Friday, April 3, 2009

North Carolina can learn from the U.S. Justice Department

Due to numerous missteps by the U.S. federal prosecutors in the case against former Alaska state Senator Ted Stevens, the U.S. Attorney General Eric Holder moved to drop all charges against him, which included seven felony ethics violations. Holder also said that he would not seek a new trial. This announcement, which came on April Fool’s day, was no joke, and came after Holder became aware of yet another instance of prosecutorial misconduct, on top of several others. The “News & Observer” referred to the sudden and dramatic turn of events as a “stunning embarrassment,” which it was. However, I believe that it was also a courageous act by Attorney General Holder, and furthermore, that it was the right thing to do.

Unfortunately, it is all too often that high ranking officials allow the possible personal and departmental embarrassment of a situation to stand in the way of them taking just and appropriate actions. Such is definitely the case with selective disbarment and unjustifiable mistreatment of former Durham District Attorney Mike Nifong by the North Carolina State Bar, the state’s attorney general, and other state agencies. For Mr. Nifong to be the only prosecutor to be disbarred by the State Bar since its inception, is an utter outrage, especially in lieu of the many state prosecutors who have won convictions against innocent defendants by using unscrupulous and unethical tactics.

The North Carolina State Bar should learn from the Federal Department of Justice and act based on merits of a position and not allow their egos to dictate what course to take. It is very obvious to any reasonable, rational, logical individual that Mr. Nifong should never have had his law license taken from him because of his handling of the Duke Lacrosse case. I believe that Mr. Nifong’s case against the lacrosse players had merit, but because Attorney General Roy Cooper essentially quashed the investigation and slid it into a black bag, we will never know the true strength of the case. One thing is undeniable, and that is that the information about extraneous, irrelevant unidentified DNA found on the accuser’s rape kit exam, was of no material value to the defense attorneys, and played no role in denying the Duke lacrosse defendants justice. The biased media and other non-objective observers have often referred to the extraneous unidentified DNA findings as being “exculpatory evidence.” This misstatement is blatantly false, and is made to mislead the gullible public into believing Mr. Nifong’s actions in the Duke Lacrosse case were detrimental to the cause of justice, and are justification for the extreme punishment inflicted on him (including disbarment).

If the North Carolina State Bar learns from the U.S. Justice Department’s errors, has the courage to accept responsibility for its mistakes, and is committed to rectifying them, then it will take steps to immediately re-instate Mr. Nifong’s license to practice law. I do not foresee this course of action in the near future because, even if the State Bar had the courage to admit that it made a mistake, it lacks the will to see that Mr. Nifong is treated justly. Therefore, the only way that the State Bar will move in a positive direction with respect to Mr. Nifong, is only under great persuasion.
Another recent North Carolina case represents a similar instance when the will to right a wrong is lacking. Judge Orlando Hudson, like U.S. Attorney General Eric Holder, should have tossed out the murder conviction of Michael Peterson after it came to light that the original prosecutors (James E. “Jim” Hardin and Freda Black) withheld from the Peterson defense team the existence of a possible murder weapon and the results of tests performed on it. By withholding that crucial piece of evidence, it deprived the defendant of ever getting a fair trial, and caused irreparable damage to his defense. At minimum, Judge Hudson should have ordered a new trial for Mr. Peterson. It would not have taken courage for the judge to rule in favor of the defendant’s appellate attorneys on their motion for a new trial, because doing so would be the appropriate and just thing to do. However, as lap dog for the attorney general, Judge Hudson lacked the will to do the right thing, and he proceeded to rule against Mr. Peterson.

North Carolina’s state and local justice systems are teeming with prosecutors who lack the courage to face a little embarrassment and/or lack the will to see that justice is done. It is certainly comforting to know that on a federal level, the chief prosecutor has both the courage and will to see that justice prevails.

18 comments:

unbekannte said...

Sidney Harr de Harr Harr

Prepare to be disillusioned. We do know the strength of "decent"(HA) "honorable"(HA HA) "distinguished"(HA HA HA) "exemplary"(HA HA HA HA) "minister of justice"(HA HA HA HA HA) nifong's case. All one has to do is read the report of overwhelmingly reelected NCAG Roy Cooper. Nifong's case had no strength, and people were saying that before the AG ever got involved.

Tell us, on what basis do you believe the case had merit. silly killy and injustice58 present a lot of "could of's" and "might have beens" and "maybes". That doesn't count for squat in a system in which the criterion of guilty is proof beyond a reasonable doubt. If you really believed the case had merit you would be working through the legal system, not trying to perpetuate corruption in it.

I say to you, put up or shut up. You say nifong's case had merit. Prove it.

regards

Ubes

kilgo said...

* * *

BEFORE THE
DISCIPLINARY HEARING COMMISSION
OF THE
NORTH CAROLINA STATE BAR
06 DHC 35

NORTH CAROLINA

WAKE COUNTY

- - - - - -

THE NORTH CAROLINA STATE BAR,

Plaintiff,

vs.

MICHAEL B. NIFONG, Attorney,

Defendant.

- - - - - -


Deposition

of

MARK D. GOTTLIEB

Thursday, April 19, 2007

10:00 a.m. - 3:52 P.M.

ORIGINAL

Reported by:
Margaret M. Powell
Certified Verbatim Reporter
6212 Splitrock Trail
Apex, North Carolina 27539
(919) 779-0322

* * *

kilgo said...

* * *

PAGE 2

APPEARANCES

DOUGLAS J. BROCKER
The Brocker Law Firm
Suite 200
5340 Centerview Drive
Raleigh, North Carolina 27606-3363
(919) 342-5537 or (919) 424-6334
(For the Plaintiff)

DUDLEY A. WITT
Crumpler Freedman Parker & Witt
Suite 1100
301 North Main Street
Winston-Salem, North Carolina 27101
(336) 725-1304
(For the Defendant)

WILLIAM L. HILL
Frazier Franklin Hill & Fury, RLLP
Suite 100
500 West Friendly Avenue
Greensboro, North Carolina 27401
(336) 378-9411
(For the Witness)

TONI M SMITH
Police Attorney II
Durham Police Department
505 West Chapel Hill Street
Durham, North Carolina 27701
(919) 560-4587
(For the Durham Police Department)
Margaret M. Powell, CVR - (919) 779-0322

* * *

kilgo said...

* * *

PAGE 3

CONTENTS

EXAMINATIONS

ATTORNEY
MR. BROCKER
MR. WITT
MR. HILL
REPORTER’S CERTIFICATE

EXAMINATION
DIRECT
CROSS
CROSS

PAGES
6, 203
177
202
205

Margaret M. Powe 11, CVR - (919) 779-0322

PAGE 4

EXHIBITS

Plaintiff’s Page #
No. 1 Notice of Deposition and Subpoena 8
for sgt. Gottlieb, 5 pages
No. 2 Durham Police Department 59
sequential photographic ID verbal
Instructions and certification,
6 pages
No. 3 Reporting Officer Narrative dated 91
3/14/06, 1 page
No. 4 Handwritten supplemental Statement 94
#06-8310, 5 pages
No. 5 Duke University PD Operations 96
Report dated 3/14/06, 1 page
No. 6 Mangum, crystal G. Web Report, 104
2 pages - SEALED, copy NOT
attached to transcript copies
No. 7 General Order #4077, 4 pages 122
No. 11 subpoena to Arico dated 3/21/06, 67
and attached medical records,
16 pages - SEALED, copy NOT
to transcript copies
No. 12A Non-custody Form and statement 48
for Matthew Zash dated 3/16/06,
9 pages
No. 12B Non-custody Form and statement 48
for David Evans dated 3/16/06
11 pages
No. 12c Non-custody Form and statement 49
for Daniel Patrick Flannery
dated 3/16/06, 9 pages
No. 204 supplemental case Notes for 21
sgt. M.D. Gottlieb, 36 pages
Margaret M. Powe 11, CVR - (919) 779-0322

* * *

kilgo said...

* * *

PAGE 5
STIPULATIONS
IT IS HEREBY STIPULATED AND AGREED BETWEEN THE PARTIES
TO THIS ACTION THROUGH THEIR COUNSEL OF RECORD:

1. The deposition of SERGEANT MARK D. GOTTLIEB may be taken on APRIL 19, 2007, in Durham, North Carolina, before Margaret M. Powell , Certified Verbatim Reporter and Notary Public for the County of Wake, State of North Carolina.
2. Said deposition shall be taken pursuant to Notice and for the purpose of discovery and may be used as evidence in the above-entitled action as permitted by the North Carolina Rules of Civil Procedure.
3. Any objections of any party hereto as to the notice of the taking of said deposition or as to the time or place thereof, or as to the competency of the person before whom the same shall be taken are deemed to have been met.
4. Objections to questions and motions to strike answers need not be made during the taking of this deposition, but may be made for the first time during the progress of the trial of this case or at any pretrial hearing held before any judge for the purpose of ruling thereon, or at any hearing of said case at
Margaret M. Powell, CVR - (919) 779-0322

PAGE 6

which said deposition might be used, except that an objection as to the form of the question must be made at the time the question is asked or objection is waived as to the form of the question.
5. The witness waives the right to read and sign the deposition transcript prior to it being filed with The Court.

Margaret M. Powell, CVR - (919) 779-0322

* * *

PAGE 7
Sgt. M.D. Gottlieb - 4/19/07

1 (Whereupon,
2 Sergeant Mark D. Gottlieb,
3 having been first duly sworn, was
4 examined and testified as follows:)
5 DIRECT EXAMINATION BY MR. BROCKER:
6 Q. Good morning, Sergeant Gottlieb.
7 A. Good morning. How are you?

* * *

unbekannte said...

silly killy

Gottlieb has already been discredited via his typed straight from memory memo, contradicting previous police reports, which suddenly accounted for the defects in nifong's wrongful prosecution of yhe Lacrosse players. Somehow, any notes he made at the time the case broke somehow disappeared.

If this is all you can put up, it is pathetically inadequate.

regards

Ubes

PS Gottlieb, like nifong before him, is desperately trying to avoid giving evidence in the Lacrosse players' suit. Why is he ducking this chance to prove himself credible?

kilgo said...

* * *
PAGE 7
Sgt. M.D. Gottlieb - 4/19/07

1 (Whereupon,
2 Sergeant Mark D. Gottlieb,
3 having been first duly sworn, was
4 examined and testified as follows:)
5 DIRECT EXAMINATION BY MR. BROCKER:
6 Q. Good morning, Sergeant Gottlieb.
7 A. Good morning. How are you?
8 Q. I’m Doug Brocker. And I think, as you
9 know, I’m an attorney in Raleigh, North Carolina, that
10 has been retained by the North Carolina State Bar to
11 assist in the prosecution of the disciplinary case
12 against Michael Nifong. And that is the matter pending
13 before the Disciplinary Hearing Commission, a hearing
14 set to start June 12th.
15 A. Okay.
16 Q. First, I want to clarify and make sure
17 you understand the purpose of why we are here and why
18 we asked to depose you. The State Bar’s interest in
19 this is solely to collect factual information and
20 background that relates to the disciplinary matter that
21 they brought against Mr. Nifong.
22 A. Okay.
23 Q. We are not here to investigate you, we
24 are not here to investigate the Durham Police
25 Department or anything related to -- or anybody within
Margaret M. Powe 11, CVR - (919) 779-0322

