Durham police under microscope [possible police misconduct in Duke rape case]

hen Durham Police Chief Steve Chalmers breaks his year-long silence on the Duke lacrosse case this week, he'll have a lot of talking to do.

The allegations of misconduct against District Attorney Mike Nifong have taken center stage, but an examination of police and prosecutorial records raises questions about whether the police ceded control of the investigation, violated their own policies, created false records and failed to pursue basic investigative leads.

Chalmers, who has declined all interview requests on the case from The News & Observer since March 2006, will issue a report on his department's handling of the case later this week, Durham city manager Patrick Baker said.

"We want the truth in this report," City Council member Eugene Brown said. "We've had more than enough deception already."

Three former lacrosse players -- Dave Evans, Reade Seligmann and Collin Finnerty -- were charged with raping and sexually assaulting an escort service dancer, Crystal Gail Mangum, at a team party in March 2006. Last month, state Attorney General Roy Cooper ended the case and declared the three players innocent.

The three players have not yet decided whether they will file civil lawsuits against Nifong, the investigators or the city of Durham. If they do, the lawsuits would likely focus on whether the players were identified through a flawed procedure and whether an investigator created false evidence.

The police department's problems can all be traced to one fundamental error -- letting Nifong take over the case -- according to Jim Cooney, defense lawyer for Seligmann. Cooney has represented the Charlotte Police Department on several occasions, including on charges of malicious prosecution brought by a doctor accused of murdering his wife.

"The police let Nifong usurp the chain of command, and this is unforgivable," Cooney said. "The police work for the chief, who works for the city manager, who works for the City Council. The police do not work for the DA."

It is unusual for a prosecutor to take command of an investigation; gathering evidence and investigating crimes is the province of police.

Nifong took over the case on March 24, 2006, the day news broke that the lacrosse team had been ordered to the police station to give DNA samples. Sgt. Mark Gottlieb, the senior investigator on the case, wrote that he was told by his boss, Capt. Jeff Lamb, that Nifong would be running the case. Lamb instructed Gottlieb to "go through Mr. Nifong for any directions how to conduct matters in this case." Lamb also instructed Gottlieb to keep him up to date on the case.

Police records show Nifong running the case, with no indication that Gottlieb's superiors were giving orders. For example, Gottlieb wrote a lengthy e-mail message to Nifong on May 3, one day after Nifong won the Democratic primary. "Congratulations on the primary election. There are several things I need clarification on this week while I am off, so I know how you want to proceed."

Gottlieb asked for specific instructions on a variety of tasks: testing of Mangum's hair for drugs, arresting the third suspect, approaching two non-lacrosse players who attended the party, obtaining photographs of the party, and showing photographs of the players to a second escort service dancer hired to perform at the party.

One of the most criticized areas of police conduct was Gottlieb's handling of the photo identification procedure that led to the indictment of the three players.

On March 31, Nifong directed Gottlieb and Investigator Benjamin Himan to show Mangum pictures of all 46 white lacrosse players (Mangum had said her attackers were white, so the team's lone black player was not named as a suspect). Mangum had earlier looked at photographs of 36 lacrosse players and failed to identify an assailant.

Nifong's directive violated Durham Police guidelines, which says that identification procedures should include five fillers -- photographs of people unrelated to the case -- for every photograph of a suspect. Gottlieb did not include any fillers when he showed the photos to Mangum, who picked out four players as her assailants, three of whom were charged.

Baker, the city manager, said the police guidelines didn't apply to this procedure because police were looking for witnesses as well as suspects.

Psychology professor Gary Wells, who helped write the identification policy adopted by the Durham police, said Baker's explanation doesn't make sense because police had already identified all 46 players as criminal suspects.

"If your suspects are in there, then it's a photo identification procedure," said Wells, a professor at Iowa State University. Baker's explanation is "a song and dance, and an early attempt to fish for some defense in a civil suit down the line."

Gottlieb did brief his supervisors, Lamb and Lt. Mike Ripberger, on Nifong's directions for the lineup. Both officers apparently acquiesced to Nifong's directions. Ripberger had special knowledge of how identification procedures should be handled: He attended a June 2004 session at the N.C. Bar Association led by Wells.

Nifong's photographic procedure and the lack of fillers soon came under fire. With no fillers, there was no way to test Mangum's reliability as a witness

In July, Gottlieb produced his written report that seemed to shore up Nifong's identification procedure. Gottlieb reported that on March 16, Magnum had precisely described the three men who were later indicted, including this description of Finnerty: "W/M, young, blonde hair, baby faced, tall and lean." This description, however, contradicted handwritten notes taken by Himan during the interview, which described the three men as heavyset, dark, chubby or short.

