Friday, January 09, 2009

Two Missing Guests at DA Cline's Swearing-in

Durham's newly sworn in District Attorney Tracey Cline says she invited "everybody" to her swearing-in ceremony. The now disbarred former DA Mike Nifong, Cline's former supervisor, says his invitation was personal.

Nifong's attendance got me thinking about two people who weren't at the swearing-in: former DPD officers Sgt. Mark Gottlieb and Inv. Ben Himan, the principal DPD "investigators" in what in Spring 2006 was called the Duke lacrosse case, something we now know was primarily a frame-up attempt and an ongoing cover-up of it.

Both officers resigned from DPD in early 2008, with WTVD reporting Himan resigned on Feb. 19; Gottlieb on Mar. 1.

A few months before they resigned - in fact one year ago today - a story appeared in the Durham Herald Sun which I think goes a long way towards explaining why Gottlieb and Himan weren't sharing in Cline's swearing-in festivities.

I posted on the H-S story. If you read the post -
Who "Owns" That "Toxic" NTO? (1/13/08) - I think you'll agree it helps explain why Gottlieb and Himan weren't there for the swearing-in.

You'll also be left in no doubt as to why our new DA is interested in "healing" rathere than discovery under oath.

Who "Owns" That "Toxic" NTO?
begins -

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. (all emphasis added)

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. [The LS Forum site was subsequently hacked and the material there was lost. - JinC]

Now, how about your thoughts.

End Note: I encourage you to go to
Who "Owns" That "Toxic" NTO? in order to read its outstanding thread.



Ex-prosecutor said...

It will be very interesting to see how, in the depositions, the various defendants may explain the NTOs. Lying or hedging with newspaper reporters one thing, but to do so in a deposition is perjury. The deposing attorneys can split the good guy/bad guy roles to see how the witness reacts to pressure and tie down the witness to minute details of the story being told.

At trial, there will be lots of finger-pointing among the defendants, which always benefits the plaintiffs.

The depositions of all the defendants, especially those named in the article would be fascinating to watch; and, from what I know of plaintiffs' counsel, I would expect them to be very aggressive with the defendants.

Thanks for keeping us up to date on this.

Anonymous said...

Terrific post!!!!

bill anderson said...

John, excellent post. While I agree with Ex-prosecutor, nonetheless all of us know that Cline, Himan, Gottlieb, and the others have nothing to fear if they commit perjury. We already have seen that the people who brought this case committed a bunch of felonies in the process, yet nothing happened to them.

Thus, I am sure that their lawyers have told them that they can lie to their hearts' content and not have to face justice. Perjury is not a crime if one has a free pass from those who enforce the law.

That being said, if one of us were being interviewed by Tracey Cline and we lied to her, we could be charged with a crime. It is clear that Cline is lying in these stories, yet nothing happens to her. In fact, she overwhelmingly was elected, which means that Durham voters prefer that their candidates be liars.

Jim in San Diego said...


You solicit our response. Here is my gut.

I am ill over the extraordinary number of people in positions of responsibility who:

1. Lie regularly about important matters.

2. Are unethical and immoral in the performance of their duties.

3. Cannot think, or read, or write coherently.

It is not just that the numbers of such officials in this case are large in absolute numbers. They are.

It is that the percentage of those who feel no compulsion to candor and ethical behavior is very large.

There are no heroes.

Jim Peterson

Ex-prosecutor said...

I agree with Bill Anderson that prosecutions of the defendants, regardless of their perjury are highly unlikely. In my many years of practicing law, I can count on one hand the perjury prosecutions I've seen. But I have seen lots of lying

The problem for the defendants is, as I see it, that those who must keep their lies consistent, such as the police officers, will have a hard time doing so. When lawyers use probing and detailed questions to tie a deponent to a very specific story, the lies usually become obvious.

Therefore, I think that, while the officers can, and will, lie during their depositions, their lies will not be consistent.
It is impossible for them to prepare for all of the questions that the plaintiffs' lawyers will ask.

bill anderson said...

Kudos to Ex-prosecutor. Look, I would like to see these people charged with perjury, or something related to what they did.

My only regret is that Ex-prosecutor still is not in that line of work, as he demonstrates the kind of integrity that is sorely lacking in public life. There are good people in that line of work, and I have met many of them, but there also are bullies and plain dishonest people who are not competent enough to be good private practice attorneys!

My sense is that E-P WAS good enough and is doing well.

Anonymous said...

Ex-prosecutor and Bill Anderson, I really appreciate your POV, and hope I live long enough to see the defendants pointing fingers at each other - squirming, getting caught in lies, and JinC, good work.

Anonymous said...

You lacrosse hustlers
sound like the perfect
Bernie Madoff suckers.