MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 314

REPLY, filed by Plaintiffs BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON, to Response to #297 First MOTION to Compel filed by BRECK ARCHER, RYAN MCFADYEN, MATTHEW WILSON. (Attachments: #1 Exhibit Duke's "redaction log", #2 Exhibit Additional proof that Sgt. Smith disclosed Ryan McFadyen's, Matt Wilson's, and Breck Archer's DukeCard data to Sgt. Gottlieb)(EKSTRAND, ROBERT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

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RYAN MCFADYEN, et al.,

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Plaintiffs,
vs.

1:07-CV-00953

DUKE UNIVERSITY, et al.,
Defendants.

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DEPOSITION

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OF

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GARY NEAL SMITH

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10

Q:

Okay.

All right.

Now, let's look back at

11

what was Exhibit 1, and to page 8.

And these are

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for March 31, 2006.

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hours, or 3 p.m., it says, "Investigator Smith and

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Stotsenberg from Duke police" -- oh, do you see where

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reading?

entries

I'm

If you look at the entry for 1500

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A:

What time?

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Q:

Sorry.

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A:

Okay.

19

Q:

"Investigator Smith and Stotsenberg from

3 p.m., 1500.

Duke
20

police drove up to the District 2 Substation as I was

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leaving.

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reports to me requested by us.

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Duke who were being harassed due to this case (Duke

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reports 2006-1548 and 2006-1515), and one is a key card

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report for the team members on March 13, 2006, to

And they had three reports they delivered,
Two were for staff at

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March 14, 2006."

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3
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5
6
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Is this an accurate statement of what
happened at 3 p.m. on March 31st?
A:

I recall giving a key card report.

I

honestly don't remember giving them anything else.
Q:

Okay.

So you don't recall what these other

two reports were?

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A:

I don't recall, no.

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Q:

I'd like to -- you can put Smith 1 to the

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side, sir.

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MR. THOMPSON:

I'd like to ask the

court
12

reporter to mark as Smith 3 the following document.

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[SMITH EXHIBIT NO. 3 WAS MARKED FOR

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IDENTIFICATION]

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BY MR. THOMPSON:
Q:

Thank you.

So, sir, this is an e-mail from

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Aaron Graves dated July 25, 2007, to Kemel Dawkins,

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subject "Confidential."

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woman?

Who is -- is Dawkins a man or a

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A:

A man.

21

Q:

Who is Mr. Dawkins?

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A:

At that time, he was Aaron Graves' boss.

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Q:

Okay.

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A:

I don't recall the position.

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Q:

Is he still in that position?

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A:

No.

2

Q:

Okay.

3

A:

Yes.

4

Q:

Okay.

5

A:

I have no idea.

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Has he left Duke?

Where is he now?

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Q:

Okay.

Let us continue.

This e-mail starts,

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"Today I met with Investigator Gary Smith along with

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Major Michael Snellgrove of the DUPD."

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Is that Duke University Police Department?

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A:

Excuse me?

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Q:

Is DUPD --

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A:

Yes.

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Q:

Okay.

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A:

He was a major at the time this was written.

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Q:

Okay.

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conversation?

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A:

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Graves.

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Q:

And who was Mr. Snellgrove?

And why was he involved in this

He was a major, and you'd have to ask Aaron

Okay.

"The purpose of this meeting was to

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hear for myself Investigator Smith's role in releasing

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the card access information to members of the Durham

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Police Department investigating the Duke lacrosse rape

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case.

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offered and obtained this information as a resource to

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DPD Investigator Gottlieb."

In our conversation, he advised me that they

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So you offered to Mr. Gottlieb to get this

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key card information for him.

Is that true?

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A:

Yes.

4

Q:

And why did you do that?

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A:

I had in the past used key card information

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in the course of my investigations, and it occurred to

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that it might be helpful to Gottlieb, so I asked him if

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he wanted it, and he said yes.

me

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Q:

And it might be helpful because it indicates

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whether a student was in Durham at the time of the

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alleged crime?

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A:

Yes.

13

Q:

All right.

And it also helps to pinpoint

the
14

time of their movements.

Is that right?

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A:

If they've used their card, yes.

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Q:

And it was particularly important here where

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you had a witness who couldn't accurately identify who

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was at the party, correct?

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A:

I never spoke to Crystal Mangum.

I wasn't

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privy to the contents of her interviews, and I don't

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remember ever having a conversation with Gottlieb about

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what she told him, so in reference to that point, I

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know.

don't

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know

Q:

Well, with the benefit of hindsight, you

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that she, Ms. Mangum, had significant problems

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identifying who was at the party, right?
A:

With the benefit of hindsight, all I can say

is I've done my best to avoid the Duke lacrosse case.

4

Q:

5

many years.

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individuals were in Durham that night to make sure that

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someone who was gone for spring break wasn't indicted,

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the key cards would have been a very important piece of

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corroborative evidence, correct?

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A:

You've been -- you were an investigator for
If you had wanted to find out whether these

The key card would have allowed --

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information would have allowed them to -- should have

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allowed them to know who was -- no, that's not quite

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correct.

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who was on campus, where they were on campus, within a

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certain time frame.

It would have provided them with information

on

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17

Q:

And that's critical information in an

investigation.

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A:

It's helpful information.

19

Q:

And it's particularly helpful if you have a

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witness who is impaired and can't remember who was the

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alleged perpetrator.

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irregardless
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A:

In my mind, particularly helpful

of the condition of the witness.

24

Q:

Why is it particularly helpful?

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A:

It's -- if you've got a time and a place

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where something happened, then if people are using their

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cards at other places at that time or within a time

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around that time, it says they were or they weren't at a

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specific location.

frame

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6
7

Q:

Had you ever provided key card access

information to the Durham police on any other occasion?
A:

I could not give you a specific instance.