PAGE 8
Sgt. M.D Gottlieb - 4/19/0 7
1 the Department.
2 A. I understand.
3 Q. We are solely here to obtain factual
4 information that might relate to that disciplinary
5 investigation. And, of course, except as it relates to
6 the disciplinary investigation, obviously a lot of
7 these questions are going to have to do with the
8 criminal investigation, but we are not involved
9 directly in the criminal investigation, only as it
10 relates to the disciplinary matter.
11 A. Okay.
12 Q. Let me start off by just introducing --
13 ask you to take a look at this and just introduce into
14 evidence the Notice of Deposition and Subpoenas that we
15 have issued in this case.
16 I ask you to take a look at that and see
17 if you recognize -it and see if you received the Notices
18 this and the Subpoenaes?
19 (plaintiff’s Gottlieb Deposition
20 Exhibit Number 1 Marked.)
21 A. Yes, I did.
22 Q. Okay. Any objection to the Notice you
23 were given as far as having enough time to prepare and
24 anything like that?
25 A. The only thing I wanted to clarify was
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PAGE 9
Sgt. M.D. Gottlieb - 4/19/0 7
1 we received that thing asking for all of our records
2 pretty much at the last moment. And we are more than
3 happy to cooperate in any way we can to get you those
4 documents, but we literally had a full file cabinet
5 full of documents, and I believe your investigators are
6 going over to look at that during the same time that
7 we’re doing this rather than bringing it here.
8 Q. That’s right. That is correct. We
9 served the initial subpoena, which did not request the
10 documentation, on April 19th.
11 A. Right.
12 Q. At that point the criminal matter was
13 still pending.
14 A. Right.
15 Q. Once the criminal matter was dismissed,
16 we served the subsequent subpoena for the investigative
17 file.
18 A. Yes, sir.
19 Q. And we are now -- a number of our
20 investigators are over at the second district office
21 looking at that file.
22 A. Right.
23 Q. We are going to have to take a break at
24 some point so I can contact them and find out where
25 they are in that proceeding. It -is a bit unusual , but
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PAGE 10
Sgt. M.D. Gottlieb - 4/1 9/0 7
1 I talked with Ms. smith and understood that it was a
2 very large file
3 A. Yes.
4 Q. --- and would be very difficult to
5 transport over here on short notice. so we’ll try to
6 do that.
7 I want to come back and just ask you
8 about that in a second. But, before I do that, I am
9 going to short-term the criminal cases in this, the
10 ones that were filed against -- the criminal matters
11 that were opened against Reade Seligmann, Collin
12 Finnerty and Dave Evans and just refer to those as the
13 Duke lacrosse cases.
14 A. That’s fine.
15 Q. Just to make it a lot easier so you’ll
16 understand my questions.
17 And, on that line, if there are any
18 questions that I ask you that you don’t understand, I
19 want you to stop me and tell you don’t understand them
20 and ask me to clarify and i will be glad to try to
21 explain what I am asking for.
22 A. Okay.
23 Q. If you need any breaks, just let me
24 know, I will be glad to give you any breaks you want.
25 I don’t want to get into too much
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PAGE 11
Sgt. M.D. Gottlieb - 4/1 9/0 7
1 personal , but I do need to ask you whether there are
2 any medical conditions that you have today that would
3 prevent you from listening to the questions I ask and
4 giving accurate and truthful answers?
5 A. No.
6 Q. Okay. If there’s anything about your
7 medical situation that you need to take a break, just
8 alert me and I will be glad to do that.
9 A. Okay.
10 Q. Are you taking any kind of medications
11 today that would prevent you from listening to my
12 questions and giving me truthful and accurate answers?
13 A. I take a lot of medications, but nothing
14 that would prevent me from that.
15 Q. Okay, all right. Since I can’t
16 actually see it, I want to talk a little bit about the
17 subpoenaed documentation. We had asked for,
18 essentially, the complete investigative file for the
19 Duke lacrosse cases.
20 Can you explain to me in general terms
21 what the documentation is that is at the second
22 district that is being reviewed? In broad terms, what
23 does it encompass?
24 A. In broad terms, it encompasses full
25 investigative notes, handwritten and computer
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PAGE 12
Sgt. M.D. Gottlieb - 4/1 9/0 7
1 documented things. Patrol investigative notes,
2 correspondences, scientific report. Some documents to
3 and from, I believe, the District Attorney’s office.
4 And it’s just a very regular report: search warrants,
5 court orders, photography, forensic reports from the
6 Durham Police Department.
7 And a lot of it was organized, I would
8 say, after the time frame where I had privy to see it,
9 so those aren’t things that I actually have looked at.
10 Q. Explain that last point as far as being
11 organized after you had privy to it. I’m not sure I
12 know what you mean.
13 A. It is a huge file.
14 Q. Okay.
15 A. Investigator Himan has done an excellent
16 job of getting everything categorized, putting it in
17 binders and things of that nature. A lot of it had
18 started to actually be put in files to where it could
19 be viewed clearly without having to try to figure out
20 what you are looking at, because it’s his
21 investigation.
22 At the time or just at the time that the
23 Attorney General ‘s office took the case, or once the
24 Attorney General’s office took the case, just to keep
25 there from being any leaks, or whatever, basically the
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PAGE 13
Sgt. M.D. Gottlieb - 4/1 9/0 7
1 only conversations there were from Investigator Himan
2 were to Captain Lamb.
3 I was taken out of the picture along
4 with everyone else in the Department, including the
5 Chief, et cetera, because they didn’t want it to be
6 said -- there were so many -- things would come up
7 everywhere during this investigation, and we didn’t
8 want it to be said that there were any leaks coming
9 from us. So I wasn’t looking at things and I wasn’t
10 reviewing things.
11 Q. When did that happen?
12 A. Just about the time the Attorney General
13 took over.
14 Q. Okay. Was that before after they
15 assumed responsibility?
16 A. I would think after.
17 Q. Okay. All right. The documentation
18 that you are aware of that has been made available, was
19 it generated or obtained during the course of the
20 investigation of the Duke lacrosse case?
21 A. Yes.
22 Q. And it, generally speaking, would set
23 forth the activities of the Durham police Department
24 with respect to the Duke lacrosse cases or
25 investigation?
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PAGE 14
Sgt. M.D. Gottlieb - 4/1 9/0 7
1 A. Absolutely.
2 Q. It contains matters pursuant to your or
3 other individuals’ duties as police officers
4 investigating those cases?
5 A. Absolutely.
6 Q. And some of the documentation, I assume,
7 would contain factual findings resulting from the
8 investigation?
9 A. Yes.
10 MR. BROCKER: Dudley, so we can
11 hopefully short circuit future proceedings, I just want
12 to see if you will stipulate documents produced that
13 we have designated for copying by the Durham Police
14 Department would constitute public records and reports?
15 Rather than going -- here’s what I am
16 trying to avoid, I’m trying to avoid having to go
17 through every single document that we get from either
18 sergeant Gottlieb or Investigator Himan and say
19 MR. WITT: As far as coming in at
20 trial time?
21 MR. BROCKER: Well, we’re
22 certainly not talking about objections as to relevance
23 or anything along those lines. But I just want -- I
24 don’t want to have to authenticate every single piece
25 of documentation as a public record that we’ve
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Sgt. M.D. Gottlieb - 4/19/0 7
1 received.
2 MR. WITT: Can we go off the record
3 for just a second?
4 MR. BROCKER: Sure.
5 (Discussion off the record.)
6 Q. (BY MR. BROCKER) Investigator Gottlieb,
7 the records that are being -- the file that’s being
8 reviewed right now, we are likely going to designate
9 certain things that we would ask the Department to copy
10 and produce to both us and to Mr. Nifong’s counsel from
11 the investigative file that you have made available to
12 us.
13 Would it be accurate to say that any of
14 the documents that you are going to produce, that you
15 would copy and produce to us, would fit within the
16 questions that I was just asking about, whether or not
17 they had been generated during the course of the
18 investigation, whether or not they set forth your
19 activities in those series of questions I just got
20 finished asking you, is that accurate?
21 A. Anything that is in the investigative
22 files are files that we have kept up with and provided,
23 yes.
24 Q. Okay. All right. Tell me just a little
25 bit, just an overview, of your professional background
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Sgt. M.D. Gottlieb - 4/19/0 7
1 experience, when you started with the Durham Police
2 Department and how long you have been there, those
3 sorts of things.
4 A. Well, my professional background is I
5 started by getting in EMS and fire fighting in 1981,
6 became a paramedic and started my career with Durham
7 county EMS, Durham public safety, which would have
8 been, I think, 1984.
9 And when public safety split up in
10 Durham, then I came to the Police Department, and I
11 went through the Durham Police Academy Three in 1987.
12 And I worked with the uniformed patrol
13 division until I think it was 1993 and kind of burned
14 out and all and thought about getting out of
15 law-enforcement.
16 So I got out for a couple of months and
17 went to work with my dad, didn’t enjoy that, and wanted
18 to get back into public safety, so I went to work for
19 Wake County EMS and also worked at Wake Medical Center
20 and became a company policeman there to keep my
21 certification.
22 In 1997, I came back here and again
23 started in uniform patrol
24 In 1999, roughly--and please don’t hold
25 me to see dates, I’m just giving a rough time estimate.
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Sgt. M.D. Gottlieb - 4/1 9/0 7
1 Q. That’s fine.
2 A. In ‘99 I believe I went to domestic
3 violence as an investigator there. subsequently at
4 some point, I became an investigator in the violent
5 crimes unit. I was promoted and was made a corporal in
6 the violent crimes unit.
7 I wound up going back to patrol as a
8 corporal until I started out as an acting sergeant when
9 a sergeant was out that I had worked for and was
10 promoted to a full sergeant almost two years ago.
11 And I went from sergeant in uniform
12 patrol to a sergeant in the criminal Investigations
13 division.
14 Q. When was that?
15 A. About two weeks before the Duke lacrosse
16 case.
17 Q. Roughly March of 2006, the first part of
18 March?
19 A. It was the very end of February, because
20 I started out my first week as the on-call sergeant in
21 investigations.
22 Q. Okay.
23 A. And as far as a paramedic, I’ve worked
24 as a paramedic full-time and part-time up until about,
25 I don’t know, about two years ago, so it’s been 25
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Sgt. M.D. Gottlieb - 4/19/0 7
1 years as a paramedic, roughly.
2 Q. All right. I am going to ask you about
3 the specific activities, but tell me -- give me an
4 overview of your involvement in the Duke lacrosse
5 cases.
6 A. In the Duke lacrosse case, I was a
7 supervisor over District 2 Investigations, Investigator
8 Himan worked for me. I assigned the case to him. If
9 he needed help, I would help him. otherwise, the case
10 was his.
11 I helped him prepare documents, I helped
12 him locate some people. I helped him -- well , I didn’t
13 help him, I went out to search warrants because I am
14 required to go out for search warrants as a supervisor
15 just to make sure things go okay.
16 Other than that, that’s -- I did -- I
17 would watch the newspapers, I would look at the blogs
18 and things like that, anything that could give us a
19 potential clue and tell Ben, Investigator Himan, what
20 was going on that I had noticed. And if there were
21 things he needed organized that were outside the realm
22 of his control, I would assist him with that.
23 One of my main functions was the act as
24 a liaison between the investigation at the command
25 staff to let them know what was going on.
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PAGE 19
Sgt. M.D. Gottlieb - 4/19/0 7
1 Q. Who was the -- I think I know, but tell
2 me who the command staff is.
3 A. The command staff would include the
4 Chief, the Deputy Chief, the Majors, the Captain, the
5 Lieutenant.
6 Q. And who was that in this case? Who was
7 the Captain?
8 A. Lieutenant Ripberger was my direct
9 supervisor at District 2, Captain Lamb is my direct
10 Captain. Lieutenant Peter is a lieutenant over
11 Criminal Investigations. And at the time of this
12 investigation, Captain LaVarge, who is now retired, was
13 a Captain over Investigations.
14 So even though I don’t necessarily
15 answer directly to them, they may or may not have some
16 involvement because different areas kind of interact.
17 For example, if we were using the
18 Forensics Division, the Forensics Division is directly
19 under the criminal Investigations, which would be
20 Captain LaVarge and Lieutenant Peter. whereas, if it
21 dealt with a district investigative issue, then that
22 would be Captain Lamb and Lieutenant Ripberger.
23 As far as Majors, we have Major Council,
24 Major Russ, Major Beerstrom and Major (Mahiage).
25 Deputy Chief Hodge, Chief Chalmers.
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Sgt. M.D. Gottlieb - 4/1 9/0 7
1 And then there were several other people
2 from a high-ranking positions across the community who
3 would sit in on some of these meetings. And that would
4 be people from the Duke Police Department, their Police
5 Chief. or I guess it’s -- I don’t even know what his
6 exact title is.
7 Some of the command staff, I’m not sure
8 what their names are, from Duke. The City Manager,
9 people like that.
10 Q. Anybody from the District Attorney’s
11 office sit in on those briefings?
12 A. The District Attorney’s office has been
13 called to a briefing before, yes.
14 Q. On these cases?
15 A. Mr. Nifong.
16 Q. Did he actually attend himself?
17 A. Yes.
18 Q. Do you recall when that was?
19 A. That was after a photo presentation was
20 done and the media and the defense attorneys made
21 allegations, I guess, to the media that the photo
22 presentation wasn’t within policy, and Mr. Nifong was
23 called and basically cleared up any questions for
24 command staff.
25 Q. Mr. Nifong cleared up the questions?
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Sgt. M.D. Gottlieb - 4/19/0 7
1 A. Yes. I spoke to them about our
2 activities and Mr. Nifong was able to explain the view
3 from the District Attorney’s office, clear up any
4 misconceptions
5 Q. And when was that meeting, that
6 briefing?
7 A. Honestly, sir, I don’t know the date.
8 can tell you -it was after the presentation was done.
9 Q. We are going to talk about it, but would
10 that have been that early April , I think it was April
11 4th, presentation with Ms. Mangum?
12 A. I believe so, yes.
13 Q. I will ask you to take a look at, just
14 for the record it’s marked as Exhibit 204.
15 MR. BROCKER: Margaret, I don’t
16 think I asked you to, but would you mark the Notice and
17 Subpoenas as Exhibit 1?
18 (plaintiff’s Gottlieb Deposition
19 Exhibits Number 204 Marked.)
20 Q. It’s got two sets of numbers on it. The
21 first set of numbers -in the center goes pages 1 through
22 33. And then there’s some un-numbered pages in the
23 back. And it has hand written numbers on the lower
24 right-hand side that go from 1815 through 1850.
25 When you have had a chance to look at
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Sgt. M.D. Gottlieb - 4/1 9/0 7
1 that, let me know, and then I want to ask some
2 questions generally about it.
3 A. Yes.
4 Q. Do you recognize Exhibit 204?
5 A. Yes.
6 MR. WITT: For purposes of the
7 record, are you going to keep -- we’re just going to
8 deal with it on this exhibit, we are not going to go,
9 1, 2, and 3 for the deposition? Because, I take it, it
10 would be easier to track these as trial exhibits?
11 MR. BROCKER: Let’s just go off
12 for a second.
13 (Discussion held off the record.)
14 Q. All right. Looking at Exhibit 204, you
15 said you did recognize that?
16 A. Yes, sir.
17 Q. Tell me what that is.
18 A. This is documentation that I prepared.
19 Q. Okay. And it is entitled “supplemental
20 Case Notes for” you?
21 A. Yes.
22 Q. Are these your notes from the
23 investigation of the Duke lacrosse cases?
24 A. Yes, they are.
25 Q. And is it, at least up through Page,
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1 I’ll use the handwritten numbers, 1847, the last
2 typewritten page.
3 A. Oh, I see. Yes, sir.
4 Q. Can you tell from looking at it whether
5 or not that is a complete set of your typewritten notes
6 from the Duke lacrosse cases?
7 A. Yes, I believe it is.
8 Q. If as we are going through this you
9 discover that it’s not, just let me know?
10 A. Yes.
11 Q. I realize I’m asking you to look at over
12 30 pages of documents.
13 A. There may be something, maybe one or two
14 paragraphs, after the fact that were added in, but
15 those should be in the complete case files that
16 Investigator Himan has locked in his file cabinet.
17 Q. Okay. Is that part of the materials
18 that have been provided today that they are reviewing?
19 A. Yes. I’m sorry.
20 Q. Okay.
21 A. And that might just be that I received a
22 phone call from this person or I received a phone call
23 from that person, but that would be it.
24 Q. All right. Tell me what would be the
25 last -- if you go behind that, Page 1848, those are
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1 some handwritten notes. Can you tell me if you
2 recognize those and, if so, what they are?
3 A. Yes, they are my notes. Basically, I
4 did some research to try to figure out if it was
5 possible to send hair samples off to different
6 companies to do testing for drug analysis.
7 Q. Okay.
8 A. That’s it.
9 Q. All right.
10 A. It’s basically just research.
11 Q. That is Page 1848.
12 A. Uh-huh (yes).
13 Q. Is the next page a continuation of that
14 or is it something different?
15 A. It’s all continuation.
16 Q. And then the last page, 1850, tell me
17 what that is.
18 A. Now, the top thing with Rob Lang,
19 federal prosecutor, is not a part for the part for the
20 hair analysis, that was just a question I had for him
21 about a case in Washington.
22 Q. Is that about the.
23 A. Trying to get some documents for Mr.
24 Finnerty.
25 Q. Okay. And then the last page, 1850,
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1 tell me what that is.
2 A. This is an e-mail from Richard Clayton
3 to me, and he sent that to me, and then I spoke with
4 Investigator Himan. She denied that this took place
5 and doesn’t know where the cousin is getting that
6 information from.
7 Q. Okay. It appears from reading it that
8 there was some statement or insinuation from one of Ms.
9 Mangum’s family member that there had been an attempt
10 to pay her off and then you spoke to her?
11 A. I did not speak to her.
12 Q. You didn’t. Okay. She spoke to
13 Investigator Himan?
14 A. Right.
15 Q. And are these your notes
16 A. Yeah.
17 Q. --- I’m assuming from Investigator Himan
18 after he spoke with her?
19 A. Yes, sir.
20 MR. HILL: Do the best you can to
21 let him finish. It’s natural in conversation. But let
22 him finish. He’ll let you’ll finish your answer.
23 Because the court reporter -is going to have a hard time
24 getting you guys both down. Okay?
25 THE WITNESS: Yes.
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1 Q. Going back to the type written notes,
2 first tell me other than the three pages of handwritten
3 notes here, were there other notes that you prepared in
4 the Duke lacrosse cases?
5 A. I believe I had wrote like a date or a
6 time on different documents. But as far as me taking
7 notes, I really wasn’t doing an investigation. So, no,
8 i didn’t take hardwritten notes. I was acting as a
9 supervisor just trying to coordinate things.
10 And the things that I had done when Ben
11 had asked me to interview one player, the thing that I
12 did was I told or asked Investigator Soucie would you
13 take notes for me. So Investigator Soucie sat in on an
14 interview and took notes for me during an interview.
15 Q. Okay. And you said you made notes on
16 date and time. Are those a part the investigative
17 file?
18 A. Yes.
19 Q. So they are in the documentation that
20 has been provided?
21 A. Yes.
22 Q. Do you know how we would find that
23 easily within how it is organized in the file?
24 A. Looking at the search warrants and
25 returns. For example, if I signed off a return on a
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1 search warrant, my name and date and time would be on
2 it.
3 Q. So it would be within the rest of the
4 documentation? What I’m asking is.
5 A. It’s going to be on the legal, the
6 actual what I would consider legal papers. These are
7 notes and then you have court documents, legal papers
8 on those.
9 Q. Just individually on the documents as
10 you went along?
11 A. Yes, sir.
12 Q. I take it then there are not separate
13 notes like you’d have, for example, a legal pad where
14 you had written out things that happened?
15 A. No, sir.
16 Q. Okay.
17 A. This are the extent of my notes. I
18 would hand things to Investigator Himan, and he would
19 file them. I did take notes to organize myself and to
20 help Investigator Himan organize the investigation just
21 on my board. And I have a board in my office, it’s a
22 dry-erase board.
23 And, for example, Investigator Himan
24 would say, “I need to have someone look at different
25 things, how we can get a hair analysis done,” And I
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1 would put my name next to that.
2 And then he’d say, “I need a background
3 done for this person.” I would assign someone to do
4 that if he wasn’t going to do it.
5 He’d say, “I need a court order to get
6 e-mail records,” put his name next to that, et cetera,
7 et cetera, et cetera.
8 I had asked him and was under the
9 impression that he was taking photographs of the board,
10 and when we finished that we would clear it. That
11 wasn’t done. And I apologize for that. But it wasn’t
12 things that gave an outcome per se, it was just an
13 organizational checklist. Do this, this, this, this.
14 Q. Okay. so, for example, if you were
15 participating in an interview with Ms. Mangum with
16 Investigator Himan, you didn’t have a separate pad
17 where you kept notes of what she said or questions that
18 were asked? You had no handwritten notes of that type
19 of -- in that situation, for example?
20 A. Absolutely not. Investigator Himan was
21 keeping the notes. I wasn’t there as an investigator.
22 I was there, one, as a witness because we did it in her
23 house; two, to give him advice if there were something
24 that he needed advice on. It was his investigation.
25 And for anything else that happened to
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1 come up. She had made claims that she had bruising.
2 Asked Investigator Himan if he wanted ID to respond to
3 take photographs of that bruising to show a progression
4 of the injury and the bruising. He said “yes.” I
5 called for ID to come out and do that. That is
6 basically it.
7 Q. Okay. Tell me then how the typewritten
8 notes were prepared that you’ve identified as Exhibit
9 204.
10 A. By reviewing the written notes and by my
11 memory.
12 Q. Okay. The written notes you are
13 referring to are
14 A. Investigator Himan’s.
15 Q. Himan’s notes?
16 A. Yes.
17 Q. And when did you prepare the typed
18 version of Exhibit 204?
19 A. Part of it was done initially, part of
20 -it was done afterwards. It’s whenever I had time. The
21 part about Ms. Mangum’s interview was actually done
22 just prior to it being turned in.
23 Q. You are talking about the interview?
24 A. The interview with Ms. Mangum.
25 Q. On the 16th of March?
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1 A. Right.
2 Q. So did you have a document on a computer
3 that you kept certain notes of? Like let’s look at, to
4 get specific, the first page of that, 3/15/06, your
5 first contact about that.
6 A. Oh, okay.
7 Q. When would you have made that
8 typewritten note or when did you?
9 A. It’s kind of confusing because there
10 were typewritten notes that were made up very early on
11 in the case, and that was a typewritten document for --
12 we were ordered to put something together for the City
13 Manager to review to give a presentation to City
14 Council.
15 And when I prepared that section, we
16 went through and actually deleted almost all of it. It
17 got down to a point to where it didn’t say anything,
18 and that is what was finally turned in.
19 Q. Okay.
20 A. But if you look -- and you had asked me
21 earlier who else was in the meeting. I have Durham
22 police command staff, Duke command staff, City Manager
23 and police legal advisor had also attended some of the
24 meetings.
25 Q. Which entry are you looking at?
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1 A. 1300 hours on 3-28-06.
2 MR. HILL: Bottom of typed page
3 10, typewritten, or handwritten 1824, for the record.
4 What are you looking for?
5 THE WITNESS: He asked me about a
6 date and I am trying to give him the date about when
7 most of that was prepared. It is not that long into
8 the investigation that they wanted it.
9 Investigator Himan was actually in
10 in-service training, and I had to pull him out so that
11 we could prepare the document. The document should
12 be -- I don’t know if you have it or not.
13 Q. Which document are you referring to,
14 Sergeant Gottlieb?
15 A. It’s a document prepared for the command
16 staff to present to the city Manager.
17 Q. And you are saying that was the first
18 time that you started to put down into typewritten form
19 the activities that you had been involved in in the
20 Duke lacrosse cases?
21 A. Yes.
22 Q. Are you talking about a meeting? Just
23 try to help out here. Are you talking about a meeting
24 in which you were asked to prepare a time line for a
25 presentation?
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1 A. Yes. Yes.
2 Q. I probably can -- I might be able to
3 help you with that, if that is what you are looking
4 for. If you look at Page 1839, I am looking at the
5 handwritten numbers here on the right-hand side, it is
6 after the description of the photographic presentation
7 to Ms. Mangum on the 4th.
8 If you go over to 1840, at the top of
9 that page it says, “I paged Investigator Himan, who was
10 at in-service training, and pulled him out of class to
11 begin to work on this project.”
12 A. Uh-huh (yes).
13 Q. And I think right before
14 A. Yes, sir.
15 Q. --- it talks about preparing a time
16 line. Is that what you were referring to?
17 A. Yes.
18 Q. All right. And so does that help you
19 remember when you would have first started to prepare
20 the typewritten notes there that are in Exhibit 204?
21 A. I would say that it was at that time.
22 Although, all of this, meaning 1827, was done prior to
23 that.
24 Q. Okay. Page 1827 is the descriptive,
25 basically, as you go through.
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1 A. You are strictly talking about my typed
2 notes?
3 Q. Yes, sir.
4 A. Yes.
5 Q. Okay.
6 A. 1827 is a descriptor of the Power Point
7 presentation.
8 Q. When was that prepared, simultaneously
9 or after the presentation?
10 A. After the presentation, because I had to
11 listen to the video over and over and over, line by
12 line, to get the complete details.
13 Q. Okay. And as I understand, that
14 happened, if you are looking at your notes, on the 4th
15 of April.
16 A. Uh-huh (yes).
17 Q. Is that correct?
18 A. Yes, sir.
19 Q. And then the request from the Captain
20 Lamb and Lieutenant Ripberger for the time line was
21 later that same day? If you look down to typed Page 25
22 there?
23 A. Yes.
24 Q. So that description from the PowerPoint
25 presentation would have been done some time after that
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1 request?
2 A. Yes.
3 Q. Up to that point, up until April 4th,
4 had you prepared any typewritten notes of your
5 investigation up through that day, the activities that
6 came before that?
7 A. I am not sure, I don’t know.
8 Q. Do you recall when you went back and
9 typed in the entries for your first initial contact on
10 the 15th of March?
11 A. That was after the indictment, I
12 believe. Are you talking about from Buffy Jones?
13 Q. Uh-huh (yes).
14 A. Yeah. That was done in full after that,
15 but that was in the time line also.
16 Q. Let me see if I am understanding you.
17 From the 15th of 2006, March 15, 2006, through this
18 meeting on April 4th where you were asked to prepare a
19 time line for the City Manager, you had not kept
20 typewritten notes of the investigation up to that. The
21 ones that we now see here they didn’t exist on the 4th.
22 A. No, not to my knowledge.
23 Q. And then did I understand you that at
24 that point when you were asked for a time line, you
25 started preparing a typed document of a time line for
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1 this specific request?
2 A. Yes.
3 Q. That document, I take it, is -- well,
4 let me ask you. Is that a different document than the
5 typewritten notes that we are looking at right now?
6 A. Yes.
7 Q. And is that also part of the
8 investigative file?
9 A. Yes.
10 Q. And what I am still a little unclear
11 about is from that point how do we get to having a
12 complete set of supplemental case notes? We’ve got the
13 time line that is prepared and then at some point after
14 that the supplemental case notes, typed notes, you
15 prepared those?
16 A. Yes.
17 Q. When was that done?
18 A. I don’t know exactly when.
19 Q. After that point, after the 4th of
20 April?
21 A. If you are asking me -- I’m sorry, go
22 ahead. I was just about to
23 Q. After the 4th of April when you were
24 asked for a time line, did you begin preparing type
25 written case notes for the cases contemporaneously?
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1 Starting on the 5th or on the 4th, did you start making
2 -- did you create the document that we now see
3 contemporaneously or did you sometime later go back and
4 type up the case notes?
5 A. The case -- I never took handwritten
6 notes, per se. I kept track of my activities by radio
7 log. Meaning, if I stopped at somebody’s house, I
8 called in to police dispatch. If I was doing
9 something, I called in to police dispatch for that. If
10 I went out to Duke to assist them, I would call in to
11 police dispatch, keeping track of that.
12 Again, this is Ben’s operation. This is
13 pretty much something that Ben is responsible for
14 keeping up with the case. I’m there as his supervisor,
15 and I wasn’t keeping up with the notes as far as that
16 goes.
17 Q. So, even after the 4th, this document
18 that we are now looking at, Exhibit 204, does not
19 become a contemporaneous note?
20 A. I don’t understand what you are asking.
21 Q. After the 4th, for example, there are
22 some activities here on April the 6th, Himan, page 27
23 of the typewritten notes.
24 A. Uh-huh (yes).
25 Q. Investigator Himan asked you to do an
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1 interview with Jarriel Johnson?
2 A. Right.
3 Q. The question I’m trying to ask is on
4 April 6, 2006, did you then go back to the District and
5 type up the notes the same day of the interview or did
6 you do it some time later?
7 A. No, I didn’t need to, Investigator
8 Soucie was keeping handwritten notes for me, and I
9 typed it up later when I had time.
10 MR. HILL: He is trying to find out
11 what, if any, of this you typed up at the time.
12 THE WITNESS: very little was done
13 the day anything happened, other than maybe phone
14 calls.
15 Q. Okay. When did you prepare Exhibit 204?
16 In its current form, when was that -- when did you
17 finalize that, approximately?
18 A. It was finalized -- I turned it in. I
19 could have sworn I had something in my notes and I do
20 not see it in these last pages. I turned this in to
21 the District Attorney’s office and I finalized it the
22 day I turned it in to the District Attorney’s office.
23 Q. Okay. And was it predominantly -- the
24 notes that are contained in Exhibit 204, was it
25 predominately prepared contemporaneously or shortly
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1 before you turned it over to the District Attorney’s
2 office?
3 A. When you say you are saying
4 “contemporaneously,” and I apologize if I sound
5 argumentative, I am not understanding.
6 When you are saying “contemporaneous,” I
7 think of that as handwritten notes. No?
8 Q. No. All I’m asking -- what I’m trying
9 to get a handle on is when the vast majority of the
10 notes -- I don’t really want us to have to go through
11 each individual note, that will take a very long time.
12 A. My answer would be I don’t know. I am
13 not saying that to -- I’m not saying that to make light
14 of the situation. I just don’t know. Half of it was
15 done before, like midway. You know, for example, if
16 you want to talk about half of this thing, more than
17 half of it is this thing from April 4th, which was the
18 majority of what I did. My role in the investigation
19 was very little as far actually doing any investigative
20 stuff.
21 Things that I did along the way other
22 than that, Investigator Himan had his notes, I had
23 Investigator Soucie for the one interview I conducted
24 keep notes for me so I could go back and do it then.
25 I mean, I’ll be happy to say I sat down
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1 and went through all my typed notes the last week when
2 I was turning it in, going through e-mails, going
3 through what I could see in the file, and trying to
4 make sure that everything was complete and accurate
5 before it was turned in.
6 I did a lot of typing during that last
7 week. But as far as what I typed that last week and
8 what was typed before, I do not know.
9 Q. Okay.
10 A. And that’s -- I typed this shortly after
11 I was done. I turned this in to Mr. Nifong as soon as
12 I could because Mr. Nifong had to give his report to
13 the defense attorneys. That was long before anything
14 happened. So this would have been April, I believe.
15 The PowerPoint, Investigator Soucie -- office.
16 (Witness reads to himself.)
17 Q. Okay. Were you referring to -- just
18 now, you were referring to
19 A. Mr. Jarriel . You were asking me when I
20 type that? i believe I typed that during the last week
21 looking at the notes that were kept.
22 Q. Okay.
23 A. And he had his written statement. And
24 there were the handwritten notes of the interview by
25 Investigator soucie so I could type it up at a later
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1 time.
2 Q. Okay. And that
3 A. This, this entire PowerPoint
4 presentation was turned in very early in the
5 investigation because this was required very early in
6 the investigation for the -- I’m trying to think of the
7 name of the -- the non-testimonial . This is the
8 report, basically, for the non-testimonial . So this
9 had to be turned in at the earliest time. So.
10 Q. Okay. so you are talking about what is
11 now the typewritten pages, pages 13 through 25, which
12 is your summary of the PowerPoint presentation.
13 A. Uh-huh (yes).
14 Q. Is that right?
15 A. Uh-huh (yes).
16 Q. That’s what you are referring to.
17 A. Uh-huh (yes).
18 Q. So that is something that was done
19 earlier?
20 A. Yes.
21 Q. And was it in a separate document that
22 you had prepared and then incorporated into this case
23 note?
24 A. I incorporated it all together to keep
25 it so that i could keep track of things that I did in

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1 order.
2 Q. Okay. The other thing that you
3 mentioned that I just want to clarify with you, and
4 then I want to move on and talk about some of the
5 actual investigation.
6 You said that the interview that you did
7 on the 16th with Crystal Mangum with Investigator
8 Himan, that was also -- your notes from that in Exhibit
9 204 was something that you did essentially the week
10 before you turned it in to Mr. Nifong, is that correct?
11 A. I believe part of it was. Part of it
12 was typed -- and, again, if you are talking about 204
13 itself, then, yes. But part of it was also typed up
14 and then erased as part of the thing that was turned
15 over to the City Manager.
16 Q. The time line?
17 A. Yes.
18 Q. And would the Exhibit 204 have been
19 finalized and turned over to Mr. Nifong sometime after
20 June 30th of ‘06?
21 A. Yes.
22 Q. That’s the last entry.
23 A. Yes.
24 Q. Okay. And had Mr. Nifong requested that
25 you prepare case notes which became Exhibit 204?
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1 A. Yes.
2 Q. Do you know when he made that request?
3 A. I have no idea.
4 Q. All right. Let’s talk a little bit
5 about the investigation itself. When was your initial
6 contact about this case, about the investigation?

* * *

unbekannte said...

silly killy

"19 A. That was after a photo presentation was
20 done and the media and the defense attorneys made
21 allegations, I guess, to the media that the photo
22 presentation wasn’t within policy, and Mr. Nifong was
23 called and basically cleared up any questions for
24 command staff."

So Gottlieb confirms mnifong was responsible for the improperly conducted photo line up of April 4, 2006(no fillers, only suspects, supervised by someone involved in the case, done after cgm failed on two previous occasions to identify any Lacrosse player as an attacker).

Who was responsible for those other previous lineups?

regards

Ubes

kilgo said...

