The Volokh Conspiracy

This morning, KC (who co-authored this post) and I looked at two principal enablers of Mike Nifong’s efforts - - SANE nurse Tara Levicy and Durham Police Dept. sergeant Mark Gottlieb. Levicy is no longer working for Duke Hospital; Gottlieb remains on the job at the DPD.

More broadly, this case provided a depressing glimpse inside the Durham criminal justice and legal system; while Nifong has been discredited, most of his allies remain on the job:

--Linwood Wilson, Nifong’s chief investigator, was a man who had given up his PI’s license because of myriad ethical complaints. Wilson displayed a disturbing habit of seeming to intimidate witnesses in the case. One witness, the former manager of the strip club where Mangum danced, swore out an affidavit that Wilson pressured her to change her story that Mangum was behaving erratically in the days before the lacrosse party. Another, the cab driver who corroborated Seligmann’s alibi, was arrested on an old (bogus) warrant uncovered by Wilson.

Both of these witnesses were African-American; local civil rights groups did not criticize Wilson’s actions in any way.

--The DPD command structure (Lt. Mike Ripberger, Deputy Chief Ron Hodge, and ex-Chief Steven Chalmers) was AWOL at best. The key procedural violation in the case came on April 4, 2006. After Mangum had failed to identify any of her “attackers” in studying photo arrays that had at best stretched DPD guidelines (five fillers per suspect, telling the witness the suspect might or might not be included in the lineup), Nifong ordered the DPD to run a third lineup, this time including only the 46 white embers of the Duke lacrosse team, all of whom were suspects. And Gottlieb opened the session by telling Mangum she would be shown only photos of people police believed attended the party.

In recent months, Ripberger, Hodge, and Chalmers have all stated that the DPD handled the lineup properly.

--City Manager Patrick Baker asserted in a May 2006 interview: “I’ve had a lot of conversations with the investigators in this case and with officials at Duke, and at no time did anyone indicate [Crystal Mangum] changed her story. If that were true, I’m sure someone would have mentioned it to me.”

In fact, Mangum never told law enforcement the same story twice; Baker’s portrayal of the evidence was false.

In May 2007, after the dismissal of all charges, Baker co-authored a report stating that the DPD’s handling of the lacrosse case was “typical” of its general performance, and that the officers committed no significant procedural errors. This at a time when there was massive evidence in the public record of gross violations of factually innocent defendants’ rights and good law enforcement practices.

--Dr. Brian Meehan and his lab, DNA Security, conducted the Y-STR testing on Mangum’s rape kit samples. Nifong had obtained the lacrosse players’ DNA through a court order promising that negative DNA results would “immediately rule out any innocent persons.” Meehan’s tests not only found no matches to lacrosse players, but also showed that the rape kit contained DNA matching multiple unidentified males, even though Mangum claimed to have had no sexual contact with anyone for a week prior to the lacrosse party.

Aside from driving another stake through the heart of Mangum’s credibility, these results showed that Mangum’s story could be true only if three lacrosse players had somehow contrived to leave no trace of themselves on or in her body while beating, kicking, and raping her vaginally, anally, and orally for 30 minutes, with no condoms, and with at least one ejaculating. Meehan’s tests also showed that Mangum was such a hospitable host for preservation of left-over male DNA that stuff from previous encounters with several other men was still lying around. In other words, her story could not possibly be true.

The presence of the unidentified males’ DNA -- virtually conclusive proof of innocence -- was suppressed in Meehan’s report. After defense lawyer Brad Bannon had figured this out by doggedly sleuthing through almost 2,000 pages of documents, Meehan tried to bluff his way out of the problem during a climactic hearing on December 15 by initially denying what his own documents proved. Bannon -- briefly terrified that he might have missed something -- proceeded to dismantle the DNA expert, cell by squirming cell, in the most thrilling cross-examination either of us have ever witnessed.

--Judge Ron Stephens, former Durham DA (and Nifong boss), who handled the case from March into June 2006, consistently rubber-stamped whatever Nifong asked and evinced hostility to defense lawyers who challenged the DA.

North Carolina non-testimonial orders require probable cause to believe that a crime was committed and reasonable grounds to believe that each individual subject of the NTO could have committed the crime. Yet Stephens signed off on a March 23, 2006 NTO requiring all 46 white lacrosse players to give DNA -- even though police didn’t show reasonable grounds that many of the lacrosse players even attended the party, much less could have committed the “crime.”

The move previewed the judge’s performance throughout the case. In April, he set $400,000 bonds, suggesting that Collin Finnerty and Reade Seligmann were flight risks. In an early November interview with The New York Times, he issued a de facto endorsement of Nifong’s re-election. And last month, he served as a character witness for Nifong at the ex-DA’s criminal contempt trial. His argument: Nifong’s punishment should be minimized because Nifong was an ethical beacon to a generation of Durham ADA’s.

The last 18 months, in short, have revealed a deeply flawed legal culture in North Carolina’s fourth largest city. And good reason exists to believe that the lacrosse case only exposed a fraction of Durham’s corruption. To conclude with a vignette: during Nifong’s criminal contempt trial, Durham judge Marcia Morey testified for the ex-DA. Morey offered an unusual argument to minimize Nifong’s repeated lies to the court to conceal his discussions with Dr. Meehan of the undisclosed exculpatory DNA test results.

Prosecutors, Morey asserted, had less of an obligation to be candid before a trial date was set. “I do think it makes a difference,” the judge continued. “Are you are at a trial stage, [or] are you at a pretrial conference?” Her apparent implication: Pretrial, at least, why make a fuss about a little lying between friends -- prosecutors and judges -- for the sake of helping prosecutors oppress innocent people?