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have at times provided the Duke -- excuse me -- Durham

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I

police with reports that would have included key card

10
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information.
I have been told by another investigator

that
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she has, in fact, and other investigators have, in fact,

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provided key card information to Durham on occasion.

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Q:

Which investigator is that?

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A:

That would have been Sara-Jane Raines.

16

Q:

And in the instances where you provided this

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information, was that before March of 2006?

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A:

Yes.

19

Q:

And after March of 2006, have you ever again

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provided key card access information to the Durham

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police?

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A:

Not that I'm aware of.

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Q:

Okay.

All right.

Now, if we go to the last

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sentence of this first full paragraph, it says, "He,"

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meaning you, "provided him," meaning Gottlieb -- so

Smith

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provided Gottlieb a copy of a report containing access

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information for a specified period of time.

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A:

I'm sorry, where are we at?

4

Q:

Okay. sorry.

5

A:

Okay.

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Q:

And last sentence.

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pronouns here.

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I'm wrong, that's fine.

It's the first full paragraph.

And there are a lot of

You can read it -- I mean, if you think
But I think the "he" refers to

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you and the second -- and the "him" refers to Gottlieb

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because it says, "He provided him a copy of a report" --

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and the "he" is you, correct?

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A:

Right.

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Q:

And the "him" is Gottlieb, correct?

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A:

Yes.

15

Q:

-- "containing access information for a

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specified time period of all men's lacrosse players

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entering their campus residences."

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A:

Is this accurate?

I provided Mark Gottlieb with a card reader

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report for card reader activity for members of the men's

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lacrosse team for a time frame.

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Q:

Okay.

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A:

That would have included any card reader

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activity.

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25

Q:

Okay.

For all the members of the lacrosse

A:

I'm trying to recall what I used as the

team?

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basis.

And if it was the roster, then it would have

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for the men's lacrosse players listed on the roster.

been

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Probably with one exception.

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remember.

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would have used the roster as my guide.

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8

Q:

Maybe not.

I don't

I remember I used the roster as my guide.

I

Is the one possible exception the

African-American player, Mr. Sherwood?

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A:

Well, I know I did not provide his picture.

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Q:

Okay.

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A:

I don't recall if his name was among those

on
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the key card information or not.
Q:

All right.

I don't recall.

But all the white members of the

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team, you provided their key card information to

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Mr. Gottlieb.

Is that right?

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MR. SUN:

Objection.

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THE WITNESS:

I -- again, I don't

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remember counting how many names were on the roster.

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they were on the roster, I provided it.

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on the roster, I probably didn't.

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BY MR. THOMPSON:

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Q:

All right.

If

If they weren't

I don't know.

Now, let's go to the next

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paragraph.

It says, "Investigator Smith was asked why

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voluntarily provided such information and if at the time

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he was aware that such information was protected under

he

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FERPA."

2

That's F-E-R-P-A.
"He stated that information of this type was

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provided in the past and he thought it would aid in the

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investigation by the Durham police.

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he was not trained upon FERPA requirements, and felt it

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was appropriate to share with another law enforcement

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agency based on past practices.

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some concerns and queried DUPD Major Minnis and Captain

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Raines for guidance after he turned over the report and

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Nevertheless, he had

was advised it was permissible."

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Let's start.

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concerns you had -- or strike that.

13
14

He also stated that

What was the nature of the
Let me ask this.

How did you come to have concerns?
A:

I'm not -- well, I did -- one, I don't

recall
15

the contents exactly of my conversation with Aaron

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and Michael Snellgrove, though I will -- yes, I had --

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concerns developed.

Graves

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Q:

Yeah.

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A:

Why, I couldn't pin it on any particular

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incident or something happening or whatever.

I just --

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after I had given Gottlieb the information, I grew a

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23
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25

little uneasy with it and asked some questions.
Q:

Now, were you a little uneasy because you

were aware that this was private information?
A:

It was information -- no.

Because this was

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information I accessed as a police officer on a regular

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basis.

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4
5

Q:

Yeah.

Like you access private information

all the time as a police officer, don't you?
A:

In this particular instance, this

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information, the card reader information regarding

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students or anyone who uses the card system, I access on

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a regular day-to-day -- as an investigator, access on a

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regular day-to-day basis.

Duke's

10

Q:

Sure.

And if someone walks into your office

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in the beginning of 2006 and said, "Investigator Smith,

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I'd like the key card information on this student," you

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would say, "No, sorry."

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A:

No, you're right, I would.

15

Q:

Right.

16
although

And that's because you understood

even before this incident that this information,

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you had access to it by virtue of your authority has a

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police officer, was private information.

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A:

And like our reports where I wouldn't

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necessarily give it to Joe Citizen walking in off the

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street, I wasn't necessarily uncomfortable or wrong to

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provide it to another police agency.

23

Q:

So you knew it was private, but you thought

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you were maintaining the confidentiality and privacy

25

though you were giving it to Gottlieb.

even

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3

A:

I don't even -- I can't even say I thought

about it on those terms.
Q:

Okay.

But you knew at some level which gave

4

rise to this uneasiness that this was sensitive

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information.

6

A:

If I could express to you specifically, or

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everybody else specifically, why I grew concerned or

8

uncomfortable about it, I would.

9

a feeling that maybe I better ask some questions.

10
clear

Q:

Okay.

I can't -- it was just

And I just want the record to be

11

because I'm not sure it is.

But if someone had walked

12

into your office off the street in February of 2006 and

13

said, "Officer Smith, please give me the key card

14

information for this Duke University student," you would

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have said no.