* * *

4 Q. All right. Let’s talk a little bit
5 about the investigation itself. When was your initial
6 contact about this case, about the investigation?
7 A. I was called on Wednesday. I don’t know
8 the.
9 Q. You are welcome to look at the
10 investigative notes.
11 A. 3/15/06, I was a called by Investigator
12 Jones, and I was working off-duty at City Hall.
13 Q. All right. What division is
14 Investigator Jones in?
15 A. She works at District 5, Investigations.
16 And I believe -- I don’t know if she still works there
17 now or not. I think she may have been transferred to
18 District 4, but I’m not sure.
19 Q. And later that day you agreed to adopt
20 -- she asked you -- from your notes, it appears that
21 she asked you if District 2 would take over the
22 investigation?
23 A. Uh-huh (yes).
24 Q. And you agreed to do that later in the
25 day?
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1 A. Yes.
2 Q. And you did agree, you agreed to take it
3 over later that day?
4 A. Yes.
5 Q. All right. You said that you assigned
6 Investigator Himan as the primary investigator on what
7 became the Duke lacrosse cases?
8 A. Yes.
9 Q. How else was that matter staffed,
10 besides Investigator Himan?
11 A. Investigator Himan was the lead
12 investigator. If anyone needed -- if he needed
13 assistance with anything, then he would either ask me
14 or ask one of our in-house investigators for
15 assistance. But for all intents and purposes,
16 Investigator Himan was the only investigator on the
17 case.
18 Q. Investigator Soucie obviously did
19 participate somewhat in the investigation. Who else
20 was involved?
21 A. Investigator Soucie, Investigator
22 Clayton, Investigator Carnevale, Investigator George,
23 Investigator Williams.
24 And when you say “assisted in the
25 investigation,” I am going to take that by the broadest
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1 terms because “assisting in the investigation” could be
2 me asking Investigator Lang to ride with Investigator
3 Himan when the victim is in the car with him, because
4 we try to have a person with them, so Investigator
5 Lang.
6 There were several investigators from
7 other district’s who did a background on different
8 people to assist Investigator Himan, but they did not
9 really participate in any part of the, quote-unquote,
10 investigation other than what I would say look up a
11 criminal history and a background on this person. And
12 that was all of their knowledge about the case. All
13 they knew is they were looking up something on a
14 person, whether it was a witness or a suspect, whoever.
15 And, actually Ben Himan did all the suspect
16 backgrounds.
17 Q. Okay. Later on the 16th, you have
18 already made reference to you went with Investigator
19 Himan to interview Ms. Mangum?
20 A. Uh-huh (yes). Yes.
21 Q. We are not going to go through each of
22 these entries and talk about how they were prepared,
23 but for this one in particular I do want to know. You
24 said that was prepared sometime in late June or July of
25 2006.
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1 Tell me how you prepared the notes in
2 Exhibit 204 with respect to your interview with Ms.
3 Mangum. What did you look at?
4 A. Investigator Himan’s notes.
5 Q. Okay. which set of notes? His
6 handwritten notes?
7 A. Handwritten.
8 Q. Not his typed notes?
9 A. No. Well, I believe I did look at his
10 typed notes, but it was primarily from the handwritten
11 notes.
12 Q. Okay.
13 A. And also from my memory.
14 Q. Okay. Anything else that you can
15 recall?
16 A. Well , you know, there were a number of
17 things that were missing for Investigator Himan’s notes
18 that were things that were incorporated in other
19 documents.
20 For example, Investigator Himan had just
21 the most basic of things. Like I recall that her
22 fingernails were broken off. Investigator Himan didn’t
23 have that in his report, but I knew her fingernails
24 were broken off, I knew which hand they were broken off
25 of. I remember her talking distinctly talking about
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Sgt. M.D. Gottlieb - 4/1 9/0 7
1 her fighting. And the day the search warrant was done
2 on, which is the exact same day that we spoke with her,
3 that is actually in the search warrant.
4 so there are a lot of things that
5 Investigator Himan, especially being a brand new
6 investigator, didn’t document, but were documented on
7 the exact same day that I assisted him in writing
8 different documents.
9 Q. Okay. Where did the -- on typewritten
10 Page 3, about two-thirds of the way or so down at the
11 bottom there is a description, her description, of the
12 alleged attackers. Where did that come from? How did
13 you recall that?
14 A. Notes and memory.
15 Q. Whose notes?
16 A. Investigator Himan’s notes and my
17 memory.
18 Q. All right. Later that day, you
19 participated in the execution of the search warrant at
20 610
21 A. North Buchanan.
22 Q. --- North Buchanan Boulevard?
23 A. Yes.
24 Q. Okay.
25 A. And I was there in a supervisory role.
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1 Q. All right. The three residents
2 there--Mr. Evans, Matt Zash and Dan Flannery--I think
3 it’s documented in the notes that they were cooperative
4 throughout the search warrant. Is that accurate?
5 A. Yes, sir.
6 Q. And i think there is a number of places
7 in there that you note that they were polite when
8 requests were made to them?
9 A. Very much so.
10 Q. And then they all agreed to come down to
11 the police station to discuss the events of that
12 previous evening?
13 A. Absolutely.
14 Q. The 13th.
15 And you took statements from all three
16 of them?
17 A. I didn’t.
18 Q. Okay. Statements were taken by the
19 investigators.
20 A. Yes. The one thing that I did, and I
21 will clarify that, is I just went down a list of the
22 people from the lacrosse team and asked them who was
23 there and who wasn’t. And I asked Matt zash that, and
24 I asked Mr. Flannery that and had them make written
25 notes on their statements of who was and who wasn’t
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1 based on that list.
2 Q. Okay.
3 A. But the actual interviews were done by
4 other investigators.
5 Q. And were you present during any of those
6 interviews?
7 A. I was present the last couple of minutes
8 of Matt zash’s interview, that was about it.
9 Q. All right. I will show you a couple of
10 documents here in succession. That was marked as
11 Exhibit 12A. For the record, it’s a statement with
12 handwritten notes from Matt Zash. I’ll ask you to take
13 a look at that and see if you identify it as the
14 voluntary statement that Mr. Zash gave the Durham
15 police on March 16, 2006?
16 (Plaintiff’s Gottlieb Deposition
17 Exhibit 12A Marked.)
18 A. That was a statement that was taken by
19 Investigator Soucie.
20 Q. Okay. Are you familiar with the
21 statement enough to identify it as Mr. Zash’s voluntary
22 statement?
23 A. It appears to be that statement, yes.
24 Q. All right. I would like for you to look
25 at the next one, which is Exhibit 12B. It has David
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Sgt. M.D. Gottlieb - 4/19/07
1 Evans’ name, also dated 3/16/06. Do you recognize
2 that?
3 (Plaintiff’s Gottlieb Deposition
4 Exhibit 12B Marked.)
5 A. Yes, I do.
6 Q. And is that Mr. Evans’s voluntary
7 statement given on March 16, 2006?
8 A. That was a statement that Investigator
9 Himan took.
10 Q. All right. And the last one here in the
11 series is designated 12C.
12 (Plaintiff’s Gottlieb Deposition
13 Exhibit 12C Marked.)
14 A. And I will also say, if you can see it
15 on the back, you are also incorporating on the back of
16 the first page a Voluntary Consent form which was what
17 was prepared, yes.
18 Q. All right. So if you can take a look at
19 Exhibit 12c
20 A. Uh-huh (yes). Yes, sir.
21 Q. --- is that the voluntary statement for
22 Dan Flannery that was given on March 16th?
23 A. I believe so. Yes. I don’t know who
24 took that statement, I believe it’s Ben Himan. I had
25 -- Investigator Himan asked me if I would mind just
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Sgt. M.D. Gottlieb - 4/19/0 7
1 going through the list of the people who were present,
2 which I don’t see the list of the people who were
3 present attached to this. Oh, I’m sorry, there it is
4 on the very back.
5 So as I went through sitting in my
6 office I had him do the front page of the non-custodial
7 form. And then I read off a list, and he basically
8 wrote down the people who he had known were at the
9 party. The rest of it, I wasn’t at the station.
10 But, yes, I do believe that this is his
11 statement that was given to an investigator.
12 Q. And the front of it says that you were
13 the
14 A. I read the non-custodial form to him,
15 and that’s because I wanted to make sure that he knew
16 that he was not in custody when he was just in fact
17 giving the names of the people who were there.
18 Q. All right. okay. Looking at all of
19 these collectively, if we can, do you think it’s a fair
20 characterization that each of the three individuals
21 gave a relatively detailed statement about the events
22 of March 13th spilling of over into March 14th at 610
23 North Buchanan?
24 A. Let me answer it this way because I am
25 trying to think of the fairest way to answer this
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1 question without making any accusations or anything.
2 I believe that these are detailed
3 statements. Do I believe that these are factual
4 statements? I have no idea.
5 And the reason I am saying that is that
6 the information that was obtained by the Attorney
7 General’s office as opposed to information that was
8 provided to the Durham Police Department in our
9 investigation is completely different.
10 The Durham Police Department did not
11 have information provided that could corroborate or not
12 corroborate statements that were made.
13 The Attorney General ‘s office never went
14 over the information with me. As I told you, they had
15 closed it down to make sure there were no chances of
16 leaks of information. So I don’t know if you’re asking
17 me if these are accurate.
18 Q. I am not.
19 A. Because I do know that in this statement
20 I believe they said something to the effect that money
21 wasn’t taken, and I know the Attorney General ‘s office
22 was able to -- that is one thing that I know about.
23 The Attorney General’s office was able to show that
24 money was stolen.
25 Q. Okay. And let me clarify this. I am
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1 not in any way asking you to testify about the accuracy
2 of whatever was in the statement.
3 A. I understand. And I think they are
4 detailed. Yes.
5 Q. Okay.
6 A. And I think these young men were
7 cooperative on that date.
8 But if you’re asking about accuracy, I
9 have no idea.
10 Q. Okay. And I think all three of them, as
11 I think you have already referenced, may have provided
12 a list of the individuals that they believed were
13 present at that party on March 13th?
14 A. Yes. And two people that I spoke with,
15 Matt Zash and David Evans, I asked them was anyone else
16 there other than lacrosse players, and they had said
17 no.
18 Q. Although if you look at Exhibit 12B,
19 since you raise that point, if you look at 12B
20 A. I’m sorry. It wasn’t Dave Evans. I
21 meant Matt Zash and David Flannery.
22 Q. And Flannery.
23 A. My apologies. Because Investigator
24 Himan read this list.
25 Q. All right. And they, as you note on the
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1 back side of the first page of each one of these
2 exhibits, there is a voluntary consent to a
3 identification procedure that was done that same
4 evening?
5 A. Correct.
6 Q. March 16th.
7 A. Correct.
8 Q. And they all agreed to provide hair
9 samples, photographs, a blood sample, along with saliva
10 and pubic hair on that date.
11 A. Correct.
12 Q. All right. Do you recall -- were you
13 present when any of these individuals offered to give a
14 polygraph?
15 A. I was told, I believe, one had asked or
16 several had asked. But I know that they were told that
17 it was not possible that night, but it could be done at
18 a later time.
19 Q. Do you know whether that initiated with
20 the individuals or with the Police Department?
21 A. No, sir.
22 Q. Give me a rough time frame of how long
23 it took from when you began executing the search
24 warrant until these three were actually -- I don’t want
25 to say “released.” I know they weren’t in custody.
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1 But when they actually left the Police Department.
2 A. Well
3 Q. Two or three hours?
4 A. --- the search warrant was done at
5 Q. According to your notes, if you look at
6 typewritten Page 4, it has got -- I’m not a military
7 person, but that looks like 8:47 p.m.
8 A. Yes. So are you considering 8:47 the
9 time that you are saying that we are with them until
10 the time that to get done?
11 Q. To when they left the department,
12 approximately. I don’t need an exact, I just want a
13 general time frame.
14 A. They would have left the police
15 Department before 2:00 o’clock in the morning. And
16 then they went over to Duke Hospital with either
17 Investigator Himan, Clayton or both of them. I don’t
18 how the travel arrangements were made because I wasn’t
19 there. I arrived at Duke after they had arrived
20 because I was out of the house talking to the
21 forensics person.
22 Q. All right.
23 A. And then I prepared the voluntary
24 consent forms for Investigator Himan, he hadn’t done
25 those up to that point. And it wasn’t long after that
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1 because the identification procedures are pretty quick.
2 Q. All right. Just to make it simpler, I
3 think the earliest that the identification forms,
4 consent forms, were signed was 2:20 a.m. the following
5 day?
6 A. Right.
7 Q. So you are looking at, just from that,
8 roughly four-and-a-half hours?
9 A. Absolutely.
10 Q. Okay. And during that four-and-a-half
11 hours did any of them request to contact an attorney?
12 A. No. As a matter of fact, I talked to
13 them. I talked to Mr. Flannery and said, you know, you
14 can call your parents, call an attorney, you can leave
15 if you want. He didn’t want to. The only person he
16 wanted to call was his girlfriend.
17 Q. All right. Did those three individuals
18 provide everything that you had requested during the
19 process?
20 A. On that particular evening, and only on
21 that particular evening.
22 MR. HILL: When you reach a point,
23 could we take a short break?
24 MR. BROCKER: We must be on the
25 same wave length. I was about to say, we need to take
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Sgt. M.D. Gottlieb - 4/ 9/07

a short break.

(Recess - 11:21 AM to 11:30)

* * *

kilgo said...

* * *
PAGE 56

Sgt. M.D. Gottlieb - 4/ 9/07
1 a short break.
2 (Recess - 11:21 AM to 11:30)
3 Q. All right. Sergeant Gottlieb, I want to
4 asked you a little bit, there were two what I
5 understand to be photographic arrays that were done
6 initially with Ms. Mangum in the early days of the
7 investigation, and I want to ask you a couple of
8 questions about that.
9 I guess the first question is were you
10 involved in either putting together or showing Ms.
11 Mangum photographic arrays?
12 A. No.
13 Q. You were not?
14 A. What I did, what I did was I went to
15 Duke, spoke to Duke Police. They made a -- they had
16 like a website with all of the players. and they put a
17 picture of each of the players on a CD, and that CD was
18 subsequently given to Investigator Himan and
19 investigators from the District Two CID, who sat down
20 and put the lineups together, and Investigator Clayton
21 showed it, but I did not.
22 Q. Okay. Do you have knowledge of what was
23 done as a supervisor of that? I mean, you are
24 Investigator Himan’s and Clayton's
25 supervisor?
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1 A. Yes.
2 Q. So are you familiar with it ---
3 A. Am I familiar with why it was done?
4 Q. No. Just how it was done, what was
5 done.
6 A. Yes.
7 Q. And tell me about what you know based on
8 your supervisory role in that process, what happened.
9 A. Ms. Mangum had claimed that the she was
10 attacked by three people. She give the names of the
11 three people, which were first names. They went
12 through the list of the players, identified first names
13 that corresponded, which is a natural thing to do.
14 They located them, and put together
15 photo arrays to either rule them out or to identify
16 them as potential suspects.
17 Q. Do you know how many pictures she was
18 shown? Let’s take, from your investigative notes, it
19 looks like the first time that was done was later the
20 same day ---21 A. Done the same day.
22 Q. --- after you spoke with her?
23 A. Yes.
24 Q. I’m sorry, you spoke with Ms. Mangum.
25 Do you know how many pictures she was
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1 shown that day?
2 A. I believe it was three photo arrays.
3 Q. Do you think it could possibly have been
4 four, potentially?
S A. Potentially, but I think it was three.
6 Actually, I think there were two people with a name. I
7 think there was a Brett or a Breck, and I think that
8 might have been done at the time.
9 Q. All right. Do you know why Investigator
10 Clayton was the one who showed the photo arrays?
11 A. Because he had nothing to do with
12 putting them together and had no idea about who the
13 potential suspects were.
14 Q. And having somebody who is not involved
15 in the investigation show the photos arrays is one of
16 the procedures in place at the Police Department; is
17 that right? Having an independent administrator of the
18 photo arrays?
19 A. Yes and no.
20 Q. okay.
21 A. It is if possible, it is not a
22 guarantee.
23 Q. All right. Do you know if she was shown
24 a -- if she signed instructions and certifications for
25 those initial photographic identifications?
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1 A. It’s my understanding she was.
2 Q. Okay.
3 A. It would have been Day One.
4 Q. And are the photographic arrays part of,
5 continue to be part of, the file for the Department?
6 A. Yes, they are.
7 Q. I am going to mark this as Deposition
8 Exhibit Number 2 and show that to you and see if you
9 recognize those documents. Just for the record, I’m
10 going to identify them. The pages are not consecutive,
11 so I’m not going to do that now.
12 Once you have had a chance to review
13 them, can you look at them and tell me what they are,
14 at least the first four pages which double-sided?
15 (Plaintiff’s Gottlieb Deposition
16 Exhibit Number 2 Marked.)
17 A. These are Sequential Photo
18 identification Instruction and Certification forms.
19 Q. Do you know whether they are the ones
20 that Ms. Mangum signed after the photographic array on
21 16th of March, 2006?
22 A. Some are, some aren’t.
23 Q. Just up through, the last two are, for
24 now, six photographs?
25 A. Yes.
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1 Q. All right. And is that also part of the
2 Department’s procedures when doing photographic arrays
3 to have the administrator use those instructions and
4 have the accuser or the witness sign certifications?
5 A. Yes.
6 Q. Do you know whether or not all of the
7 people in the photographic arrays that were shown on
8 the 16th were all Duke lacrosse players?
9 A. Yes.
10 Q. Were there any fillers in those people
11 who were not -- well , let me ask it a different way.
12 Were there any -- there was nobody that
13 was -in there that was not a Duke lacrosse player?
14 A. There was -- no one pictured was not a
15 Duke lacrosse player.
16 Q. Did you consider any of the people in
17 those arrays to be fillers?
18 A. Yes.
19 Q. Who was that? Who would have been the
20 people who ---
21 A. Anyone who was not the name of the
22 person. Adam, Bret, Matt, et cetera.
23 Q. So in each one of the arrays did you
24 have an individual who had one of the names that
25 corresponded to the names that she had given you?
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PAGE 61 Sgt. M.D. Gottlieb - 4/1 9/0 7
1 A. Yes.
2 Q. And then the remainder of the
3 photographs, were they people who d-id not have a name
4 associated with one that she had given you?
5 A. Yes.
6 Q. Do you know whether or not she was shown
7 a picture of Reade Seligmann in that first photographic
8 array?
9 A. I believe she was.
10 Q. Do you know whether or not she was able
11 to identify him in any way?
12 A. It is my understanding from talking to
13 Investigator Himan that she recognized him but couldn’t
14 place where she knew him from.
15 Q. In the first array on the 16th, did she
16 identify any of the people that she was shown as
17 attackers?
18 A. Not as an attacker.
19 Q. Then there was another, the Police
20 Department conducted another photograph array with Ms.
21 Mangum or a series of them on March 21st; is that
22 right?
23 A. Yes.
24 Q. Do you know how many pictures were shown
25 on that date?
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1 A. Do you mean how many arrays?
2 Q. Well, how many pictures--I didn’t cover
3 this before--on the 16th, how many pictures would have
4 been in each array or were in it?
5 A. Without looking at it, I couldn’t tell
6 you. It’s either going to be six (6) or eight (8) or
7 ten (10). But, at the minimum, it’s six (6).
8 Q. All right. Do you know how many arrays
9 she was shown on the 21st?
10 A. There appears to be two (2).
11 Q. Okay.
12 A. Which -- yes.
13 Q. All right. I’m looking back. I’m sorry
14 to jump around, but I forgot to ask you something.
15 Looking back and the first four pages
16 of that, each one of those pages has a number on it: A,
17 B, C, D?
18 A. Yes, it does.
19 Q. Would those correspond to the different
20 arrays that were shown?
21 A. Yes, it does.
22 Q. And the same thing with respect to the
23 last two pages that are marked E and F?
24 A. Yes.
25 Q. She signed -- on the 21st that we are
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1 discussing, she signed certifications, the ones that
2 are the last part of that exhibit for each one of those
3 subsequent arrays?
4 A. Yes.
5 Q. All right. It appears to be -- on the
6 copy that I gave you, there appears to be some
7 handwritten notes. I’m guessing that it’s on a sticky
8 that’s on top of there, it’s what it looks like.
9 A. It appears to be, but I don’t know, I
10 don’t know how the copy was made.
11 Q. Do you know who wrote that?
12 A. By being his supervisor, I believe I
13 recognize the handwriting. Investigator Himan and
14 Investigator Clayton’s handwriting is kind of alike. I
15 believe it’s going to be Clayton’s though, but I can’t
16 be completely sure.
17 Q. Okay. The first one says, appears to
18 say, “Do not pick out,” and then, if I’m reading that
19 correctly, it says, “Done twice”?
20 A. That’s what it appears to be.
21 Q. Okay. And then the second, the last
22 page of that exhibit has an “F” on the top of it. Can
23 you read that?
24 A. “Did not pick any.”
25 Q. Again, does that look like Investigator
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1 Clayton’s handwriting, as best you could tell?
2 A. As best I can tell.
3 Q. Tell me about -- to the extent you know,
4 the photo arrays, how were the E and D or E and F
5 arranged as far as who was in them and how it was set
6 up? Is it the same as that you did on the 16th?
7 A. It was, yes. Yes.
8 Q. So there was somebody in those arrays
9 who she had a name that she had ---
10 A. No. On this one, if I am remembering it
11 correctly I that Dan Flannery’s name had come up, and
12 they wanted to rule him out as a potential suspect.
13 And I do not recall right offhand why the other one was
14 done.
15 Q. Okay. And Investigator Clayton, also,
16 was he an administrator of the second set of arrays?
17 A. Was he the administrator?
18 Q. Yes.
19 A. Yes.
20 Q. Do you know whether the second set of
21 arrays included a picture of David Evans?
22 A. Not without looking at them.
23 Q. Did she identify any ---
24 A. I will say, and I apologize, I do know
25 that -in one of the arrays, whether it’s A through F,
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Sgt. M.D. Gottlieb - 4/19/07
1 that I know that his picture was in one of them, I
2 don’t know at what point.
3 Q. Okay. So somewhere within the six
4 arrays that she was shown on the 16th and 21st, David
5 Evans’ picture was there?
6 A. Yes.
7 Q. And did she identify any of the alleged
8 attackers on the 21st?
9 A. No.
10 Q. To your knowledge, was she -- well, let
11 me ask. Since you weren’t there, would it have been
12 standard procedure within the Department to actually
13 read what’s in the verbal instructions on this form
14 when you’re doing the photographic array?
15 A. Yes.
16 Q. Do you have any reason to believe that
17 was and done with respect to these six photo arrays for
18 Ms. Mangum?
19 A. I have no reason to believe that.
20 Q. Would she have told anything about who
21 was contained -- other than what’s in here that she
2 2 would have read, would she have been told anything
23 about who was in those photographs?
24 A. No.
25 Q. okay. If you’ll look at in you notes,
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Sgt. M.D. Gottlieb - 4/19/07
1 which is Exhibit 204 ---
2 A. Yes, sir.
3 Q. --- you have an entry on typed Page 6 of
4 that, down at the bottom?
5 A. Yes, sir.
6 Q. You have a note there that you received
7 a subpoena for the SANE nurse documentation and then,
8 following up, it appears that you went there and served
9 it on Nurse Levicy?
10 A. Yes.
11 Q. Okay. Did you actually pick up the
12 report on that date, on March 21, 2006?
13 A. Yes, and I delivered it to Investigator
14 Himan.
15 MR. BROCKER: Let’s go off the
16 record just for a second.
17 (Discussion held off the record.)
18 MR. BROCKER: All right. By
19 agreement off the record, Sergeant Gottlieb, and I’m
20 going to show you a document that I have identified as
21 Exhibit Number 11, and we have agreed to mark it and
22 make it as part of the deposition exhibits, but to
23 designate it as under seal pending further Order of the
24 Disciplinary Hearing Commission to unseal it if it’s
25 necessary.
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Sgt. M.D. Gottlieb - 4/19/07
1 Does anybody object to that procedure?
2 MR. WITT: No, sir.
3 MR. HILL: No.
4 MR. BROCKER: All right. Once
5 you’ve had an opportunity to look it over, let me know,
6 Sergeant Gottlieb.
7 THE WITNESS: I’m ready.
8 (Plaintiff’s Gottlieb Deposition
9 Exhibit Number 11 Marked and
10 placed under Seal .)
11 Q. Can you identify this and tell me
12 whether it is the report you received from Nurse Levicy
13 on March 21st, 2006, subpoena?
14 A. This is the subpoena and report.
15 Q. Okay. I may come back. I am not at
16 this point going to ask any specific questions about
17 that.
18 You received a copy of that from Nurse
19 Levicy on the 21st and I think you said previously then
20 provided it to Investigator Himan?
21 A. Yes.
22 Q. All right. Do you know what else was
23 done with that report after you gave in to her? Let me
24 rephrase that.
25 Do you know who else was provided a copy
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1 of that report after you gave it to Investigator Himan?
2 A. The District Attorney’s office,
3 Q. Do you know when that was done?
4 A. Not the exact date, no
5 Q. Would Investigator Himan be the person
6 who would likely know when that was provided to them?
7 A. Yes.
8 Q. Looking back at your notes, Exhibit 204,
9 on the 22nd of March of 2006
10 A. Which page?
11 Q. Sorry. It’s Page 7.
12 A. Yes, sir.
13 Q. You accompanied Investigator Himan in
14 the interview he conducted with Kim Pittman, who was
15 the other dancer present on March 13th?
16 A. Yes.
17 Q. I just note in your report that
18 Investigator Himan has notes of that interview?
19 A. Yes.
20 Q. And the following day, a Non-Testimonial
21 Order was obtained and then I guess executed, is that
22 right, March 23rd? If you look at the next page of
23 your notes on Page 8?
24 A. Yes.
25 Q. Were you involved in seeking the Non-
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1 Testimonial Order?
2 A. Was I involved in seeking it?
3 Q. I mean not physically going to the
4 courthouse and requesting it, but did you -- tell me
5 how they came about--let’s take a step back--the
6 application for a Non-Testimonial Order?
7 A. Okay. Basically, Investigator Himan was
8 working with people at Duke to get the players to come
9 in under the radar, sit down and talk with us if they
10 wanted to. See the would allow DNA. See if they would
11 allow photographs, et cetera.
12 The coach from Duke wanted to assist us
13 in this matter also because he wanted to help get
14 things cleared up.
15 So a day was planned where the coach had
16 said he was going to make the players go. We said we
17 didn’t want the players to be made to go, but we wanted
18 to have the opportunity to talk with them.
19 He said, “No problem, we’ll do it during
20 a practice time.”
21 On the day that it was supposed to
22 happen, Investigator Himan and I got information that
23 they were not going to show up. And this had roughly
24 been a week to a week and a half after the rape.
25 We knew that one of the players,
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1 reportedly, had been scratched during the altercation
2 or the alleged attack. And a week and a half is
3 pushing the amount of time to where a wound could heal
4 And the attorney wanted to make it
5 another week before the players could come in.
6 Q. Let me interrupt you. Let me make sure
7 so I don’t forget to ask you.
8 The attorney you are you talking about
9 is the attorney for some or all of the players?
10 A. Yes.
11 Q. Who was that, do you know?
12 A. I believe was Wes covington at that
13 point.
14 Q. All right.
15 A. And we felt that if there was a
16 possibility of getting any evidence, meaning the
17 scratch, something would have to be done immediately.
18 In addition, the photographs that were
19 originally used for the photo arrays were pretty much
20 like military pictures. If you look at 20 people in
21 the Army, they all look the same.
22 And looking at the pictures, even if I
23 were a victim or you were a victim, I think it would be
24 difficult for an average person to tell the difference
25 of who they are looking at. Because these were team
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1 photographs made -in a team way and everyone was dressed
2 exactly alike, and it was not the way hair styles, et
3 cetera, were being worn at the time.
4 So I had actually spoke with Ms. Smith
5 and Investigator Himan spoke with the District
6 Attorney’s office, Ms. dine, and they decided to --
7 the District Attorney’s office thought it was a good
8 idea to go ahead and do a Non-Testimonial , and I
9 assisted Investigator Himan in preparing it.
10 Q. In order to get the Non-Testimonial
11 Order, there were 46 people that were subject to the
12 Non-Testimonial Order, is that correct?
13 A. Yes.
14 Q. And they were all lacrosse players?
15 A. Yes.
16 Q. And, in order to get it, they had to be
17 identified as potential suspects in the alleged rape,
18 is that fair?
19 A. We had to have or reasonable suspicion
20 that they at the location of where the crime was
21 committed and that -- we already knew, based on the
22 information that was given, that these people were at
23 the home. There were a few people who were not listed
24 and it was, without looking at the exact number, five
25 or six.
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1 But some of the records were indicating
2 and the possibility that these people could have been
3 there. Two of the players said the only people that
4 were there were lacrosse people. One of the players
5 said, I think he said that there possibly two people.
6 But we weren’t able to know who those people were, that
7 information was not available at the time. Otherwise,
8 we would have tried to get them into it.
9 And I knew about the other two people
10 after the fact on that.
11 But the bottom line was anyone who was
12 at the party, based on statements that were given,
13 could have been a potential suspect.

* * *

kilgo said...

