Sunday, January 13, 2008

Who “Owns” That “Toxic” NTO?

For almost two years the public’s had the impression the securing in March 2006 of a nontestimonial order (NTO) directing the white members of the Men’s Duke lacrosse team to provide DNA samples and submit to police face and torso photographing was something the DA’s office and DPD agreed upon and secured through their collaborative efforts.

But now, thanks to reporter Ray Gronberg’s Jan. 9 Durham Herald Sun story, we’re learning there are disputes between the DA’s office and DPD and within the DA’s office as to who did what to secure it.

Here are the relevant portions of Gronberg’s story, followed by my comments:

From the Jan. 9 Durham H-S - - -

[…] At the heart of the matter is material taken from the notes of lacrosse case lead detective Ben Himan, and notes and a deposition from Durham police Sgt. Mark Gottlieb.

They referred to Cline's role in the creation of a non-testimonial order, or NTO, that allowed police to take photographs of and collect DNA evidence from 46 of the 47 members of the Duke lacrosse team.

Cline denied that she had any role in writing the order.

"The record will indicate that David Saacks did it," she said. Saacks is the interim district attorney but was an assistant DA at that time. "I didn't prepare any paperwork on that case. Nothing at all. I've never even seen or laid hands on a non-testimonial order."

She said, "I remember Gottlieb asked me about a non-testimonial order, and I told him I was not available."

But when asked by The Herald-Sun whether she'd asked police to draft the non-testimonial order, Cline responded, "I don't recall."

Himan's notes and Gottlieb's deposition indicate that police consulted Cline on March 22, 2006, after they learned players, on the advice of attorneys, wouldn't show up that day for a scheduled meeting with investigators.

As soon as that was clear, Himan contacted Cline, who handled most sexual-assault cases for the district attorney's office.

Himan -- who turned over his notes to defense lawyers in May of 2006 -- reported that the conversation took place at about 4:15 p.m. He said Cline urged police to secure the order.

"I went to Assistant District Attorney Tracey Cline and spoke to her about our case," Himan said, summarizing what happened. "She stated that we should do the non-testimonial on the players including upper-torso pictures, current mug shots and cheek swabbings."

Gottlieb's notes -- turned over to the defense in July of 2006 -- backed Himan's account.

"I spoke to [Police Attorney] Toni Smith and notified her that Investigator Himan spoke with ADA Tracey Cline. Ms. Cline asked them to draw up the NTO so the DA's office could present it to a judge in the morning. [Smith] stated follow the directions of the DA's office since they are the ones conducting the possible future prosecution."

The sergeant's deposition -- given to N.C. State Bar investigators as they assembled evidence for then-District Attorney Mike Nifong's eventual disbarment -- echoed his notes.

"I had actually spoke with Ms. Smith and Investigator Himan spoke with the District Attorney's office, Ms. Cline, and they decided to -- the district attorney's office thought it was a good idea [--] to go ahead and do a non-testimonial, and I assisted Investigator Himan in preparing it," Gottlieb told bar investigators.

Himan and Gottlieb worked on the order overnight and had it ready for a judge's signature the morning of March 23, 2006. Cline, however, wasn't available to help the detectives get it signed. Himan said he turned to Saacks, who presented the draft order to Superior Court Judge Ronald Stephens.

Asked for comment, Saacks backed up the accounts offered by Himan and Gottlieb, and at least part of Cline's. He said the detectives first went to Cline.

"They just called her and asked her what they should do," Saacks said. "When they came to me, they said they had already talked to Tracey about it. But she wasn't available that morning, so I took it through court."

He said police -- and not anyone in the DA's office -- drafted the order. The only change made to the draft, once it was presented to Saacks, was one that helped authorities bypass a rule that normally gives targets of an NTO three days to challenge it in court.

Saacks said he didn't know whether police suggested the order or whether Cline "brought it up" when she talked to them.

The detectives' use of the order was controversial from the outset because lawyers questioned whether authorities had probable cause to demand DNA samples from 46 players.

One Durham lawyer, Tom Loflin, told The Herald-Sun in March 2006 that the order was "mammothly unconstitutional" and a "dragnet fishing expedition."

In one of two civil-rights lawsuits pending against the city, Durham lawyer Bob Ekstrand alleged that police lied in the affidavit supporting the order because they knew they couldn't establish that all 46 of the players had attended the team party that touched off the case.

The suit also contended that Himan and Gottlieb requested the NTO to retaliate against the players for refusing to show up at the planning meeting to answer questions.

Cline is widely expected to run for district attorney this spring.


Some comments:

Everyone following this case knew that if discovery proceeded in the civil suits, at some point the DA’s office and DPD would clash and offer different versions of key events, big-time denials and relentless blame-shifting.

But it was expected that would begin over disputes between what Himan and Gottlieb were saying versus what Nifong was saying.