In March 2006, police distributed posters announcing "a horrific crime" in which a woman had been sodomized, raped, assaulted and robbed. The poster circulated for two weeks before police toned the language down and clarified that a crime was alleged to have occurred. City manager Baker said he did not know who created the poster.

Alex Charns, a Durham lawyer who has successfully sued the city for police misconduct, said Durham officials are repeating their history of not admitting mistakes by claiming the photo identification procedure did not violate policy.

"The city has still not apologized for its role in the fraudulent prosecution of these three innocent men," Charns said. "They are trying to rewrite history in a way that exonerates themselves."

The police department's conduct involves not just what investigators did, but what they didn't do. The rape charges rested on the uncorroborated words of Mangum, who gave multiple, conflicting versions of the alleged assault. Police never pressed her to resolve the contradictions. They waited seven months to interview her colleagues and boss at the Platinum Club, a strip club in Hillsborough where Mangum danced.

According to Nifong's files, police waited six months to pull the report on Mangum's 2002 arrest on charges of stealing a taxicab from a Durham strip club. Mangum's behavior that night echoed her behavior after the lacrosse party and could have raised cautions about her reliability.

And although police spent scores of hours investigating the 46 lacrosse players -- combing local and national criminal databases, sex offender lists, handgun permits and college records -- they did not pursue basic evidentiary trails to learn what happened at the lacrosse party.

For example, when police first searched the party house at 610 N. Buchanan Blvd. on March 16, two lacrosse team captains told police that Kevin Coleman, a lacrosse player, had taken photographs of the party. Police never subpoenaed Coleman's camera or the time-stamped photographs, even after some of the images appeared on national television and the Internet. Police never obtained cell phones belonging to Seligmann or Finnerty, or their computers, or instant messages or e-mail.

Wells, the identification expert, said an honest and full report from the Durham Police is in the best interest of Durham's citizens, given that the three exonerated lacrosse players may sue the city and police.

"I've seen other police departments resist and resist and resist; they don't want to admit mistakes, and they make stuff up and they posture," Wells said. "Ultimately they lose the case after spending millions of dollars in taxpayer money to fight it, and they end up spending more on damages. The taxpayers are the next people to be burnt."

A comment today on liestoppers which is really, really interesting...

....there were freshmen on this team-18 year old kids. When Brodhead and Alleva fired Pressler, these kids felt totally alone. The man who had recruited them to Duke and had told them and their parents that he would watch after them had less than an hour to say goodbye. Cassese and Dr. Kennedy were the only adults who gave counseling and comfort. Can you begin to imagine the feelings of those freshmen? They have chosen Duke and are so proud and have worked so hard, good God, they mostly didn't even know there were going to be strippers at the party. They saw two sophmores indicted whom they knew had nothing even to do with the supposed party and then they live in terror that they will be next. The Dean of Students, the President, the AD-no one attempts to comfort them except for Caseese and Dr. Kennedy (who had to attempt hold everything together). And then there were the threats from "drive by shooters", the Black Panthers, and their own professors-one who told the lacrosse players to sit on one side of the room so he could protect the rest of the class from the rapists-this happened. Then there were the rosters with their pictures on every car in the parking lot-on trees-on professors' desks. My son had to go through counseling when he came home from that hell hole. He will never be the same.

From Friends of Duke University:

http://friendsofdukeuniversity.blogspot.co...951294294999551

Profiles in Courage

The Other Duke Lacrosse Moms

“Men are what their mothers made them,” wrote Ralph Waldo Emerson. Mothers and sons have a unique bond. Ask any mother. Ask any son. A mother is the first woman to love him unconditionally. As he grows into the man you hope he will one day become, no matter how tall he grows, or old he becomes, you are still his mother and he will always be your child.

When the hoax was born, the “eclipse of justice” cast a wide shadow enveloping all the families of the 47 players of the Men’s 2006 Duke Lacrosse Team. People deal with difficult situations very differently, some privately and others more publicly. Whatever way they choose to deal with their pain should be respected. This article is based on conversations with five courageous mothers willing to share how the hoax has affected them and their families. At the onset, all made it very clear that their pain pales in comparison to that which the Finnerty, Seligmann and Evans families have experienced and continue to endure. None of them were looking for attention. Quite the opposite, they want their private lives back. However, all thought it important for people to recognize that so many families have been devastated by the hoax. The five resolute mothers are Gale Catalino, Barbara Loftus, Sherri McFadyen, Susan Wolcott and Nina Zash. Here is a sample of their stories.

