Monday, April 20, 2009

Safe Lax Suits Discovery Bet

At Liestoppers Meeting there’s been an interesting discussion concerning what might happen if a federal court in Greensboro allows discovery in the three civil rights violations suits brought by victims of the Duke lacrosse frame-up attempt and its still ongoing cover-up.

While the court may not grant all the plaintiffs’ attorneys’ requests, I’m confident, based in large part on what attorneys following the suits but not directly involved in them have told me, that the court will grant most of them.

Questions about who authorized the NTO and who developed and approved the documents supporting it which contain prima facie false statements will, I believe, be among the first matters about which the plaintiffs’ attorneys will seek to learn more from certain defendants and others who, while not defendants, will be deposed for information they can provide.

Right now the plaintiffs’ attorneys are contending with a massive cover-up by: 1) those who used Crystal Mangum’s lies to slander and in other ways smear and endanger the members of the 2006 Duke Men’s lacrosse team and who attempted to frame for multiple crimes three of its members; and 2) those who enabled the slandering, smearing and frame-up attempt, and by so doing, did great harm to the Duke students, with that harm very possibly including crimes against the students.

To date the cover-up has been effective. Durhamites, for example, still don’t even know why their police department said “horrific crimes” were committed at the lacrosse party. And Duke University has refused to say whether it released student records to Durham Police in violation of federal law and then engaged in a courtroom charade intended to cover-up what it had done.

But the cover-up is expected to end when discovery under oath begins and at least some of those deposed decide they won’t risk perjuring themselves and/or they won’t accept blame they feel belongs to others.

The sooner the plaintiffs’ attorneys get some defendants and others speaking truthfully, the better that will be for their clients and proper outcomes from the suits.

As you’ll see below, there are already NTO “cracks” in the Durham DA’s office and Durham Police’s sections of the wall of cover-up. That’s one of the principal reasons why I believe plaintiffs’ attorneys will early in discovery focus on NTO questions.

Much of what follows is from a Jan. 13, 2008 post - Who “Owns” That “Toxic” NTO - with updating comments inserted today in brackets and italicized.


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, [ reg. req'd; and today I kept getting a "trouble now" message. No surprise. The H-S archives site is very poorly maintained.] 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. [A third - sometimes called "the Cooper suit" after lead attorney Charles Cooper - was subsequently filed on behalf of 38 lacrosse players and some of their family members.]

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. [She did run, won and is now DA.]


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.

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!

Be sure to visit Liestoppers Forum. Bloggers and citizen journalists there are all over this story. [Liestoppers was subsequently hacked and its posts and discussions could not be retrieved. That was a great loss for those who did such splendid work there, for the many commenters who added to many posts, and for readers who appreciated outstanding blogging.]

I encourage you to read the comment thread of Who "Owns" That "Toxic" NTO.


Anonymous said...

Can we be confident that another NC judge (now promoted and presiding from the federal bench) is NOT cut from the same mold as Stephens, Titus, Bushfan, Hudson, Whichard, etc.?

If these suits were being heard in another state or territory, I might have no qualms. But given from what I have seen so far of a full procession of NC judges, I will withhold comment but keep a wary eye...

Anonymous said...

As I have mentioned before, there is also the matter of Himan and Gottlieb giving perjured testimony to the grand jury that returned the indictments. I wonder if the plaintiff's attorneys will be able to depose members of the grand jury? I know the NC prosecutors and police would move heaven and earth to keep such information behind closed doors, but this is a federal case. Any legal folks care to comment?
Tarheel Hawkeye

Anonymous said...

Terrific post!

Duke '85

Anonymous said...


Yes, this is a terrific post.

One of many you've done.

Thanks for all your work on the case.

A Duke Mom