16

A:

I'd ask them, "Who are you," and depending

on
17

their answer and their reasons, made a decision.

18

Q:

Right.

And if it was just a member of the

19

public who said I'm curious, you would not have turned

20

over.

it

21

A:

I would have referred them to the card

22

office.

23

Q:

To the guard office.

24

A:

Card office.

25

Q:

Card office.

But you wouldn't have given

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that information.

2

A:

No.

3

Q:

Okay.

4

A:

It's none of their business.

5

Q:

Okay.

And why not?

Now, you say that you -- according to

6

this, it indicates that you said you weren't trained on

7

FERPA requirements, but you were aware that there were

8

laws relating to the privacy of this key card

9

information, correct?

10
11

A:

I was aware in a very general sense, real

general sense, about FERPA.

12

Q:

13

Raines.

14

A:

Beyond that, no.

Now, you spoke to Major Minnis and Captain
Do you recall when that was?
I don't remember.

My recollection is I

spoke
15

to them after I had released the key card information.

16

But that's six years after the fact.

17

and I don't know.

This may be

correct

18

Q:

But it would have --

Well, that's consistence with this, sir,

19

because it says, "Nevertheless, he had some concerns and

20

queried Major Minnis and Captain Raines for guidance

21

after he turned over the report" --

22

A:

Okay.

23

Q:

-- "and was advised it was permissible."

24
25

59

I didn't catch that.

In conversation, did you tell them, "I've
turned over this information and I have concerns whether

1

I did the right thing"?

2

A:

No.

I just asked them in general about

3

whether it was -- and -- well, whether we released card

4

reader information.

5

Q:

And why didn't you tell them?

Were you

6

afraid you were going to get in trouble if they knew

7

you had turned it over?

that

8
9

A:

Well, at that point, that wasn't even a --

that wasn't even a thought.

10

information.

11

Q:

I was just seeking

But you made a decision not to tell them

that
12

you had turned it over already.

13

A:

Yes.

14

Q:

Okay.

And what do you recall them telling

15

you?

Was it in that conversation that Captain Raines

16

told you, well, I've turned it over in the past, key

17

information?

18

A:

card

Again, all I remember -- with Raines --

let's
19

see, I remember -- all I remember is she didn't have a

20

problem with it.

21

conversation she mentioned that there's been

22

conversations since where she's clearly said that.

And it may have been in that

23
24

Q:

Did they ask you why are you asking this

question?

25

A:

No.

1

Q:

Did you mentioned that this was part of the

60

2

lacrosse situation?

3

this and wanted to know whether this would be okay?

4
5
6

A:

That, Gee, I've been thinking about

I don't recall if I mentioned specifically

the lacrosse incident and the release.
Q:

Okay.

"He also stated that he contacted

7

Sergeant Gottlieb and expressed his concern and

8

that they obtain a subpoena if they plan to use any

9

information derived from the report in court

suggested

10

proceedings."

11

If you were told it was permissible, why did

12

you go ahead and e-mail Gottlieb and tell him you better

13

get a subpoena or a court order?

14

A:

I didn't e-mail him; I called him.

And I

was
15
16
might

concerned that my giving him the information without a
subpoena or the way I had given him the information

17

cause him difficulties in his investigation in using the

18

information.

19

Q:

20
21

Now, where did that concern come from?

Your

understanding of FERPA?
A:

I was afraid that I had -- at that point I

22

came to the -- despite this, I came to a conclusion that

23

I had more than likely violated FERPA, and I did not

24

whether that would cause a problem for Gottlieb or not,

25

so I contacted him and made that suggestion.

know

61

1

Q:

And what did Gottlieb say to you?

2

A:

He would obtain a subpoena.

3

Q:

So he immediately understood what you were

4

saying and realized, yeah, I better get this information

5

through a subpoena?

6
7

A:

You know what?

I don't have a clue what

Gottlieb understood or what he didn't understand.

8

Q:

Okay.

9

A:

All I know is that he eventually did apply

10
11

for a subpoena.
Q:

Now, I'd like to -- keep this Smith 3 in

12

front of you, sir, but I'd like to have the court

13

reporter mark this document as Smith 4.

14

[SMITH EXHIBIT NO. 4 WAS MARKED FOR

15

IDENTIFICATION]

16

Q:

Now, this is an e-mail from Kemel Dawkins to

17

Susan Taylor, copy to Aaron Graves, Denise Evans and

18

[e-mail].

19

Do you know T3 is Tallman Trask, III?

20

A:

I've heard him referred to as that, yes.

21

Q:

All right.

22

A:

Where?

23

Q:

The person who sent this e-mail, Suzanne

24

Taylor.

25

A:

I don't know who she is.

1

Q:

Okay.

And who is Ms. Taylor?

62

And this is -- if we look at the

2

e-mail, it's dated August 20, 2007.

3

"Confidential Memorandum" to Kemel Dawkins from H. Clint

4

Davidson, Jr.

5

A:

No, I don't.

6

Q:

Okay.

7

It starts

Do you know who he is, Mr. Davidson?

Let's look at this document.

And it

says, "Question on disciplinary action for Duke police

, User: HIMAN

03/1312007 09:16

Durham Police Department

,"'

Supplements - Case #: 06-0p8310

· 1

Supplemental Case Notes for.

'~

Sergeant M.D. Gottlieb

I
F5rrl/th

EXHIBIT

EXHIBIT

~ol{

a.