* * *

14 Q. All right. And I don’t want to get into
15 a debate about the Non-Testimonial Order requirements
16 or statute. But is it your understanding as a sergeant
17 that in order to get a Non-Testimonial Order you have
18 to have some reasonable grounds to think that the
19 person who is going to be subject to it may be a
20 potential suspect?
21 A. Yes.
22 MR. WITT: Objection.
23 MR. HILL: Objection, calls for a
24 legal conclusion. Go ahead. You answered it anyway.
25 That’s all right.
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1 Q. If you can answer that, you can answer
2 it. He’s noted his objection.
3 MR. HILL: Go ahead.
4 MR. WITT: Same objection.
5 MR. HILL: You can answer his
6 question.
7 A. Now, after that, could you please repeat
8 the question?
9 Q. Sure. I just wanted to know, based on
10 your understanding as a Sergeant in the Investigation
11 Division, do you have to have reasonable grounds that
12 somebody is a suspect in a crime before getting a
13 Non-Testimonial Order?
14 MR. WITT: Objection.
15 MR. HILL: Objection. Legal
16 conclusion. Go ahead. It’s all right. Go ahead.
17 A. I guess I am confused. I am not sure if
18 you told me to go on.
19 MR. HILL: I am letting you answer
20 the question. We stipulated that the form of the
21 question can be objected to. There’s something about
22 the form of the question that I objected to. That
23 permits you to answer his question.
24 A. I’m still confused, but I will answer.
25 Q. Are you confused about the question or
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1 confused about what you were supposed to do?
2 A. Both.
3 Q. Okay. They have noted an objection. It
4 may not be a proper question, if they’re correct, but
5 you can answer it if you understand and can answer the
6 question.
7 MR. HILL: Correct.
8 A. Okay. The exact question again. And I
9 apologize, since we’re going back and forth.
10 MR. BROCKER: I will stipulate that
11 you have an objection.
12 MR. HILL: Go ahead.
13 A. And I’m sorry.
14 Q. Let me try to rephrase it, and I’ll note
15 your objection. If you withdraw it, that’s fine. But
16 so I can try to make it so that you understand what I
17 am asking you.
18 A. Okay.
19 Q. Based on your understanding as a
20 sergeant, can you seek a Non-Testimonial Order for
21 information without having reasonable cause to believe
22 that somebody is a potential suspect in a crime?
23 A. Correct.
24 Q. You can or cannot do that?
25 A. In order to get a Non-Testimonial , we
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1 have to have reasonable grounds to believe that someone
2 could be a potential suspect.
3 MR. BROCKER: Okay. Thank you.
4 MR. HILL: And we’ve stipulated to
5 an objection to the question, just so it’s clear on
6 that point.
7 MR. BROCKER: Yeah, I understand.
8 I knew there was an objection.
9 Q. The non-testimonial procedure, how it
10 was conducted, if you will take a look at your notes
11 from that, I think, and I am struggling to find it
12 myself.
13 A. It’s 1600 hours on Page 8 of 1822.
14 Q. All right.
15 A. It’s where we are starting the
16 Non-Testimonial or close to starting.
17 Q. Okay. Does that describe what took
18 place with respect to the Non-Testimonial Order and the
19 collection of the evidence from the 46 lacrosse
20 players?
21 A. It talks about it, but it doesn’t go
22 into exact detail of how the entire thing was done.
23 That would be in the forensic notes.
24 Q. Where would the forensic notes be?
25 A. In the Durham Police Department files.
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1 Q. And who would be -- you were the overall
2 supervisor for that activity for the entire
3 investigation?
4 A. I’m the supervisor, yes.
5 Q. Okay. Who would be in the best position
6 to talk about what actually happened during that Non-
7 Testimonial Order within the Department? Would it be
8 you or somebody else that you supervise?
9 A. I could answer certain things.
10 Investigator Himan can answer certain things. Angela
11 Ashby could answer certain things, she was with the
12 Forensics Unit.
13 Q. Okay. Was the Forensics Unit the one
14 that would have primarily been responsible for actually
15 collecting all the ---
16 A. Yes.
17 Q. Got the swabs and photographs?
18 A. Yes.
19 Q. All right. Do you recall the following
20 day having a conversation with Captain Lamb about Mr.
21 Nifong’s involvement in this case?
22 A. Yes.
23 Q. Can you tell me about that, please?
24 A. Captain Lamb met the with me a very
25 short period of time and basically said that all of the
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1 efforts were going to be coordinated through the
2 District Attorney’s office for the investigation and to
3 make sure that anything done was approved by the
4 District Attorney’s office and to basically follow
5 their leads.
6 Q. Let me make sure. I’m not sure I
7 followed one part of that. Did you say that all
8 the ---
9 A. When I’m talking -- go ahead, I’m sorry.
10 Q. No, that’s all right. I missed part of
11 what you said when I was writing, and I just wanted to
12 make sure I’ve got it.
13 You said that all efforts would be
14 coordinated in the investigation through Mr. Nifong’s
15 Office?
16 A. Yes.
17 Q. Okay. And tell me the rest of that
18 because I missed that part of it, if you would again?
19 A. Could she read back ---
20 Q. Just tell me what you recall about the
21 conversation rather than what -- I’m not trying to trip
22 you up, I just didn’t hear it. I’m sorry.
23 A. Basically that the efforts of the Police
24 Department would be coordinated through Mr. Nifong’s
25 office.
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1 Q. Okay. And what did you understand that
2 to mean in terms of if you were going to conduct
3 further investigative activities, did you understand
4 that to mean that you needed to get approval from Mr.
5 Nifong before you did that?
6 A. That’s my understanding.
7 Q. In going forward from March 24th, ‘06,
8 is that in fact how the investigation was run? Did you
9 go through Mr. Nifong’s office to get approval for
10 further investigative activities?
11 A. Yes.
12 Q. If you will look at Page 9 of your
13 notes, there’s an entry there that relates to that.
14 Can you tell me whether or not -- do you see that entry
15 there, March 24, 2006?
16 A. Yes, at nine o’clock (9:00).
17 Q. Does that accurately reflect the
18 conversations you had with Captain Lamb about
19 Mr. Nifong’s involvement in the investigation?
20 A. I think Captain Lamb’s exact words would
21 have been “coordinating.” But, again, I put did it
22 into what my understanding as running it.
23 Q. All right. Going forward from that
24 point, who was the primary contact between Durham
25 Police Department and Mr. Nifong in these Duke lacrosse
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1 cases?
2 A. The primary contact?
3 Q. I’m sorry. Who would have been
4 primarily communicating with Mr. Nifong about getting
5 approval for further investigative activities or
6 advising him on what had been done?
7 A. It could have been Investigator Himan or
8 myself.
9 Q. So both of you all had contact with him
10 about what went on?
11 A. Yes.
12 Q. Okay. Again, in your notes it mentions
13 that on the 27th of March, 2006, you and Investigator
14 Himan met with Mr. Nifong. Do you see that entry?
15 A. Yes.
16 Q. Okay.
17 A. Well , hold on. I see a 27th, but there
18 several entries on that date. Do you have 1040 hours?
19 Q. Uh-huh (yes).
20 A. I see that.
21 Q. All right. Where did that meeting take
22 place?
23 A. His office.
24 Q. Was anybody else present, besides
25 yourself, Investigator Himan and Mr. Nifong?
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1 A. I don’t believe so, but I’m not sure.
2 Q. Do you know approximately how long that
3 meeting lasted?
4 A. No, sir.
5 Q. The next note in your investigative case
6 notes there, your note is that that meeting took place
7 or began at approximately 10:40 a.m.?
8 A. Yes.
9 Q. And then the next note there of
10 activities that you recorded would have been 5:35 p.m.?
11 A. Correct.
12 Q. All right. I want to ask you some
13 questions about exactly what happened in that meeting,
14 and then we’ll come back and I’ll see if it helps you
15 remember how long the meeting lasted.
16 You say in the note that he was
17 briefed, “Mr. Nifong was briefed today.”
18 A. Yes.
19 Q. Tell me what you told Mr. Nifong, what
20 you or Investigator Himan told Mr. Nifong during that
21 meeting?
22 A. Told him about the e-mail.
23 Q. Was this the first opportunity that you
24 or Investigator Himan had met with Mr. Nifong about
25 this case on the 27th?
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1 A. I don’t recall. I know that
2 Investigator Himan would have spoken to the District
3 Attorney’s office prior to that because the District
4 Attorney’s office is actually who takes out the Non-
5 Testimonial. The Police Department just gives them the
6 information. We aren’t the ones who would go before
7 the judge.
8 Q. Right. Do you know whether or not Mr.
9 Nifong, as opposed to somebody else in his office, was
10 involved in the Non-Testimonial Order?
11 A. Yes.
12 Q. Somebody else. Do you know whether Mr.
13 Nifong was involved in that?
14 A. I believe that was -- I believe -- I
15 believe Investigator Himan spoke with Tracey Cline the
16 day before and then David Saacks is the one who
17 coordinated those efforts.
18 Q. Do you know whether or not this was the
19 first opportunity that either you or Investigator Himan
20 had spoken with Mr. Nifong about this case? Mr. Nifong
21 directly.
22 A. I don’t know. If you are asking me if I
23 walked down the hallway and had just a conversation, I
24 don’t know. But official sit-down, I don’t believe I
25 had an official sit-down conversation with him.
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1 Q. Okay. This meeting on March 27th, was
2 this an opportunity where Mr. Nifong was brought up to
3 date as to what happened in the investigation up to
4 that point?
5 A. Yes.
6 Q. Do you recall whether you provided him
7 with any documentation at that meeting, you or
8 Investigator Himan?
9 A. I don’t recall. Well, I would have had
10 to because he would have at least seen the e-mail
11 Q. This is the e-mail involving Ryan
12 McFayden that you referenced earlier?
13 A. Yes, sir.
14 Q. Do you know whether he would have been
15 given any other documentation at that meeting about the
16 investigation?
17 A. I don’t recall. I would think -- and
18 this is only -- I would think not because we were in
19 training and we didn’t have the stuff with us, as far
20 as I know, so I doubt it.
21 Q. Okay.
22 A. We didn’t expect to be doing that on
23 that day.
24 Q. Do you recall, did you talk to him about
25 whether or not the players had or had not cooperated at
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1 that meeting?
2 A. I don’t know.
3 Q. You don’t believe that you -- do you
4 know if he would have been given copies of the
5 statements as to the three individuals that we have
6 already looked at, their statements, do you know if he
7 would have been given those statements at that meeting?
8 A. I don’t know. I doubt it. Like I said,
9 we were at training when the people from CrimeStoppers
10 gave us the information from that.
11 Q. Anything else that you recall talking to
12 him about, besides the e-mail , at that meeting?
13 A. No, sir.
14 Q. Did you talk to him at all about what
15 the allegations were, what Ms. Mangum’s allegations
16 were?
17 A. Of course.
18 Q. Okay.
19 A. I mean, that’s just -- if we are going
20 to be getting a search warrant, we would have to tell
21 him what the basis was for the search warrant.
22 Q. Let me take a step back. What was your
23 understanding about the purpose of the meeting that you
24 were having with Mr. Nifong on the 27th? Was it an
25 initial briefing to bring him up to date as to what
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1 happened or was it related more specifically to this
2 one e-mail and the search warrant?
3 A. The reason we went there was to get
4 direction on how to proceed with the e-mail and the
5 search warrant.
6 Q. Okay. Once you got there, was there a
7 different -- did Mr. Nifong ask questions related more
8 generally to the investigation as opposed to just this
9 specific e-mail?
10 A. I don’t recall the conversation, per se.
11 It was giving him the information. I am sure we had
12 general conversation on the case. There is no way I
13 would make a decision without having general
14 information.
15 But to sit down and tell you what that
16 conversation was, no, I couldn’t tell you.
17 Q. Did you participate in a meeting with
18 Mr. Nifong, other than on March 27th, where he was
19 briefed on the investigation that had happened up to
20 date?
21 A. I’m sorry. Repeat that.
22 Q. Did you participate in any meetings with
23 Mr. Nifong where he was brought up to date on the
24 status and the information in the investigation?
25 A. Yes.
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1 Q. When would that have been?
2 A. Sir, we had meetings every day with
3 command staff, the District Attorney’s office. And I’m
4 not saying that we met with him every day. But if I
5 kept track of meetings, I would probably have thousands
6 of pages.
7 Q. Okay. When would that have begun, to
8 your recollection, that you would have started having
9 meetings involving the District Attorney’s office in
10 this case?
11 A. About the time when I was told that we
12 would coordinate our efforts.
13 Q. So beginning on March 24th of 2006, you
14 had almost daily meetings involving the District
15 Attorney’s office about the investigation?
16 MR. WITT: Object to the form of
17 the question.
18 A. I didn’t say daily.
19 Q. I’m sorry. How often?
20 MR. HILL: It’s Okay. From time
21 to time, the attorneys may object. Unless I tell you
22 not to answer, you can answer. Okay?
23 MR. BROCKER: Yeah. If he’s
24 objecting, he thinks I haven’t asked the question
25 appropriately. So.
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1 THE WITNESS: Okay.
2 MR. BROCKER: If you understand
3 it, you can still answer it.
4 MR. HILL: Unless I specifically
5 tell you not to, just go right ahead. Okay?
6 A. I would say that at least once or twice
7 a week either Ben, myself, or both of us would go and
8 speak with the District Attorney. And it may only be
9 for a minute and a half, depending on what it is. We
10 got the subpoena, it’s been served. It could -- you
11 know?
12 And then we would sit down and discuss
13 the case at different times telling him where we were
14 at. But I don’t know how to put an exact date to it.
15 Q. Okay. Was there ever a meeting, whether
16 it was on the 27th or any other time, where you recall
17 sitting down with Mr. Nifong and essentially bringing
18 him up to speed on what happened and had happened
19 during the investigation?
20 A. There were several meetings.
21 Q. Okay.
22 A. I don’t know the exact dates.
23 Q. Okay. What did you or Investigator
24 Himan tell him specifically when you sat down and had
25 those meetings with him?
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1 A. Everything that had happened, everything
2 that we were told, all of the information that’s been
3 placed before you.
4 Q. And do you know from that meeting -- do
5 you know whether that occurred before the 27th of March
6 2006?
7 A. I would say it happened -- the 27th was
8 the e-mail. It would have happened sometime -- let me
9 put it like this, it would have happened sometime
10 after the Non-Testimonial, shortly thereafter, if you
11 are talking about information being shared with the
12 District Attorney’s office. Which the Non-Testimonial
13 was on 3/23? Is that what ---
14 Q. Yes, I believe that’s correct from your
15 notes and the documentation.
16 A. Yes.
17 Q. Okay. On the 24th, you’ve said that he
18 was going to -- you were at least going to coordinate
19 or, if not, get your directions from him for the
20 investigation.
21 What I’m trying to get a handle on is
22 whether there was a meeting or a series of meetings
23 where, since he hadn’t been involved in the process
24 before, you would brought have brought him up to speed?
25 A. Yes, he was brought up to date.
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1 Q. Okay.
2 A. And I apologize. I thought I’d been
3 saying that.
4 Q. Okay.
5 A. That’s where I’m lost.
6 Q. Well, since you don’t recall
7 specifically whether it was the 27th or some other time
8 period, let’s talk about what you would have brought
9 him up to speed on.
10 A. The allegations.
11 Q. Okay.
12 A. The victim statements, the statements of
13 the people who were spoken with, to include witnesses
14 for three team captains, the search warrant, the Non-
15 Testimonials.
16 Q. Okay.
17 A. I’m just trying to think if there was
18 anything else prior to that point.
19 Q. All right.
20 Q. What date was that? When we got the
21 subpoena, March 20th? Well, I know we would have had
22 -- we actually would have had a meeting with him before
23 within before 3/20, I would think, because I know we
24 spoke with him about the case prior to getting the
25 subpoena.
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1 MR. HILL: He is referring to
2 Exhibit 11, for the record.
3 A. Well , hold on. No, I think I’m actually
4 -- that might have been Candy Clark that we spoke to
5 about the subpoena.
6 Q. Okay. All right. And Mr. Nifong’s name
7 is listed on the subpoena but he is the District
8 Attorney in that district.
9 A. He is the District Attorney in that
10 district and I think it automatically prints out when
11 they print those. I don’t know.
12 Q. During this meeting or series of
13 meetings, would you have given him copies of the
14 voluntary statements that we’ve already looked at, 12A,
15 B and C?
16 A. At some point.
17 Q. Would you have discussed with him the --
18 I think you said you would have discussed with him what
19 happened during the search warrant and the subsequent
20 interviews of those three individuals?
21 A. Yes.
22 Q. Did you give him a copy of the report
23 from Duke that we’ve already discussed, which is
24 Exhibit 11?
25 A. Yes. But, once again, I just want to
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1 clarify that if you’re asking me for exact dates that
2 he got these things, I have no idea.
3 Q. Okay. Do you know who within the
4 Department would be in a better position to answer when
5 he got these particular documents?
6 A. You can ask Investigator Himan.
7 Q. Do you remember being present at
8 meetings where those documents were actually given to
9 him?
10 MR. WITT: Object to the form of
11 the question as to which documents? It sounds like
12 there’s a multitude of documents.
13 MR. BROCKER: I’ll rephrase it.
14 A. (No response.)
15 Q. Do you recall being in a meeting where
16 Mr. Nifong was provided a copy of Exhibit 11, which is
17 the report from Duke, a medical report?
18 A. Do I recall that exact one? No.
19 Q. Okay. You said that you discussed with
20 Mr. Nifong the victim’s statements about what she’d
21 alleged had happened?
22 A. Yes.
23 Q. Other than the interview that you and
24 Investigator Himan did on the 16th, did you discuss
25 other reports of allegations that she had made about
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1 that incident?
2 A. I apologize. Please repeat.
3 Q. Would you have talked to him? Other --
4 you said you talked to him about her allegations?
5 A. Correct.
6 Q. Okay. That was based, I assume, in part
7 on the interview that you and Investigator Himan did on
8 March 16th of her at her home ---
9 A. Yes.
10 Q. --- and the allegations that she there?
11 A. Yes.
12 Q. Would you have also shared with Mr.
13 Nifong other reports that were made by other
14 individuals besides you and Investigator Himan about
15 her allegations about that event?
16 A. Other reports?
17 Q. Let me be more specific. I can show you
18 things and ask you if you recall providing those.
19 Let me show you what I am now marking as
20 Deposition Exhibit Number 3 and ask if you recognize
21 that?
22 (Plaintiff’s Gottlieb Deposition
23 Exhibit Number 3 Marked.)
24 A. Oh, I understand your question now. Are
25 you asking me do I recall that he received additional
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1 documentation or discussing other officers’ involvement
2 in the case up to that point? Yes.
3 Q. Do you recognize Exhibit 3?
4 A. This is a statement from Officer Sutton.
5 Q. Okay. Who is Officer Sutton?
6 A. She is the uniformed patrol officer who
7 was out and taking report.
8 Q. Okay. Was she the one actually
9 initially speaking with Ms. Mangum from the Department?
10 A. Was she the one initially speaking to
11 her?
12 Q. Yes, interviewing her.
13 A. Well , interview. Again, that is what
14 your interpretation of what an interview is. The first
15 person, I believe, that had any contact with her would
16 have been Sergeant Shelton.
17 Q. Okay.
18 A. And then there was Officer Barfield and
19 Officer Stewart, I believe, who were simultaneous. And
20 then multiple others beyond that. But she is the
21 officer that was the recording officer.
22 Q. Okay. And do you know or can you tell
23 from this report whether she spoke with Ms. Mangum on
24 March 14th of 2006?
25 A. She talked with her.
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1 Q. Okay. Do you know whether it was on
2 March 14, 2006, which is the date of the report at the
3 top?
4 A. She spoke with her on March 14, 2006,
5 at approximately 0122 hours, as indicated.
6 Q. Okay. And in that report it indicates
7 that Ms. Mangum told Officer Sutton that she had ended
8 up in the bathroom. Do you see the box part there a
9 little bit below that?
10 A. Yes.
11 Q. That she had ended up in the bathroom
12 with five guys who forced her to have intercourse and
13 perform sexual acts. And it goes on. I am going to
14 omit some of it, it’s a bit lurid. But it then goes on
15 to say she later stated that she was penetrated by all
16 five of the guys?
17 A. Yes.
18 Q. Okay. Is that information that you
19 would have shared with Mr. Nifong during these briefing
20 sessions, that she had made that allegation to Officer
21 Sutton?
22 A. The information that we would have
23 shared with Mr. Nifong was that between the uniformed
24 patrol officer’s initial response up to the SANE nurse,
25 things were inconsistent.
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1 But from the time that she spoke with
2 the SANE nurse all the way up through December, her
3 story didn’t really change.
4 Q. Let me make sure I understand. You did
5 discuss with Mr. Nifong during these initial briefings
6 or briefing sessions that there were inconsistencies in
7 her statement from the initial time that she was
8 contacted up through when she spoke with the SANE
9 nurse?
10 A. Yes.
11 Q. Okay. And, to your knowledge, was Mr.
12 Nifong given a copy of Officer Sutton’s investigative
13 report that we are looking at?
14 A. At some point.
15 Q. Okay. All right. I am going to hand
16 you what I have marked as Deposition Exhibit Number 4
17 and ask you to take a look at that and see if you can
18 and identify it?
19 (Plaintiff’s Gottlieb Deposition
20 Exhibit Number 4 Marked.)
21 A. This is a Supplemental Report that was
22 done by Sergeant Shelton.
23 Q. From your previous answer, was Sergeant
24 Shelton the first Durham Police Department officer who
25 had contact with Ms. Mangum on the 14th of March?
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1 A. I believe so.
2 Q. Take your time to look through that if
3 you need to refresh your recollection. But initially
4 when she was transported to Durham Access is the first
5 time she made the allegation that she had been
6 raped at the party at 610 North Buchanan?
7 A. Correct.
8 Q. And then, according to Officer Shelton,
9 if you look at the third page of that Exhibit 4, the
10 handwritten notes ---
11 A. The underlined section at the top?
12 Q.That’s correct.
13 According to the Officer Shelton, Ms.
14 Mangum told her that -- I’m reading. “She said, at
15 that point some of the guys from the party pulled her
16 from the vehicle and groped her. She told me that no
17 one forced her to have sex.” Do you see that?
18 A. Yes.
19 Q. And then later on I think it’s noted in
20 that report that she then told the SANE doctor that she
21 had in fact been raped. Do you see that, a few lines
22 down?
23 A. Yes.
24 Q. Okay. So in Officer Shelton’s
25 supplemental report, Ms. Mangum initially said that she
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1 had been raped, and then claimed that she had not been
2 forced to have sex, and then subsequently told the
3 doctor that she had been raped.
4 A. Yes.
5 Q. Is that accurate?
6 Are those accounts from officer Shelton
7 something that you would have made it Mr. Nifong aware
8 of as well?
9 A. Yes.
10 Q. And would he have been provided a copy
11 of the supplemental report from Officer Shelton?
12 A. At some point, yes.
13 Q. I will show you what I am marking as
14 Exhibit 5, Deposition Exhibit 5. I ask you to look at
15 that and see if you recognize that document?
16 (Plaintiff’s Gottlieb Deposition
17 Exhibit Number 5 Marked.)
18 A. I recognize it.
19 Q. What is it?
20 A. It is a Duke University police report.
21 Q. All right. Is that part -- is that part
22 of the documentation that you -- this, obviously,
23 wasn’t produced by Durham Police Department, this is
24 from the Duke University Police Department. Correct?
25 A. Correct. But we got the information.
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1 We were seeking any information that was out there.
2 Q. Okay. So this would have been part of
3 the documentation you collected as the investigative
4 file.
5 A. As part of the case file.
6 Q. All right. And that appears to be from
7 an Officer Day at the Duke University Police
8 Department, is that right? I am just trying to read
9 the form here.
10 A. I’m trying to see where they have that.
11 Q. It’s box number 2 at the top.
12 A. Yes. Christopher H. Day.
13 Q. And in that report he notes that Ms.
14 Mangum claimed that she was raped by approximately 20
15 white males at 610 North Buchanan?
16 A. That’s correct. It’s also my
17 understanding that he never spoke with her.
18 Q. When did you come to that understanding
19 that he didn’t spoke with? Did you speak with Officer
20 Day directly about it?
21 A. My understanding is that that was a
22 conversation that was overheard. I don’t remember when
23 that was.
24 Q. Which conversation are you referring to
25 that was overheard?
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1 A. It was Sergeant Shelton and the watch
2 commander, I believe, over the telephone.
3 Q. Are you talking about a conversation
4 with Officer Day?
5 A. No, he was not in the conversation. He
6 was standing nearby, if I am recalling it correctly.
7 Q. All right. There in the bottom
8 paragraph of that same report it notes, Officer Day
9 notes -- and, again, I am not -- to make sure I’m
10 clear, Officer Gottlieb, I’m not asking you about the
11 veracity of anything that’s in these reports, unless of
12 course it’s your report.
13 A. I understand.
14 Q. I’m just asking about what was in the
15 reports and what was in the file.
16 A. Is this a copy of the report? Yes. Is
17 this a copy in our case file? Absolutely.
18 Q. Okay. And is this something that would
19 have been provided, that was provided
20 A. And some point, yes.
21 Q. I know you know where I am going, but
22 let me finish so it’s clear for the record.
23 A. Okay.
24 Q. At some point, Mr. Nifong was provided
25 with a copy of Exhibit 5?
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1 A. Yes.
2 Q. Do you know when the Police Department
3 received a copy of Exhibit 5?
4 A. I know that Duke University gave me some
5 information that I have documented, and I gave that to
6 Investigator Himan. That may or may not be part of
7 that.
8 Q. Okay. Do you recall where that was, I
9 can’t find it?
10 A. I am looking for it right now.
11 MR. BROCKER: Okay.
12 MR. HILL: While he is looking for
13 that, can we take a short break?
14 MR. BROCKER: Sure.
15 (Recess - 12:42 PM to 12:47 PM.)

* * *

kilgo said...

