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JSwift Apr 28 2008, 08:55 PM
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 The following questions relate to the activities of the DPD after Nifong’s involvement and the decision by the players to retain counsel. None of these questions deal with the failure of the players to provide evidence to the DPD:


50.On March 27, Officer Angela Ashby provided the first round of evidence, including the rape kit, to the SBI.

•Why did it take almost two weeks to process the rape kit and provide it to the SBI for testing?
•Is this delay consistent with standard DPD procedures?
•Had the DPD’s crime scene investigation unit run any tests locally (e.g., to test for the presence of semen)?
•If not, why not?


51.Nifong is reported to have received his first briefing on the case on March 27. He began his media appearances later that day. In his testimony during Nifong’s Bar trial, Himan reported that Nifong’s reaction to the evidence was: “You know, we’re f**ked.”

•Is this report correct?
•Who briefed Nifong on that day?
•What information was provided in the briefing?
•Did Nifong receive only an oral briefing or was he provided with investigators’ notes or any written reports?
•Were the statements Nifong made to the media consistent with the information provided in the briefing?
•What information was Nifong given prior to this initial briefing?
•Did the DPD believe that the investigation had uncovered evidence that supported the charges?
•If so, what evidence was cited?
•If not, on what basis did the DPD continue to pursue charges?


52.On March 27, police executed a search warrant to search Ryan McFadyen ‘s dorm room. The affidavit filed by Himan in the application for the search warrant 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?
•Was Himan’s claim of multiple interviews accurate?
•Was Levicy the only source?
•Had Gottlieb reviewed the SANE exam 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?


53.On March 28, Addison, the DPD liaison to the Crimestoppers organization, released a wanted poster. This poster contained inflammatory language: “The victim was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community.” This language was not corrected until April 10.

•Why was the attack not described as “alleged” as in other DPD cases?
•Who instructed Addison to use such inflammatory language?
•Why was he permitted to use inflammatory language a second time on this case?
•Why was he or the superior who had ordered the inflammatory language and false statements not disciplined?
•Why was the language not corrected for more than two weeks?


54.On March 29, police searched a second residence of lacrosse players. Several items were seized. No search warrant apparently was issued.

•Why was no search warrant issued?
•On what basis was evidence seized?
•Did the residents of the house cooperate with the search by police?
•If the residents of the house cooperated with police in the search and voluntarily permitted the seizure of evidence, how was that cooperation consistent with the statements made by DPD spokespersons that no players had cooperated?


55.On March 29, Officer Angela Ashby provided a second round of evidence to the SBI.

•What evidence was included in this delivery?
•When was this evidence obtained?
•Was the delivery made on a prompt basis?
•If the delivery was delayed, is this delay consistent with standard DPD procedure?


56.On March 30, Officer Angela Ashby provided a third round of evidence to the SBI.

•What evidence was included in this delivery?
•When was this evidence obtained?
•Was the delivery made on a prompt basis?
•If the delivery was delayed, is this delay consistent with standard DPD procedure?


57.On April 3, Himan picked up the statement provided by Jason Bissey, the next-door neighbor. Bissey had been interviewed on several news shows. Bissey’s statement helped to provide a time line. Himan asked Bissey no questions, and Bissey was never interviewed by the DPD. Himan did not ask to speak with Bissey’s housemate.

•Why did the DPD not obtain Bissey’s statement for more than one week after he had initially contacted police?
•Why did the DPD not obtain Bissey‘s statement for more than two weeks after the alleged attack?
•Did the DPD first learn of Bissey’s observations when he was interviewed on television?
•Why did the DPD not interview Bissey?
•Why did the DPD not interview Bissey’s housemate?
•Is the failure to interview eyewitnesses consistent with standard DPD procedure?


58.On April 3, Addison distributed a news release offering a cash reward for information. Addison continued his inflammatory language: “The victim was sodomized, raped, assaulted and robbed. This horrific crime sent shock waves throughout our community.” This release was twice rewritten and resent.

•Why was the attack not described as “alleged” as in other DPD cases?
•Who instructed Addison to use such inflammatory language?
•Why was he permitted to use inflammatory language a third time on this case?
•Why was he or the superior who had ordered the inflammatory language and false statements not disciplined?
•Were any rewards paid?
•If so, for what information?