The “Other Duke Lacrosse Moms” hail from Texas, New Jersey and New York. The common thread is that they are the mothers of sons who went to Duke University and played on the Mens 2006 Duke Lacrosse Team; some have since graduated, while others continue their education at Duke.

One of the major events in a young man’s life is going off to college. The mothers reminisced about happier times, when they first learned their sons had been accepted at Duke. It was a time filled with great excitement and pride. It represented the culmination of years of hard work as both gifted students and talented athletes.

Mrs. Zash, spoke about her son, Matt, who was a senior and a 2-year Captain. Matt had grown up in a middle class community in NY, a town known as a nice place to raise a family. It is the same town his parents, high school sweethearts, had grown up in. The local public schools have a reputation for being fierce competitors on the athletic field. Matt attended these schools and was an icon in his hometown. Matt was accepted to Duke as early decision candidate. He was All American 2004 and 2005.

Mrs. Catalino’s son, Michael, was a freshman. Michael is the product of upstate New York public schools and currently hopes to become a doctor one day. Michael was recruited by most Division I schools, and turned down Ivy League schools, to attend Duke. “At Duke, my son’s education was valued and prioritized above athletics. He went to Duke first for its education and secondly to play lacrosse and Coach Pressler “was sensitive to that. We felt comfortable that Duke’s staff were as concerned with Mike’s well being as we were”, said Mrs. Catalino.

Mrs. McFadyen’s son, Ryan, was a sophomore. Ryan heard of his acceptance to Duke in September of his senior year of high school. It was such a proud moment. Mrs. McFadyen and her husband celebrated by buying balloons and a CD of the 1960’s popular song “Devil in a Blue Dress.”

Mrs. Loftus had two sons on the Duke Lacrosse team. Their elder son, Danny, was a junior and goalie for the team. Chris was a sophomore. Her husband is a retired Captain in New York City Fire Department. The Loftus brothers were products of New York public schools. When Mrs. Loftus and her husband first heard their elder son Danny was accepted at Duke they were “ecstatic”. Then when Chris was accepted they thought what could be better. “Getting accepted to Duke was a badge of honor. What more could a parent want”, said Mrs. Loftus.

Mrs. Wolcott, a proud Texan, vividly recalled the day her son, William, was accepted at Duke. Her son knew Coach Pressler from attending Duke Summer lacrosse camp. Mike Pressler called to offer the invitation while they were with his high lacrosse school team at a Spring Break Tournament. Mrs. Wolcott remembered, “We were in a restaurant and William went out to take the call. The whole team knew what was up and cheered loudly when William returned with a huge grin on his face. It was very exciting as William would have the honor of being the first Texan recruited to play at Duke.”

After the party of March 13 and 14, when the hoax was born, several of the team mothers almost immediately predicted this would become Tawana Brawley II. A large shadow was cast on the Men’s Duke Lacrosse Team that would change the lives of many people.

All the members of the lacrosse team, except for one, (African American goalie, Devon Sherwood), were immediately under a cloud of suspicion. Without their parents knowledge they submitted DNA. One young man called his mother the next day and started the conversation with “I need to talk to you about something”, words that cause great concern for most parents. Photographs of the players were plastered on wanted posters on Duke’s campus. There were protestors and marches. The New Black Panthers visited Durham. Threats were made. The major news media was relentless. These were very difficult times for the mothers and fathers, the sons and their families. Some of the phrases used to describe their feelings were frightening, roller coaster and constant dismay at the justice system.

The mothers were asked to reflect over the past ten months and identify an event or moment that touched them personally. Here are their poignant responses.

As team captain, Matt was living in the house at 610 N. Buchanan. With angry protestors surrounding the house, the media in frenzy, and the New Black Panthers in town, Matt was forced to leave the house. With no safe haven to go, at one point, he was living out of his car. His parents visited each weekend, just to see him and make sure he was safe. “My husband and I went down to visit him. This kid had tried to walk the straight and narrow everyday and set an example and he was searching for a shirt in the trunk of his car. We watched him change his clothes in the parking lot. I thought I would die of a broken heart that day”, said Mrs. Zash.

For Mrs. Loftus, the most memorable moment was “stopping at a gas station on the way to work, I saw Collin Finnerty’s face on the front page of Newsday. I thought to myself “how did the world come to this?”

