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JSwift Apr 28 2008, 08:52 PM
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 The following questions deal with the activities of the DPD during the early stage of the “investigation” (prior to the involvement of either Nifong or any of the defense counsel):


1.The alleged attack was first reported early on March 14. The Durham Police Department (DPD) knew at that time the address of the house where the attack was alleged to have occurred. The Duke University Police Department sent officers to check the house, but left when no residents were there.

•Why did the Duke Police, rather than the DPD, send officers to check the house?
•Was the decision to ask the Duke Police to become involved in the early stages of a felony investigation consistent with standard DPD procedures?
•Why did the DPD not follow up that night?
•Why was the alleged crime scene not secured or searched until March 16, more than two full days after the attack was first reported?
•Why was the DPD not concerned about the potential contamination of evidence?
•Is the failure to secure an alleged crime scene consistent with standard DPD procedures?


2.The accuser was released from Duke University Medical Center (DUMC) in the afternoon on March 14.

•Why were no officers available to question or escort the accuser from DUMC upon her release?
•Were there no concerns for her safety?
•Is the failure to make contact with the accuser upon her release consistent with standard DPD procedures?


3.It has been reported that responding officers did not believe the accusation. Sgt. John Shelton was the first DPD officer to see the accuser at the Kroger parking lot on the morning of March 14. He described the accuser as “passed out drunk” and noted no injuries. He indicated that he believed that the accuser was lying. Officer William Barfield took the accuser to Durham Access. Officer Gwendolyn Sutton spent several hours with the accuser at DUMC. In their depositions or testimony in connection with Nifong’s Bar trial, Nifong, Gottlieb and Himan were extremely critical of Shelton.

•Is this report correct?
•If so, on what basis did the responding officers make the judgment that the accusation was not credible?
•On what basis was this initial judgment overturned?
•When were the reports of the responding officers available to the investigation?
•Why was there a delay in receiving the responding officers’ reports?
•When did the investigators first speak with the responding officers?
•How extensive was the interview with Shelton?
•Were Barfield and Sutton ever interviewed in connection with the investigation or did investigators merely rely on their reports?
•Why did Shelton file an addendum to his report in early April?
•Why were attempts made to discredit Shelton’s initial response?
•Who made the decision to attempt to discredit Shelton?


4.The accuser was first encountered by the DPD in the Kroger parking lot on the morning of March 14. Angel Altmon, a security guard at the Kroger, made the call to the DPD. Altmon later was quoted in the media indicating strong doubts that the accuser had been raped. Himan’s typewritten case notes include an interview with Altmon on December 7.

•Did the DPD interview Altmon before December 7?
•If not, why not?
•Is the failure to interview Altmon prior to seeking indictments and more than eight months after the accusation was received consistent with standard DPD procedures?
•Was the DPD aware that Altmon had been interviewed in the media?
•Did the media interviews suggest that Altmon may have information useful to the investigation?
•Why does the DPD believe that the observations of witnesses in felony investigations are irrelevant to the decision to seek indictments in an investigation?


5.There is no reported activity by the DPD reported on March 15, the day after the attack was first reported. It has been reported that the Duke PD directed the DPD to pictures of the lacrosse players on GoDuke.com.

•Did the DPD obtain pictures of the players on that day?
•What actions were taken with the pictures?
•Why was there no attempt to contact the accuser on that day?
•Why were there no attempts to question other witnesses on that day?
•Why was there no attempt to search or secure the alleged crime scene on that day?
•Why were there no attempts to question medical personnel on that day?
•Why were there no attempts to question neighbors on that day?
•Why did the DPD lose a full day in the critical first stages of this investigation?
•What actions did the DPD take on March 15 in furthering this investigation?
•Is the failure to take action immediately after receiving a felony accusation consistent with standard DPD procedures?


6.In his deposition in connection with Nifong’s Bar trial, Gottlieb indicated that he had received a call on March 15 from Investigator Jones from District 5. In this call, Jones asked that District 2 Investigations, headed by Gottlieb, take over responsibility for the Duke investigation.