06-8310

3/1512006 1640
I was working off duty at Durham City Hall when I received a call from Inv. B.lones in reference to a case she was handling. She
stated there was a rape reported at 610 N. Buchanan which is in District 2. She received the case on the morning 00/14/06 while on
call. She slated she had very little infonnation on the case due to the victim's condition while she was at Duke ER. She stated the
victim did have a rape kit done while she was at the hospital. She stated the victim had left her a message that she received when she
woke up on the afternoon of3/14/06 around 1400 hours. and was suppose to meet with the victim later that night at 1900, however,
, the victim had gone back to be seen by a doctor again due to medical problems. She stated the victim's boyfriend had contacted her
on the evening and let her know the victim was being seen. and that is why she missed her 1900 hour appointment She stated she
had sel up a new appointment for 1900 hOlifS today (3/15106) and wanted to know if the D.j~trict 2 Investigations wanted to adopt
this case since she had not had a true interview with the victim to this point. I asked if any c~nvass bad been Conducted. a search
warrant done on the crime scene, or identification of any potential suspects had been done up to this point. [explained to Inv. Jones
that District 2 Investigations could take over the case if she needed our assistance, howeyer, ] explained to her it would be in ~J:!e best
interest of the victim to limit the number of interviews of the traumatic event. I advised her we should ftrSt consult with Sgl ~~sler
and see ifshe agreed on this decislon t~ transfer this case to District 2 from the On-Call Team. lfin fact District 2 adopted this case,
Ihe interview for this evening would need to be cancelled and the District 2 Investigator who would be assignei:l in the morning
',"),
.
would interview the victim then. lnv. Jones stated she would discuss this wilh her Sergeant and get back to me. I told her to give the ~ , ,,~_
victim my pager and office number and have her call me at 8:30am on 3/16106 so we could set up the interview. She agreed.
1649
1sent out a basic email asking for information on the event from th~ community on the PAC 2 list serve I Trinity Park Websites.
1720
I had a telephone conversation with Sgt. Fansler concerning this case. She advised me she thought it would be a good idea if District
2 was able to continue with this case. 1 agreed to adopt it. and told her to have Inv. Jones cancel the interview as we discussed
earlier, and to have the victim conlact me in the morning.
.

()
,
~

1725

I made contact with Inv. Jones and notified her we would reassign the case to District 2. , asked her to
explain what was going on to the victim as discussed earlier.

can~i'~r appointment and

3/1 6/06 0800
I conducted the morning roll call with the District 2 Investigators. The rape case was assigned to lnv. B. Himan. I asked each
Investigator to ~oordinate with Inv. Himan so that we could obtain as much infonnation as possible during the day.
0820

I spoke to Crystal Mangum by telephone. She stated she could see us at her home anytime this morning. She stated she lived at 909
Davinci. I advised [nv. Himan of same.

0844
I received a call from a potential )¥itness who identified himself as Jason Bissey. He stated he lived next door. to 610 N. Buchanan.

ind stated he had heard men at the party yelling racial slurs at the women in the car as they were pulling off to leave. He stated he
was going to call the police earlier in the evening, but didn't as things at 610 N. Buchanan became rowdy. He stated when he saw
the request for infonnation on the PAC site, he knew he needed to call and give the information he knew. I took his name and

sldllltmo

Page I

number and told him Iny. Himan. In addition, I gave Mr. Bissey Inv. Himan's contact information and Ihanked him for calling.
0930

"

hw_ Soucie and I met with In". Sgt. Gary Smith al Duke Police HQ. He compiled photographs onto a disc of the members of the
Duke Lacrosse Team for line up·s if needed at a later time_ He was also able to provide us with the Duke PO report from that event
1122

J returned to the station and turned over the information to Inv. Himan.
1147

Inv Riman lind f went to 909 Davinei St. to meet with the victim. The victim was at home alone wjth~er two young children. The
victim had a very slow gate that was obviously painful while she was walking. Her facial expressions conveyed her pain as she.
ambulated. She moved extremely slow and had difficulty in turning from a direct line. She used the back of the sofa for assistance
as she ambulated to sit down in the living room. The victim had to take time to position herself carefully on the sofa so that her
exterior portion of either hip was making contact with the cushion. Anytime her bottom touched the sofa cushion while
repOSitioning during our visit. she groaned and had a facial expression consistent with pain. The victim made an effort to console
her kids when they would enter the room to see ifshe was ok for a brief minute, but was obviously having difficulty in moving to
ensure them everything was fine. She stated the kids do not know what had happened to her and didn't {<now how she would speak
to them about it when it came up. The victim became emotional when describing her att~ck. Tears ran down her face freely, and her
[lose began to run.
The victim discussed how she attended school at NCCU and was making It living as II stripper during the· night time. She works in II
club in Hillsborough (Platinum), and now has started working for Angels Escort Service recently. She stated she receives calls and
is told when and where to go for a function.
. :t't