59.On April 4, the accuser was asked to participate in a photographic identification procedure. This procedure violated DPD policies for lineups because it contained no fillers. It also violated DPD policies for lineups because Gottlieb, one of the investigators in the case, conducted it. For the first time, all of the white lacrosse players were included in the lineup. Neither of the non-players known by the DPD to have attended the party was included. The lineup was videotaped, to permit “potential jurors” to see the process. The accuser identified four of the players as her three attackers.

•Why did the officers adopt procedures that violated DPD guidelines?
•If the lineup was designed only to identify who had attended the party, why was the African-American player who attended the party excluded?
•Why did the lineup exclude the non-players known by the DPD to have attended the party?
•Why did Gottlieb not pursue questioning after the identification of Matt Wilson, a player identified by the accuser as one of her attackers?
•Why was Wilson not pursued as a potential attacker after the identification?
•Why did Gottlieb ask the accuser the leading question of whether Finnerty was the player who had strangled her when the medical report had shown no signs of strangulation and the accuser had earlier denied being choked?
•Are leading questions in lineups consistent with standard DPD procedures?
•Was the accuser asked to explain her certainty of the attackers (100% in the cases of Finnerty and Seligmann and 90% in the case of Evans) in light of her inability to make any identifications in the earlier lineups?
•Was the accuser asked to explain the errors she made in her other identifications when the DPD obtained information that demonstrated these errors?
•If the DPD was merely attempting to identify players who had attended the party, why was the other dancer not asked to make identifications until May 11?
•If the DPD was merely attempting to identify players who had attended the party, why was it videotaped for the benefit of “potential jurors” and other judicial officials?
•If the DPD was merely attempting to identify players who had attended the party, why were so many DPD officers involved in its creation?
•If the DPD was merely attempting to identify players who had attended the party, why did they not also use the pictures in the cameras for the same purpose?
•Why were the players identified by the accuser in this lineup as either witnesses or suspects never brought in for questioning?
•What steps did the DPD undertake to confirm the identifications?


60. On April 3, the day before the lineup, Travis Mangum, the father of the accuser, appeared on Rita Cosby’s show on MSNBC and stated that his daughter had identified her three attackers. Although Mr. Mangum has frequently made statements connected to this case that were proven to be false, the timing of his statement is interesting.

•Were you aware of this interview?
•When was the interview scheduled with the accuser?
•Did the DPD interview Travis Mangum and ask about his statement that his daughter had identified her three attackers before the identification session had taken place?
•If not, why not?
•Was Mr. Mangum’s comment merely a misstatement?
•Did the DPD ask the accuser about any conversations she may have had with her father?
•If not, why not?


61.The accuser was not asked by the DPD on April 4 to provide a formal statement. This meeting is three weeks 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?


62.On April 5, an e-mail written by Ryan McFadyen is released when the earlier warrant is unsealed. In this e-mail, he “threatens” to “kill strippers.” The e-mail is later shown to be a riff on the book and movie “American Psycho” that is included in several Duke classes. Although McFadyen is apparently not a suspect and the e-mail has no relevance to the investigation, the release was used to further inflame the community. McFadyen reportedly was questioned and told that the e-mail would be released if he did not identify the attackers to police.

•Why were other e-mails that showed the context not also released?
•Who alerted the Herald-Sun to the sealed warrant?
•Is the report about the questioning of McFadyen correct?
•If so, is this threat an attempt to intimidate a witness?
•Is an attempt to intimidate a witness consistent with standard DPD procedures?


63.On April 5, Himan reportedly picked up the medical records covered by the subpoena served on DUMC on March 21. These medical records apparently included the triage and discharge reports and the nurse notes.

•Is this report correct?
•Did Gottlieb obtain the SANE examination on March 21 as he claimed in his report and in his deposition before the Bar?
•Had the SANE examination been reviewed by the DPD prior to this date?
•If so, on what date and by whom?
•If so, was the DPD aware that the SANE exam did not support the accusation and contained no record of injuries?
•If not, how was Himan able to cite the medical records as supporting the accusation in the affidavits included for the NTO on March 23 and the McFadyen search warrant on March 27?


64.On April 5, the computer equipment taken from 610 Buchanan was provided to the DPD computer forensics lab.

•Why was the computer equipment seized in the execution of the search warrant not analyzed for almost three weeks?
•Is this delay consistent with standard DPD procedures?
•What information was obtained through this analysis?