•Is this statement correct?
•Who made the decision to transfer responsibility from District 5 to District 2?
•Why was this decision made?
•Why had the case originally been assigned to District 5?
•Was this transfer consistent with standard DPD procedures?
•Why was the highest profile case in Durham assigned to an investigator still in training and supervised by a head of investigations who had been in his position for only two weeks?


7.On March 15, the accuser went to UNC Hospital claiming severe neck, back and knee pain, and she repeated the rape accusation. She claimed that she felt no pain in the DUMC emergency room because she was drunk. One physician observed that the accuser was a frequent visitor asking for narcotics. The accuser would return to UNC Hospital again on March 28 and April 5.

•When did the DPD become aware of these visits?
•Did the DPD interview any of the attending medical personnel?
•If so, at what time?
•How did the DPD reconcile the accuser’s statement that she felt no pain at DUMC with subsequently uncovered evidence?
•How did the observation that the accuser frequently sought narcotics affect her credibility?


8.On March 16, after two days of complete inactivity, the DPD sprang into action. DPD officers interviewed Tara Levicy, the SANE nurse-in-training who had assisted with the SANE exam, and the accuser and executed a search warrant on 610 N. Buchanan and interrogated the captains who lived there. At least four DPD detectives were assigned to this previously inactive case.

•Was the accuser known to the DPD prior to this investigation?
•If so, on what basis?
•After two days of inactivity, why did the DPD suddenly begin to appear to take the accusation seriously?
•What was the catalyst for this decision?
•Who was responsible for the decision?


9.On March 16, Inv. Benjamin Himan spoke with Tara Levicy, the SANE nurse-in-training who assisted in performing the SANE exam. Levicy apparently provided a statement in which she characterized the signs exhibited by the accuser as consistent with her accusation. The actual SANE report was not available at this time.

•Was Levicy’s lack of certification as a SANE known by Himan at this time?
•If so, did the lack of certification make her opinions less valuable in the investigation?
•Did Himan attempt to speak with Dr. Julie Manly, the resident who had performed the exam?
•If not, why was no attempt made?
•Did Himan make attempts to speak with other medical personnel at DUMC who had treated the accuser?
•If not, why not?
•Why did the DPD seek a statement from only one person?


10.There are no public reports that the DPD attempted in the initial stages of the investigation to interview any of the personnel at Durham Access, the substance abuse facility where the accuser first claimed that she had been raped. The accuser made this accusation only when prompted. Himan’s typewritten case notes include an interview with Mariecia Smith on June 14.

•Did the DPD interview personnel at Durham Access prior to June 14?
•If so, when were these attempts made?
•If not, why not?
•Do standard DPD procedures require investigators to interview all witnesses to whom a felony accusation is made?
•Why was there no attempt to interview Durham Access personnel prior to the indictments?
•After serving a subpoena on Durham Access on April 5, did the DPD make any attempt to obtain those records?
•If not, why not?
•If an attempt was made and records were obtained, why did the prosecution claim that no such records existed?


11.On March 16, several officers met with the accuser. In this meeting, she provided another version of her accusation, the details of which were inconsistent with the versions provided at DUMC.

•What attempts were made by these officers to reconcile the new version of the accusation with the prior versions?
•If no attempts were made to reconcile the version of the accusation with earlier versions, is this failure consistent with standard DPD procedures?
•If no attempts were made to reconcile the different versions of the accusation, how did the DPD officers decide which version of the accusation was the “correct” one?
•Which version of the accusation formed the basis for the investigation?
•Is a failure to reconcile differences in critical details between different versions of an accusation consistent with standard DPD procedures?
•How does the DPD generally proceed in cases in which the accuser provides conflicting versions of the accusation?
•Was the DPD’s investigation consistent with those prior cases?


12.The accuser apparently had made accusations while at DUMC that the other dancer had stolen her money on the night of the alleged attack?

