Fantastic Allegations Defending the Police Supervisors in the Duke Lacrosse Lawsuits Tricia Shields Hedrick Gardner Kincheloe &A
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Fantastic Allegations Defending the Police Supervisors in the Duke Lacrosse Lawsuits Tricia Shields Hedrick Gardner Kincheloe & Garofalo LLP [email protected] Introduction: On March 25, 2006, a story that would soon consume the community and fascinate the nation appeared on the front page of the local newspapers in Raleigh and Durham, North Carolina. Both reported that a young woman – an exotic dancer – had been raped and sodomized by three members of the Duke University lacrosse team, when performing at a party. The dancer was described as the mother of two and a student at North Carolina Central University, a historically African American university in Durham. A neighbor reported that he had seen the woman and another dancer entering the house where the party was held, and when she left a short time later, he heard a man yell at her, "’Thank your grandpa for my cotton shirt.' " Samiha Khanna, Dancer Gives Details of Ordeal, News & Observer, March 25, 2006, at A1. In the following weeks, protests, vigils, and rallies were held on the Duke and NC Central campuses. The lacrosse season was cancelled, and the coach forced to resign. The national media descended onto Durham, where District Attorney Michael Nifong stepped into the limelight, making dozens of inflammatory statements about the case and the players. Nifong subsequently recused himself from the prosecution amidst a State Bar proceeding that resulted in his disbarment, was convicted of criminal contempt for failing to turn over critical evidence in the case, and filed for bankruptcy. Three players were indicted, but were ultimately declared innocent by the North Carolina Attorney General. The dancer – Crystal Mangum - was later convicted on charges arising from her setting a boyfriend’s clothes on fire in the bathtub, and now serving a prison sentence for the second degree murder of another boyfriend. For ten years, this story has continued to fascinate. Numerous books and articles have been written about these events, and it has been featured on television shows. This past March, the case was the subject of ESPN’s 30 for 30 series, on an episode entitled “Fantastic Lies.” 60 Minutes has aired several segments relating to the case, most recently in April, 2015. Crystal Mangum discussed her perspective on the night, and her other life events, in 2012 on an episode of “Wives with Knives.” Despite all the attention on the case, the story of the efforts of Durham police officers to investigate the horrific rape allegations has not been told – at least not fully or accurately. Beginning in October, 2007, the City of Durham, the investigators, and their supervisors, were defendants in three civil lawsuits filed by the Duke lacrosse players. While these cases pended for years, these “City Defendants” did not participate in discovery in those actions: Nearly all of the claims were dismissed under Rule 12(b)(6), and the remaining state malicious prosecution claims against two investigators and state constitutional claim against the City were resolved.1 Thus, the police officers may never share the full account of the investigation with the public. Obviously, I cannot “tell all” here – that story belongs to the officers, and is only theirs to tell. However, I will share an overview of the investigative perspective of the case based on the publically available information, and how the law justly operated to exonerate our clients from the claims asserted against them. I. The Facts A. The Night of March 13-14, 2006 In 2006, David Evans and two other co-captains of the Duke University lacrosse team lived at an off-campus home located at 610 N. Buchanan Boulevard in Durham. On March 13, they decided to host a party for the team, and called an agency to request two white strippers for the evening’s entertainment. Crystal Mangum and Kim Pittman, the two African American “exotic dancers” sent to the party, had never met before that night. After a brief planning session in the bathroom, they began their performance at midnight. The dance ended only four minutes later: When Pittman declined the suggestion to incorporate sex toys into the act, one man held up a broomstick as an alternative. The women retreated back into the bathroom. Soon thereafter, both women left in Pittman’s car. As the women drove away, racial slurs were shouted at them. Pittman placed a 911 call at 12:53 a.m., and said that men had come out of 610 N. Buchanan, “and me and my black girlfriend are walking by, and they called us 'n-----s.'” Sergeant Shelton of the Durham Police Department responded to the call, but found no one at the house. Pittman could not find out where Mangum lived, because she was incoherent. She drove to a grocery store, where a security guard called Durham police. Sergeant Shelton responded to the call. Pittman told Shelton that she had placed the 911 call, and that she had stopped and picked Mangum up because she had seen a group of white males yelling racial slurs at her while she was walking down Buchanan. Shelton instructed another officer to take Mangum to an outpatient mental health clinic. During her intake interview, Mangum had difficulty communicating and nodded “yes,” when asked by the intake nurse if she had been raped. Mangum was then taken to Duke Medical Center for a sexual assault examination. 