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April 30, 2006
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DA, N.C. police to be 'tried,' too

Copyright 2006 The News and Observer

Two Duke lacrosse players face charges after allegations of a rape at 610 N. Buchanan Blvd. If a trial proceeds, the case's evolution will be scrutinized
The News & Observer

DURHAM, N.C. — If and when the Duke lacrosse case gets to a courtroom, more than the defendants will be on trial.

So will the Durham police and the prosecutor leading the case.

Durham officials and defense lawyers expect withering scrutiny of the most publicized criminal investigation in city history.

A woman hired to dance at a lacrosse team party March 13 said three men pushed her into a bathroom and raped, sodomized, beat and strangled her. Two players have been charged, and District Attorney Mike Nifong has said more charges are possible.

Although the detectives are still investigating and most evidence is not yet public, the investigation has raised questions about the handling of the case.

The accuser picked out her alleged attackers in a process that violated the Durham Police Department's own policy on identification lineups. After the lineup, the police did not search the suspects' dorm rooms for two weeks.

The spotlight will also fall on Nifong, the district attorney, who took charge of the investigation early on. Critics charge that Nifong shut his door to evidence that challenged his case while he was proclaiming the guilt of lacrosse players in the national media.

Nifong and the police will face the fight of their careers against some of the state's most experienced defense lawyers. Those lawyers will have ample money to hire investigators, forensic scientists and other experts to attack the state's case.

"The state of North Carolina has more money than the defendants," said James P. Cooney III, a Charlotte defense lawyer not involved in this case. "But the state won't have more money in this case than the defendants."

Durham City Manager Patrick Baker said he expects police investigators' every step to be second-guessed.

"They have my full confidence," Baker said. "I am satisfied with the direction of this case."

Defense lawyers are taking aim at the police lineup procedure requested by Nifong.

On April 4, lead investigator Sgt. Mark Gottlieb sat the accuser down in front of a large computer screen to view a series of photographs, according to Gottlieb's report on the procedure.

Gottlieb wrote that he told her that she was going to sit at a table and "look at people we have reasons to believe attended the party."

He then displayed each head shot on the screen for one minute, followed by a blank screen, followed by another head shot, and so on.

This identification process led to the indictment two weeks later of two players, Reade Seligmann and Collin Finnerty.

The lineup procedure ran contrary in two fundamental ways to the police department's General Order 4077 on Eyewitness Identification issued in February.

- Policy calls for an independent administrator to run the lineup, not the primary investigator. This avoids any unintentional influence from the investigator.

- The lineup should include five "fillers" -- people who have no connection to the case -- for every suspect, to protect against faulty identification. If an accuser picks a filler photograph, the defense is certain to challenge that witness's reliability.

Defense attorneys complain that by showing only lacrosse players, and telling the accuser that she would look only at people at the party, police sent the message to pick three of the 46 players.

"The entire process has tainted the identification," said Joseph B. Cheshire V, who represents a team captain who has not been charged. "The identification procedures are constitutionally infirm and would not stand up to legal attack."

Police aren't answering questions about the investigation. Baker, the city manager, said such complaints will be settled in the courtroom and declined to say whether any policies were violated.

"I met with the investigators, and I am satisfied we followed every applicable policy," said Baker, a former assistant city attorney.

Searches delayed

Defense lawyers will likely point out several delays in the investigation that could have tainted the collection of evidence.

Police did not search the house where the party took place for two days after the party. Baker has said the delay occurred because it took 31 hours for police to get the accuser to give a statement of what happened at the party. But that does not explain why it took one more day to search the house. Nifong, the prosecutor, has said the delay may have resulted in lost evidence.

After giving dozens of interviews in the initial weeks of the investigation, Nifong has declined to discuss the facts of the case and the investigation.

A second delay in searching for evidence occurred after the accuser identified Seligmann and Finnerty on April 4. Two weeks later, after they were indicted, Durham police obtained a search warrant and searched the two players' dorm rooms.