•Was the accuser asked about the alleged robbery during the March 16 meeting?
•If not, why not?
•If so, why were these conversations recorded in Himan’s case notes?
•Why were the robbery charges against the other dancer never pursued?
•Was this decision not to investigate robbery charges consistent with standard DPD procedures?


13.At this meeting, Officer Reid took pictures of the accuser. These pictures demonstrate that the accuser had no physical injuries consistent with the brutal attack she had alleged. Reid’s report contains no description of injuries.

•Based on the accusation of a brutal attack, did the DPD officers expect to see physical injuries?
•Was the accuser asked to explain her apparent lack of injuries?
•If not, why not?
•If the accuser was asked no questions regarding her lack of injuries, is this failure consistent with standard DPD procedures?


14.Sgt. Mark Gottlieb’s report of the meeting contradicts Reid’s report and pictures. He describes the accuser as moving with great pain and unable to sit as a result of that pain. Gottlieb has indicated that he did not take contemporaneous notes.

•Why did Gottlieb not take notes?
•Is the failure to take notes standard DPD procedure?
•Why is Gottlieb’s account inconsistent with Reid’s report and pictures?
•Does the DPD expect that two officers participating in the same meeting will have radically different recollections of that meeting?
•How were these radically different recollections resolved?
•Why were Gottlieb’s observations apparently given more weight than Reid’s photographs?
•Is the decision to discount photographic evidence consistent with standard DPD procedures?


15.In his deposition in connection with Nifong’s Bar trial, Himan also described the accuser as moving with great pain. The portion of his case notes that described this part of the interview on March 16 were not included in the exhibits released publicly.

•Why is Himan’s account inconsistent with Reid’s report and pictures?
•Does the DPD expect that two officers participating in the same meeting will have radically different recollections of that meeting?
•How were these radically different recollections resolved?
•Why were Himan’s observations apparently given more weight than Reid’s photographs?
•Is the decision to discount photographic evidence consistent with standard DPD procedures?


16.At this meeting, the accuser provided descriptions of her alleged attackers. According to notes provided by Himan, these descriptions matched none of the players on the team or other attendees. She generally described the attackers as short and chubby, with one weighing 270 pounds. The DPD had received pictures of the lacrosse players on March 15.

•Was the accuser challenged on these descriptions?
•How did the officers reconcile these descriptions with their knowledge of the appearance of the lacrosse players?
•How does the DPD proceed in cases where the descriptions provided by the complaining witness are vague and match no known suspects?
•Was the DPD’s investigation consistent with those prior cases?
•Why did the DPD not ask a sketch artist to draw depictions of the alleged attackers?
•Is the failure to provide sketches consistent with standard DPD procedures?


17.Gottlieb’s report contains descriptions that are radically different than the descriptions contained in Himan’s notes. As noted above, Gottlieb has indicated that he did not take contemporaneous notes. His descriptions, provided in late June, months after the indictments, match the accused players with astonishing accuracy. In his deposition related to Nifong’s Bar trial, Gottlieb claimed that his descriptions were based on Himan’s notes and his own memory.

•Why did Gottlieb not take notes?
•Is the failure to take notes standard DPD procedure?
•Why are Gottlieb’s descriptions so inconsistent with Himan’s descriptions, particularly if Gottlieb used Himan’s notes in preparing his report?
•Does the DPD expect that two officers participating in the same meeting will have radically different recollections of that meeting?
•How were these radically different recollections resolved?


18.The accuser was not asked by the DPD on March 16 to provide a formal statement.

•Why was the accuser not asked to make a formal statement?
•Is this failure to obtain a formal statement consistent with standard DPD procedures?
•Does the DPD not believe that it is important to receive a statement as soon as possible?
•Does the DPD believe that recollections become more accurate with age?


19.At the March 16 meeting, the accuser was asked to participate in a photographic lineup. The lineup consisted photographs of some of the members of the lacrosse team. No non-player fillers were included as required by DPD regulations for photo lineups. The accuser was not able to identify any attackers in this lineup.