* * *

16 Q. All right. Sergeant Gottlieb, you were
17 looking for a date, I think, through your notes?
18 A. Yes.
19 Q. All right.
20 A. This should clear up two matters,
21 actually.
22 Q. All right.
23 A. And I can’t swear to it, but I would
24 have to say that this has to be from that time. On
25 3/16 at 9:30, Investigator Soucie and I met with
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1 Investigators Gary Smith at Duke Police. He gave us
2 the photographs on a disk for a later-time lineup, and
3 he provided us with a Duke police report.
4 I did not write the report number down
5 on this. Then, and even though it doesn’t deal
6 directly with that, it will answer a question if
7 there’s anything else about Duke.
8 MR. HILL: You are referring to
9 what page? Page 2?
10 THE WITNESS: 1816, Page 2 of Item
11 204.
12 Q. Thank you.
13 A. And then the same document, 204, if you
14 go to page 1825, my number 11, at 1500 hours,
15 Investigators Smith and Stotsenberg drove to District
16 Two and they they gave me reports number 1548 and 1515
17 and one key card report for the team members from 3/13
18 and 3/14. So those are the Duke reports that Mr.
19 Nifong would have access to.
20 Q. Okay. To clarify that last point, the
21 entry that you were just referring to was on 3/31 of
22 2006?
23 A. At 1500 hours.
24 Q. 1500 hours. And are the reports there,
25 do they appeared to be related to Duke staff who are
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1 being harassed because of the publicity from the
2 lacrosse case?
3 A. I believe that is one that was.
4 Q. So would it be your belief that Exhibit
S Number 5 that we just looked at would have been
6 provided to you on March 16th when you initially met
7 with them?
8 A. Yes.
9 Q. Okay. When you initially had a meeting
10 or a series of meetings with Mr. Nifong, did you give
11 him the documentation that the department had assembled
12 to that point when you brought him up to speed?
13 A. I think different documents were
14 provided at different times. The only thing I can tell
15 you is that all of the documents were provided for sure
16 by the time of the indictment.
17 Q. All right. Do you know if Investigator
18 Himan or anybody else within the Department kept track
19 of what documents were provided to Mr. Nifong and the
20 District Attorney’s office ---
21 A. Investigator -- my apologies.
22 Q. --- as to when they were provided to the
23 District Attorney’s office?
24 A. Investigator Himan was the one who
25 turned over documents.
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1 A. Are you talking about could he just
2 reach and pick it up at any given time?
3 Q. No. I mean, could he ask for and
4 receive any of the documentation that had been
5 collected?
6 A. Absolutely, he could ask for anything,
7 and it would be provided if needed.
8 Q. And during these periodic meetings that
9 you had with Mr. Nifong, you said Investigator Himan
10 would bring this at that point what was a box of
11 documentation to the meetings typically and would
12 provide that or show that to Mr. Nifong, the
13 documentation?
14 A. When needed, yes.
15 Q. In Exhibit 11, the report from Duke, do
16 you recall in there that Ms. Mangum is reported to have
17 said that she just had a single drink at the party on
18 March 13th?
19 A. I do.
20 Q. And that she claimed at that point that
21 she had been assaulted by three of the people at the
22 party?
23 A. Correct. And that is what I was talking
24 about as far as her story not changing from the time
25 she was with the SANE nurse up until December. I think
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1 there were minor things, but nothing dramatic.
2 Q. If you will look at -- I will hand you
3 what is marked as Exhibit 6, which is a partial copy
4 because that is what I had access to of the documents,
5 and see if you can recognize that?
6 (Plaintiff’s Gottlieb Deposition
7 Exhibit Number 6 Marked.)
8 MR. WITT: Do we want to the same
9 thing with this document as we did with the subpoena?
10 Same stipulation?
11 MR. BROCKER: Just for the record,
12 we are going to attach it to the deposition but put it
13 under seal until it’s unsealed, if necessary, by the
14 Disciplinary Hearing Commission.
15 A. I am assuming that this is a UNC report,
16 but this is not a report that I have had access to.
17 Let me rephrase that. That is not a report that I have
18 had the time to review.
19 Q. Do you know whether or not there was a
20 medical report for Ms. Mangum from UNC that became a
21 part of the Department file?
22 A. Yes.
23 Q. And do you know if that report, as
24 indicated on here, was from a visit on March 15th of
25 2006?
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1 A. Yes.
2 Q. And is that one of the documents that
3 was provided to Mr. Nifong during the course of the
4 investigation?
5 A. Yes.
6 Q. Did you, either through this report or
7 through other sources, become aware that Ms. Mangum had
8 had psychological problems or issues prior to this
9 event?
10 A. We had discovered at some point in the
11 investigation that she had psychological issues, yes.
12 Q. Do you see on Exhibit 6 where that’s on
13 the bottom of that?
14 A. Yes.
15 Q. Do you know when this was obtained by
16 the Department, this report from UNC?
17 A. I’m not sure, but I believe it was
18 further down the road.
19 Q. Was her history or alleged history of
20 psychological problems discussed with Mr. Nifong during
21 these briefings?
22 A. The information was provided to Mr.
23 Nifong as far as reports; and as we had found out
24 information on her, that was brought to his attention.
25 Q. From your notes, it doesn’t appear that
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1 you were involved in the interview of Kim Pittman
2 originally on March 22nd.
3 A. I was in the room.
4 Q. You were in the room?
5 A. Uh-huh (yes).
6 Q. Okay. Do you recall -- one of the
7 statements that she made during that interview that
8 appears in Investigator Himan’s notes is that
9 Ms. Pittman claimed that Ms. Mangum’s claim that she
10 was sexually assaulting “was a crock” and that she had
11 been with her the whole time?
12 A. Yes.
13 Q. Was that information brought to Mr.
14 Nifong’s attention?
15 A. Yes. And I also believe that Ms.
16 Pittman had made other statements further on in the
17 interview that contradicted that.
18 Q. That contradicted that she had been with
19 her the whole time?
20 A. Yes.
21 Q. Did she say anything in that initial
22 interview which ---
23 A. I am sorry, back up. Are you talking
24 about -- I think you’re talking about a telephone
25 conversation.
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1 Q. There is -- I’m afraid I ---
2 A. Ms. Pittman -- what was the date on
3 that?
4 Q. You have notes -- just to help things
5 along here, you have notes of participating in an
6 in-person interview with Ms. Pittman ---
7 A. Right.
8 Q. --- on March 22nd.
9 A. Right.
10 Q. Which is not the one I was talking
11 about.
12 A. Okay.
13 Q. Let me see if I can’t find something and
14 I’ll see if I can show ---
15 A. I think I was confusing the two things.
16 Q. Okay. Do you recall whether you were
17 involved in the initial conversation -- prior to March
18 22nd, were you involved in the initial conversation
19 with Ms. Pittman about Ms. Mangum’s allegations?
20 A. (No response.)
21 Q. I’ll tell you, and you’re free to
22 correct me, I don’t believe it’s in your notes that you
23 provided.
24 A. And that’s why I’m trying to recall . I
25 believe you’re talking about a telephone conversation.
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1 Q. I don’t know, I don’t know the answer to
2 that. I just know ---
3 A. I believe, and this is strictly from
4 memory, Investigator Himan had a conversation with
5 Ms. Pittman on the phone where she didn’t want to be
6 bothered by the police. And it was just very quick and
7 to the point and wanted to get off the phone.
8 Q. Okay. I guess, because you were not
9 involved in that particular interview directly, my
10 question for you is whether or not Mr. Nifong was made
11 aware that at some point Ms. Pittman had expressed the
12 opinion or view that Ms. Mangum’s allegations that she
13 was sexually assaulted “was a crock” or words to that
14 effect?
15 A. Yes.
16 Q. Okay. And was that done during the
17 initial briefings with Mr. Nifong?
18 A. I don’t know. I know that when we spoke
19 about Ms. Pittman we explained to him the entire issue
20 within the proper context.
21 Q. Now, going to the March 22nd interview
22 that you did participate in or were present ---
23 A. I participated and was present.
24 Q. --- you don’t have specific notes of
25 that conversation. Do you recall, either from memory
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1 or from reviewing from Investigator Himan’s notes, Ms.
2 Pittman making a statement on March 22nd that Ms.
3 Mangum had told her while they were in the car outside
4 of 610 North Buchanan that Ms. Mangum wanted to go back
5 into the house because there was more money to be made?
6 A. I just want to clarify this. Are you
7 saying that Ms. Pittman is saying this or are you
8 saying that -- see, it came from two different stories.
9 One came from the victim saying it happened the other
10 way. And then -- so it was vice versa. But yes.
11 Q. What I’m asking you is you participated
12 on March 22nd in that interview. Do you recall
13 Ms. Pittman saying that Ms. Mangum told her while she
14 was in the car outside 610 North Buchanan
15 A. I believe that was accurate.
16 Q. Let me just finish. --- that Ms. Mangum
17 wanted to back into the house because there was more
18 money to make made. Do you recall Ms. Pittman making
19 that statement?
20 A. I believe so.
21 Q. Okay. And was Mr. Nifong made aware of
22 that?
23 A. Yes.
24 Q. Any other information that you recall
25 being relayed on or telling Mr. Nifong that could be
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1 fairly characterized as being an inconsistency or there
2 had being a discrepancy between what Ms. Mangum was
3 claiming happened and other evidence that had been
4 developed, other than anything that we have talked
5 about? Do you understand my question?
6 A. Please repeat it. I apologize.
7 Q. Besides, excluding anything that we’ve
8 talked about up to now, you don’t need to repeat
9 anything that we’ve talked about, do you recall
10 anything else that was conveyed on to Mr. Nifong that
11 was evidence that was developed during the course of
12 the investigation or information which potentially was
13 inconsistent with the allegations that Ms. Mangum was
14 making that she had been raped, sexually assaulted, at
15 that party?
16 MR. WITT: Object to the form.
17 A. I know as the investigation was
18 conducted and as Investigator Himan had learned
19 information, Investigator Himan kept Mr. Nifong and
20 myself updated to what went on. As to exactly what it
21 is you’re looking for, I have no idea about specifics.
22 Q. Okay. Fair enough.
23 At some point during the investigation,
24 did you and Investigator Himan meet with Mr. Nifong
25 about an additional photographic lineup being conducted
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1 with Ms. Mangum?
2 A. An additional photographic lineup?
3 Q. And when I say “additional,” we’ve
4 already talked about a photo array that was done on
5 March 16th and another one that was done or shown to
6 her on March 21st. In addition to those?
7 A. We had met with Mr. Nifong about
8 photographic lineups, talking to him about how the
9 initial ones, as I explained to you before, were very
10 military like, it was very difficult to tell the
11 difference between people.
12 And we had discussed how we had the new
13 pictures from the NTO, did he want to do another set of
14 photo arrays with potential suspects.
15 And he did not want to do that, he
16 wanted to do a photo presentation.
17 Q. Were you proposing that you do another
18 set of photographic arrays with the new pictures?
19 A. I was asking if that is what he wanted
20 done.
21 Q. Did he say why he didn’t want to do
22 another set of photographic arrays with the new
23 pictures?
24 A. I didn’t ask him that, I listened to him
25 about why he wanted to do the other thing, the photo
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1 presentation.
2 Q. What did he say about the photo
3 presentation?
4 A. There were a couple of things.
5 Information was received by an attorney that was
6 representing a client who was on the lacrosse team to
7 Mr. Nifong that there was a possibility that the
8 reporting witness or victim had been drugged with
9 ecstasy.
10 And in looking at the information that
11 was provided to the police department and the
12 information across the board as to the way people
13 described the victim at the time that the interactions
14 were done on the night that it was reported, I believe
15 there were two people, Sergeant Shelton and
16 Investigator Jones, who had said they had smelled
17 alcohol on her person and that she was acting
18 intoxicated. But everyone else was saying they didn’t.
19 So they were trying to figure out if she
20 wasn’t impaired -- including the SANE nurse, they never
21 smelled the alcohol
22 So we are trying to figure out why she
23 was acting the way she was acting.
24 And, in addition, if she was drugged, we
25 weren’t going to rule out just ecstasy, we wanted to be
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1 able to say, if it wasn’t ecstasy, could it have been
2 these other things, whether it was GHB, rohypnol,
3 whatever.
4 Now, when you take certain date-rape
5 drugs, they cause amnesia. Ecstasy doesn’t.
6 By putting a photo presentation in front
7 of her and just asking, “Do you remember seeing these
8 people; and if you do, you know, tell me what you
9 remember seeing them doing.” We weren’t looking for a
10 suspect per se, we were just looking to see if this
11 person remembered somebody at the party and to see how
12 much detail she could remember from the party.
13 And, therefore, we put this together. I
14 had told Investigator Himan an Investigator Williams
15 how to do a PowerPoint presentation after discussing it
16 with other people at the Police Department, and it was
17 placed together.
18 And basically she was asked to tell who
19 she remembered, who she didn’t remember, who she
20 recalled seeing, who she didn’t recall seeing and just
21 to be honest.
22 And we told her the importance of
23 telling us if she didn’t remember, and we told her the
24 importance of telling us if she did. And she did just
25 that.
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1 Q. Okay. Let me take a step back and make
2 sure that I’m clear about what relates to what.
3 You started off -- I think what I’m
4 interested in knowing right now is we talked about
5 whose idea was it to do the photographic
6 presentation ---
7 A. Presentation.
8 Q. --- or however you want to characterize
9 it.
10 And you said that Mr. Nifong told you
11 why he wanted to handle it this way?
12 A. Correct.
13 Q. And I wanted to make sure. There was a
14 lot that came after that. I need to make sure whether
15 that was stuff developed in the investigation or --
16 what I really want to know is what did Mr. Nifong tell
17 you about why he wanted to handle the photographic
18 presentation in this fashion?
19 A. To see what her memory was of the
20 events, to see if it was consistent with ecstasy or if
21 it wasn’t consistent with ecstasy. And just -- because
22 we were pretty much at a stalemate. And if she could
23 identify -- let’s say we have five people in this room
24 that were at the party, but she only remembers the two
25 of you, then the two of you are going to be the two
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1 that we talk to and say, “Do you remember seeing
2 anything?” Because we didn’t know who we could go to
3 at that point, and we were trying to narrow down the
4 scope of the investigation and pinpoint not as a
5 suspect but as a witness.
6 Q. When you say you had reached a stalemate
7 in the investigation, explain what you mean by that. I
8 mean, I know what a stalemate is, but explain what it
9 meant with respect to this investigation.
10 A. What it meant to us? You had asked me
11 earlier about cooperation with the three young men.
12 And the three young men were cooperative on day one.
13 And I consider day one the day of the search warrant.
14 That’s where it ended. Period.
15 You asked me if they would take a
16 polygraph. We couldn’t talk to them to get them to
17 take a polygraph. It got to a point where these people
18 isolated themselves, and it was difficult to go and do
19 anything.
20 Anything that was attempted, it was
21 definitely a game of chess to where you would make one
22 move and then it was blocked. And it was just
23 something that we were trying to develop leads and
24 understand the entire situation.
25 Q. Is it fair to say from your comments
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1 before that you, up ‘til this meeting with Mr. Nifong
2 about the photographic presentation, that you had not
3 been able to develop corroborating evidence for Ms.
4 Mangum’s allegations?
5 A. I’m sorry, say that again.
6 Q. You had mentioned your desire to develop
7 corroborating information for Ms. Mangum’s allegations.
8 A. I believe there was corroborating
9 evidence. Meaning, the SANE nurse said the victim’s
10 accounts of the attack were consistent with a sexual
11 assault. Her findings were consistent with a sexual
12 assault.
13 And, you know, so you have a statement
14 being provided by a victim. You have a SANE nurse who
15 is backing up that person’s statement.
16 Actions that were done during the SANE
17 exam, meaning she became hysterical when a man walked
18 into the room, were pretty close to what an average
19 victim would do.
20 Talking to her, she exhibited signs of
21 being attacked.
22 But as far as being able to talk to the
23 players and get their side of it, no, we weren’t able
24 to do that at that point any more.
25 Q. At this point in the conversation with
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1 Mr. Nifong, I’m going to switch back to that, maybe
2 just to give it a time frame, if you’ll look at Page 11
3 on Exhibit 204 toward the top, there’s an entry for
4 3/31/06 where you and Investigator Himan met with
5 Nifong.
6 Is that the meeting you were just
7 referencing?
8 Q. Was I referencing this meeting? No.
9 You were asking me about my personal thoughts, at least
10 I thought you were asking me about my personal thoughts
11 on that.
12 Q. Well, let me go back. We were
13 discussing a meeting that you were having with Mr.
14 Nifong about doing additional photographic arrays or a
15 photographic presentation or a lineup, as you refer to
16 it in the notes. Is that the meeting that you were
17 referring to on March 31, 2006?
18 A. I am looking at 3/28/06 at 1405, and
19 maybe I’m looking at the wrong one.
20 MR. HILL: It’s on Page 11, typed
21 Page 11, second paragraph.
22 THE WITNESS: Oh, I see, typed
23 Page 11, second paragraph, 1223 hours?
24 Q. Yes.
25 A. Okay.
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1 Q. Is that the meeting that you were
2 referencing that we were just discussing? I’m just
3 trying to get a date on this meeting.
4 A. Yes.
5 Q. Okay. And at that point Mr. Nifong was
6 aware that there had been two prior photographic arrays
7 done with Ms. Mangum?
8 A. He was aware that A, B, C, D, E, F were
9 done.
10 Q. And was he also aware that she had been
11 unable to identify any attackers during those prior
12 photographic arrays?
13 A. Yes. And he was also aware that the
14 photographs, like we discussed, were, and the only way
15 I can describe it, is very military like. It would be
16 difficult for me to pick somebody out of those
17 photographs.
18 Q. Okay. The information about Ms. Mangum
19 possibly being under the influence of ecstasy, did that
20 information come to you from Mr. Nifong?
21 A. Yes.
22 Q. And he told you that he had gotten that
23 information possibly from one of the defense attorneys?
24 A. Yes.
25 Q. So was there concern? Was Mr. Nifong
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1 concerned about Ms. Mangum’s ability to recall,
2 potentially be able to recall, what happened on the
3 night of March 13th because she was under the influence
4 of ecstasy?
5 A. I can’t answer that question.
6 Q. Did he express any concerns about her
7 ability to recall the events because she might have
8 been under the influence of ecstasy?
9 A. No, not phrased that way.
10 Q. okay. What did he express about the
11 possibility that she could have been under the
12 influence of ecstasy, Mr. Nifong?
13 A. That he wanted to show the consistency,
14 if she was under the influence of a date-rape drug,
15 that it would have been ecstasy because other date-rape
16 drugs cause amnesia.
17 Q. How would the photographic presentation
18 that was put together have shed any light on what drugs
19 she may or may not have been under? I’m not following
20 that point.
21 A. Okay. Let’s say you took a date-rape
22 drug that causes amnesia, you wouldn’t be able to
23 identify anybody as, “oh, I remember him, he was
24 standing outside smoking; I remember him, he was
25 watching television; I remember him, he urinating in
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1 the backyard.” They wouldn’t remember anything.
2 Whereas if you are drugged with ecstasy,
3 you would have recall, and that would explain why she
4 was having the physical signs and symptoms of an
5 intoxicant yet still having her memory.
6 Q. Did Mr. Nifong explain why doing this
7 photographic presentation as opposed to a photographic
8 array that had been done before would be more helpful
9 to bring that point out?
10 A. All I can say is he didn’t ask for a
11 photographic array. He was dealing with, my
12 understanding, he was asking for this to see what she
13 recalled and what she didn’t recall.
14 Q. Okay. Just to make sure I’m clear, it
15 was Mr. Nifong’s decision to conduct this photographic
16 presentation as opposed to having her provided
17 photographic arrays as had been done before?
18 A. Yes. But then again -- yes.
19 Q. Did you discuss during that meeting
20 whether or not there needed to be photographs from
21 anybody besides lacrosse team members in that
22 presentation?
23 A. No.
24 Q. Did you discuss with Mr. Nifong or did
25 he give you any indication about what Ms. Mangum should
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1 or should not be told about the identity of the people
2 in the photographs when she was shown the presentation?
3 A. Just that these were people who we would
4 have reason to believe attended the party and tell us
5 if you recognize them and tell us if you don’t
6 recognize them and be truthful. That’s all . And as to
7 what they were or were not doing.
8 Q. Any discussions in that meeting with Mr.
9 Nifong as to who would actually show the photographic
10 presentation?
11 A. No.
12 Q. Did you discuss during that meeting any
13 additional evidence or information relating to this
14 case, other than how to conduct this photographic
15 presentation?
16 A. I don’t recall that.
17 Q. Do you know whether there was any
18 discussion about evidence or information that had been
19 received from the SBI lab about the testing of the
20 items that had been seized from the house and from Ms.
21 Mangum during that meeting?
22 A. During that meeting, I don’t recall
23 Q. I am going to mark this as Deposition
24 Exhibit Number 7, a document, and ask you to take a
25 look at it and see if you recognize it? Do you
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1 recognize that?
2 (Plaintiff’s Gottlieb Deposition
3 Exhibit Number 7 Marked.)
4 A. Yes.
S Q. Is Exhibit 7 the General Order 4077
6 adopted by the Durham Police Department about
7 eyewitness identifications?
8 A. Yes, it is.
9 Q. Were you familiar with that General
10 Order at the time of the March 31st meeting?
11 A. Yes, I was.
12 Q. To your knowledge, was Mr. Nifong aware
13 of General Order 4077 at the time of that meeting?
14 A. I would assume he is, but I don’t know
15 that for a fact.
16 Q. Did you have any discussions about the
17 requirements in General Order 4077 during that March
18 31st meeting with Mr. Nifong?
19 A. No.
20 Q. Did you have any discussions about the
21 applicability of the requirements in that General Order
22 to the photographic presentation as you have described
23 it that was proposed -- that Mr. Nifong proposed with
24 Ms. Mangum?
25 A. No.
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1 Q. Did you raise any concerns with Mr.
2 Nifong about whether what he had proposed would comply
3 with this General Order 4077?
4 A. No, because what he was asking was not
5 applicable to 4077.
6 Q. Why is that?
7 A. First of all, it was not a photo array.
8 In order to be a photo array, the very first thing you
9 have to do is have a suspect, and we had no suspect
10 whatsoever.
11 Q. Are you saying that you did not consider
12 the lacrosse players to be suspects or potential
13 suspects in the crime?
14 A. I’m not saying that they were not
15 considered to be potential suspects. What I am saying
16 is we did not have an individual identified as a
17 suspect.
18 And in cases like this, there are other
19 things that we use also, such as yearbook theory. If
20 we know there’s a suspect, say, who robs a bank and he
21 is wearing a Riverside High School jacket, we know the
22 suspect is possibly from Riverside High School. We put
23 a Riverside High School yearbook in front of the victim
24 and say, “Go through it and tell me what you see.”
25 In this case, like I said, there was no
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1 suspect that was presented. And, on top of that, Mr.
2 Nifong didn’t want a lineup, he wanted what I have
3 described earlier.
4 Q. Okay. Now, I don’t mean to quibble with
5 you about words because, as I told you, we are not here
6 to investigate you.
7 A. No problem.
8 Q. But in the notes, Exhibit 204 Page 11,
9 your description of the meeting with Mr. Nifong you do
10 actually use the phrase in reference to doing a
11 photographic lineup of “new mug shots.”
12 A. Yes.
13 Q. Okay.
14 A. And that was ruled out. We didn’t have
15 a suspect.
16 Q. Is it your understanding that this
17 General Order 4077 does not apply to any photographic
18 identification procedures that the Department conducts?
19 A. Does it apply to photographic lineups or
20 arrays? Yes, it does.
21 Q. But you’re saying that your
22 understanding is that it does not apply to all
23 photographic potential identification procedures
24 conducted by the Department?
25 A. No, because it doesn’t address, like I
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1 said, the yearbook identifications, things of that
2 nature.
3 Q. Anything else that you can recall being
4 discussed at that March 31st meeting with Mr. Nifong
5 about this photographic presentation?
6 A. No, sir.
7 Q. The procedure itself actually took place
8 on April 4th?
9 A. Yes.
10 Q. I’m not going to go through -- I have
11 read the notes, and I assume that they accurately
12 reflect your recollection of what happened?
13 A. I went through the tape over and over
14 and over. There may be one word somewhere in there
15 that’s not exactly right, but I tried to write it as
16 accurately as possible from listening to the tape.
17 Q. okay. Was Ms. Mangum aware that her
18 response and reaction to the pictures she was being
19 shown were photographed?
20 A. Yes. The camera was behind me.
21 Q. And why did you conduct the procedure as
22 opposed to somebody else?
23 A. I was not the investigator for the case.
24 As far as the photographs of the team, I don’t know the
25 players. I knew the three captains, but all I knew was
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1 that they were the three captains. And I was familiar
2 with how to work a computer. And the other people that
3 were there were not quite up to speed for that.
4 Q. Okay. And consistent with the
S conversation that you had with Mr. Nifong on March
6 31st, you informed Ms. Mangum that you had reason to
7 believe that the people in the photographs she was
8 going to be shown had attended the party on March the
9 13th?
10 A. Yes.
11 Q. Did you use the verbal instruction and
12 certification sheets that we have seen for the
13 photographic arrays that had been used for her?
14 A. No.
15 Q. And during the course of -- without
16 going through each one, during the course of that
17 procedure, she identified four (4) people in that
18 presentation who were potentially attackers?
19 A. No, sir.
20 Q. Okay. How many did she identify?
21 A. She identified three (3) people, and
22 she said one person looks like him, if not him.
23 Q. Okay. Are you referring to Matthew
24 Wilson?
25 A. I guess that is his name. I had to
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1 actually go back and look up who the people were
2 according to item number.
3 Q. If you will go to Page 14 of your typed
4 notes ---
5 A. Yeah, I’ve got it. “Do you recognize
6 that person? He looked like Bret, but I’m not sure.
7 Who was Bret? One of the guys who assaulted me.”
8 Yeah, she’s saying that he looked like
9 him, but she wasn’t sure.
10 Q. Okay. And then right below that, David
11 Evans, her response is, “He looks like one of the guys
12 who assaulted me sort.” I don’t know if that’s
13 supposed to mean “sort of.”
14 A. No. It was actually “sort.”
15 Q. All right. But you’re saying that she
16 identified Mr. Evans as an attacker?
17 A. Yes.
18 Q. Explain to me how her identification of
19 Mr. Evans is different than her identification of
20 Mr. Wilson.
21 A. On the one she said she wasn’t sure, and
22 then on the other one she said she is 90-percent sure.
23 Q. After the identification procedure --
24 after the photographic presentation as you have
25 described it, did you meet with Mr. Nifong about the
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1 results?
2 A. Yes.
3 Q. What did you tell him?
4 A. Told him what had happened.
5 Q. And what was that?
6 A. That she had identified the people and
7 gone through it with him and that she had memory of
8 people that were there.
9 Q. Okay. Did you tell him how many people
10 she had identified as attackers or potential attackers?
11 A. Yes.
12 Q. How many people did you tell him?
13 A. Three (3). And we also, I know we had
14 discussed the part about looking like someone but not
15 him or not sure.
16 Q. All right. Was there any discussion
17 about the people that she had identified in that
18 procedure compared with what she had done in the
19 photographic arrays?
20 A. I’m sorry, say that again.
21 Q. Let me give you more specific. Was
22 there a discussion at that meeting with Mr. Nifong
23 about the fact that she had identified Reade Seligmann
24 as a potential attacker when she had previously looked
25 at his photograph, another photograph, and not
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1 identified him?
2 A. Not in that, no.
3 Q. You didn’t discuss that in the meeting?
4 A. No.
5 Q. The same question with Mr. Evans. Was
6 there any discussion with Mr. Nifong about the fact
7 that she not been able to identify him in the prior
8 photographic arrays?
9 A. No. Because I was told that in the
10 lineups prior to that no suspect was identified. I
11 didn’t ask whose pictures were in them.
12 Q. The identifications that she made at
13 this April 4th photographic presentation, as you called
14 it, were they one of the bases on which Mr. Seligmann
15 and Mr. Finnerty were indicted?
16 A. Yes.
17 Q. In the other types of procedures that
18 you say are not subject to this General order, such as
19 yearbook that you mentioned ---
20 A. Yes, sir.
21 Q. --- have you had cases where
22 identification from that procedure alone has been the
23 basis for an indictment against somebody?
24 MR. HILL: Objection to form.
25 Misstates prior testimony.
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1 A. (No response.)
2 Q. Do you understand my question?
3 A. Well, this wasn’t the only basis. You
4 asked me if it was one of the bases.
S Q. I did.
6 A. Okay. Are you saying in other cases
7 have indicted someone strictly because of a
8 photographic identification without other kinds of
9 corroborating information? I don’t know.
10 I know that we have indicted people by
11 using the yearbook-style identification.
12 Q. After this photographic presentation,
13 was there discussion about whether or not to do a
14 photographic array with Ms. Mangum?
15 A. No.
16 Q. In other cases, not this case, in other
17 cases where you have used the yearbook procedure or
18 some other procedure that you say isn’t subject to the
19 General Order, in your experience has any follow-up
20 photographic array or lineup been used to identify?
21 A. At times, yes.
22 Q. But not in all cases?
23 A. I can’t swear to it, but I don’t believe
24 in all cases.
25 Q. Have you been involved in any cases

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1 where one of those other procedures that you say isn’t
2 subject to the Order was used and a photographic array
3 was not done subsequently?
4 A. Not that I can recall.
5 Q. Okay. I want to ask you about some
6 meetings that you attended with Dr. Brian Meehan.