to\~

She stated she was contacted on lhe evening of the 13th to go to a bachelor party at 610 N. Buchanan. She stated she was
paid
$400.00 to perform with another female dancer and was to be paid by· Dan Flanigan. She stated she arrived late just before 2330
hours. She stated she entered the residence through the back door where she had met Nikki and was handed a drink. She has drank
before and believed this to be rum and coke. She stated she was paid and they went into the bathroom for approximately 10 minutes,
got ready to dance, and discussed how they would perfonn the act. She stated once inside of the bathroom, she placed her drink on
the sink. She stated she accidentally spilled her drink, so she began to drink Nikki's drink. She stated as soon as they came out of
the bathroom and starte~ to dance the men became aggressive in their language, and started to get very excited. She stated she was
.afi·aid because on of the men in the crowd started yelling about sticking Ii broomstick up into them. She stated that happened within
5 minutes of them beginning to dance, and that is what made them stop. Fearing for ttieir safety. She stated they went back into the
bathroom and got what they could find oftheir belongings and went outside. She stated Ii male named Adam came out [0 their
vehicle immediately when they went out, was very nice to them. apologized, and talked them into returning. She stated they went
into the house and were separated (Nikki and her): She stated she was led into the bathroom that she was originally in. There were
three men inside there. She described the bathroom as being blue, believes the rug wtiS blue, and it had Ii tall mirror that went up to
the ceiling. She thinks it was the master bathroom. When she was inside of-the bathroom. she recalled the door closing, but could
not
which one of the men closed· the door. She stated one oHile
Adam stated, "I'm sony sweetheart you can't leave", At
the same time all three men who she could identifY by a first name only grabbed her, The men were named "ADAM, BRETT, and
MAIT". She stated Matt grabbed her by her legs and then she stated they forced her head down beside the toilet and wall and began
to rape her as she was on all fours. She stated Bren was behind her and 'was the first to sodomize an~ then to rape her. She stated
Brett ejaculated and then stated. "I'm done it's your tum". She stated while the sexual assault was taking place they were yelling at
her "Fuck this Nigger Bitch" and "Fucking Nigger". She stated that Matt was next to assault her. He attempted to "put it in my ass"
but it was so sore he started to choke me from behind "because 1 was screaming so loud." She stated she could nor-breathe and
rem~mbered trying to get his arm off from around her throat. She stated she broke her fingernails off in the process. (False
fingernails that were painted red.)J looked at ber right hand and noticed four were missing. She stated Matt then penetrated her
rectum, lind at the same time Adam became excited while he was masturbating, off to the side he pulled her up and he stuck his penis
around her lips and mouth.. She stated she spit the fluid out on the side of the toilet. At that point Matt then moved around to. her
front side where he penetrated her vaginaily. She described the three men as 1) WIM. young, blonde hair, baby faced, tall and lean,
2) WIM, medium height (5'8"+ with Himail's build), dark hair medium build, and had red (rose colored)cheeks, and the third
! suspect as being a WfM. 6+ feet, large build, with dark hair. She stated after the men raped her, One of the men took her purse from
her, took out ber money, and threw it back onto the floor. She stated of the $400.00 only $200:00 is hers, the other nalfis the escort
services. She stated she does not have her purse, phone, and a shoe (while high heel) in addition to her money. She stated Matt drug

recall

Supplements - Case /I: 06-0083 I 0

men,

Page 2 .

her out of the house and placed her in the car with Nikki. She stated Nikki drove her aroWld for a Iiule bit and then she recalls being
at Kroger where the police arrived and saw her. She stated she did not take a shower, LIse the bathroom. brush her teeth, change her
clothes. or have anything to eat or drink post attack. She stated she is not a proStitute, but stated she had been to one event in the'"""\
past where she thqu~t Ii male at a party was nice, so after the party they went out and had consensual sexual relations. She stated
,
the last time she h~dconsel1sual intercolJrse was about a week ago bcfore this interview. She stated she did nor receive any money
for that other than the money she received before she started performing. The victim denied tile use orany drugs and stated she had
very little alcohol to drink that night.
She recalled becoming "fuzzy" about the time she start~ dancillg, She stated she was fine when she arrived there.
J243

The victim stated she had bruiSing that was beginning to show up from the assault m was called to photograph her. CSI Reid
(female) rook her in private and took photographs. CSI Reid stated she had the onset of new bruises present.
1300
I returned to the station and asked Inv. Carnevale to take pictures of610 N. Buchanan. to secure II key from the landlord so ifoo one
was home at the time the search warrant was ready, we would !"lot need to make a forced entry to the home, and to see ifhe could
locate Angels. Inv. Himan began to put together a search warrant for the crime scene and I assisted him with same.
1415

I asked Inv. Soucie to put together several photo line ups based on the potential suspectn~mes ADAM. BRETT, and MAIT.
asked her when she was done to have (nv. Clayton show them to the victim to see ifshe could ID anyone.
2015

A briefing was held at Station 2 in reference to a search warrant for 61 0 N. Buchanan. CSI Ashby and Ryan Johnson were ,~0 in
..
attendance with investigators and L1nifonn officers from District 2.
\
.
..

.)

2045

I notified communications District 2 cm was conducting a search warrant at, 610 N. Buchanan Blvd.

" __ J

2047
I assisted IIw. Himan at 610 N. Buchanan Blvd in the execution of the search warrant. Inv. Himan knocked and announced 5 times
Durham Police search warrant open the door. This was over 45 sec to one minute. With no answer. InV'. Himan made II non forced

entry using the key provided by the landlord. As entry was made two subjects approa~hed the front room. They were identified as
David Evans and Matt lash. The home was cleared for possible threats. and Inv. Himan read the search warrant to the two
occupants. In the front room in plain view was money on the coffee table (20 dollar bills) and the victim's purse. phone, and lD on a
refrigerator in the south east corner of the Jiving room. Iny. Himan explained to the men that they were not under arres~ but we were
going to limit where they could go inside ofthe home during the time the search warrant was being executed. They were told they
were free to go outside and do anything they wanted to do in that capacity. They were polite and agreed to sit on the som. Inv.
Himan asked them if they were interested in going to District 2 to answer some basic questions about the party. Both men were
equally cooperative and stated they would go with ~s. [nv. Himan asked me to transport Matt ZaSh to Station 2 where he could be
interviewed. While inside the home still, I told the men I Was hungry and asked them if they wanted me to stop and pick them up
something to eat for them on me. Both men politely declined. I asked ifthe woman's belongings had been sitting where they were
this entire time. Matt Zash stated, "No, I found them outside on the side of the house thrown everywhere the morning after the
party." ~I picked them up and brought them inside to keep them safe." I told Mr. Zash r would drive him to station 2 ifhe didn't
mif"!d stopping with me so [ could pick up something to eat. He politely agreed.
2134