•Why did the officers adopt procedures that violated DPD guidelines?
•Why were no persons known not to have been at the party included as fillers?
•How were the players included chosen?
•If the descriptions of the players as recounted by Gottlieb matched the indicted players so precisely, why was Collin Finnerty, the player on the team with perhaps the most distinctive appearance, not included in this lineup?
•Does this failure to include in a lineup an obvious suspect make the descriptions in Gottlieb’s report questionable?
•Is the failure to include an obvious suspect in a lineup consistent with standard DPD procedures?


20.On March 16, the DPD applied for a search warrant for 610 N. Buchanan, the house at which the party had taken place. Himan filed an affidavit in the application for the search warrant in which he included statements of fact now known to be false. Himan claimed that the victim stated that she was “sexually assaulted…anally, vaginally and orally…[and] was hit, kicked and strangled.” In her statements, she had apparently never claimed to have been strangled. Himan had seen the accuser’s lack of injuries earlier that day, and the lack of injuries he had observed did not support his statements.

•What were Himan’s sources for this claim?
•Was he relying only on the accusation?
•To what extent was he relying on Levicy’s statement?
•Why did he ignore his personal observations regarding the accuser’s lack of injuries?
•Were the mistakes based on erroneous information or exaggerations?
•To what extent did Himan know that some of the statements in his affidavit were false?
•Has Himan been asked to explain his false statements?
•Has he been disciplined?


21.On March 16, the search warrant was executed on 610 N. Buchanan, and the three captains who lived there assisted police in locating the evidence seized. All three volunteered to be interviewed. They voluntarily provided DNA samples and offered to submit to polygraph tests. The captains denied the accusation.

•Why were the captains’ denials in their interviews that any sexual activity had taken place, consensual or otherwise, not viewed as credible?
•What did the captains say in their interviews that provided any credibility to the accusation?
•Were female officers used to take suspect kits from the captains?
•If so, is the use of female officers consistent with standard DPD procedures?
•If not, why were standard procedures violated in this case?
•Why were the captains’ offers to take lie detector tests rejected, particularly if the officers who interviewed them thought that they were hiding something?
•Is a decision to reject offers to take polygraph tests consistent with standard DPD procedures?


22.There are reports that one of the DPD officers claimed to have found cocaine in the house and that one of the residents was involved in an unrelated assault. When these allegations were denied, the officer is alleged to have indicated that he was just kidding.

•Are these reports correct?
•If so, were these actions an attempt to intimidate a witness?
•Is the intimidation of witnesses consistent with standard DPD procedures?
•If not, has the officer been disciplined?


23.In connection with the execution of the search warrant, all three of the resident captains voluntarily provided the DPD with access to their e-mail accounts. The DPD is reported not to have accessed the captains’ e-mail accounts before the initial indictments.

•Is this report correct?
•If so, why did the DPD fail to examine the e-mail accounts?
•Is this failure consistent with standard DPD procedures?
•If the DPD accessed the e-mail accounts of the captains, what additional evidence did this provide?


24.On March 17, Gottlieb sent a message to the Trinity Park server asking for assistance in the investigation of the alleged rape.

•Why did Gottlieb fail to describe the attack as “alleged” as with most accusations?
•Why did the DPD make no attempts to interview neighbors to determine if they had any relevant information?
•Is the failure to interview neighbors consistent with standard DPD procedures?
•What other actions did the DPD take on March 17 in this investigation?


25.On March 17 and March 18, the accuser reportedly danced at the Platinum Club and signed into the VIP room while there. While there, she apparently told co-workers that she was going to get money from some boys at Duke, but did not mention the alleged assault. The accuser was filmed dancing at the Platinum Club on March 25. The film apparently was offered to Nifong. She apparently was observed engaging in a sexual act at the Platinum Club on that night.

