Thursday, January 17, 2008

NTO Battle - Durham DA v. Police

Readers Note: You’ll best understand the post below if you’re familiar with these posts: Nifong's Copier "Discovery." Be Careful ,

Nifong's Copier "Discovery" Is a False Story ,

and Who "Owns" That "Toxic" NTO? , especially the portion of the "Toxic" NTO post containing extracts from and links to a Jan. 9 Durham Herald-Sun story.


In response to my post, Who "Owns" That "Toxic" NTO?, citizen journalist Skeptical from Liestoppers Forum asked questions and expressed thoughts concerning the Duke lacrosse cover-up currently enabled by the now disbarred Mike Nifong, certain DPD officers and their supervisors, and others

I’m responding to Skeptical here on the main page and invite your comments.

Skeptical’s is in italics; I’m in plain.

Let’s start with Skeptical ------

There are several issues about the application for the Non-testimonial Investigation Order (NTO):

1) The affidavit presented in the application contained false information


And if we get to discovery in the suit brought on behalf of the three young men indicted in the frame-up attempt, which I think we will, attorneys for the plaintiffs will ask police why they put false information in the affidavit.

Was that only Sgt. Gottlieb’s and Inv. Himan’s decision? Did others know they were putting false statements in the affidavit? Did anyone direct them to do it?

No doubt there’ll be other questions about why certain information, including false information, was presented to Judge Stephens; and why other information, including evidence exculpatory for the players, was withheld from Judge Stephens.

2) Why were all white LAX team-members named when the police knew that some of them were not at the party and some not even in Durham that night?

There’ve been a number of “foggy answers” given having to do with allegations, false it turns out, the players didn’t use their real names the night of the party, used jersey numbers, etc.

I’ll speculate the real reason may have to do with thinking by the authorities which began something like this:

If we start to eliminate players based on their not being at the party or in Durham that night, what do we do when other players start saying they weren’t there when anything happened, so why test them?

Mangum’s been all over the place with her stories and she hasn’t ID’ed any of them from photos.

Everything solid we have points to false accusations and the innocence of the players.

We have no reason to pursue this case other then to frame these kids.

How will we justify ordering any of those kids to be tested?
Remember, folks, the authorities pushing on Mar. 22 and the morning of Mar. 23 for an NTO had no way of knowing then that the players would all comply with it.

What they did know was that every individual team member subject to the NTO could've appealed it.

If even one of them did, the authorities would‘ve been required to state in open court why they’d named him as a suspect and requested the court to order him to submit to DNA testing.

The authorities knew all the evidence they had made clear that, in fact, nothing like what Crystal Mangum claimed happened.

How could they then justify their request for testing from the team member appealing or anyone else they’d requested by tested?

Better, the authorities may have reasoned, to request testing of all the white members of the team and include in the request a “sweetener” about results “immediately eliminate[ing] the innocent.”

Who knows, the authorities may have thought, the “sweetener” might induce everyone to agree to be tested.

And even if it didn’t, it would’ve helped the authorities appear well-intentioned if they had to respond in court and explain their request to test any individual team member.

To repeat: That’s speculation. What we really need is discovery under oath.

3) The police knew there were non-LAX players at the party? Why weren't they named?

I think for reasons that relate to my answer to #2.

4) Who came up with the idea for the NTO?

DPD’s Gottlieb and Himan say they were ordered on Mar. 22 by ADA Tracey Cline to prepare the NTO.

Cline says she “can’t recall” ordering it.

That disagreement is extremely important to keep in mind because DPD’s “basic defense” is that “Nifong made us do anything that was a ‘no-no.’”

But Nifong testified under oath at his NC State Bar trial which led to his disbarment that he knew nothing about the Duke lacrosse case or the NTO until the afternoon of Mar. 23 when he “discovered” the already signed NTO sitting on his office copier. (I’ve posted before that I don’t believe Nifong first learned about the case then. But let’s go along with his version in order to make clear what’s at stake in the matter of who decided on the NTO and prepared it at whose direction.)

The current Durham DA, David Saacks, who at the time the NTO was signed was Nifong’s Chief Assistant DA, says all he did was take a DPD prepared NTO and accompanying supporting documents presented to him by DPD; make one change regarding the time which a subject had to appeal the NTO; sign the request; and then “walk it” through the court for the judge’s review and signature.

Saacks says he only did that because when Gottlieb and Himan brought the NTO and related documents to the DA’s office on the morning of Mar. 23, the ADA the officers were looking for to sign it, Tracey Cline, wasn’t available.

Cline insists she never saw the NTO and told a reporter "it’s David’s NTO.”

As a matter of law, Saacks “owns” the NTO because he signed the NTO request and presented it and the supporting documentation to the court.

But there are all those who, when, what, and why questions concerning the NTO.

Did Cline, as Gottlieb and Himan insist, order them on Mar. 22 to prepare an NTO?

Why would the ADA do that? Was it entirely her decision?

On Mar. 22 did Cline mention the matter to any of the other 20 or so ADA’s then on Nifong’s staff? Or to Chief ADA (“It’s David’s NTO” ) Saacks? Or to her boss, then DA Mike Nifong?

And why are we only hearing now that ADA Tracey Cline "can't recall" whether or not she ordered Gottlieb and Himan to prepare an NTO she's sure she never saw?

What about any of the 25 or so DA staff members, including Linwood Wilson who’s been castigated for witness intimidation in the Duke lacrosse and other cases dealt with by the DA?

What do thay know?

Is there anyone who was in the DA’s office on Mar. 22 and/or 23 who remembers anything which could help ADA Cline, who’s running for DA this year, “recall” whether she ordered Durham Police to prepare the NTO?

If Cline didn’t order the NTO, then are Gottlieb and Himan not telling the truth?

In that case, we'd need to ask why they aren't?

Could it be to cover-up their roles and, very possibly, the roles of higher-ups in DPD who approved the preparation of the NTO and the supporting documents which contained a number of false statements while withholding from the court evidence DPD had which was exculpatory for the players?

We don’t know the answers to these questions. But the public needs to have them.

The public should be able to get them without relying on a federal civil rights suit brought by people who are private parties.

Durham’s elected officials, Duke's leadership and Durham's civic leaders should be demanding answers.

To sum up:

Did Nifong and the DA’s office really have little or nothing to do with ordering and/or preparing the NTO? If that’s the case, then doesn’t DPD bear full or just about full responsibility for deciding to secure a fraudulent NTO?

Who can move on until we have answers?


Anonymous said...

It sounds like DPD and the DA's office is experiencing "the prisoner's dilemma" from the other side. The question is not who ordered the NTO but what do the players' lawyers know about this? Remember when CGM changed her timeline to situate Seligman at the party and the lawyers immediately responded with phone records that showed that CGM and Seligman were on the phone during the new time of attack? The lawyers have obviously done their homework so the DPD and the DA's office are going to have a hard time coming up with a plausible lie. Their only defense will be: "I can't recall."

Brant Jones

Anonymous said...

Well, Brant, it worked for Hillary.

Last time around, anyway.