-I left 610 N. Buchanan with Matt Zash in the front passenger seat of my unmarked vehicle. He did not have 011 handcuffs, but he did
allow me to do II protective search ofltis person before he sat down inside of my vehicle for s,ny weapon which might present harm
to my person. We drove to 9th street w~ere I stopped to go into Jimmy John's. I stopped 4 shops south ~f Jimmy Johns, parked the
car, left the windows open, the vehicle running, and once again offered to purchase Mr. Zash anything he wanted. He again politely
declined. I told him to make himself comfortable and feel free to tum 011 any music he wanted to listen to. I told bim r would be
back in a couple minutes. When I walked up to Jimmy 10hllS, the store was closed. When [ returned to my vehicle, Mr. lash had
turned on Ihe radio to an easy listening station. We drove back down Main Street to Duke and down to Station 2. Inv. Soucie met
us there, and she interviewed him.

Supplements • Case #: 06·00lJ31O

Page 3

2248
As Inv. Soucie was completing the oral section of her interview prior to having the suspect fill Ollt a written statement, [stepped in
and asked Mr. lash if I could go over Ii list of people from his team and see if he could tell me who was present at the party. [told
him ifhe was not sure if they were there or not; do not include them on the list He stated the only people there were lacrosse team
members. We went down t-he list, and he wrote down the names of the peop1e who he recalled were there.

2251
Iny. Himan asked me to go over Ii non custody form with Daniel Flannery
I then asked him if anyone was at the party who was not on the team. He stated no. I told him having that in mind; f wanted to go
over the team rooster to see who was there. I told him also; do not indicate someone was there unless you are completely sure. He
completed the list of players who he knew were there. I told him it may be a while until someone interViews him. I told him he was
free to use the rest room, get something (0 eat. or use the phone. He stated his cell didn't work in the building. I told him he was
welcome to go outside. I instructed him to just use the doorbell when he was ready to reenter the building. I also told him he was
free to use the city phone in the front lobby section ifhe desired.
•
0_

2306

Mr. Flannery stated he wanted to call his girlfriend, lind went up the lobbyounescolted. r was walking around the building and David
Evans asked to use the restroom. I gave him directions there also. Mr: Flannery asked me what f would do in this situation. [told

him it is important for him and his roommates to consult with their parents and keep them i.nfonned on the situation. I told him he
they may want to consider speaking to an attorney also to get their input
3/17/060010

I suggested to lnv. Himan he inquire iftney wanted to participate in a suspect kit process to rule them out as potential SLlSp~~. He
spoke to them and they all agreed.
·l~(
\'.

0114

) r returned to 610 N. Buchanan.
0'

lnv. Carnevale was still holding the scene as CSI processed it. I spoke to CSI Ashby and Inv.
Carnevale and asked what type evidence had located to this point. 0 In addition, I walked around the residence to see ifthere were any
other clues present thor could link the incident reported to this residence. ',noticed in the rear center bedroom, Ii picture hanging 011
the wall. It has one of the residents in the photograph at what appears to be II party (unrelated to this incident) drinking alcohol. The
interesting thing about the photograph is how the subject has red cheeks most likely due to the alcohol consumption. The cheeks are
consistent with the subject who the victim alleged attacked her. The scene was secured when ID completed the processing.

0209
I arrived at Duke to assist Inv. Himan.
0215
I prepared three Voluntary Consent to Identity Procedures sheets. I placed check marks next to each spot where the people were

gO.ingto initial and told Inv. Himan to have them initial each spot along with signing them.
3120/06 1420
~nv

Riman advised me he spoke to Duke Police Det. Stotsenberg to set up a voluntary meeting for the players to speak to Durham
PD and give photographs. and DNA. The coach is arranging the meeting during the athletes practice time to ensure everYone will be
there. None of the subjects would be required to participate if they did not want to.
1500
I spoke to CSJ Felts. She stated it would be fine for them to assist us in the collection of DNA and photos of the players on the
volunteer basis on 3122106 and they would take care of the staffing needs. She stated for the DNA on that number of people, they
would only do Ii buccal swabbing. f agreed. The District 2 command was also notified.

I spoke to Sgt Shelton and Officer Stewart indivIdually. Both ofthem responded to the noise complaint and walked around the
.' home. Neither one of them recalled seeing anything on the ground other than beer cans and trash. When they were there. the
residence appeared unoccupied. When asked if they saw anything like a woman's purse and belongings on the grollnd J)n the south
side of the house, Sgt. Shelton stated he remembered walking up the alley right there. "There is no way anything like that was

Supplemems - Case If: 06·008J10

Page 4

there". Officer Stewart did not recall seeing anything like that either when walking around the home.
3121106 0900

I went [0 the DurhamColJnty Court House and received a Subpoena for Inv~Himan to pick up the SANE Nurse's documentation
concerning this case.
1030
I took the subpoena to Duke ER and served it on Tara Leviey. Ms. Leviey took me into the secure custody file room for the Sane
Nurses and turned oller the report and photographs to me. I asked Ms. Leviey about the exam. She stated the victim came in and
was very apprehensive around the officers. Once the officers left the room it took her approximately 15-20 minutes to get her to
calm down and open up. She stated the victim from that point on never changed her statement for oyer the 6-7 hour time period they
were together. She stated the victim would remain calm in her pr~sence and even when she left the ~om. however, one time a male
nurse walked into the room to get some supplies while she was just down the hallway, and the victim, Ms. Mangum began to scre~m
hysterically. Ms. Levicy stated she had to run back down (0 the room to reassure her she was not going to be hurt. I asked her if the
exam was consistent with blunt force trauma, and she replied yes. She stated the victim had edema and tenderness to palpation both
alla lIy and especially vaginally. She stated it was so painful for the victim to have the speculum inserted vaginally, that it took an
extended period of time to' insert same to conduct an examination. J asked her ifthe blunt force trauma was consistent with the
sexual assault that was alleged by the victim. She stated the trauma was consistent with the victim's allegation.
The paperwork was delivered to inv. Himan.

