Hospital in the warly morning hours of March 14, 2006, the accuser spoke with a police officer and recanted her allegation of a sexual assault inside 610 North Buchanan Blvd. and instead said she was only pulled from the other woman's car outside the home and "groped." Shortly after that, she apparently told hospital personnel that she had been raped, and she then refused to speak with law enforcement further that night. However, she did speak and interact extensively with the hospital personnel (at least two doctors and four nurses), as well as Tara Levicy, an in-training Sexual Assault Nurse Examiner/Forensic Nurse Examiner (S.A.N.E. nurse), and Dr. Julie Manly, who performed an extensive sexual assault physical examination.

During her interactions with the two doctors and four nurses (other than Nurse Levicy and Dr. Manly) Crystal Mangum made the following representations:

  • She told one doctor that three men sexually assaulted her, and that the sexual assault consisted of digital penetration and penile penetration.

  • She denied to two doctors that any other physical assault occured, and she specifically denied being hit.

  • She claimed no tenderness or pain in her neck, back, chest, abdomen, or extremities.

  • She claimed to be experiencing pain her vaginal area.

  • She denied using alcohol, tobacco, or any drugs that night.
Those doctors and nurses, in turn, made the following observations about Crystal Mangum, among others:
  • She had "normal extremities" except a "skin abrasion" on her "right foot."

  • There was "no evidence of other physical assault."
After interacting with those doctors and nurses, Crystal Mangum was the subject of a standard "Sexual Assault Exam Report" which consisted of a checklist interview and narrative interview conducted by in-training S.A.N.E. nurse Tara Levicy, as well as physical observations made by Nurse Levicy and a thorough sexual assault physical examination conducted by Dr. Manly.

Among other things, Crystal Mangum made the following representations to Nurse Levicy in the checklist interview, some of which conflicted with what she had just told the other doctors and nurses in the proceding hours:
  • Rather than claiming digital and penile penetration of her vagina alone, she claimed that penile penetration of her rectum and mouth also occured.

  • Rather than claiming that she was not physically assaulted, she claimed that she was "pinched," "pushed," and "kicked in my butt." She continued to deny that she suffered physical blows by hands or that she was restrained or tied down in any way. She specifically denied being choked. She specifically denied that fists were used against her.

  • Rather than denying alcohol or drug use, she claimed that she had consumed "one drink" of "alcohol" and was taking Flexeril, a muscle relaxer that causes increased drowsiness an dizziness when taken with alcohol.

  • She specifically denied that her alleged assailants used condoms.
Among other things, Crystal Mangum made the following representations to Nurse Levicy in the narrative interview, some of which conflicted with what she had just told the other doctors and nurses in the preceding hours and that she told Nurse Levicy during the checklist interview:
  • She claimed that only two men sexually assaulted her: one of them inserted his penis into her vagina and her mouth, and the other inserted his penis into her rectum alone.

  • She again claimed that neither of the two alleged assailants used a condom.

  • Asked to describe any physical assault, she said only that "they kept grabbing me."

  • She also claimed that the other women she was with at 610 N. Buchanan that night--the women she left with--had pushed her out of her car into the street.
Among other things, Nurse Levicy and Dr. Manly made the following medical findings and visual observations about Ms. Mangum:
  • Asked to "Describe all signs of physical trauma," Dr. Manly's complete response was: "Pt. has right extremity marks to right lateral knee scratch, non bleeding. Mark is approx. 7 cm in length. Laceration to anterior patella approx. 3 cm in length, non bleeding. Laceration to medial right heel, approx. 2 cm in length, non bleeding." Thus, after a thorough sexual assault physical examination, the only physical trauma noted by Dr. Manly was three small scratches on Crystal Mangum's right knee and right ankle.

  • In a "Systems Examination" portion of the report, Nurse Levicy noted that Ms. Mangum's head, back, neck, chest, breast, nose, throat, mouth, abdomen, and upper and lower extremities were all "normal."

  • In a "Pelvic Examination" portion of the report, Nurse Levicy noted only "diffuse edema of the vaginal walls" and recorded nothing notable in the rectal examination.
Records of Crystal Mangum's Treatment at Duke Hospital on March 14, 2006

Discovery materials provided to the Defendant on May 18, 2006, trace the following timeline by which the records of Crystal Mangum's treatment at Duke Hospital on March 14, 2006, were provided to the prosecution in this case.
  • March 16, 2006: Durham Police Investigator Ben Himan contacted Nurse Tara Levicy to discuss the "rape kit and examination" of Crystal Mangum. According to Investigator Himan's notes of his activities that day, Nurse Levicy responded "that due to HIPAA laws she was unable to divulge patient information but stated that ther were signs consistent with a sexual assault during her test."2