•When did the DPD become aware of this report?
•Was the DPD aware that the film had been offered to Nifong?
•If not, why not?
•Was the DPD aware of the report prior to its publication in the media?
•If not, why not?
•Is this report correct?
•Did the DPD believe that the activities of the accuser both before and after the alleged attack were unimportant?
•If so, why are the activities unimportant?
•If the report is correct, does this activity affect the credibility of the accuser?
•Does the ability of the accuser to dance at a strip club three days after the alleged attack raise questions about the extent of the injuries she allegedly suffered in a brutal beating?
•Does the claim that she was going to get money from the players raise questions about the credibility of the accuser and any motivations she may have for making the accusation?
•Was the accuser ever asked about these reports?
•If not, why not?
•Did the DPD ever interview any of the accuser’s co-workers at the Platinum Club?
•If not, why not?
•Is a failure to follow up reported activities of a complaining witness consistent with standard DPD procedures?


26.There is no reported activity on March 18 or March 19.

•Did the DPD take any actions over the weekend regarding the investigation?


27.On March 19, the News & Observer published a short article describing the report of a rape. Gottlieb was quoted in this article: “It was an act where alcohol was involved.”

•Was Gottlieb accurately quoted?
•If so, why did he fail to describe the report as an allegation?
•Is this failure consistent with standard DPD procedures?
•If Gottlieb was not accurately quoted, was an attempt made to correct the record?
•If not, why not?


28.On March 20, Gottlieb sent a message to the Duke server asking for assistance in the investigation of the alleged rape.

•Why did the DPD make no attempts to interview neighbors to determine if they had any relevant information?
•Is the failure to interview neighbors consistent with standard DPD procedures?


29.On March 20, Himan spoke on the telephone with Kim Pittman, the other dancer at the party. Pittman characterized the accusation as a “crock” and estimated that she had not been separated from the accuser for more than five minutes.

•Did Pittman’s comments raise any questions about the credibility of the complaining witness?
•Because her reaction did not support the allegation, was Pittman challenged at this time?
•What attempt was made to reconcile Pittman’s statement with the details of the accusation?
•Did Himan ask Pittman any questions or did he merely take notes of her comments?
•If no questions were asked, is this failure consistent with standard DPD procedures?


30.On March 21, Gottlieb claims to have met with Levicy and that at this meeting Levicy characterized the accuser’s injuries as consistent with a sexual assault. He claimed to have picked up the SANE report at this time. A subpoena for the medical records was served on DUMC on this date. In her testimony in Nifong’s Bar trial, Levicy denied meeting with Gottlieb on this date.

•Did Gottlieb meet with Levicy on this date?
•If not, why did he make this claim in his report and in his deposition?
•Was a version of the SANE report available at this time?
•If the SANE report was not available at this time, when was the report made available?
•Did Gottlieb read the SANE report prior to his interview with Levicy?
•If so, did Gottlieb realize that no significant injuries were documented in the report?
•If so, did Gottlieb challenge Levicy to determine why her earlier statement was not consistent with the SANE report?
•Did Gottlieb challenge Levicy to determine why her statement regarding blunt force trauma was not consistent with either the SANE report or the lack of physical injuries observed on the March 16 meeting?
•If no attempt was made to reconcile Levicy’s statements with the SANE report, is this failure consistent with standard DPD procedures?
•Was the DPD aware at this time that the accuser had claimed at UNC Hospital on March 15 that she had felt no pain at DUMC?
•If so, what attempt was made to reconcile that statement with Levicy’s characterization of the accuser’s demeanor?
•Was Levicy’s lack of certification as a SANE known by Gottlieb at this time?
•If so, did the lack of certification make her opinions less valuable in the investigation?
•Did Gottlieb attempt to speak with Dr. Julie Manly, the resident who had performed the exam?
•If not, why was no attempt made?
•Did Gottlieb make attempts to speak with other medical personnel at DUMC who had treated the accuser?
•If not, why not?
•Why did the DPD seek a statement from only one person?


31.On March 21, the DPD met with the accuser for a second time. At this meeting, the accuser provided another version of her story.