1545
lnv Him~n asked iflnv. Clayton and r could go by 3347 Rose ofSharoll to see if we could locate the second dancer who failed to
show up for her appointment. It is the possible address of Ii boyfriend.
1601

~
to

We arrived at 3347 Rose of Sharon. The dancer and her boyfriend nO longer stay there with his brother. We were directed check
at his mother's home on Cornwallis Rd.,,~)
3(22/06 0657

I stopped by 1507 K Cornwallis Rd. and met the second dancer's boyfriend's mother. She did not want to give me his telephone
number or address; however, she promised one of them would call me within a couple hours.
0818

I received a call from Kim Pitmann. She stated she would be in at or close to noon to meet with Inv. Himan. I advised Inv. Himan
of same.

1240

Inv. Himan met with Kim Pittman, AKA Nikki. I sat in on and assisted with the interview. Inv. Himan bas notes of same.
1330
I advised Inv. Himan that Andy Peterson (of the Wes Covington office) notified me the team members would not be attending the

meeting previously scheduled.
1345
I contacted the Durham Police Attoniey Toni Smith and discussed the possibitities of Ii noll testimonial order fur the athletes, Ttold
her about the case, and also told her about how we plan on discussing this with the DA's Office.
1533

lIw. Himan advised me Duke Police Detective Stotsenberg had contacted him and said no one showed up for the. meeting.
1600

\

I asked lnv. Himan to follow up with the DA's Office concerning the NTO. Jnv. Himan contacted me after the meeting was
completed and notified me the DA'a Office wished to apply for the NTO. He stated they would like us to write it up for them to
present.

l

SlipplemenlS • Case II: 06·000310

Page 5

18io
I spoke to Toni Smith and notified her that Inv. Himan spoke with ADA Tracy ~iine. Ms. Cline asked him to draw up the NTO so
the DA's Office could present it to Ii Judge in the morning. She stated follow the directions of the DA's Office sine they are the ones
conducting the pas'sible future prosecution.
1900
I assisted Inv. Himan in drawing up Ii NTO for the District Attorney's Office.
The document was completedjllst before 0145 hours.

3123/06 1005
Inv. Himan contacted me and stated the Judge signed the application. He stated the date to produce ~ as applied for. He stated
the DA needed to wri[e the complete application form for each persol'! and those would be signed and complered by early afternoon.
He stated the Attorney could be called now to I10tify them that they needed to contact the players and notify them the time and place
m~~-

1010"
I notified Wes Covington's Office CA. Peterson) about the application status. They advised they would begin making arrangements
to have the players there since the application was signed. They stated they did not expect any difference with the aetual orders. J
gave him directions to the Forensics Unit on 213 Braodway.
1329

I received an email from A. Peterson stating the Lacrosse players would be available for questioning on 3129/06 at 1500 hours. He
stated" in that email that Mr. Covington would be present for the Non-Testimonial Order.
1521

lnv. Himan notified me he had tHe NTO in hand signed by Durham Co. Superior Court Judge Stephens.
) 1600

...

fnv. Himan transported the order to the Forensics Unit. Inv. Clayton, Soucie, Bryant, and I were present to assist with the process.
Attomey Wes Covington, Andy Peterson, and Robert Ekstrand were present Mr. Ekstrand made it a point to state he represented
every athlete present; however, several oftne athletes stated he was not their attorney according to lnv. Himll.t1 and Clayton. I went
to meet with the Attorneys and asked each of the people present to have a photographic 10. r set up several stations to ensure the
process went smoothly and decreased the amount oftime necessary for the individuals involved. Within II. brief time period the press
showed up and began filming and laking photographs. J asked everyone to come inside "and set up security for the players to assist in
protecting their privacy. I called for Pat(el to stand by the gate ofthe parking lot to ensure no one who was unauthorized could
make entry. I asked lnv. Bryant to stay with the individuals in the lobby and escort them by car pool gr~ups to the back for
processing so that their vehicles could be driven into t~e back oHD, the players get into the vehicles unseen. Once in the processing
section of rD, the players would initially sign in (signature for 10). The second stage would be for an individual to go into a room
with Inv. Himan and In'll. Clayton where their 10 would be verified, Ute investigator would also look at: goduke.com for each person
and ensure the team line up photograph matched the lD/person p~ent because a few of the participants forgot their [D's. and the
Non-Testimonial was served (including placing name and address of said persons served. Mr. Ekstrand spent most of his time in this
room observing the people. From there each person would'individually go to a photographic station, a buccal swab station, and then
be dismissed. Once each car pool group had complete4. Mr. Ekstrand's assistant would drive their vehicle to the rear onD and the
men would enter the vehicle and leave without ha'ling to be stopped or harassed by the media. Due to this security the press left
about halfway through the event The last person was served at 1835, and the last person left at (858.