  • March 20, 2006: Durham District Attorney Michael B. Nifong issued a subpoena to Duke Hospital for copies of the records of Crystal Mangum's treatment at Duke on March 14, 2006, and specifically named Investigator Himan as the person to whom Duke was commanded to produce the subpoenaed records.3

  • March 21, 2006: The subpoena was served on Duke Hospital.4

  • March 30, 2006: The medical records of Crystal Mangum's treatment at Duke Hospital on March 14, 2006, were printed out for purposes of complying with the subpoena. The date and time-stamp indicating when the records were printed is readily visible at the bottom of the Duke Hospital records provided to the Defendant in discovery.5

  • April 5, 2006: Investigator Himan picked up the subpoenaed record from Nurse Levicy at Duke Hospital.6
There is no indication elsewhere in discovery that anyone involved in the investigation and prosecution of the above-referenced case had any other personal contact with Nurse Levicy or anyone at Duke Hospital regarding the contents of the medical records of Crystal Mangum's treatment on March 14, 2006.7 Indeed, had such contact been made and any substantive conversation occured, the statutory discovery laws would have required the substance of that conversation to be reduced to writing and provided to the defense. See N.C.G.S. 15A-903

Thus, given that lack of record, the timeline sketched above, and Nurse Levicy's initial reluctance to discuss the case in light of HIPAA restrictions, it is reasonable to assume that the earliest point in time when anyone involved in the Investigation and prosecution of this case could have received any details from Duke Hospital personnel or records about the hospital's treatment and interaction with Crystal Mangum on March 14, 2006, was April 5, 2006.

2 See Attachment 2 (Investigator Himan's notes dated March 16, 2006).
3 See Attachment 3 (subpoena issued to Duke Hospital by D.A. Michael Nifong [stamped signature?] on March 20, 2006)
4 See Attachment 3
5 See Attachment 1 (the bottom of the Duke Hospital medical records, filed herein under seal)
6 See Attachment 4 (Investigator Himan's notes dated April 5, 2006)
7 In a sworn probable cause affidavit submitted on April 18, 2006, to support the search of co-defendant Collin Finnerty's dorm room in Edens Hall on Duke's campus, Investigator Himan and Sgt. Gottlieb swore under oath:
"A Forensic Sexual Assault Nurse (SANE) and Physician conducted the examination [at Duke Hospital]. Medical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally. Furthermore, the SANE nurse stated the injuries and her behaviour were consistent with a traumatic experience."
Because there is no reference in Investigator Himan's narrative of his case activities before April 18 to any conversation with Nurse Levicy other than those noted above and memorialized in Attachments 2 and 4, one can only assume this statement was a reference to those conversations (although it is notable that there was absolutely no evidence of rectal trauma observed by anyone at Duke Hospital on March 14, 2006). If not, and if there were other interviews with Nurse Levicy and/or any doctor at Duke Hospital, their absence in discovery is yet another example of the deficiency of voluntary discovery at this point.

D.A. Nifong's Public Comments About Crystal Mangum's Treatment at Duke

On March 27, 2006, local and national media outlets began reporting on what would become dozens of public statements that District Attorney Michael Nifong would ultimately make in March and April about the investigation and prosecution of the above referenced matter. Those statements would often be made by Mr. Nifong to the public through interviews with print and television media outlets, both local and national.

On March 29, 2006, Mr. Nifong stated to a reporter for local CBS news channel WRAL that he had no doubt that the accuser in this case was raped, and he specifically referred to a personal review of her medical records to support his belief: "My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place," Mr. Nifong said to the public through WRAL.8

Also on March 29, 2006, when commenting to a Raleigh News & Observer reporter on the potential results of DNA testing in the case, Mr. Nifong stated something very interesting in light of what the accuser in this case repeatedly claimed at Duke Hospital about the fact that no condoms were used by her alleged attackers:
Durham District Attorney Mike Nifong said Wednesday that even if DNA results, which are expected as early as next week, do not match team members, no one is necessarily exonerated. The attackers could have used condoms or might not have been team members, Nifong said.9
On March 30, 2005, Mr. Nifong appeared on the national broadcast CBS morning program "The Early Show" and stated that there was "no doubt" a sexual assault took place. He again referred specifically to the accuser's treatment at Duke Hospital on March 14, 2006. "The victim was examined at Duke University Medical Center by a nurse who was specially trained in sexual assault cases," Mr. Nifong said, "and the Investigation at that time was certainly consistent with a sexual assault having taken place, as was the victim's demeanor at the time of the examination."10