Police also seemed slow to interview witnesses such as Jason Bissey, who lives next door to the lacrosse house and was on his porch that night.

Shortly after the party cleared out, police arrived to check out complaints about the noise. Bissey was outside and told police there had been a party.

A week passed before Bissey learned from a neighborhood e-mail group that police were investigating a report of a rape at the party. On the morning of March 21, Bissey said, he called Investigator Benjamin Himan at the Durham Police Department and left a message. The next day, Bissey spoke briefly with police. He gave the police a full statement April 1, after his account had already appeared in several national publications.

And police have not moved to seize photos taken at the party that defense lawyers argue show that the window of opportunity for a rape was very short. A defense lawyer leaked some of the photos to MSNBC. Some show the accuser and a second dancer performing in the living room. Another photo, time-stamped about a half-hour later, show the accuser standing on an outside porch looking through a small bag. A subsequent photo shows her passed out on a porch, and a final photo shows her being helped into a car.

Police did go to the local NBC station and ask for copies of the photographs. Nannette Wilson, vice president for news at WNCN-TV, confirms that Gottlieb called one of the station's reporters on April 20, the day after the photos aired on their newscast and copies were posted on the Web. He asked whether they had unaltered versions that had not been cropped and without the faces of the accuser and partygoers blurred. She told them that they did not. The photos came electronically and already altered from the network.

Dan Abrams, who hosts an MSNBC legal affairs program, made an on-air invitation to Gottlieb to come on the show to discuss the photographs.

"I'll ask him questions, and there won't be any ambiguity as to who said what, and he's invited to come on the program," Abrams said April 21.

Defense complaints

Defense lawyers have complained that they offered to show the photos and other evidence of their clients' innocence to Nifong but that he refused to review it. Several defense lawyers have complained that this runs contrary to the rules of professional conduct that guide lawyers: Prosecutors have a special duty to seek justice, not merely to convict.

Durham lawyer Julian Mack represents several players. A prosecutor for 17 years, Mack said he and Kirk Osborn, Seligmann's lawyer, went to see Nifong after the indictments. The lawyers carried phone records, an ATM receipt, an affidavit from a taxi driver and other evidence showing Seligmann had left the party shortly after the dancing stopped and could not have participated in any assault.

"Mr. Nifong wouldn't see them," said Mack. "I kept my door open when I was a prosecutor."

Cooney, the Charlotte lawyer, found Nifong's refusal astounding.

"I've never been in a major criminal or civil case where I've offered to share evidence and the other side says no," Cooney said.

There has been a notable absence throughout the most publicized crime investigation in Durham history: Durham Police Chief Steve Chalmers has not once appeared in public to address the community or media. His staff says he is in Durham attending to his mother, who is seriously ill.

Baker, the city manager and Chalmers' supervisor, said the chief is keeping tabs on the investigation.

"I know he always has his Blackberry with him and he gets regular updates about the case," Baker said, referring to the hand-held electronic device that allows its owner to answer phone calls and wirelessly send and receive e-mail. "I don't have any concerns about that other than concern for the welfare of his mother. He's been in and out of the office, but that is not a hindrance to the investigation."

Nifong in charge

During Chalmers' absence, Nifong has taken charge of the investigation. Nifong has said he would personally prosecute the case. In March, he gave at least 50 interviews on the case and appeared live on national television a dozen times.

Nifong, who is up for election Tuesday, has been criticized by his opponents for his handling of the case.

He will face a formidable defense team at trial, with the ability to hire investigators and forensic experts to contest the state's case and scrutinize the police.

"The families and the lawyers are committed to make sure the truth is presented to a jury," said Cheshire, the lawyer for one of the captains. "That commitment is a full commitment."

Durham saw such a case in recent years. Durham author Michael Peterson spent upward of $1 million on experts, investigators and lawyers but was still convicted in a 2003 trial of killing his wife.

"Money and resources never overcome facts," Cooney said.

Full story: DA, N.C. police to be 'tried,' too

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