65.On April 6, the accuser was finally asked to make a formal statement—23 days after the alleged attack. In her statement, she described the onset of the attack as a violent separation. The accuser and the other dancer were grabbing onto each other as they were separated, with three players grabbing each dancer. The accuser claimed that she was dragged into the bathroom, where she was sexually assaulted. She claimed to have great recollection of the event and participants, even going so far as to identify what type of pants certain people were wearing. This scene is not included in the other dancer’s formal statement. The accuser’s statement is not referenced in Himan’s typewritten case notes.

•Why was the accuser not asked to make a formal statement for 23 days?
•Is this delay consistent with standard DPD procedure?
•Why was the accuser not asked to explain critical inconsistencies between her statement and that of the other dancer?
•Why was the accuser not asked to explain why she did not recognize in the earlier lineups the three men who she claimed separated her from Pittman?
•Did the accuser's failure to identify these critical "separators" in earlier lineups raise questions as to her credibility?
•If not, why not?
•Why was the accuser not asked why she didn't identify the men who came to the car and interacted with Pittman and her prior to luring them back into the house?
•What efforts did DPD make to investigate the identities of the accomplices who separated the two dancers?
•If no efforts were made to investigate the three accomplices alleged in Mangum's statement, why not?
•Why were the three accomplices who separated the three dancers later cleared after the third indictment was handed down?
•Is this failure to investigate the other three accomplices consistent with standard DPD procedures?
•What efforts were made by DPD to reconcile the accuser's statement with prior statements she had given to the DPD and medical personnel?
•Why was the other dancer not asked to confirm the separation?
•Why was the other dancer not asked to explain critical differences between her statement and that of the accuser?
•Particularly given the accuser’s inability to provide credible descriptions and identifications, why was the other dancer not asked to make identifications?
•Is the failure to ask an alleged eyewitness to an attack to make identifications consistent with standard DPD procedure?
•Is the failure to reconcile critical inconsistencies between two witnesses’ statements consistent with standard DPD procedure?


66.At this meeting on April 6, the accuser was asked to describe her activities prior to the alleged attack. She indicated that she had been dancing at the Platinum Club on the night of March 10-11.

•Was this the first time that the accuser had been asked to provide information on her activities prior to the alleged attacked?
•If so, what is the reason for the delay?
•Is this delay consistent with standard DPD procedures?
•Does the DPD believe that the accuser’s activities prior to the alleged attack were irrelevant to the investigations?
•Did the DPD follow up this interview at the Platinum Club?
•If not, why not?


67.On April 6, the DPD briefed City Manager Patrick Baker on the investigation. Baker reported these findings to the City Council. Baker claimed in an interview with the local press that the accuser had been consistent in her accusation. This claim is now known to be false.

•With which officers did Baker meet?
•What information was provided to Baker?
•On what basis did Baker make the claim that the accuser had been consistent in her accusation?
•Was Baker lying or was he misinformed?
•Did the officers claim that the accuser had been consistent in her accusation?
•If so, on what basis did they make that claim?
•Have any officers been disciplined as a result of the information they provided?
•What other aspects of the investigation did Baker discuss with the DPD?
•Was a record of this meeting kept?
•Did Baker pass on false information to the Council in his briefing to them?


68.On April 6, the DPD interviewed Jerriel Johnson, one of the accuser’s drivers. Johnson stated that he had driven the accuser to several one-on-one dates in the days preceding the party. He also noted that the accuser had behaved strangely at times during this period, getting out of his car and refusing to get back in. Johnson was not able to drive the accuser to the party that night.

•Why did the DPD wait for more than three weeks to interview Johnson?
•Did the DPD question Johnson about the accuser’s strange behavior?
•Did the DPD realize that Johnson would be able to provide information related to the activities of the accuser in the days prior to the alleged attack?
•Why was this information not relevant to the investigation?
•Is the failure to interview witnesses consistent with standard DPD procedures?


69.In early April, shortly after the cancellation of the season, Brad Ross, one of the players, provided the DPD with evidence that he had been in Raleigh the night of the party. The accuser had identified Ross in two separate lineups with 100% certainty as one of the players at the party. The evidence Ross provided included cell records, his dorm keycard record and other electronic evidence.

