Posted by K.C. Johnson (guest-blogging): Nifong's Enablers http://volokh.com/archives/archive_2007_09_16-2007_09_22.shtml#1190382047
For those who believed the lacrosse case was over, the past two weeks brought news on two fronts. First, Brendan Sullivan and Barry Scheck, on behalf of the three falsely accused players and their families, presented representatives of the City of Durham with the outlines of a devastating potential lawsuit against the city, former DA Mike Nifong, several police officers, and other individual defendants. The initial demands: $30 million, plus a wide array of procedural reforms, unless the city caves in and settles. Second, after acting DA Jim Hardin urged a state criminal investigation of Nifong and others, reports surfaced that Justice Department investigators had arrived in the Triangle to look into the case. Meanwhile, we have learned, Duke, its administrators, and its extremist professors are not out of the legal woods yet either. The University settled months ago with the three falsely accused players. But now a high-powered legal team representing most of the other 44 members of the 2006 lacrosse team is exploring a possible lawsuit. The grounds would include mistreating the entire team, including misleading smears of the players by Duke President Richard Brodhead and dozens of professors. The first two moves are a reminder that the law enforcement misconduct in the lacrosse case extended well beyond Mike Nifong. Stuart and I thought we would wind up our week of guest-blogging by reviewing the performance of Nifong�s criminal justice enablers. Two people were vital in sustaining a case with no evidence and a complaining witness utterly lacking in credibility for Nifong to exploit. After the DA took over the case, the duo did everything possible to help him keep the charges alive. The first was Tara Levicy, the sexual assault (SANE) nurse who wrote up Mangum�s Duke Hospital report. A women�s studies major in college, Levicy worked for several years for a Maine company that ran nature tours. She then changed careers, got a nursing degree through an accelerated program for liberal arts majors, and moved to Durham. Eight months later, she was a SANE trainee. Levicy later told a defense attorney that she had never encountered a woman who lied about rape. She came across as an ideologue. And she applied her women-don�t-lie ideology to the lacrosse case regardless of the evidence. Since Levicy was still a trainee at the time, Dr. Julie Manly, a resident physician, conducted the physical exam of Mangum on the morning of March 14, 2006. Yet Levicy, essentially a note-taker, told a police investigator two days later that the exam showed signs consistent with a sexual assault even though the medical records said nothing of the kind. (Neither the Durham Police nor Nifong ever interviewed Dr. Manly.) By March 21, Levicy was saying that Mangum had experienced �blunt force trauma,� even though nothing in Levicy�s own official report suggested such a diagnosis. Over the next nine months, Levicy consistently changed her story to fit new prosecution theories of the �crime.� At the beginning, she had written that Mangum said her attackers were named Matt, Adam, and Brett and that they hadn�t used condoms. But when Nifong later claimed that the players used aliases and suggested that condoms might explain the lack of DNA evidence, Levicy adjusted her story to fit Nifong�s theory. In a January 2007 statement, Levicy contradicted her initial report by saying that the �victim� had been uncertain if her �attackers� had used condoms and had been aware that they had used aliases. When asked by a defense attorney why, if Mangum were uncertain, Levicy had thrice written in her rape report that Mangum said �no� when asked if the assailants used condoms, the SANE nurse had no reply. She also explained away the lack of DNA evidence with an unscientific feminist slogan: �rape is a crime of power, not passion.� As the interview continued, it became clear that Levicy didn�t understand that DNA could be obtained from items other than sperm. Skin cells, for example. Most SANE nurses, it should be noted, are professionals. But a minority (how large is unclear) are, like Levicy, ideologues determined to use their medical authority to uphold an ultra-feminist view of rape. Asserted defense attorney Joe Cheshire: �There�s a Tara Levicy in every hospital.� A second Nifong accomplice � or at least enabler � was Mark Gottlieb, the Durham police sergeant who supervised the case. Gottlieb was already notorious before the stripper party for arresting [1]ten times as many Duke students (all for trivial offenses) as the other three Durham officers of comparable rank and assignment combined. Several students leveled [2]credible allegations that he violated their rights in these arrests and lied in court to cover his tracks. Gottlieb muscled his way into case after the initial responders had concluded that Mangum was lying. The sergeant, on the other hand, seemed interested not in finding out what happened but in proving Mangum�s allegations and settling scores with Duke students. When Nifong ordered him to violate Police Department procedures and run a third photo-ID process confined to lacrosse players, Gottlieb did so unhesitatingly. By his own admission, in a [3]March deposition for the State Bar, the sergeant gave at best misleading and at worst outright false testimony to the grand jury that voted indictments against Reade Seligmann and Collin Finnerty. But Gottlieb�s most remarkable contribution to the case came in July 2006, when he submitted an undated, unsigned typewritten memorandum that purported to memorialize events from months before. (When asked why he had no contemporaneous notes, Gottlieb claimed that he had kept them on a �dry-erase board,� from which they had been accidentally erased.) Among other dubious items, Gottlieb�s memo claimed that in a March 16 conversation, Mangum had given dead-on descriptions of the three players ultimately indicted -- even though his partner�s contemporaneous handwritten notes showed that her descriptions had been radically different. With people like Levicy and Gottlieb helping him out, Nifong was able to keep a non-existent case alive. A post later today will look at other aspects of the troublesome legal culture that figured in Durham�s persecution of innocent lacrosse players. References 1. http://www.newsobserver.com/1185/story/484329.html 2. http://www.dukechronicle.com/home/index.cfm?event=displayArticlePrinterFriendly&uStory_id=8883624f-5b1f-4ab7-8f04-4f20a640ddf8 3. http://durhamwonderland.blogspot.com/2007/06/gottlieb-deposition.html
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