Mrs. McFayden described “the feeling of helplessness of watching Ryan weep uncontrollably on his father’s shoulder as he heard that his friends and teammates, Collin Finnerty and Reade Seligmann, had been indicted and being unable to console him.”

The Catalino’s attorney called in April to tell them there would be indictments and “It’s not who you think it is”. Up to this point, the media seemed to be targeting the players who lived in the N. Buchanan house. “This revelation put us all on edge, as we knew that any one of our son’s could have been indicted that morning. The best analogy would be similar to a firing squad with 46 players, not knowing who the targets were. “We picked up our son and drove to Greensboro to spend the night prior to the indictments. We didn’t want him to be in Durham not knowing what to expect.” Unable to eat as they sat down at breakfast with their son, they asked him “Do you understand that could be you?” That morning they told their son that if he was “picked” they did not have the funds to provide bail. “I felt like I couldn’t protect my children from the media and the assault on our family, and knowing that the accusations weren’t true offered little comfort”, said Mrs. Catalino.

A dedicated student, Mrs. Catalino’s son decided the best way for him to support his team was to continue his studies and prepare for exams. With the New Black Panthers in town, at Mrs. Catalino’s request, Michael’s father and uncle flew to Durham to accompany his freshman son around campus and to his chemistry exam. “At that time the Duke campus was perceived by us as a campus whose security was being compromised by outside forces with no reassurance that our son’s safety was protected”.

Mrs. Wolcott reflected on the senior dinner on Saturday before the graduation ceremonies. “Dave Evans spoke as Team Captain, Senior, and a young man facing indictment within 48 hours about his confidence his family would see him through what was ahead,” said Mrs. Wolcott.

Time did not stop for the hoax. These are busy women. Some work outside the home. They are the mothers’ of 18 children, many with other active children to care for. They had no choice but to carry on.

Mrs. Zash’s only daughter became engaged Christmas 2005, a special time in the life of a young woman, and they had just started making wedding plans. She and her husband would fly down to Durham on Saturday and return on Sunday. “We would literally walk in the door on Sundays and my daughter and I would take off to look at wedding halls, wedding gowns or flowers. I had to try and shift gears and turn into a normal mom so my daughter and I would not be deprived of one of the most special times in both of our lives,” said Mrs. Zash. Her newlywed elder son was spending 3 to 4 nights a week at their home comforting his parents and siblings.

Mrs. Catalino experienced another tragedy immediately prior to the hoax. Her father passed away in February 2006, just weeks before the hoax. Coach Pressler, whom the Catalino family refer to as “Pastor Pressler” helped to ensure that Michael joined the rest of his family in being with his grandmother later that evening. Mrs. Catalino stayed with her mother for several weeks until shortly before the hoax began. She still has not yet had time to grieve her father’s death.

Mrs. Wolcott’s middle daughter got “lost” in the hyper focus on her older brother, until her parents realized she needed love and attention. She was kept home from college this fall, but thankfully is doing better and will be spending next semester abroad.

Mrs. Loftus described a very busy, hectic family schedule. Her daughter, a junior in high school was preparing for her SAT’s. Another lacrosse mother volunteered to tutor her daughter in physics.

Mrs. McFadyen’s son, Ryan, wrote the “infamous email” that went around the world. Her emotions have changed from disbelief and embarrassment to anger. While she does not condone the language of the email, it was a private email taken out of context. Only after a few weeks was it reported that it was based on “American Psycho”, a novel by Bret Easton Ellis taught in three courses offered at Duke and made into a popular movie starring Christian Bale. Mrs. McFadyen’s daughters and their classmates, who had seen the film, recognized it immediately. Ryan was suspended for a time. His father flew to Durham. Another player went to her son’s room, threw a few of Ryan’s things in a bag and brought it to him. Ryan and his father drove home to New Jersey in Ryan’s car that night. The media was relentless, calling and filming her house. Her husband could not face people for months. Even through the most difficult moments, Mrs. McFadyen knew she was blessed because she and Ryan were so close, and this travesty further strengthened their relationship. Mrs. McFadyen expressed gratitude for the kindness and support her family received during these difficult times from members of her community, church and the team.