•What attempts were made by these officers to reconcile the new version of the accusation with the prior versions?
•What attempts were made to reconcile the accusation with Kim’s characterization of it as a “crock” and her statement that she had not been separated from the accuser for more than five minutes?
•What attempts were made to reconcile the accusation with the statements made by the captains in which they denied that any sex had taken place?
•If no attempts were made to reconcile the accusation with other evidence, why not?
•Is the failure to reconcile conflicting statements consistent with standard DPD procedures?


32.At this meeting, the accuser participated in another photographic lineup. This lineup also violated the DPD guidelines for lineups because it contained no non-player fillers. The accuser once again failed to identify her attackers.

•Why did the officers adopt procedures that violated DPD guidelines?
•Why were no persons known not to have been at the party included as fillers?
• How were the players included chosen?
• Were any attempts made to reconcile the choice made and not made with conflicting choices in the previous lineup?
•If not, why not?
•If the descriptions of the players as recounted by Gottlieb matched the indicted players so precisely, why was Collin Finnerty, the player on the team with perhaps the most distinctive appearance, once again not included in this lineup?
•Does this second failure to include in a lineup an obvious suspect make the descriptions in Gottlieb’s report even more questionable?
•Is the failure to include an obvious suspect in a lineup consistent with standard DPD procedures?


33.Brian Taylor, one of the accuser’s two drivers, drove the accuser to 610 Buchanan on March 13. Taylor apparently dropped her off at approximately 11:40 p.m. The special prosecutors’ report indicated that he purchased a drink at a nearby gas station at 11:43 p.m. Taylor was first interviewed on March 21. He indicated that they left for the dance at 10:40 p.m., but apparently was not asked the time of their arrival. Based on Himan’s typewritten case notes, Taylor was asked few questions.

•Why was Taylor not asked to estimate the time of arrival?
•Did the interview with Taylor help to establish a timeline?
•If not, why not?
•Is a failure to use witnesses to establish a timeline consistent with standard DPD procedures?
•Was the DPD aware that Taylor had purchased a drink at the nearby gas station?
•If not, why not?
•Did the DPD question Taylor about the accuser’s activities prior to the lacrosse party?
•If not, why not?


34.The accuser was not asked by the DPD on March 21 to provide a formal statement. This meeting is one week after the initial accusation of the attack.

•Why was the accuser not asked to make a formal statement?
•Is this failure to obtain a formal statement consistent with standard procedure?
•Does the DPD not believe that it is important to receive a statement as soon as possible?
•Does the DPD believe that recollections become more accurate with age?


35.On March 21, Jason Bissey, the next-door neighbor called Himan to provide information. Himan’s typewritten case notes do not provide specific times for the dancers’ arrivals or departure. The DPD did not follow up this call for more than one week.

•Why have the DPD not canvassed neighbors in the first week of the investigation?
•Why was Bissey not asked for an estimate of the time of the dancers’ arrivals and departure?
•Why did the DPD apparently not believe that an eyewitness could provide information related to establishing a timeline for the alleged attack?
•Why did the DPD not follow up for more than one week?


36.On March 22, Kim Pittman appeared at a police station where she gave her formal statement. In her statement, she claimed that she and the accuser had not been separated except for two periods of approximately five minutes. Her statement left no time for the twenty to thirty minute attack then alleged.

•Was Kim challenged on the inconsistencies between her formal statement and the accusations?
•Did Kim’s formal statement raise questions regarding the credibility of the accusation?


37.Kim Pittman was not asked at this time to make identifications of any of the players who had attended the party. Despite the failure of the accuser to make identifications on either March 16 or March 21, the DPD appeared to be uninterested in Kim’s ability to make identifications.

•Why was Kim Pittman not asked to make identifications at the time she had given her formal statement?
•Why would the ability of a witness to identify either suspects or other witnesses not be relevant to the investigation?
•Is this failure to ask a witness to make identifications consistent with standard DPD procedure?