On April 1, 2006, the Raleigh News & Observer reported additional public comments by Mr. Nifong about the case which did not address the medical evidence gathered at Duke Hospital directly, but again mentioned the use of condoms by the alleged attackers, albeit in a bit of a different context:
Two days later [after the initial 911 call], officers searched the home. Police have said they used those two days to interview the victim, witnesses and residents of the house to build probable cause for a search warrant. Nifong would not comment on why the delay happened, but he said that because of it, investigators could have missed some evidence.For instance, if condoms were used, Nifong said, those would have been gone before the search.11
Ten days later, on April 11, 2005, in an article about the results of DNA testing that produced no match between any Duke lacrosse player and the accuser in the case, the Charlotte Observer quoted Mr. Nifong as follows:
"I would not be suprised if condoms were used," Nifong said in an interview last month. "Probably an exotic dancer would not be your first choice for unprotected sex."12

The Legal Significance of Mr. Nifong's Comments As It Relates to Discovery

Reading the foregoing timeline of the production of the Duke Hospital medical records of Crystal Mangum's treatment on March 14, 2006, in conjunction with the foregoing timeline of only a handful of the many public comments made by D.A. Michael Nifong about the investigation of this case, two facts become reasonable and readily apparent:
  • On March 29, 2006, Mr. Nifong claimed to have read a medical report that, according to discovery, was not printed until March 30, 2006, or retrieved by law enforcement pursuant to Mr. Nifong's own subpoena until April 5, 2006.

  • On March 29, 2006, Mr. Nifong began a series of public comments implying, if not outright stating, that the accuser's alleged assailants used condoms, when the accuser herself stated multiple times at Duke Hospital on March 14, 2006 that her alleged attackers did not use condoms.
Given those facts and taking Mr. Nifong at his word as an officer of the court in making public comments about an ongoing criminal investigation, one can only conclude that Mr. Nifong viewed a critical medical report that has not yet been provided to the defense in discovery. The report must have been produced and physically reviewed by him or on or before March 29, 2006. The report must have been related to Crystal Mangum's treatment at Duke, as he referred on that date to personally viewing "the report of the emergency room nurse" and specifically referred to her treatment at Duke. Moreover, the report must have either been equivocal on the topic of condom use by her alleged assailants, as Mr. Nifong stated on that date and multiple times thereafter that condoms may have been used, despited the fact that the accuser herself claimed on multiple occasions at Duke Hospital that condoms were not used.

Other than the existence of such a medical report that Mr. Nifong personally viewed on or before March 29, 2006, which has not been provided to the defense, the only alternative explanations for Mr. Nifong's pubic comments on that date, are that, before Duke Hospita records were provided in discovery were printed out (on March 30, 2006) and before picked up by Investigator Himan pursuant to the subpoena (on April 5, 2006), Mr. Nifong went to Duke Hospital and reviewed those particular records, or someone from Duke Hospital brought those particular records to him for his review, or he spoke with someone at Duke Hospital who reported details of the contents of the medical records to him, although the atter scenario would not explain Mr. Nifong's March 29, 2006, statement that he had actually read the report, and none of those scenarios would explain his public statements implying condom use by the alleged attackers.

If, however, either of those alternative scenarios occurred, the statutory discovery laws require that the substance of any such meeting and interaction with witnesses regarding those medical records and findings be reduced to writing and provided to the Defendant. N.C.G.S 15A-902 (requiring that such "oral statements shall be written or recorded form," and the Defendant "shall have the right to inspect and copy or photograph [such] materials").

The absence of such a narrative report or earlier-produced Duke Hospital medical record in discovery strongly supports the Defendant's previously filed Motion to Compel discovery and the specific prayers for relief sought therein and reiterated below.

8 Duke President Calls Alleged Slurs 'Disgusting' Before Student March [WRAL, March 29, 2006]
9 Lacrosse players' lawyers object [NewsObserver.com, March 29, 2006]
10 DA Stands Behind Duke Rape Charge [CBSNews.com, March 30, 2006]
11 Any lacrosse charges 10 days away [NewsObserver.com, April 1, 2006]
12 No match in Duke DNA tests [charlotte.com, April 11, 2006]

June 15 motion for David Evans by Cheshire and Bannon [NewsObserver.com]
Attachments to June 15 motion (.pdf) [newsobserver.com]

updated: The Phantom Subpoena

Here is another reference about the police having subpoenaed medical records in March, that even the defense missed. Again, Investigator B.W. Himan did not pick up the subpoenaed records from Duke Hospital until April 5, 2006. How could the prosecutor/police have these medical records on March 27th? The Probable Cause Affidavit dated March 27, 2006, for the search warrant for lacrosse player Ryan McFadyen's dorm room said:
Medical records and interviews that were obtained by a subpoena revealed the victim had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally. Furthermore, the SANE nurse stated the injuries and her behavior were consistent with a traumatic experience.
2nd Update: New post regarding subpoena timeline -

Duke Lacrosse Scandal: Show Us the Subpoena Timeline [TJN, June 19, 2006]