The mothers and families of the teams have tried to provide support systems for each other. Their faith has helped them to get through these difficult times. Mrs. Catalino, said she did not know how she got through that Monday morning the first indictments were handed down, until she realized she had lived the words of the famous poem “Footprints in the Sand”:

The Lord replied,
The times when you have seen only one set of footprints in the sand,
Is when I carried you

Rather than pitying themselves, the mothers have tried to channel their energies to positive things. Mrs. Wolcott formed the Concerned Mothers for Duke Students. She said one of the most reassuring things she did was going to Durham for the December 15 hearing and experiencing the courage of the families of the indicted players. She and her son work on fundraising for the Legal Defense Fund. Mrs. Zash continues to work on communications for the “Devil’s Advocate”, a lacrosse booster club.

When some of the teachers at their public school began asking her children who do you think did it, Mrs. Catalino decided to empower her children. It was her daughters who suggested the idea of the Duke Lacrosse wristbands, which then became a fundraiser. Individuals and families in 48 states and 5 countries have distributed over 30,000 wristbands. The bands are not for sale but are offered by donation with all proceeds going to the Association for Truth and Fairness to help defray the costs of legal fees and to insure that truthful information is communicated to the general public. One daughter produced a film “We’re Back”. Another daughter provides monthly current event updates on the case to her class.

Mrs. McFadyen spends two to three hours daily on the Internet, searching for someone to finally see the light and dismiss this “hoax” of a case.

When I asked the mothers what messages they would like others to know they said the following:

Nina Zash: “Perhaps someday, someone will gain something from the collective suffering of 46 families. I’d give anything if my son, those three wrongly accused young men, the coach and the rest of the team could have been spared this ordeal. I look to the future with the hope that I will be shown some reason, somehow for all our pain.”

Sherri McFadyen: “This lacrosse team is the most respectful, polite, kind, helpful group of guys that anyone would be so proud to know. Words cannot begin to express how I feel towards them all. It is a travesty how they have been portrayed. Nothing could be further from the truth. We want justice which has been completely lost in this entire case from day one.”

Barbara Loftus: “If this case had not gotten national attention and public outcry, I don’t know what would have happened.”

Susan Wolcott: “Every mother who has a son should be invested in this travesty of justice. There should be no racial lines drawn. Not only is my son always in my prayers, but also three outstanding young men named Collin, Reade and David. To Mary Ellen, Kathy and Rae, we love you dearly and we will fight with all the strength and resources we have until your sons are freed from this horrible hoax. We will now always be a family in the greater sense.”

Gale Catalino: “I realized very early that we all needed to do whatever we could to fight for Dave, Reade and Collin and for justice in this case. It had to be done. Whether it was a letter, or a donation, whatever was within our means.”

The mothers spoke with great respect of Coach Pressler and said the season should never have been cancelled. Pressler took care of their sons as he promised he would. He took pride that his team has the highest average ACC team G.P.A. average. Those mothers whose sons are currently at Duke said the one thing Duke did right was hiring John Danowski as coach. Though they miss Mike Pressler and regret what he has gone through, they are grateful their sons are in Coach Danowski’s capable hands. As a father of one of the Duke Lacrosse players himself, he understands and has been a coach, father figure, and friend and is helping to heal their sons.

Not having their son picked as one of the three indicted boys brought relief, but then outrage. One mother described “steeling” herself prior to that awful Monday with the thought that she and her family were strong. “My son was not guilty of any crime, nor is anyone else. That is what makes this all so maddening. We learned early that Monday in April that our son would not be indicted. It was a relief that was followed by shock that Reade and Collin had been falsely accused,” said Mrs. Wolcott. Along with the outrage, there was great sadness knowing what the Finnerty, Seligmann and Evans family would have to face.

Mrs. Loftus’ husband, Brian, was a Captain in the NYC Fire Department on September 11, 2001. He responded to the call, watched World Trade Tower #7 go down and was involved in recovery operations. Although the two events are obviously very different, I asked Mrs. Loftus if she thought there were any similarities in the emotions she felt. She spoke of going to so many funerals for the victims of 9/11 and seeing so much pain on peoples’ faces. She thought of the pain of knowing someone’s kids could go to jail when “nothing happened”. “What could be worse than kids could go to jail for nothing?” asked Mrs. Loftus.

The hoax has caused so much pain for all the families of the 47 players. At the same time, the mothers described even stronger bonds with their husbands and children. The moms look at their sons with pride and admiration as they try to carry on with their lives. This is the resilience of youth. They know the truth is that nothing happened that night. The mothers stand in unity with the Finnerty, Seligmann and Evans families that Collin, Reade and Dave were wrongly indicted on charges for which they are absolutely innocent. Only when this “eclipse of justice” finally ends can peace return to these mothers’ hearts......

Duke and the city of Durham are about to get sued into tomorrow-morrow land.

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