•Did the DPD review the evidence provided by Ross?
•If not, why not?
•Did the DPD question Ross about his activities on the night of March 13 and 14?
•If not, why not?
•Did the DPD make any determination whether the evidence Ross provided proved that he did not attend the party?
•If not, why not?
•Is a failure to pursue alibi evidence consistent with standard DPD procedures?
•How did the DPD reconcile the evidence that placed Ross in Raleigh with the accuser’s two-time identification with 100% certainty that he was one of the players she had recognized from the party?
•If the DPD failed to reconcile the accuser’s identification with the conflicting evidence, why not?
•Is a failure to reconcile identifications with conflicting evidence consistent with standard DPD procedures?
•Did the DPD believe that the accuser’s flawed identification of Ross as an attendee at the party raised doubts about the reliability of her other identifications?
•If not, why not?
•Is a failure to consider flawed identifications in assessing the reliability of a witness’ ability to make other identifications consistent with standard DPD procedures?
•How is this evidence consistent with the claim made by the DPD and repeated by Chalmers in his report last month that the DPD received no cooperation from the players?


70.On April 10, Gottlieb and Himan attended a meeting at DNASI with Nifong and Brian Meehan, President of DNASI. Meehan has testified that he disclosed that his tests had discovered male DNA on and in the accuser and that this DNA matched none of the players or other students at the party. Meehan further testified that at this meeting, he and Nifong agreed to exclude this information from the report in violation of the North Carolina discovery requirements.

•Did the DPD believe that the lack of DNA matching the players was consistent with the accuser’s story?
•If so, on what basis?
•Did the DPD believe that the male DNA found in and on the accuser that matched none of the players was consistent with the accuser’s claim that she had not engaged in sex for a week prior to the attack?
•If so, on what basis?
•Did Gottlieb or Himan report this decision to their DPD superiors?
•Do DPD officers have any legal or ethical duty to report a violation of the discovery law?
•Is their failure to report this information standard DPD procedure?
•Did Gottlieb and Himan take notes at this meeting?
•If not, why not?
•Is the failure to take contemporaneous notes consistent with standard DPD procedure?


71. On April 10, the News & Observer published photographs from the party that had been provided by defense attorneys. The pictures showed that the dance had taken place in the living room, not the master bedroom as claimed by the accuser.

•Was the DPD aware of the photographs from the party prior to their being published in the N&O?
•Why were these pictures not used to identify players who had attended the party?
•Did the appearance of the players in the photographs confirm the accuser’s description of them as “excited” or did they appear somewhat bored?
•Was the accuser asked to explain why the photographs contradicted many of the details in her story?
•If not, why not?
•Did the DPD request these photographs from either the N&O or the defense attorneys?
•Was this evidence subpoenaed?
•If not, why not?
•Is the failure to pursue photographic evidence consistent with standard DPD procedures?


72.On April 11, The DPD ran a background check on the accuser. This background check revealed that the accuser had a been convicted on a number of criminal charges, including driving while impaired, and a number of charges related to automobile theft and assault on a government official.

•Is a background check regularly performed on complaining witnesses?
•If so, was the delay in requesting a background check in this case consistent with standard DPD procedures?
•If the delay is not consistent with standard procedures, what is the explanation for the delay?


73.On April 11, Nifong, Gottlieb, Himan and Lt. Mike Ripberger met with the accuser.

•Was the accuser asked at this meeting whether she continued to maintain her earlier claim not to have had sex for a week?
•Was the accuser asked at this meeting about the positive DNA tests and the presence of at least four men’s DNA in and on her body?
•Does the DPD believe that evidence that contradicts the statements of a witness raises questions about the credibility of that witness?
•Did the DPD make any attempt to identify the sources of this DNA?
•If not, why was the DPD not interested in the sources of this DNA?
•Was the accuser asked about her criminal background?
•If not, why not?


74.On April 11, Himan received the accuser’s medical records from UNC Hospital. Himan met with Sheila Ford. There is no reference in Himan’s typewritten case notes to any interviews of medical personnel.

•Did the DPD interview any of the attending medical personnel?
•If so, at what time?
•If not, why not?
•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?


75.On April 11, Major Ronald Hodge was interviewed after a forum for candidates. “I don’t think we would be here if it wasn’t (a strong case)” Hodge said about the Duke case. By that time, the DPD was aware that the accuser had changed her story on numerous occasions, the SANE exam did not note any physical injuries, pictures of the accuser showed no injuries, the other dancer did not support the accusation, describing it as a “crock,” and the timeline did not provide an opportunity for an attack to have occurred. Attorney General Roy Cooper would later note: “there was no credible evidence that a crime had occurred.”