* * *

kilgo said...

* * *

7 A. Okay.
8 Q. Do you recall meeting with him?
9 A. Yes.
10 Q. If you will look at Page 27, typewritten
11 27, of your notes.
12 A. Yes, sir. 1256 hours.
13 Q. Okay. You attended a meeting on April
14 10, 2006, with Brian Meehan?
15 A. Yes.
16 Q. Who else was the present during that
17 meeting?
18 A. Investigator Himan and Mr. Nifong.
19 Q. Are you confident that Mr. Nifong was at
20 that April 10th, 2006, meeting?
21 A. I’m positive.
22 Q. About how long did the meeting last,
23 roughly?
24 A. Thirty (30), 45 minutes, maybe an hour.
25 Q. Do you know who initiated the meeting,
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1 who called it, who wanted the meeting to happen?
2 A. Dr. Meehan had called the Police
3 Department to give results and he was giving results to
4 Investigator Himan and I. And I am not a scientific
5 person as far as understanding things. And he was
6 going through a lot of information that was over my
7 head, I wasn’t quite understanding it.
8 I called up Mr. Nifong, let him know
9 that he had some results back, I wasn’t clear on
10 everything, was he interested in going there so I
11 didn’t have to try to relay the information to him and
12 mix it up.
13 Q. Okay.
14 A. I just wanted to make sure the
15 information was delivered accurately.
16 Q. When you got there on the 10th, tell me
17 what you recall was discussed with Dr. Meehan.
18 A. Dr. Meehan basically said that, if I’m
19 remembering correctly, there wasn’t DNA located. I
20 asked, “There was nothing under the fingernails?”
21 Because, remember, I told you she claimed -- he said,
22 “We don’t have fingernails.”
23 And I had asked if they had hair so
24 that we could -- you know, if there was any hair left
25 over and, you know, head hair and stuff like that and
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1 how much would be needed for drug-testing. He didn’t
2 know. But he said -- he had said, didn’t have that,
3 what they got was the rape kit.
4 And when I had Investigator Himan call
5 up our forensic person to go to the SBI and pick up the
6 stuff, we meant for her to pick up everything and
7 transport everything over. And the only thing that was
8 transported was the rape kit. So a lot of potential
9 sources for evidence were still at the SBI.
10 So basically what we did was we just
11 made arrangements to have the rest of the evidence
12 transported out there so it could all be tested.
13 Q. You said that initially -- who had
14 intended that everything be transferred from the SBI?
15 A. Mr. Nifong wanted that done.
16 Q. And did I understand you to say that Dr.
17 Meehan explained that they had not found any DNA on any
18 of the rape kit items that they had tested?
19 A. That’s my understanding.
20 Q. Do you recall him discussing results
21 indicating that there was other male DNA on the rape
22 kit items that didn’t match the lacrosse players?
23 A. I don’t know if it was in that meeting
24 or the second meeting, but I remember him talking about
25 there was very little DNA that they had located in the
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1 vaginal area. And he was talking something about how
2 DNA, I guess, will last or they will be more likely to
3 find it if it’s 96 hours or less. And he felt that,
4 you know, that was right on the edge of where you might
5 not actually find any more.
6 So he indicated that it seemed to be
7 pretty old or most likely older DNA. And we wanted to
8 get a sample from the boyfriend to rule him out, and I
9 believe the boyfriend, it was actually the boyfriend’s
10 DNA discovered later.
11 Q. Do you remember discussion about DNA
12 found from the swab, from the vaginal swab, from Ms.
13 Mangum?
14 A. That’s what I was just saying, yes.
15 Q. Okay. Do you remember discussions about
16 other DNA that was found besides -- again, we’re
17 talking about the initial meeting here ---
18 A. Right.
19 Q. --- that was found besides what was in
20 the vaginal swab?
21 A. I don’t recall that. The vaginal thing
22 is what really stuck in my mind.
23 Q. Did Dr. Meehan sit down and actually go
24 through the printouts or the results themselves during
25 this initial meeting?
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1 A. Yeah, and I was completely lost. He was
2 talking well above my head.
3 Q. But he did sit down with you all and go
4 through, specifically, the documentation that he had up
5 to that point and tried to explain the results of it?
6 A. I believe so.
7 Q. Any other discussion that you recall at
8 that initial April 10th meeting with Dr. Meehan?
9 A. No. I think the main thing was just to
10 insure that all the evidence was transferred over there
11 so that the complete thing could be done.
12 Q. Okay.
13 A. I mean, the way I remember that meeting
14 was, you know, of the three meetings, Ben and I went to
15 pick Mr. Nifong up at that one.
16 The second meeting I went to pick up Mr.
17 Nifong at the courthouse. Ben was running behind so we
18 had to drive back to the station to pick Ben up, and
19 then we went.
20 And then the third meeting, again Ben
21 and I picked Mr. Nifong up and we went.
22 Q. Okay. Do you recall at that initial
23 meeting Dr. Meehan talking about that the DNA they had
24 found had been referenced to the lacrosse players’
25 specimens and whether or not any of the DNA they had
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1 found matched any of the lacrosse players?
2 A. I’m sure it didn’t or he would have said
3 it did. Like I say, he found that one in the vagina
4 that I knew about that we were going to try to rule out
5 the boyfriend.
6 He may have said that, I just don’t
7 know.
8 Q. May have said what?
9 A. What you were just asking me, I don’t
10 know.
11 Q. And then you had another meeting with
12 Dr. Meehan later. I think your notes actually say it
13 was on the 20th of April, if you look at Page 31 about
14 a third or halfway down?
15 A. Yes.
16 Q. Do you have any idea of whether -- you
17 are probably aware at this point that there are other
18 documents that indicate that that meeting may have been
19 on 21st.
20 Do you have any independent recollection
21 as to which one of those dates it was, other than
22 what’s in here in your notes?
23 A. I don’t know. I know that I sent --
24 that might be a misprint. But I do know that I sent
25 Mr. Nifong an e-mail just confirming that we would pick
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1 him up at the courthouse. I think it was, like, 12:15
2 on the day of what it was.
3 Q. So in the investigative file there
4 should be an e-mail from you to Mr. Nifong that would
5 confirm the date?
6 A. Every e-mail associated with this case
7 was subpoenaed by the defense team, and they have that.
8 And I believe I have the copies. So that would be in,
9 definitely, the Attorney General’s stuff, because
10 didn’t the defense team turn everything over to the AG?
11 Q. I couldn’t tell you.
12 A. I couldn’t either.
13 Yeah. That might be a typographical
14 error.
15 Q. All right. At that meeting, whether it
16 was on the 20th or the 21st, Investigator Himan and you
17 and Mr. Nifong and Dr. Meehan were all present?
18 A. Yes.
19 Q. Do you recall if anybody else was
20 present?
21 A. One of his co-workers, I believe,
22 stopped in for just a second.
23 Q. Dr. Meehan’s?
24 A. Yes.
25 Q. Okay.
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1 A. But didn’t sit through the meeting. I
2 don’t remember. Just kind of in and out.
3 Q. And approximately how long did that
4 meeting last?
5 A. About the same amount of time.
6 Q. What was discussed during that meeting?
7 A. They had a potential match for DNA
8 underneath a fingernail, it was a mixture, and more
9 testing needed to be done.
10 Q. On what?
11 A. On the DNA.
12 Q. On the fingernail DNA or on all the DNA?
13 A. No. The fingernail DNA.
14 Q. Okay.
15 A. But normally, as far as what was
16 discussed, Dr. Meehan would talk about stuff, going on
17 and on and on about what has been done, again, in
18 scientific terms that when you sit there long enough
19 and you’re just lost, you’re just -- okay.
20 Q. Did he do the same thing as he did in
21 the prior meetings, go through the documentation and
22 the printouts?
23 A. I believe so.
24 Q. And at that meeting did he discuss the
25 absence of any DNA matching any of the lacrosse players
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1 on any of the rape kit items?
2 A. I believe so because -- well , let me
3 back that up. The only thing I know he said was a
4 potential match was the fingernail
5 Q. Did he discuss results other than the
6 fingernail during the meeting?
7 A. He talked about everything he did.
8 Q. All the things that had been done up to
9 that point?
10 A. Yes.
11 Q. And do you recall whether he discussed
12 other DNA that was found on the rape kit items at that
13 meeting?
14 A. I can’t remember if we talked about the
15 boyfriend and if the boyfriend had been -- it was found
16 to be the boyfriend at that point or not, which would
17 have been in the rape kit. Because you have to
18 remember that the fingernails and the other stuff were
19 aside from the rape kit.
20 Q. I understand. So you don’t recall
21 whether that was discussed?
22 A. I don’t recall
23 Q. Was there any discussion about the
24 presence or absence ---
25 A. Is there any chance I could take a two-
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1 minute break?
2 MR. BROCKER: Sure.
3 (Recess - 1:54 PM to 2:01 PM.}
4 Q. (BY MR. BROCKER) Let me take a step
5 back, Sergeant Gottlieb, I want to finish off the
6 discussion of the meeting with Dr. Meehan on the 20th
7 or the 21st of April.
8 Was there any discussion during that
9 meeting about what Dr. Meehan would put in the written
10 report that would be provided?
11 A. Just the facts, no, just the facts of
12 what he did.
13 Q. You don’t recall any other -- do you
14 recall a discussion about what would be in the report
15 at that meeting?
16 A. No.
17 Q. Do you recall any discussion about
18 concerns about any privacy issues about information
19 that would show up in the report?
20 A. No.
21 Q. Do you recall in any of those
22 discussions occurring at the initial meeting on April
23 10th about what would be in the report or any privacy
24 concerns?
25 A. Say that again.
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1 Q. Do you recall in the initial meeting,
2 going back to the first meeting on April 10th ---
3 A. Okay.
4 Q. --- do you recall any discussions about
5 what would be in the report?
6 A. No.
7 Q. And do you recall any discussions about
8 privacy issues and concerns relating to what would
9 appear in the report?
10 A. No.
11 Q. Do you have any knowledge about
12 discussions on those issues that occurred outside of
13 the meetings on April 10th and April 20th or 21st?
14 A. No.
15 Q. After the April 20th or 21st meeting,
16 you traveled back in the car with Investigator Himan
17 and Mr. Nifong?
18 A. Yes.
19 Q. Was there discussion about what had been
20 discussed or results that had been provided at that
21 meeting?
22 A. I’m sure there was, that’s kind of
23 natural . I have no idea -- it definitely was not the
24 big thing. I was just driving. I just ---
25 Q. You don’t recall any specific
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1 discussions about it?
2 A. No.
3 Q. Same question with respect to the car
4 ride, all three of you were riding in the car together.
5 A. Right.
6 Q. Coming back from Dr. Meehan’s office on
7 April 10th?
8 A. I think the big discussion on that one
9 was I was telling Ben or asking Ben, you know, if all
10 the evidence was supposed to be sent over and he
11 thought that. And I told him he just needed to get up
12 with ID and make sure it all got delivered.
13 I didn’t think it was any big deal when
14 you think about, you know, half the evidence hasn’t
15 been looked at, half the evidence hasn’t been looked
16 at.
17 Q. Was it your understanding at that April
18 10th meeting that all the rape kit items had been
19 produced and analyzed at that point?
20 A. Yeah. Yes, sir.
21 Q. And was there any discussion among the
22 three of you on the way back about the fact that, after
23 analyzing that, they hadn’t been able to find any DNA
24 that matched any of the lacrosse players?
25 A. Not that I recall. My big thing was
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1 let’s focus on what hasn’t been looked at.
2 Q. In between the first meeting on April
3 10th and the second meeting on April 20th or 21st, Mr.
4 Finnerty and Mr. Seligmann were indicted, correct?
5 They were indicted on April 17th?
6 A. Okay.
7 Q. If you need to refresh your
8 recollection, you can look at your notes. I believe
9 you testified at the indictment, I mean, at the Grand
10 Jury proceedings. Is that right?
11 A. Yes.
12 Q. Do you see the notes in there on Page
13 29?
14 A. Page 29, 1145 hours, top paragraph.
15 Q. Okay. Did any discussions take place
16 between yourself, Mr. Nifong and, to your knowledge,
17 Investigator Himan between this meeting on April 10th
18 and when you went to the Grand Jury on April 17th?
19 A. Yes.
20 Q. Was there discussion about the results
21 you had received so far on either the DNA or the other
22 testing that had been done by the SBI or DNA
23 Securities?
24 A. I don’t know if it was specifically
25 about that.
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1 Q. What do you recall about it?
2 A. I recall prior to the indictments, and
3 again, this is Investigator Himan’s case and I wasn’t
4 even expecting to be subpoenaed for it. Neither here
5 nor there, I just told what I know.
6 But Investigator Himan came to me with
7 concerns about indicting Mr. Seligmann and told me what
8 his concerns were. And I brought those concerns to my
9 Captain and Lieutenant.
10 And then I got them in a room with me
11 where got them on the telephone to Mr. Nifong, and I
12 explained what the concerns were. And he said if we
13 believe the statements of Ms. Mangum as far as Mr.
14 Finnerty along with the information that we had for Mr.
15 Finnerty, then we should believe the information on
16 Mr. Seligmann.
17 Q. Let me take a step back. Do you
18 remember when between -- sometime between April 10th
19 and April 17th is when Investigator Himan came to you?
20 A. Correct.
21 Q. Do you recall when?
22 A. Does anyone have a 2006 calendar?
23 Q. I can get you one.
24 A. I believe the indictment was done on a
25 Monday. So let me go from there and I can explain.
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1 Q. All right. It’s just take me a second.
2 Are you looking at April 2006?
3 A. Correct. If you just look at -- I’m
4 sorry, the 17th was Grand Jury, correct?
5 Q. Can you understand that? Just for the
6 record, you are looking at?
7 A. For the record, I’m looking at a Palm
8 owned by you, and I’m looking at 2006, April.
9 And the indictments were done on Monday,
10 the 17th, and on Friday the 14th, which I just wanted
11 to make sure of the date, was when this came up.
12 Q. okay. So that is when Investigator
13 Himan came to you?
14 A. Yes.
15 Q. Tell me what were the concerns he
16 expressed to you.
17 A. Well, the concerns that were expressed
18 were basically this:
19 With Mr. Finnerty, we were able to show
20 that he was at the party and that she had identified
21 him. And we had the time cards, per se. I don’t know
22 what exactly you would call it, but each student has a
23 magnetic card that if they go in the parking lot or
24 dorm room or buy food, whatever, if they use that card
25 it leaves an electronics stamp. And we had a document
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1 showing that he arrived back at the dorm at the time as
2 the of the people who we knew were at the party.
3 So we were able to put together
4 information to at least corroborate, one, he was there;
5 two, he met the description; three, she was able to
6 show him; the SANE nurse’s report was consistent with a
7 sexual assault. So we had something to work with there
8 for an indictment.
9 With Mr. Seligmann, we never had
10 anything to tie him to the party directly. Meaning,
11 when we asked the players, you know I had asked the two
12 about the list, the two that I asked never placed him
13 at the party, and the third guy never placed him at the
14 party.
15 And, yes, he met the physical
16 description. But strictly looking at a picture and
17 saying, “That’s the man who raped me,” Ben was very
18 concerned.
19 We knew that he came in close to the
20 same time that the other players came in. So it wasn’t
21 out of the question that he was at the party. But,
22 again, we had nothing that we could say we knew for a
23 fact he was at the party. It wasn’t until after the
24 indictment and what we believe is a Durham attorney put
25 his photograph out that we could positively say he was
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1 at the party.
2 Q. Did Investigator Himan talk to you about
3 what he thought ought to happen with respect to
4 Mr. Seligmann?
5 A. I told Investigator Himan that I would
6 discuss it with the District Attorney and, like I said,
7 I brought my supervisors in and told him we were on a
8 conference call, told him the concerns. And, like I
9 said, he said if we believe on one, we should believe
10 on the other. And based on the things that we had,
11 felt that there was enough evidence to move toward.
12 Q. He felt that? Are you saying Mr. Nifong
13 was saying he felt ---
14 A. Yes.
15 Q. Is it a fair characterization of the
16 concerns that Investigator Himan expressed to you that
17 he did not feel like there was evidence to corroborate
18 Ms. Mangum’s identification of Mr. Seligmann as one of
19 the attackers?
20 A. Let me rephrase this. I am not saying
21 that there wasn’t evidence to corroborate, I’m just
22 saying there was very little evidence to tie him.
23 Meaning, we have a time stamp of him coming back to the
24 dorm. He came back about the same time as the others.
25 But from an investigator’s standpoint, I
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1 would like to have a person, you know, someone say he’s
2 there, other than the victim. And we didn’t have that.
3 I don’t know if -- let me rephrase that.
4 I don’t recall, because you know that photo
5 presentation I was talking to you about ---
6 Q. Uh-huh (yes).
7 A. --- we did the exact same thing with
8 Kim, not asking for a suspect, “Do you remember these
9 people?” Showed it to her. I don’t call if she said
10 he was there or not.
11 Q. When did you do that photographic
12 presentation for Ms. Pittman?
13 A. Investigator Himan did that.
14 Q. And would that be in his -- presumably,
15 that would be in his notes?
16 A. Absolutely, yes.
17 Q. Did Investigator Himan, when he came to
18 you on the 14th of April, was there any discussion
19 about the fact that Ms. Mangum had previously been
20 shown a different picture of Mr. Seligmann on one of
21 those prior photographic arrays and had not identified
22 him as an attacker?
23 A. Not that she did not identify him as an
24 attacker, but she identified him -- not identified him.
25 She recognized him. So twice. One time she recognized
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1 him, and the second time she said, “That’s him.”
2 So, I mean, she was right, she knew he
3 was at the party. And she had said both times, “Yes,
4 he was there.” One time she said, “This was a man who
5 assaulted me” at a 100 percent.
6 Q. That was not part of Investigator
7 Himan’s concerns, the fact that she had been unable to
8 identify him as an attacker on the first set of photo
9 arrays?
10 A. His concerns were, his chief concern --
11 and you’re asking me to get inside his head.
12 Q. All I’m asking is about what you know.
13 A. Okay.
14 Q. We can ask Investigator Himan.
15 A. I would feel more comfortable with him
16 answering that.
17 If one of my detectives tells me that
18 they have a concern about something, I will be the
19 first one to go to whoever I have to go to and say,
20 “This is a concern.”
21 And as far as I know, the concern was we
22 couldn’t tie him to the party, and that was the chief
23 concern and that point. We had no forensic DNA that we
24 knew of at that point. We had no way to 100 percent
25 tie him to the party.
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1 Q. Was that discussed in the meeting with
2 Investigator Himan that there are no forensic DNA to
3 tie him in as well?
4 A. At that point, yes.
S Q. That’s all you would know, obviously, at
6 that point?
7 A. Right.
8 Q. And which of your supervisors did you
9 relay on Investigator Himan’s concerns?
10 A. Both.
11 Q. Who?
12 A. Lieutenant Ripberger and captain Lamb.
13 Q. And then you personally participated in
14 the -- was it a phone call with Mr. Nifong?
15 A. Yes.
16 Q. Who else was present?
17 A. Lieutenant Ripberger and Captain Lamb.
18 Q. Investigator Himan was not involved in
19 that phone call with Mr. Nifong?
20 A. He did not speak. He might have been in
21 the room, I just don’t recall that. But I know that I
22 made sure that my command staff was in the room. I
23 don’t remember if Ben was there or not.
24 Q. And did you rely on the concerns that
25 Investigator Himan had?
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1 A. Yes.
2 Q. Did you make any specific request or did
3 you just relay on the concerns?
4 A. I told him about the concerns and told
5 him about our concerns about going for an indictment.
6 But the decision was his.
7 Q. Okay. And, from your previous
8 testimony, Mr. Nifong’s response was that if you
9 believed Ms. Mangum about Mr. Finnerty, that you should
10 also believe her about Mr. Seligmann?
11 A. Correct.
12 Q. Any other statements that he made about
13 that?
14 A. That was basically it.
15 Q. Did he indicate that he wanted to go
16 forward with the indictment?
17 A. Yes.
18 Q. Did he indicate why there was a need to
19 go forward with the indictment on Monday, the upcoming
20 Grand Jury?
21 A. I don’t recall if it was that meeting or
22 a different meeting, but I do know at some point, I
23 know the indictments were being done when they were
24 being done in order to locate the suspects.
25 Q. I don’t understand that.
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1 A. School was about to end.
2 Q. You don’t recall whether Mr. Nifong
3 had ---
4 A. I don’t recall if it was that meeting or
5 another meeting.
6 Q. But at some meeting Mr. Nifong -- was it
7 Mr. Nifong who expressed a concern that it needed to be
8 done because school was getting ready to end?
9 A. Right. People were going to be going
10 across the country.
11 Q. The call with Mr. Nifong that you were
12 describing, did that occur on the same day, the Friday,
13 April 14th?
14 A. As in my conversation with them?
15 Q. Yes.
16 A. With Investigator Himan?
17 Q. Yes.
18 A. Yes. Right after that, right after I
19 briefed my command staff.
20 Q. Was there any discussion during that
21 conversation about letting the Department have some
22 more time to develop additional facts before going
23 forward with the indictment?
24 A. Well, I told him our concerns and
25 basically he made the decision. I don’t remember the
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1 exact conversation.
2 Q. And did you keep any kind of notes of
3 that conversation with Mr. Nifong?
4 A. No.
5 Q. To your knowledge, did anybody in the
6 Department keep any notes of that conversation?
7 A. I don’t know.
8 MR. WITT: Which conversation were
9 you referring to at that point?
10 MR. BROCKER: I am talking about
11 the one you’ve just been testifying to that I think you
12 said occurred on Friday, April 14th, before the
13 indictments.
14 THE WITNESS: No, I don’t know.
15 Q. You don’t know of any notes that were
16 kept?
17 A. I don’t.
18 Q. Let me go back to the last meeting with
19 Dr. Meehan.
20 A. Yes, sir?
21 Q. Do you recall when that was?
22 A. I was putting on my glasses, I thought
23 that might help.
24 Q. I’m not trying to testify for you. You
25 can take a look -- I don’t think there’s any dispute,
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1 Dudley, that the meeting occurred on May 12th, and I
2 think Mr. Nifong has admitted that.
3 If you look at Page 32 of your notes, I
4 think you’ll find that there is not a notation about
5 that meeting, just so we can speed things along
6 perhaps?
7 A. Okay.
8 Q. Did you attend the last, third, meeting
9 with Dr. Meehan?
10 A. Yes, I did. I could have swore I wrote
11 something about that. What page did you say it’s on?
12 Q. I think it is pretty much undisputed
13 that it was May 12th. I don’t have Investigator
14 Himan’s notes in front of me, I’m afraid, but I believe
15 that’s the date he has on there as well.
16 A. In any case, yes, I do recall
17 Investigator Himan and I going to pick up Mr. Nifong
18 for that last meeting.
19 Q. Okay. And traveled over in the car
20 together with him ---
21 A. Yes.
22 Q. --- to the meeting.
23 Anybody else present, besides the four
24 of you, at that meeting?
25 A. The four of us, and there was a woman
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1 who walked in for a small amount of time. And then
2 there was another gentleman who came in who was there
3 for at least half of the meeting. I don’t know who he
4 was. I believe he was one of the top people at the
5 lab.
6 Q. Okay. Did you have any discussions with
7 Dr. Meehan about testing that had been done since the
8 last meeting and the second meeting?
9 A. He went through everything again. That
10 was his standard. He would not come right out and just
11 give any result. He would tell, “We put this into this
12 tube and it went here,” and it went on and just lost
13 me.
14 He finally, at the end, identified
15 tissue that was found under the fingernail to be David
16 Evans’ DNA. And on the report he gave us, don’t quote
17 me, but I am giving you a rough number, it was one in
18 900-and-some trillion that it was not his.
19 Q. So there was a statistical analysis in
20 the report ---
21 A. Yes.
22 Q. --- about probabilities?
23 A. Right.
24 Q. Any discussion -- he actually handed you
25 the written report that had been prepared?
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1 A. He handed Investigator Himan, Mr. Nifong
2 and myself a copy of a written report that he had
3 signed. Mr. Nifong looked at the report and
4 immediately found an error and pointed it out to him,
5 and Dr. Meehan apologized and corrected the error.
6 Q. What was the error?
7 A. Dr. Meehan had made a report, I guess,
8 that was going to be given to us at the second meeting,
9 but it was postponed until additional tests could be
10 run. And he made a cover letter which had the date of
11 the second meeting that was signed, and Mr. Nifong
12 said, “You need to put the date for today’s date on
13 this.”
14 Meaning, he was handing over a report
15 that was backdated to the second meeting. And
16 Mr. Nifong said, “Please date this for the date that
17 you are actually giving this to us.”
18 Q. So the date, was that the cover letter
19 or the actual report that the date was on there?
20 A. I think it was the cover letter, but I
21 can’t be sure because he took all the reports back, got
22 rid of them gave us brand new ones. At least the part
23 that was incorrect.
24 Q. And it was the date that was on the
25 report that was incorrect?
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1 A. Right.
2 Q. Do you know what page of the report that
3 was on?
4 A. I really don’t, sir. I believe it was
5 on a page that he signed.
6 Q. Did you discuss at that May 12th
7 meeting, did he discuss what was actually in the report
8 itself?
9 A. Yes, he went from start to finish, like
10 I said, and lost me, except for I understood the part
11 where when he started speaking about, “This is the
12 possibility of this being this person,” that’s easy to
13 understand. And that it was tissue.
14 And I asked one question that I clearly
15 remember because I wanted it clear in my head. The
16 girl was dancing. And I said if you are in a house and
17 you know that if you have dander it will be on the
18 floor, on the carpets, whatever. If a person is
19 dancing on their hands or on the floor, can you pick up
20 some DNA or whatever.
21 And he was talking about how it wasn’t
22 likely, but that this was a tissue mixture and that
23 wouldn’t be that, it just wasn’t -- that wouldn’t add
24 up. And he said he would explain that in court.