38.After she provided her formal statement casting doubt on the credibility of the accusation, Kim Pittman was arrested on an outstanding warrant.

•Was this arrest an attempt to intimidate a witness or is the arrest of a witness standard procedure for the DPD?
•Was there an attempt by the DPD to convince Kim to alter her story?
•Was the only such attempt to intimidate a witness made by the investigator in the DA’s office?


39.In executing the search warrant on 610 N. Buchanan, the DPD seized the accuser’s cell phone. The contents of the phone apparently were not analyzed by the DPD. The defense attorneys were required to ask the court to require that the phones be analyzed.

•Why were the contents of the phone not analyzed?
•Why did the DPD not believe that the information contained in the phone was relevant to the case?
•Could the times of telephone calls helped to have established a time line?
•Could interviews with the persons with whom the accuser had spoken immediately before or immediately after the party have provided additional information relevant to the case?
• Is the failure to analyze evidence standard procedure for the DPD?


40.In executing the search warrant on 610 N. Buchanan, the DPD seized several cameras. It is unclear whether the contents of those cameras were analyzed.

•Were the contents of the cameras analyzed?
•If so, what did the pictures show?
•Did the pictures provide any evidence that supported the allegations?
•Why were the pictures not used to identify which players had attended the party?
•If the pictures provided no evidence that supported the allegations, what actions were taken to reconcile that lack of evidence with the accusation?
•If the pictures were not analyzed, why not?
•If not, why did the DPD believe that photographs of the party were not relevant to the investigation?
•If a failure to analyze photographic evidence consistent with standard DPD procedure?


41.On March 22, a lawyer retained by Duke to “facilitate” a meeting between the players and the DPD called to cancel the meeting. Apparently, one of the players had told his father about the meeting, other parents were informed, and the parents insisted on legal representation. The report confirms that this meeting was first rescheduled for March 29, then cancelled and not rescheduled a second time.

•At what time was the meeting rescheduled?
•Who cancelled the March 29 meeting?
•If the players’ attorneys had agreed to have the players meet with the DPD, why did the DPD act in bad faith as described below?


42.On March 23, the DPD sought a non-testimonial order (NTO) to require all 46 of the white players to submit to DNA testing and to sit for photographs. This NTO has been criticized as potentially unconstitutionally broad, particularly in light of the accuser’s inability to provide credible descriptions.

•Who made the decision to apply for a broad NTO?
•On what basis was the decision made to apply for such a broad order?
•Is this standard procedure?
•Has the DPD sought equally broad orders in other cases?
•The Baker/Chalmers report made the claim that not all of the players were suspects, and they were included in the March 16 and March 21 lineups as fillers. Is the mandatory testing of non-suspects consistent with standard DPD procedures?
•If so, what is the value of subjecting non-suspects to this mandatory testing?
•Has the DPD subjected non-suspects to mandatory testing in other investigations?


43.The affidavit filed by Himan in the application for the NTO contained false statements. Himan claimed, “medical records and interviews … revealed that the victim had signs, symptoms, and injuries consistent with being raped and assaulted vaginally and anally.” Although Levicy’s statement provided support for portions of this claim, Himan was aware that the SANE report and other medical records did not support the claim. Moreover, neither Levicy nor the medical report supported the alleged anal assault.

•What were Himan’s sources for this claim?
•Did he conduct multiple interviews as claimed in the affidavit?
•If not, why was this claim made?
•Was Levicy the only source?
•Had either Gottlieb or Himan reviewed the SANE exam obtained by Gottlieb on March 21 as he had claimed?
•If so, why did Himan ignore the results of the SANE exam?
•If not, why did Himan cite the results of the exam in the affidavit?
•Were these false statements merely mistakes or did Himan commit perjury?
•Does the DPD excuse making false statements in affidavits?
•Was Himan disciplined for these false statements?


44.The affidavit filed by Himan in the application for the NTO adopted the “false names” theory in which for the first time it was alleged that the accuser had claimed that the assailants (previously identified as Adam, Bret and Matt) were not using their real names.