•Are public statements by senior officers related to the strength of active investigations consistent with standard DPD procedure?
•If not, why did Hodge make an exception in this case?
•On what basis did Hodge make this statement?
•Did Hodge realize that the statement he made was false—that in fact the case had no evidence to support the accusation?
•Does standard DPD procedure allow senior officers to make public statements they know to be false?
•If not, was Hodge disciplined for making false statement?
•If not, why not?
•If Hodge was not aware that his statement was false, who provided this false information?
•Do standard DPD procedures permit officers to provide false information to senior officials?
•If not, was the source of this information disciplined?
•If not, why not?


76.On April 13, several detectives attempted to question players as part of the ongoing investigation. Although the DPD knew that counsel represented the players, they made no attempt to request interviews through counsel.

•Why did the DPD not make the interview requests through the players’ counsel as required?
•Is this failure to make interview requests through counsel consistent with standard DPD procedures?
•Did the DPD coordinate this attempt with the Duke University security department or did they simply follow other students into the building?


77.On April 14, Time reported that each member of the team received an e-mail allegedly sent from the e-mail account of one of the players. In this e-mail, the player purportedly stated that he was going to the authorities, tell them that a crime had occurred and implicate a number of his teammates. The player from whose account the e-mail had been sent denied sending the e-mail and demonstrated that he was in class at the time the e-mail was sent.

•Is this report correct?
•Was the DPD involved in sending this e-mail?
•Does the unauthorized use of another person’s e-mail constitute a crime?
•What actions were undertaken by the DPD to investigate this fraudulent e-mail?
•If no action was taken, why not?
•Does the DPD know the identity of the sender?
•If so, who sent the e-mail?
•If the identify of the sender is known, was any action taken against the sender?
•If not, why not?


78.During the week of April 10, Nifong decided to seek indictments of Finnerty and Seligmann before the grand jury on April 17. At this time, there apparently was no evidence that Seligmann had even attended the party. In his testimony during Nifong’s Bar trial, Himan claimed he raised the question “with what?” in conversations with superior officers and that these superior officers endorsed Nifong’s decision to ask for indictments. In his deposition, Gottlieb confirms Himan’s account and identifies the senior officers as Ripberger and Lamb.

•Is Himan’s testimony correct?
•With which superior officers did he raise this question?
•Is Gottlieb’s identification of Ripberger and Lamb correct?
•On what basis did the superior officers endorse Nifong’s decision to ask the grand jury for indictments?
•Is a decision to ask a grand jury for indictments with no credible evidence consistent with standard DPD procedures?
•Did superior officers give Himan instructions on what to say (and what exculpatory evidence to exclude) in his testimony?
•If so, what instructions did they provide?


79.On April 17, Himan and Gottlieb testified before the grand jury. The grand jury handed down indictments of Finnerty and Seligmann. In his deposition before the Bar, Gottlieb indicated that his testimony included the claim that the accuser had not changed her story from the time that the SANE nurse had calmed her down, a statement that is false.

•What was included in their testimony?
•Did Gottlieb and Himan discuss the results of the April 4 lineup?
•Did Gottlieb and Himan discuss the earlier failed lineups on March 16 and March 21 in which the accuser failed to identify any of her alleged attackers?
•Did Gottlieb and Himan discuss the negative DNA test results?
•Did Gottlieb and Himan discuss the negative SANE exam?
•Did Gottlieb and Himan discuss the critical inconsistencies between the accusation and the other dancer’s formal statement?
•What version of the accusation did Gottlieb and Himan provide to the grand jury as their evidence?
•Did either Gottlieb or Himan commit perjury in their testimony?


80.On April 18, Finnerty and Seligmann were arrested. The media had staked out the police station where they had been brought for booking.

•Why were Finnerty and Seligmann not arrested after the accuser had made her identifications on April 4?
•What additional inculpatory evidence did the DPD obtain between the identifications on April 4 and the arrests on April 18?
•Why was this case treated differently than every other rape case in Durham County in recent years (arrests were made by the DPD without waiting for a grand jury indictment)?
•If the DPD believed the accusation, why were dangerous criminals left on the streets of Durham?
•Why was no attempt made to interview either Finnerty or Seligmann at any time before or after their arrests?
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