* * *

kilgo said...

* * *
25 Q. Any discussion about any items that were
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1 not in the written report, any of the testing that had
2 been done that did not appear in the report, any
3 discussion at that meeting about whether or not this
4 was the final report?
5 A. Yes, it was my impression that what we
6 got was the final report.
7 Q. Do you recall any discussion at any of
8 these meetings where Mr. Nifong indicated that he
9 needed a written report for some upcoming event, either
10 a Grand Jury or a hearing or anything of that nature?
11 A. No, because he gave us a report.
12 Q. Okay. Did Mr. Nifong ask any questions
13 during any of these meetings with Dr. Meehan about the
14 results?
15 A. Not that I recall. It is always
16 possible, but I just don’t recall.
17 Q. Did Mr. Nifong take notes of any of the
18 meetings or during any of the meetings with Dr. Meehan?
19 A. I don’t know. I’m sorry, I don’t know.
20 Q. And in your other meetings, not the ones
21 with Dr. Meehan, but the other meetings that you would
22 have with Mr. Nifong, would it be his practice to take
23 notes if you were sitting down and having conversation
24 with him?
25 A. Just very casual. No, not that I
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1 recall.
2 Q. I take it from your previous answer that
3 you didn’t take any handwritten notes of the meetings
4 that you had with Dr. Meehan?
5 A. Oh, no, not with Dr. Meehan.
6 Q. And did you ---
7 A. I really didn’t take notes like that. I
8 would get information and put it in later.
9 Q. And did Investigator Himan, do you
10 recall if he took notes at the meetings?
11 A. I don’t recall. Investigator Himan was
12 very -- I was very impressed with him. He was very
13 meticulous in what he did, and that’s all I can
14 remember.
15 Q. There’s a few other things I wanted to
16 ask you about, sergeant Gottlieb. You were involved in
17 a meeting that took place between Ms. Mangum and Mr.
18 Nifong on April 11, 2006?
19 A. Yes, sir.
20 Q. Tell me what you recall about that
21 meeting.
22 A. Investigator Himan was supposed to meet
23 with Coach Pressler, so he asked me if I would pick her
24 up from basically a safe house location where she was
25 staying. So I went out to Colonial Apartments. It’s
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1 actually changed names now, I don’t remember what the
2 name of the apartments are. I picked her up and
3 brought her to the courthouse. Lieutenant Ripberger
4 met me there. Investigator Himan showed up shortly
5 there after, he was only going to be able to stay for a
6 portion of the meeting.
7 Mr. Nifong introduced himself. Ms.
8 Mangum was what I would consider very reserved and very
9 cautious around him. He explained basically how the
10 procedures went for a court case. He explained to her
11 that at some point he and Tracey Cline would meet with
12 her and get more information and basically asked if she
13 had any questions that he could, you know, tell her
14 about.
15 But he basically explained the
16 procedures of what would happen throughout a court case
17 if a court case came up.
18 Q. Okay. Do you know who would have
19 initiated the meeting between Mr. Nifong and Ms.
20 Mangum?
21 A. I can only assume it was Mr. Nifong. It
22 wasn’t me, and I don’t believe it was Investigator
23 Himan. You would have to ask him.
24 Q. If you would look at Exhibit 204, your
25 notes, Page 27?
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1 A. Yes, sir?
2 Q. The first line in there says, “Victim
3 and Nifong met one another and discussed the case.”
4 Explain we meant by “discussed the case.”
5 A. How he would proceed with things, how a
6 court case would be run.
7 Q. Do you know if that was the first time
8 that Mr. Nifong and Ms. Mangum had met?
9 A. As far as I know.
10 Q. Was there any discussion about Ms.
11 Mangum’s, the nature of Ms. Mangum’s allegations?
12 A. If you are referring to did Mr. Nifong
13 explain to her that if you proceed with a rape case, it
14 was probably going to be something where a lot of
15 pressure would come up onto her; that if it was
16 difficult for her up to this point, it would be much
17 more difficult once a trial comes up and that she may
18 relive some of the true traumatic things. He explained
19 that to her.
20 But as far as talking about the case and
21 all, I got the impression that he was more concerned
22 with the way she was acting. And what I mean is she
23 was acting very traumatized that day, very guarded
24 around him.
25 She was okay with me, she was talking
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1 with me, I think she trusted me. But this is the first
2 time that she met him. And I think, more than
3 anything, he was trying to make her feel comfortable
4 and just say, “We’re here, we’re looking at this stuff;
5 if we go to court, this is what’s going to happen; are
6 you comfortable with that?” And she said, “Yes.”
7 And then, like I said, he and her would
8 meet with Tracey Cline, he would be working very
9 closely with Ms. Cline.
10 That’s about it. It was not a big
11 meeting, it did take a very long at all.
12 Q. Can you give me some approximation of
13 about how long it lasted?
14 A. Fifteen (15) or 20 minutes.
15 Q. Okay. Any discussion -- did Mr. Nifong
16 ask any questions or did Ms. Mangum talk about what she
17 claimed had happened on March 13th during that meeting?
18 A. (No response.)
19 MR. HILL: I don’t mean to
20 interrupt. Just for the deponent’s benefit, if the two
21 gentlemen could just identify themselves.
22 MR. BROCKER: Oh, I’m sorry.
23 MR. HILL: The gentlemen who came
24 in. I know they didn’t mean anything. But since he
25 doesn’t know who they are ---
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1 MR. HARLOW: Walt Harlow, I’m an
2 investigator with the State Bar.
3 MR. HILL: Thank you, Mr. Harlow,
4 very much.
5 MR. PERRY: I’m Scott Perry, I’m
6 an investigator with the State Bar.
7 MR. HILL: Thank you, Scott.
8 MR. BROCKER: These are the
9 gentlemen who have been over looking through the
10 investigative file, and I’m presuming that they’re
11 likely done with that.
12 MR. HILL: I just wanted you to
13 know who they are.
14 Q. I think the question, Sergeant Gottlieb,
15 was did Ms. Mangum discuss during that meeting what she
16 claimed had happened on March 13th, specifically?
17 A. I don’t think that was brought up. I
18 think it was pretty much Mr. Nifong explaining what she
19 should expect and how the court system worked.
20 Q. Any discussion about the results that I
21 think just the day before had been received from the
22 SBI about what had or had not been found?
23 A. I don’t recall that.
24 Q. Any discussion about the results from
25 the meeting that you had had the day before with DNA
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1 Security on April 10th?
2 A. I don’t recall that.
3 Q. Any discussion about her identification
4 of the individuals from the April 4th photos ---
5 A. He didn’t talk about the case. He
6 strictly went over how the court procedures would work.
7 Q. All right. Besides that meeting, are
8 you aware of any other meetings that Mr. Nifong had
9 with Ms. Mangum directly?
10 A. Not directly, no. I believe there were
11 some. I was actually out of work for quite awhile at
12 one point.
13 Q. How did you come to an understanding
14 that they had had other meetings?
15 A. I don’t know if they did. I’m assuming
16 that at some point they had talked about something. I
17 know that Investigator -- this is way later on.
18 I believe Investigator Himan transported
19 her to the District Attorney’s office at one point and
20 there was one meeting. Beyond that, I don’t know.
21 Q. All right. You mentioned a couple of
22 places towards the end of your notes that there was,
23 and I think you had referenced in the handwritten notes
24 here, that you are pursuing possible hair analysis for
25 Ms. Mangum?
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1 A. Yes, sir.
2 Q. Tell me why you were doing that.
3 A. Mr. Nifong wanted to have some forensic
4 evidence, if it was there, that she had received or did
5 not receive a date-rape drug.
6 Q. Okay. And was that testing ever
7 performed?
8 A. Yes.
9 Q. Who performed it?
10 A. I don’t know.
11 Q. Do you know what the results were?
12 A. I believe they were negative for
13 anything, which included, from what I understood, I
14 believe they did a standard DOT examination, and I
15 believe a standard DOT examination also concludes
16 things like Flexeril, which is a muscle relaxant, and I
17 think the defense was claiming that they believed she
18 was taking a muscle relaxant and that was why she was
19 acting the way she was acting. But nothing showed up,
20 so obviously she couldn’t have been taking it.
21 Q. During the investigation, were you aware
22 of any witnesses that said that Ms. Mangum was not
23 intoxicated when she arrived at the party at 610 North
24 Buchanan, but that after taking a few sips of a drink
25 she appeared to be intoxicated or drunk?
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1 A. Investigator Himan spoke with a
2 next-door neighbor, and I believe that there is
3 information about that. The statements were that the
4 young men had to carry her out. But that, and this
5 comes from them, she walked in.
6 I am almost positive that Kim, and I
7 can’t remember -- is her real name Pittman or Roberts?
8 Q. You can use Pittman, that’s what shows
9 up in the notes.
10 Q. Okay. Kim Pittman had said she came in,
11 she was fine, she was in a good mood. When they left,
12 it was completely different.
13 Q. Looking back at the end of your notes,
14 Page 32 ---
15 A. Yes, sir?
16 Q. --- you have a note in there that
17 Investigator Clayton and Himan came to you about
18 information that the cabdriver, who was the short-term
19 alibi witness for Mr. Seligmann, had an active arrest
20 warrant outstanding?
21 A. Yes, sir.
22 Q. Tell me about that.
23 A. They came into my office early in the
24 morning the day -- I mean, it was as busy as could be.
25 They basically said the DA’s office located a warrant
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1 for him and they wanted the man picked up. And I just
2 said, “Get it done quickly and get back here.” I
3 didn’t care, it was a warrant for the man’s arrest. Go
4 pick him up.
5 Q. Do you know how long that warrant had
6 been outstanding?
7 A. From my understanding, it was out, and
8 this is after the fact, a couple of years. And the
9 reason it didn’t show up when people were checking for
10 warrants was there was a letter spelled different in
11 his name. But the other information--Social Security
12 number, things of that nature--matched, but we don’t
13 check the warrants based on that.
14 Q. Do you know where the investigation of
15 him originated of Mr. Moustafa, if I’m pronouncing that
16 correctly?
17 A. The investigation originated?
18 Q. I mean, the fact of looking for
19 outstanding warrants against him.
20 A. Somewhere in the DA’s office, it wasn’t
21 us.
22 Q. Do you know who communicated that to
23 your Department?
24 A. Linwood Wilson.
25 Q. Was that Mr. Wilson’s first involvement,
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1 to your knowledge, in this investigation?
2 A. I don’t know because I don’t know if he
3 was doing things behind the scenes prior to that or
4 not. I don’t keep up with the everyday workings of the
5 District Attorney’s office.
6 Q. Had your Department had dealings with
7 him prior to that?
8 A. Yes.
9 Q. When did that start?
10 A. I don’t know. He has helped out with
11 homicide investigations and all kinds of stuff.
12 Q. I’m sorry. What I really meant to ask
13 you is with respect to the Duke lacrosse cases, was
14 this the first time, this May 10th meeting, was that
15 the first time he had become involved in the cases?
16 A. I don’t know because I don’t keep up
17 with the District Attorney’s office as far as what they
18 do. You know, if there was something Mr. Nifong wanted
19 to know, he could go to him and say, “Would you follow
20 up on this?” But Mr. Nifong never talked to me about
21 that, I never asked him about it.
22 Q. After May 10th going forward, were the
23 communications, at least that you were involved in, was
24 that primarily through Mr. Nifong or through Mr. Wilson
25 or both?
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1 A. Generally, I speak with Mr. Nifong.
2 Q. Did Mr. wilson, come down and ask or
3 direct the Department to do certain things during the
4 investigation, going forward?
5 A. Well, he asked about the warrant being
6 served.
7 Q. Anything else that you can recall?
8 A. I was out for quite awhile.
9 Q. When were you out from the Department,
10 beginning when?
11 A. July through October, and then the end
12 of October through January, and then January, January
13 was about one week. I don’t know the exact dates
14 Q. Okay. Your notes end at the end of June
15 2006. Did you have other involvement in this case?
16 A. Investigator Himan would come to me and
17 just say, “This is what I have, okay?” Just kind of
18 keep me apprised. But, no, my -- I tried to get out of
19 the case as much as I could and allow -- once I got
20 Investigator Clayton to a point to where he was
21 actually working with our squad--he was kind of doing a
22 temporary assignment--once I could get him to start
23 helping Investigator Himan with his things and all , I
24 started pulling out and just doing more of an
25 administrative type of role.
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1 Q. Did you have any other communications
2 that you can recall with Mr. Nifong after the notes end
3 on June 30th?
4 A. Did I have any more after June 30th?
5 Q. Yes.
6 MR. HILL: About this case.
7 MR. BROCKER: About this case.
8 Thank you.
9 A. I came in -- when I returned in October,
10 Investigator Himan again gave me a concern of his and
11 the concern was that they had one player or, actually,
12 two players that were implicated in stealing money from
13 the victim, which my understanding after the case
14 closed is that the players have admitted to doing that.
15 Then Ben was curious, whenever he would
16 talk to Mr. Nifong about charging those people to have
17 some pressure or have something to hold over them
18 because no one was talking to us, Ben wanted me to talk
19 to Mr. Nifong to get his input. So Ben and I went out
20 to the District Attorney’s office and basically sat
21 down and talked with him for a short period of time.
22 I again expressed what Ben’s concerns
23 were in wanting to be able have additional evidence or
24 whatever, possibly offering immunity to the people.
25 And the bottom line was that Mr. Nifong at that point
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1 did not want anyone else charged.
2 So the possibility of offering immunity
3 was there, but at that point the investigation warrant
4 any charges. But that was kind of the only leverage
5 that we would have if no one wanted to give us
6 information to help or to support the accusations,
7 Q. Who were those other players?
8 A. Ryan McFayden. And the only reason I
9 remember him as he is a unique individual . And I
10 forget the name of the other guy. Investigator Himan
11 can tell you.

* * *

kilgo said...

* * *

12 Q. In October, in that meeting that you had
13 in October of 2006, did Investigator Himan express any
14 concerns about the lack of evidence or what evidence
15 that you had with respect to the people who had been
16 indicted?
17 A. No.
18 Q. Any other conversations or
19 communications that you recall having about Duke
20 lacrosse cases with Mr. Nifong after that?
21 A. No. I had too many things going on
22 right there that -- I mean, like I said, I came back in
23 October, and I left at the very end of October, and the
24 three weeks that I was there, roughly, there was three
25 months’ work checking reports, doing all this stuff
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1 that no one had done for me that I had to go back and
2 get all that done prior to the birth of my child.
3 So for that three months, I sat in my
4 office nonstop checking and catching up. And when I
5 finally was caught up my child was born.
6 Q. Okay. Would Investigator Himan be the
7 primary person who would have interacted with Linwood
8 Wilson after?
9 A. He would have been the primary person,
10 he is the lead investigator.
11 Q. I’m almost done.
12 A. It’s okay.
13 Q. I’m just going to ask you about some of
14 the documentation that was provided to see if you can
15 identify what it is. This is a notebook that came from
16 the -- I don’t have copies, of course, because I just
17 got it this morning.
18 A. That’s no problem.
19 Q. --- but that was provided to us pursuant
20 to the Subpoena.
21 A. Yes.
22 Q. This, I’m assuming, you’ve looked
23 through this?
24 A. No, I haven’t. There are so many
25 notebooks, I don’t know.
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1 MR. WITT: First, for purposes of
2 the record, could this be marked somehow and make
3 copies so that we know, because this is a lot of paper.
4 That way, we can get copies of it, too.
5 MR. BROCKER: Yes?
6 A. My supplemental report.
7 Q. That is the same document as 204?
8 A. Exhibit 204, yes.
9 Q. Okay.
10 A. This is 204 that has been taken from a
11 Word format and copied and pasted into the Police
12 Department records.
13 Q. Okay.
14 A. And these are the notes from 204 that
15 allowed me to fill in the photo presentation.
16 Q. Notes that you took during the
17 presentation?
18 A. No. That would have been an
19 impossibility. I listened to the presentation on
20 videotape.
21 Q. Okay. Notes from your viewing of the
22 presentation?
23 A. Yes.
24 Q. Okay.
25 A. Investigator Himan asked me to give
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1 assistance for him to do background investigations on
2 different people. And these are just the people that I
3 had asked to do backgrounds on different people.
4 Q. Okay. Just because we don’t have them
5 numbered and I don’t want to number original files, you
6 are looking now at documents that have individuals’
7 names and addresses or other identifying information
8 that are typed with handwritten notes on them?
9 A. Yes, sir.
10 MR. HILL: They appear to be
11 initials to the right.
12 THE WITNESS: Yes. Buffy Jones.
13 TG.
14 Q. And you’re just indicating who’s going
15 to do the backgrounds on them?
16 A. Right. Just so Investigator Himan can
17 keep up with who was doing those things so he could
18 check with them.
19 Q. Okay.
20 A. These are just notes I made of something
21 from the Dan Abrams report.
22 This is an e-mail
23 Q. What’s the date on that?
24 A. March 23rd, 2006, from Andy Peterson,
25 who works with Wes Covington.
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1 An e-mail about the Ku Klux Klan. I
2 sent this to our MIS person, I was just doing some
3 research on the Ku Klux Klan, just to see different
4 things about them, how they work. And I sent this to
5 Chris Moody to make sure that they knew that I was on
6 that site because that will automatically hit as I’m
7 looking at the site, that shouldn’t be if it’s not
8 involved with an investigation.
9 Q. You are noting in that e-mail that you
10 were conducting that research?
11 A. Yes. It wasn’t something for myself
12 that I’m looking at the Ku Klux Klan site or
13 pornography. Any time I look at something that can
14 draw attention when they are looking at the Web, I will
15 send an e-mail to let them know what it’s involved
16 with.
17 And then these are just a quick notes
18 that I wrote down when I was talking to people
19 about ---
20 MR. HILL: They are also in
21 Exhibit 204.
22 THE WITNESS: All of this is in
23 Exhibit 204.
24 And then these are the actual hand-
25 written notes for 204, the photo presentation. Because
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1 I had to sit there, and I would get a word from the
2 thing. Remember how I told you I’d have to go back and
3 I’d listen to a sentence five or six times before I
4 would be able to get it because she was talking fast?
5 That’s the handwritten notes of that version.
6 Again, more stuff on the drug
7 screening for hair that’s in Exhibit 204. And that’s
8 it.
9 Q. The research that you were doing that
10 was noted in one of those e-mails about the Ku Klux
11 Klan, I assume that was related to the application that
12 was found when you did a search warrant on
13 Mr. Seligmann’s dorm room?
14 A. Yes and no.
15 Q. Okay.
16 A. There’s that. But also we had just
17 different -- we had the Ku Klux Klan putting out fliers
18 in reference to this case, things like that, throughout
19 the district. And I was trying to figure out the Ku
20 Klux Klan works and everything. It wasn’t necessarily
21 specific to this case, but, yes.
22 Q. Okay. Did you ever get any information
23 or come to any findings and conclusions about whether
24 or not that application that was found was connected to
25 the African Studies class that Mr. Seligmann was taking
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1 at the time?
2 A. My understanding is it was connected to
3 a class.
4 MR. BROCKER: Just give me one
5 minute.
6 (Brief recess.)
7 MR. BROCKER: Okay. Sergeant
8 Gottlieb, that’s all the questions I have at this
9 point.
10 THE WITNESS: I hope I have been
11 some help.
12 MR. BROCKER: You have. Thank
13 you. But I’m afraid Mr. Witt is going to have some.
14 THE WITNESS: Oh.
15 MR. BROCKER: Can we just take --
16 I know Lieutenant Ripberger is waiting, and I want you
17 to have a chance. But I just need to talk for just a
18 second with these guys.
19 MR. WITT: That’s fine.
20 (Rrecess 2:58 PM to 3:07 PM)
21 CROSS-EXAMINATION BY MR. WITT:
22 Q. Sergeant Gottlieb, as you know my name
23 is Dudley Witt.
24 A. Yes, sir.
25 Q. I’m one of the two attorneys
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1 representing Mr. Nifong. You’ve been here for awhile,
2 so I’m just going to go ahead and start asking you
3 questions.
4 A. That’s fine.
5 Q. As it relates to the way Exhibit 204
6 gets compiled ---
7 A. Correct.
8 Q. --- this is just so I can clarify it, it
9 is not a document that this date is 3/15/06 that you
10 would have ---
11 A. It is not compiled in a chronological
12 order. Things were added in at different points, yes.
13 Q. Okay. And then what has been marked as
14 Exhibit 204 is actually in another report form, too,
15 because this is what the Word document looks like and
16 there is another report form out there that has the
17 case name and things like that at the top?
18 A. Yes. That is the official Durham police
19 report that you just exposed to me.
20 Q. All right. And the lower portion -- I
21 mean, but the document, the written portion of it is
22 what comes off of the Word document and is what Exhibit
23 204 is?
24 A. Correct. And could I see your document
25 for one second?
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1 Q. Yes.
2 A. What is the end date on that one that he
3 has?
4 Q. Exhibit 204 ends June 30, 2006.
5 A. So you’re missing a page or two. That
6 is what I was saying. I believe there’s something. At
7 the point I copied and pasted onto the system, that’s
8 when I strictly was writing on the system.
9 So -- I apologize, what was the end
10 date?
11 Q. 6/30/06.
12 A. 6/30/06. 7/14, I actually dropped this
13 off to Mr. Nifong. That was the last one. And
14 Investigator Clayton made copies of the list for
15 Investigator Himan and himself.
16 MR. WITT: Let’s go off the record
17 for just one second. It appears
18 (Brief discussion held off the
19 record.)
20 MR. WITT: All right. Back on the
21 record.
22 Q. The documents that you went over with us
23 that are in the white notebook that was brought in
24 during the deposition ---
25 A. Yes, sir.
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1 Q. --- contains at least one other entry
2 that is not in Exhibit 204.
3 A. Correct.
4 Q. Is that right?
5 And, as far as your recollection goes,
6 that is the last date that you would have had any
7 recorded entry and any notes in the underlying Duke
8 lacrosse cases, to the best of your recollection?
9 A. I think, and I am almost positive, and I
10 don’t even know when it was, at some point one of the
11 defense attorneys called me and I just made one thing,
12 that he called me, and that was it.
13 Q. But, other than that, you think this
14 is ---
15 A. 99.9 percent.
16 Q. And I got a little confused earlier. At
17 some point you turned over this report that is in front
18 of you to Mr. Nifong, is that right?
19 A. His staff, but yes.
20 Q. His staff. And are you able to tell
21 from looking at the documents in front of you now what
22 date that was?
23 A. 7/14 at 1552 hours.
24 Q. Do you know whether or not you provided
25 any previous version of that document to
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1 representatives of the Durham DA’s office prior to the
2 date you just mentioned?
3 A. Yes. And, actually I guess it would be
4 out of order for Page 12. But basically almost 17
5 pages of this photo presentation, about 17 pages,
6 roughly, of this presentation.
7 Q. Was provided?
8 A. Turned over. Yes. Because it was the
9 non-testimonial that was way, way ahead of those.
10 Q. Okay. Now, in looking back at Exhibit
11 204, it appears -- well, let me back up a little bit.
12 You were trained as somebody who was
13 able to do EMS stuff, right?
14 A. Yes, I was trained as a paramedic.
15 Q. As a paramedic. And you worked in that
16 capacity for a number of years prior to joining the
17 Police Department, right?
18 A. Twenty-five (25) years.
19 Q. Okay. And you’ve also worked as a
20 Durham police officer on the domestic violence unit,
21 right?
22 A. Yes.
23 Q. And through those years of experience,
24 either as a paramedic or as a paramedic, have you had
25 an opportunity to observe people who have reported that
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1 they have recently been assaulted?
2 A. Yes.
3 Q. You also had opportunity to observe
4 individuals who have also reported to have been
5 sexually assaulted?
6 A. Yes.
7 Q. Did you speak personally with Ms.
8 Crystal Mangum in this case?
9 A. Yes.
10 Q. When did you do that?
11 A. With Investigator Himan on, I guess it’s
12 the 16th, but I want to make sure. On the 16th of
13 March 2006.
14 Q. Where did you have that interview with
15 Ms. Mangum?
16 A. At her home.
17 Q. And were you able to observe her during
18 that interview?
19 A. Yes.
20 Q. Can you explain to me what you observed
21 as far as any physical limitations that she had on
22 ambulating?
23 A. She looked extremely uncomfortable. She
24 was having a difficult time ambulating, she was
25 actually holding onto things. When she was sitting,
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1 she was sitting off-kilter so that her bottom or her
2 buttocks was off the sofa. She was complaining of a
3 lot of pain if she was sitting flat. She was having
4 muscle tremors, her legs were spasming.
5 She was doing a lot of crying when she
6 was describing acts that were purportedly performed on
7 her against her will
8 When her kids would come into the room
9 and ask for something and she would go to comfort them,
10 she was very slow and appeared to be in a lot of pain
11 just to comfort her children.
12 So the appearance that she gave was
13 consistent with what she was claiming happened.
14 Q. Did you have an opinion as to whether or
15 not she was acting consistent with an individual who
16 had been sexually assaulted from your experience?
17 A. In my experience, she was acting
18 consistent.
19 Q. Did you find her to be believable in
20 that interview?
21 A. Yes.
22 Q. Changing gears again, in your testimony
23 here today you’ve testified a bit about your decisions
24 on how you were going to have notes taken, why you
25 didn’t necessarily take notes, copious notes ---
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1 A. Yes.
2 Q. --- throughout the investigation.
3 Those decisions were made by you at the
4 beginning of the investigation on how you were going to
5 approach it, is that correct?
6 A. Yes.
7 Q. Mr. Nifong never told you not to
8 memorialize anything ---
9 A. Not at all.
10 Q. --- as far as your investigation, did
11 he?
12 A. No, sir.
13 Q. While we’re on Mr. Nifong’s instructions
14 anyway, in the meetings with Dr. Meehan the three of
15 you were present, do you ever remember him telling Dr.
16 Meehan in any of those meetings not to provide certain
17 information to the attorneys for the underlying boys
18 that are outlined in the report?
19 A. Absolutely not.
20 Q. Did you ever have anything that you
21 thought would be an agreement between Dr. Meehan and
22 Mr. Nifong to have Dr. Meehan limit information to
23 provide the underlying defendants and their counsel in
24 the Duke lacrosse cases?
25 A. No, I thought we had the report.
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1 Q. Prior to the time you went to the Grand
2 Jury -- you testified at the Grand Jury, correct?
3 A. Yes. I testified at the first the Grand
4 Jury not the second one, David Evans.
5 Q. And what did you testify to at the Grand
6 Jury?
7 A. I told the facts of what’s documented in
8 my report. I talked about the way Ms. Mangum presented
9 herself at her home, what she told us, what was found
10 at the search warrant at the residence. I explained
11 how these people had come down to the station and given
12 their statements. I pointed out what was again found
13 at the search warrant.
14 I spoke to them about the time cards
15 issues. I talked to them about the PowerPoint
16 presentation.
17 And they asked me about the medical
18 report. I told them that the SANE nurse found the
19 information to be consistent with the story she was
20 giving.
21 I explained to them that there were
22 inconsistencies in the very beginning when she was
23 crying, upset, whatever. But as soon as Nurse Levicy
24 was able to calm her down, which didn’t take long at
25 all, she never changed her story from that point.
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1 I hope that covers it all.