•On what basis was the “false names” theory adopted?
•Had the accuser made this statement without prompting by DPD?
•If not, why did the affidavit contain this claim?
•Is the inclusion of false statements on sworn affidavits consistent with standard DPD procedures?
•Why did the DPD appear to avoid any evidence not consistent with this theory?
•Is a failure to test a theory consistent with standard DPD procedures?


45.When the players appeared later that day on March 23 to submit to the NTO, the media was there to photograph them. The doors had apparently been locked, delaying the entry of the players.

•Who had alerted the media about the NTO and the players’ appearance?
•Were the doors locked?
•If so, why were they locked in the middle of the day and at the time the players were required to appear?
•Were the locked doors an attempt to further humiliate the players?
•Why did the DPD choose to act in bad faith at this critical stage?
•Does the DPD believe that humiliation is the most effective means to convince witnesses to cooperate?
•Is a “media ambush” consistent with standard DPD procedures?


46.On March 24, Cpl. David Addison made his first statements regarding the accusation. Unlike other such statements made by DPD spokespersons, Addison used highly inflammatory language, describing the attack as “horrific.” He justified the NTO in emotional terms, stating that 46 DNA tests were justified as a result of an attack on a mother or sister. He claimed that none of the players had cooperated and failed to include the captains’ cooperation on March 16.

•Why was the attack not described as “alleged” as in other DPD cases?
•Who instructed Addison to use such inflammatory language?
•Was the claim of non-cooperation by all of the players merely an oversight or was it an attempt to portray the players as negatively as possible?
•Why were his statements not corrected?
•Why was he or the superior who had ordered the inflammatory language and false statements not disciplined?


47. On March 24, the News & Observer published a sympathetic interview with the accuser conducted by its reporter Samiha Khanna in which the accuser claimed that the players had begun “barking” racial slurs moments after their arrival. This accusation apparently had not been made previously by the accuser—either at Durham Access or at DUMC on March 14 or in interviews with the DPD on March 16 and March 21.

•Had the accuser made the claim regarding racial slurs (except during the alleged attack) in any of the prior versions of her story?
•If not, did the DPD recognize that the claims made by the accuser in the Khanna interview were inconsistent with the claims she had made previously?
•Was the accuser asked any questions regarding this interview?
•Did the DPD make an attempt to reconcile the accuser’s new version of her accusation with her prior versions?
•If not, why not?
•Is a failure to reconcile different versions of an accusation consistent with standard DPD procedures?
•Did anyone from the DPD discuss this interview with Khanna?
•If so, what was discussed?
•Did anyone from the DPD encourage Khanna to interview the accuser?
•Did anyone from the DPD provide Khanna with information regarding the accuser (e.g., her name and address)?
•Did the DPD provide additional background information to Khanna?
•If so, is this consistent with standard DPD procedures?


48.On March 24, the DPD conducted tests on three of the phones seized in the execution of the search warrant. No results of these tests are included in Himan’s typewritten case notes.

•Why did it take more than one week to test the cell phones?
•Is this delay consistent with standard DPD procedures?
•Were all of the phones tested?
•If not, why not?
•What information was obtained through these tests?
•What actions did the DPD take to follow up this information?
•Why were the results not included in Himan’s case notes?


49.On March 24, Capt. Jeff Lamb instructed Gottlieb and his team of investigators to report to District Attorney Mike Nifong on this case. Gottlieb confirmed these instructions in his deposition in connections with Nifong’s Bar trial. Nifong had no experience in conducting a criminal investigation.

•Is this report correct?
•Who was responsible for this decision to give Nifong full responsibility for the investigation?
•Does this represent standard DPD procedure?
•Was there any continuing oversight by the DPD?
•When Nifong instructed DPD officers to violate standard procedure, were they told to do so without questioning Nifong’s instructions?
•Were DPD officers told to advise senior officers of their activities or were they told to communicate only with Nifong?


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