We have something different here: Given that the “official story” (which I dispute here) is that Nifong knew nothing about the NTO until after it was signed, what Gronberg reports doesn’t at least for now involve Nifong as far as most of the public is concerned.

What we have right now is DPD (Himan and Gottlieb directly and attorney Toni Smith indirectly by virtue of Gottlieb’s assertions) directly challenging what ADA Cline is saying.

Somebody’s got to be very wrong here in what she/he/they is/are saying about extraordinarily important matters.

The dispute Gronberg describes is basically about NTO “ownership.”

Each agency is denying it “owns” the NTO.

That suggests to me, and I’m sure to many of you, how “toxic” are the events involving the preparation of the NTO.

The DA’s office and DPD have known of the NTO’s “toxicity” for almost two years but the possibility that discovery in the not too distant future will force both agencies to face examination concerning “toxic” matters is no doubt troubling both agencies as well as Cline’s election supporters.

I admire the way Gronberg handled this story. Whether he got a leak or just dug in the existing documents, he presented both agencies speaking to the same matters so their contradictions stand out.

A lot of reporters duck doing that. They’d rather write two successive pieces: one from each side. The pieces are promos for each side and the reporter doesn’t have to worry about the DA’s office or the police getting mad at him or her.

I give Gronberg a big “hat tip” for following up with Cline so that he was able to tell us:

when asked by The Herald-Sun whether she'd asked police to draft the non-testimonial order, Cline responded, "I don't recall."
That’s news reporting!

I’ll say more about this story tomorrow.

Be sure to visit Liestoppers Forum. Bloggers and citizen journalists there are all over this story.

Now, how about your thoughts.


Anonymous said...

Imagine that. An actual reporter at the H-S.

sceptical said...

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

1) The affadavit presented in the application contained false information.

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?

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

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

5) Did Himan and Gottlieb write the application, or did they get help from the Police Attorney, ADA Tracey Cline, or others? (David Saacks acknowleges suggesting changes in the text before he signed it).

6) Was Mike Nifong aware of the idea of an NTO before the March 23 incident at the copy machine?

There is a lot we don't know.

sceptical said...

That's "Non-Testimonial Identification Order"--sorry.

JWM said...

Dear Anon,

Yes, an "actual reporter at the H-S."

I'm sorry I can't tell you how that happened but I'll try to find out.

Dear Sceptical,

No problem on the NTO tag.

Your comment is bang on.

I plan to use it in a post later today building on the one yesterday about the "toxic" NTO.

BTW - We both know between us we're only touching some of the reasons why no one wants to "own" that NTO.

I continue to admire your citizen journalism.

Please let me know you saw this.

Thank you both.


Anonymous said...


You posed a number of good questions. The courts will probably ask only one question: Who presented the request?

The answer is, obviously, David Saacks.

I am sure Mr. Saacks never gave a second thought to the legitimacy of the NTO request at the time. He will live to regret that decision.

Ms Cline may have, indeed, orchestrated the request behind the scenes, but she was wisely "unavailable" to present the request. I suspect she probably knew it was unconstitutional.


bill anderson said...


I'm shocked, SHOCKED! Someone in an official position of trust in Durham is lying? Surely you jest!!

Everyone knows that the Public Servants of Durham all tell the truth all of the time. Yes, Saacks is telling the truth and Cline is telling the truth, even though their statements are mutually-exclusive.

However, in Wonderland, mutual exclusivity is no barrier for these wonderful public officials. After all, Crystal's statements were mutually exclusive, but there was a gaggle of folk in Durham and Duke who insisted that the very fact that her statements contradicted each other constituted PROOF that they were true.

sceptical said...

Hi John,

Thanks for your comment.

While there are various possible scenarios, it is plausible Gottlieb came up with the idea for an all-encomapssing NTO, then Gottlieb and Himan presented the idea to ADA Cline who approved the concept, then the Police Atty. helped draft the application along with Gottlieb and Himan, and then Saacks signed it.

This way Cline can just say she just approved the concept, and Saacks can say he did not draft it but merely signed it because Cline was not available. (Although if he signed it, Saacks would be legally responsible IMO). This begs the question of why the Police Atty. allowed an NTO application of questionable constitutionality. Has the Police Atty. been deposed or questioned at all?

Good luck.

Anonymous said...

Who were the primary editors of the Khanna-Blythe story in the News&Observer in late March 2006 — the story that inflamed residents and enabled the frame of the lacrosse players?

JWM said...


Thank you all for your comments.

To Skeptical,

Sorry I didn't get the promised post up tonight.



JWM said...


I've just about got a post ready on the battle between the DA's office and DPD.

If all goes well I'll post tomorrow, Tuesday, Jan. 15.

Sorry to keep delaying but the stakes are huge and go to the heart of the frame-up attempt.