1 The players received no monetary compensation. At their request, the City made a $50,000 grant to the NC Innocence Inquiry Commission. Shelton met Mangum at Duke Medical Center. According to Shelton, Mangum told him that she had been raped, and then denied it. Shelton did not believe her, and expressed that opinion to Duke University officers at the hospital. Mangum told a female police officer with the Durham Police Department that there had been approximately twenty men at the party, and that five of them raped her in the bathroom. Mangum was examined by Nurse Tara Levicy and Dr. Manly. Nurse Levicy spent six hours with her, and believed she had been assaulted. Mangum told her that she had been sexually assaulted by three men – Adam, Matt, and Brett – in the bathroom. She was complaining of pain in her vagina, and her examination had revealed several scratches and lacerations, and “diffuse edema of the vaginal walls.” At 1:58 a.m. on March 14, Ryan McFadyen, one of the players in attendance sent an email to his teammates: tomorrow night ... ive decided to have some strippers over to edens 2c. all are welcome.. however there will be no nudity. i plan on killing the bitches as soon as they walk in and proceeding to cut their skin off while cumming in my duke issue spandex.... 41 McFadyen lived in Room 2c of Edens dormitory, and his lacrosse team number was “41.” B. The Police Investigation: the First Ten Days On March 15, 2006, the investigation of the charges was transferred to the district of Sergeant Mark Gottlieb for investigation. He assigned the case to Officer Benjamin Himan. After calling Mangum to arrange an interview, Himan called Nurse Levicy, who told him that she could not divulge patient information, but “there were signs consistent with sexual assault during her test.” Gottlieb received the medical records with Levicy’s notes pursuant to a subpoena a week later. Himan and Gottlieb met with Mangum on the morning of March 16. She appeared to be in significant pain. She told them about the brief dance that ended with the showing of a broomstick. She then described a brutal sexual assault by three white men – identified as Adam, Brett and Matt - which she said occurred in the bathroom. She also told them that some of her artificial fingernails were broken off in the struggle. Later that day, and again on March 21, other officers showed Mangum photo arrays containing pictures of lacrosse players obtained from the team website. These photos had been taken months earlier, and the players were all in uniform. Mangum could not identify any as her attackers. After meeting with Mangum, Officers Gottlieb and Himan executed a search warrant at 610 N. Buchanan. There they found Mangum’s make-up bag, identification and cell phone, and artificial fingernails in the bathroom trashcan. The three residents consented to police interviews, and named approximately 40 attendees at the party, most of whom were on the lacrosse team. They all agreed that the dance stopped when a player held up a broomstick. While their details of events after that point were inconsistent, they all said that Mangum was intoxicated and denied that any assault had occurred. One of them reported that when cleaning up after the party, he found some painted artificial nails in the bathroom, which he put into the trashcan. On March 20, Himan called Pittman to arrange for an interview. When Pittman told him that the rape allegations were a “crock,” he surmised she was trying to avoid talking to police because she had an outstanding warrant. Himan and Gottlieb met with her on March 23. She told them that she saw no indication that Mangum was intoxicated until they began their act. After the broomstick incident, she and Mangum went to the bathroom. Mangum wanted to continue the dance, but she wanted to leave. Pittman then went outside to her car, and she and Mangum were separated at that point. Some of the men told her that Mangum was passed out in the backyard, and she agreed to take her if they would bring her to the car. On March 20, Himan called the lacrosse team coach, Mike Pressler.