* * *

kilgo said...

* * *

2 Q. Now, criminal charges aren’t just
3 started by an indictment, are they? There’s another
4 way you can get criminal charges filed against an
5 individual , isn’t there?
6 A. You can take out warrants.
7 Q. What is the difference in the procedure
8 for taking out a warrant compared to going before a
9 Grand Jury?
10 A. Generally, it would be a little bit
11 harder to get a Grand Jury indictment than it is to get
12 a warrant for an arrest. An officer would go before
13 the Durham County Magistrate from our Department and
14 give probable cause, and a Magistrate would issue a
15 warrant for arrest. The person would be brought into
16 custody. When they are brought into custody, they
17 would have pretrial release conditions set. They would
18 be brought for first appearance, have a lawyer
19 appointed to them if they needed one or provide their
20 own lawyer or just say they don’t want an attorney.
21 After that, the case would go again to
22 the District Attorney. They would review all of the
23 facts, including the felony screen. They would look
24 and see if they wanted to continue with the prosecution
25 if additional investigation needed to be done. And
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1 then the investigator would go before the Grand Jury
2 when they are subpoenaed.
3 Q. In your investigation, did you have an
4 opportunity to talk to a gentleman by the name of -- a
5 driver -- the person who drove Ms. Mangum around some?
6 A. I’ll find his name.
7 Q. I think it’s on Page 27.
8 A. Yes. I spoke with Jarriel L. Johnson on
9 4/6/06 at 1725.
10 Q. And in talking about issues related to
11 conversations with Dr. Meehan, I believe I heard you
12 say that there were conversations about Ms. Mangum’s
13 boyfriend?
14 A. Yes.
15 Q. Is Mr. Johnson her boyfriend?
16 A. He is her driver.
17 Q. Okay. All right. And did Mr. Johnson
18 indicate -- did Mr. Johnson indicate that he had
19 consensual sexual intercourse with Ms. Mangum at any
20 time prior to March 14, 2006?
21 A. At the time, I believe so.
22 Q. Just to take you down to the fourth or
23 fifth line up from the bottom, he stated he had seen
24 her March 9th?
25 A. Yes.
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1 Q. Okay.
2 A. I’m sorry, hold on one second. March
3 9th. He stated that he had seen her on March 9th and
4 stated he had oral and vaginal sexual relations, yes.
5 Q. Okay. And you put this information into
6 this report at some time other than April 6, 2006, is
7 that right?
8 A. Yes.
9 Q. And then that is a document that you
10 would have provided in the course of the investigation
11 and prosecution to the Durham District Attorney’s
12 office, is that correct?
13 A. Yes.
14 Q. As it relates to the information that is
15 contained in that paragraph, is there any documentation
16 in that filing cabinet that would indicate when a
17 report with this information was provided to the Durham
18 DA’s office?
19 A. Well , I know that his full written
20 statement, actual handwritten statement, was provided
21 to the District Attorney’s office long before this.
22 Q. Okay.
23 A. I don’t know when Investigator Himan
24 turned it over. But as I had spoke to you earlier or
25 spoke to counsel earlier, everything was turned over as
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1 far as all of the witness statements, people who were
2 involved, at least up to the point of when the
3 indictment was done.
4 Q. Okay. And in your conversations with
5 Dr. Meehan--and I thought I heard you say, and correct
6 me if I am wrong--that when he discussed finding some
7 other DNA from the rape kit other than the victim’s,
8 that he indicated that there was a 96-hour period of
9 time where you could ---
10 A. He was talking about something to that
11 effect, yes.
12 Q. Thank you. Prior to going to the Grand
13 Jury, did Mr. Nifong ever tell you how to testify
14 before the Grand Jury?
15 A. Absolutely not.
16 Q. Did he ever tell you to exaggerate any
17 piece of evidence that you had?
18 A. No.
19 Q. Did he ever tell you not to put forward
20 any contrary evidence that you may have?
21 A. No.
22 Q. The filing cabinet that is here with all
23 the evidence in it, does it contain the video of the
24 PowerPoint presentation that you had with Ms. Mangum?
25 A. Sure.
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1 Q. And on your notes related to the
2 PowerPoint presentation on Page 12 of Exhibit 204, if
3 you could look at the fourth paragraph down, the bigger
4 paragraph, you might want to take a second and read
5 that because I want to ask you some questions about the
6 middle portion.
7 A. I’m sorry, at 1011?
8 Q. Yes, 1011.
9 A. Yes, sir?
10 Q. In the middle portion of that it states,
11 “simultaneously, the photographs that were being
12 observed by the victim on the opposite side of the desk
13 from me were able to be displayed on the laptop so
14 potential Jurors, Defense Attorneys, Prosecutors and
15 other Judicial officials could witness both the victim,
16 her reactions and the photographs in real time as the
17 victim was seeing them.”
18 A. Correct.
19 Q. Is that anything you ever discussed with
20 Mr. Nifong or are those your own words as far as the
21 purpose of having the two laptops together and
22 photographs and having them in real time for other
23 people to see it? Do you remember?
24 A. Mr. Nifong wanted the program
25 videotaped.
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1 Q. Did he say why?
2 A. Just wanted to be able to show any
3 expressions, show how it was being done so no questions
4 would come up.
5 And I had the investigator set up the
6 PowerPoint presentation. And then I thought to myself,
7 and this is strictly me, I thought to myself that, “How
8 can they know what she is seeing if they can’t see it?”
9 And I knew the camera was going one direction, so I
10 used two different things so she could see the pictures
11 and the camera behind me would be looking at the back
12 so it would see the pictures that were being shown plus
13 her. And that way no one would have any doubt as to
14 what was being shown at an exact time and take any
15 doubt away from what was happening.
16 Q. In relation to the actual presentation,
17 I believe when she identified one of the boys that was
18 one of the defendants in the Duke lacrosse cases, and I
19 believe or maybe you’ll correct me if I’m wrong, it was
20 Mr. Finnerty, but she appeared to get emotional . Did
21 you ---
22 A. She started to get tears in her eyes.
23 Q. When you were going over that photo
24 presentation with her, did you -- in your own opinion,
25 did you think she was believable?
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1 A. In my own opinion?
2 Q. Uh-huh (yes).
3 A. She appeared believable.
4 Q. Okay.
S A. Are you talking about before what she
6 said about him?
7 Q. Uh-huh (yes).
8 A. Yes.
9 Q. And since you’ve gone over a lot, I’m
10 just hitting spots here, I’m not going in any
11 particular order.
12 When the items other than what was found
13 in the rape kit were tested, there were items that you
14 didn’t have and you had to get something from the SBI
15 back over to DNA Securities, there was a finding that
16 came back related to finding DNA samples consistent
17 with one of the defendants in the Duke lacrosse cases,
18 do you remember that, related to a fingernail?
19 A. Yes.
20 Q. How does that relate to being
21 significant one way or the other for you analyzing any
22 portion of the underlying criminal case in this regard?
23 Is it important? And, if so, why was it important in
24 your investigation that that positive result came back?
25 A. For me analyzing?
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1 Q. Yeah. For the Police Department
2 analyzing what they had as far as the case there.
3 A. The victim stated that she was being
4 choked or strangled. She stated that she had to fight
5 to breathe. While she was fighting she said she
6 grabbed the man, was fighting to get away, and that is
7 when one of her fingernails was broken off.
8 And what wound up happening was the
9 person that she identified in the photo presentation as
10 being one of the attackers or a possible attacker at
11 90-percent likelihood actually had a scratch on his arm
12 consistent to the DNA that was found under the
13 fingernail.

* * *

kilgo said...

* * *

14 Q. I’m trying to get back up to -- I
15 believe it was in October and I have seen some other
16 references in the Exhibit 204 to -- I believe you
17 talked about a meeting--Detective Himan, you and Mr.
18 Nifong--where you talked about the fact that there
19 might have been something taken from the victim, money
20 or something like that?
21 A. Correct.
22 Q. I am not certain I understand the facts
23 behind that assertion. Can you tell me what those
24 were, the underlying facts, of what she believes was
25 taken or what people might have admitted was taken?
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1 A. She had told us that during the attack
2 or the attack was over she was laying on the floor that
3 the three men had sexually assaulted her and then went
4 into her purse after the attack and actually took $400
5 out of her purse.
6 Q. And that, was that the amount of money
7 she was paid for attending the party that night?
8 A. Correct.
9 Q. And you knew about that piece of
10 information fairly early on in the investigation,
11 didn’t you?
12 A. Yes. That was actually in the search
13 warrant to attempt to recover the money.
14 Q. And I believe one of the people that you
15 understood had admitted to facts just like you talked
16 about was Mr. Ryan McFayden, is that right?
17 A. Correct.
18 Q. And you also used the term “unique
19 individual.” What did you mean by that?
20 A. During a search warrant of his room, and
21 I’m not passing judgment or anything, I just think it
22 was odd, he had made a lot of hand-drawn pictures of
23 his teammates’ penises and had them all over his wall
24 with their numbers and gave them nicknames.
25 There are just a lot of things that I
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1 would personally not do. But, again, I am not passing
2 any judgment on him.
3 Q. Your Exhibit 204 also makes reference to
4 the fact that something came in from CrimeStoppers to
5 the Department on or about March 27th of 2006. I’m on
6 Page 9.
7 A. Yes, sir.
8 Q. First off, can you explain to me how the
9 procedure works with the Police Department getting
10 information from CrimeStoppers? I’ve seen it on
11 television, but I’m really not certain how you all work
12 with that group.
13 A. Okay. CrimeStoppers is an organization
14 set up outside the Police Department, but we have a
15 representative from the Police Department who was
16 actively in charge of CrimeStoppers program, follow-ups
17 and things of that nature. That is Corporal David
18 Addison.
19 People can call a telephone line and
20 give information or they can e-mail it in. And I
21 didn’t know this until way, way later on. But Corporal
22 Addison got an e-mail which showed a potential person
23 that it came from had explicit information about the
24 possibility that they were conspiring to kill somebody,
25 had a lot of vulgarity within that. And they cannot --
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1 CrimeStoppers can not divulge where that information
2 comes from, all they can do is provide it to us.
3 Way later on in the investigation, I
4 believe it was October, I found out just through a
5 casual conversation, I don’t even know how it came up,
6 but apparently this e-mail was not only sent to
7 CrimeStoppers, but it was forwarded to Captain LaVarge.
8 And if something is forwarded to something outside of
9 Captain LaVarge, that does away with the
10 confidentiality of who the person is.
11 And, again, they started to look up
12 where this person was, who it was. And that’s within
13 the same time period that -- I’m not sure if they ever
14 got the exact information, but I’m sure that
15 Investigator Himan can bring you up-to-date on that.
16 Q. okay. And on Page 9, you started out at
17 1020, which is where I started talking about
18 CrimeStoppers, some sort of report came in to
19 CrimeStoppers.
20 A. Okay.
21 Q. And then you have 1040 is when you met
22 with District Attorney Nifong; is that correct?
23 A. Yes, sir.
24 Q. You talked about an e-mail with Mr.
25 Brocker. What was in the substance of the e-mail and
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1 who did it purport to be from?
2 A. I apologize. Could you repeat that?
3 Q. First, what was the e-mail about?
4 A. The e-mail was talking about, “We were
5 at a party last night,” and this is just general, “It
6 was a total flop, I’m upset about it, now I want to get
7 some more strippers to come over, and this time instead
8 of letting them strip, I want to kill them, hang them,”
9 just very graphic, “masturbate over them and ejaculate
10 while wearing my Duke blue uniform.”
11 Q. There was a -- and you may not know and
12 it may not be -- there was one that came out over the
13 media somewhere about wanting to skin the person.
14 A. I believe that is the same e-mail
15 Q. Is that the same e-mail?
16 And that e-mail is in those files?
17 A. It’s in the search warrant.
18 Q. Okay.
19 A. And the actual limited copy of the
20 e-mail that we were allowed to get from CrimeStoppers
21 was in there, I believe, once Investigator Himan was
22 able to follow up with the Captain LaVarge, I believe
23 I’m not positive, that we got the entire e-mail.
24 Because, like I said, they were looking into the
25 subject.
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1 Q. And that e-mail prompted a direct
2 meeting between you, Detective Himan and Mr. Nifong, is
3 that right?
4 A. Absolutely.
5 Oh, I’m sorry, I forgot one in very
6 important thing that was in there. Basically, he was
7 asking who was interested in helping him to kill these
8 people when they got over, and the e-mail was sent out
9 to his teammates.
10 Q. Now, I haven’t had an opportunity to see
11 the file, and there’s been some reports on television
12 about this case and some of it might be coming from
13 there.
14 But I seem to remember that there might
15 have been some comments which would have racial slurs
16 going on at 610 North Buchanan Avenue at or around the
17 time that Ms. Mangum was there?
18 A. Correct.
19 Q. Would those -- who conducted those
20 interviews? would that be Himan? Would there be a
21 report from that interview of anybody that had racial
22 comments in there? In other words, what I’m trying to
23 find out is you didn’t interview anybody directly?
24 A. Yes.
25 Q. You did?
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1 A. Not me. Investigator Himan interviewed
2 a neighbor who was able to corroborate, I’m almost 99.9
3 percent sure, that neighbor corroborated the racial
4 statements being made.
5 Q. That, to your recollection sitting here
6 today, is in one of the ---
7 A. Absolutely.
8 Q. --- one of notes from Investigator
9 Himan?
10 A. Yes.
11 Q. Okay. May I have just a minute?
12 A. And on top of that, and I’m not positive
13 about this, but I think it’s actually in the statements
14 by the three young men who were present. I’d have to
15 look.
16 MR. BROCKER: Could we just take a
17 break for a second?
18 MR. WITT: Sure.
19 (Recess - 3:44 PM to 3:45 PM)

* * *

kilgo said...

* * *

20 Q. (BY MR. WITT) On Page 10 of the Exhibit
21 204?
22 A. Yes, sir?
23 Q. In the initial portion of the
24 investigation, there were some meetings that were with
25 high levels of the Duke Police Department, the Durham
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1 Police Department, City Manager and Police Legal
2 Adviser. And what I’m trying to find out is, was Mr.
3 Nifong involved in those or were the meetings that
4 those individuals had, were having, separate and apart
5 from Mr. Nifong, if you remember?
6 A. I know Mr. Nifong came to one, I’m
7 positive of that. I don’t know, I don’t recall about
8 the others.
9 Q. Did anybody ever tell you why those
10 people felt it was important to have those meetings
11 related to this case?
12 A. Why they felt it was important.
13 MR. HILL: The question was did
14 anybody tell you why it was important?
15 A. No, no one told me.
16 Q. Okay. And was there more than one of
17 those meetings that you would have attended with, you
18 know, some influential people in the community, and you
19 used some term like that in your deposition?
20 A. Police Command Staff. I don’t remember
21 how many meetings Duke Police came to. City Manager,
22 legal advisers, yes, there were several.
23 Q. Okay. And some of your notes have
24 references that you were being requested to provide
25 certain information to the County Manager to be
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1 submitted ---
2 A. City.
3 Q. --- City Manager to be submitted to City
4 Council, is that correct?
5 A. Yes.
6 Q. And were those requests being made prior
7 to the time that anybody was indicted?
8 A. I know it’s written down here, I’ll just
9 have to find the date.
10 MR. BROCKER: Can I help?
11 MR. WITT: Yes.
12 MR. BROCKER: I think if you’ll
13 look at the bottom of Page 25 that may be what you’re
14 looking for there.
15 MR. WITT: Oh, yeah. Yeah.
16 Q. Since I just found it, Page 25, bottom
17 paragraph.
18 A. That would be the date.
19 Q. And that date would be what?
20 A. It would be the beginning -- it’s the
21 same day of the photo presentation, the 4th of April.
22 So, yes, it was before the indictment.
23 Q. In your years of experience as a member
24 of the Durham Police Department, have you as a matter
25 of course been requested to provide investigative notes
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1 so that they can be provided to the City Manager to
2 review and be provided to City Council?
3 MR. HILL: Objection. You can
4 answer.
5 A. I am trying to think of one big case I
6 had and did that. I don’t recall, but I don’t believe
7 so.
8 MR. WITT: Okay. I don’t have any
9 further questions.
10 MR. HILL: I’ve got just two.
11 CROSS-EXAMINATION BY MR. HILL:
12 Q. You were asked by Mr. Brocker with
13 respect to the requirements to a Non-Testimonial Order.
14 Remember that?
15 A. Yes.
16 Q. Okay. Clarify for me how one obtains
17 such an Order?
18 A. The only thing the Police Department
19 does is provides an affidavit to the District
20 Attorney’s office and the District Attorney’s office
21 decides whether or not they want to take it before a
22 judge, and then the District Attorney’s office applies
23 for a non-testimonial before a judge.
24 Q. And does a judge sign that Order?
25 A. Yes.
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1 Q. How did it come about the you appeared
2 before the Grand Jury in this case?
3 A. I was subpoenaed.
4 Q. By whom?
5 A. The District Attorney’s office.
6 MR. HILL: That’s all I have.
7 Mr. Brocker is entitled to ask you
8 some follow-up questions.
9 REDIRECT EXAMINATION BY MR. BROCKER:
10 Q. I just want to make sure I can get a
11 couple of items from somebody else and not keep you
12 here any longer.
13 But you mentioned in the course of Mr.
14 Witt’s examination that there was a scratch on
15 Mr. Evans on his arm that was significant to you.
16 Would Investigator -- do you know if there is any
17 documentation of that?
18 A. There were photographs that were taken
19 by the Forensics Division and Investigator Himan would
20 have those documents.
21 Q. Okay.
22 A. And if he doesn’t have those documents,
23 it would be in Property.
24 Q. And that, I presume, would have been on
25 the night of the 16th when he came in to give a
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1 statement? Is that when the photographs would have
2 been taken?
3 A. No, that was in the Non-Testimonial.
4 Q. So on the 23rd of March?
5 A. The date of the Non-Testimonial, yes.
6 Q. Okay. And did you say in response to
7 Mr. Witt’s question that Mr. Nifong did ask that the
8 photographic presentation be recorded or videotaped in
9 some way?
10 A. Yes, so there was no discrepancies.
11 Q. Did he discuss with you that he wanted
12 that done so it could be viewed by the people, the
13 categories of people that were set forth in the notes
14 that you made with Mr. Witt, the jurors, the defense
15 attorneys, prosecutors?
16 A. He just said he wanted it so that it
17 would be there so that anyone who saw it would know
18 that this is how it was done and there were no
19 questions whatsoever.
20 MR. BROCKER: That’s it. Thank
21 you, Sergeant Gottlieb.
22 (Whereupon, the deposition of
23 SERGEANT MARK D. GOTTLIEB was concluded at 3:51 PM.)
24 - - - -
25
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STATE OF NORTH CAROLINA
COUNTY OF WAKE
CERTIFICATE OF TRANSCRIPT
I, Margaret M. Powell, Certified Verbatim Reporter-Notary Public, the officer before whom the foregoing proceeding was taken, do hereby certify that said proceeding, pages 1 through 204, inclusive, is a true, correct and verbatim transcript of this proceeding.
I further certify that I am neither counsel for, related to, nor employed by any of the parties to the action in which this proceeding was heard; and further, that I am not a relative or employee of any attorney or counsel employed by the parties thereto, and am not financially or otherwise interested in the outcome of the action.
This the 30th day of April , 2007.
Margaret M. Powell, CVR

* * *