3124/2006 0900
Captain Lamb met with me and advised me District Attorney Nifong was-going to be running and prosecuting this caSe in the event
criminal charges are sought. He stated to continue with our investigation, but to go through Mr. Nifong for any directions as to how
to conduct matters in this case. Capt. lamb also notified me to make sure the he was kept up to date so the Command Staff was kept
up to date on the matter.
I

3127/06 1020
While I was attending a Police Department ossr Training class,. was summonsed by CpJ. David Addison of CrimeS toppers. Cpl.
Addison received all email fi'om a source via CrimeStoppers that had a disturbing message. The email was written in Ii manner that

Supplements - Case 1#; (/6·0083 I (/

Page 6

indicated the possibility of two or more people may have conspired to kill someone. A few things in the email that stood out were
the use of a double period (.. )al the end of a sentence or phrase. The email address listed showed ryan.mcfadyen.edu and was dated
March 14,2006 shortly after the party.
/ ' ) ~;
1030

I retumed to the classroom and pulled Inv. Himan out who happened to·be scheduled for class on that day also. I gave him a
briefing, and the two of us wenl to the Courthouse to see Mr. Nifong.
1040

(nv. Himan and r met with District Attorney Nifong. He was shown the email and briefed to date. The decision to do a search
warrant was discussed and agreed upon. We retlJ~ned to Station 2 and I assisted lov. Himan in completing the document.
J735
I advised communications we were going to be executing papers on Duke Campus. Duke PD Inv. Smith assisted in the service at

Edens 2C room 204.
1801
inv. Himan, Soucie, Smith, Ryan Johnson (MIS). csr Ashby. and" went to the room. lnv. Himan served the search wammtto the
subject's roommate Jolm Brad Ross who was home. He opened the door upon knocking and announcing. He was polite and
cooperative. (listened to Inv. Himan tell him he was not under arrest and was free to leav~ the room or our presents ifhe desired.
Inv. Himao read the search warrant to him in OUf presence. He was told his movement in the extremely small room would be limited
since we were trying to process the scene. He was polite and went into the hallway. He stated he was not at the party. He stated he
had Ii document showing his whereabouts the night of the incident and could provide names of people who were with him ifit was
necessary. I went through a garbage can in the room and needed somewhere to empty it to keep the room as clean as POSSib~'
As Inv. Himan continued to ask questions to Mr. Ross questions, I asked if! could empty the contents of the garbage call in e room
into the hallway trash can. r totd~iiim 1 could return the trash to the original cIIn ifhe wanted it back in the room. He politely ()Id me
[ could leave the trash in the hallway trash can when I was done. At one POin.t Mr. Ross stated he felt he should consult with his
/' .•..)
attorney. Mr. Ross contacted his attorney and minutes later Robert Ekstrand showed up. Mr. Ekstrand asked to see the search
'.".:
warrant and was handed the copy given to Mr. Ross. Mr. Ekstrand questioned the signature, not believing it was Judge Stephens
. ,signature. He was shown the original, but was still asking que~tions concerning the judge's signature. Inside the room were a
number of hand drawn penises on the wall with team member's lIicknames,jersey numbers, and questionable raciallethnic things
written on same. There was a small hangman's noose on the light fixture. (nside the room were also some emails on hard copy with
the same .. markings as on the email sent out on 3114/06 listed in mv. Himan's search ~rrant. I left prior to the warrant service
being completed.

1915
Inv. Himan and Soucie called me and stated Mr. McFadyen returned to his room. They stated he was read rhe search warrant in
front of Mr. Ekstrand's assistant. They stated he would not tell them where h.is car was parked or tum over the keys. They asked me
to speak (0 him for a minute. I spoke to Mr. McFadyen and explained to him that rhe investigator bad placed his vehicle on the
search warrant. I told him if the investigators had to go outside, walle car to car and locate the vehicle in the large parking facility,
and not have the key; they would make a forced entry to the vehicle. I told him it is not OUf intention to destroy belongings.
however, we intend on carrying out the order and would take tho necessary steps to ~o so. J told him it was Lip to him ifhe wanted
the vehicle entered in a non forceful manner or not, because we were going to locate it and enter it. He agreed to voluntarily tum
over the keys and disclose the location ofthe vehicle to the Investigators.
3128/06 1720
I followed lnv. Himan to the home of William Boehmler located at 1107 Urban Ave. Mr. Boehmler agreed to come back to the
station with Inv. Himan and answer questions.
3129/06 0830
I checked my voice Illail at work after roll call and listened to a voice mail from Attorney A. Peterson. He stated his firm has been
)
tenninated and therefore the interviews with the team members scheduled fQr 3129/06 were cancelled. I notified Inv. H i m a n . " :
1300

Inv. Himan and I were summonsed to II meeting at Police HQ to discuss the case with the Durham Police Command Staff, Duke

Supplenrenrs • Case #: 06·(J08310

Page 7

Police Command Slaff, City Manager, and the Police Department Legal Advisor.
1405

Inv. Himan and I met with District Attorney Nifong. Mr. Nifong was .pleased with the investigation to date, and asked for us to
aHempt to make contact with the individuals on the team to try to see ifany of them will speak to us concerning the case. [told him
we would try to speak to the individuals in as timely of Ii manner that was permitted .

.'

3/3 112006 1223
InvestigalOl' Himan and I met with Durham Co. DA Michael Nifong in reference to doing a photographic line up with the new mug
shot style photographs obtained during the Non-Testimonial Order procedures conducted on March 23, 2006 at the Durham Police
forensics Unit Mr. Nifong suggested we put together the mug shot type photographs into II grou'p since we are under the impressioll
the players at the party were members of the Duke Lacrosse Team lind instead of doing a line up or photographic array, we wou[d
merely ask the victim to look lit each picture and see if she recalled seeing the individuals at the party. Jf in fact she could recall;just
let us know how she recalled seeing them from that night, what they were doing. and any type of interactions she may have had or .
observed with II particular individual.
1340
I arrived back at District 2 and gave Capt. Lamb and Lt. Ripberger all overview onhe conversation with the DA. I also discussed
with them my idea to lake the photographs and place them into a Power Point presentation. J explained to them that I would assign
the set up of the presentation to Investigator Williams and Himal1. Capt. Lamb asked me to confirm with the second dancer that she
is the one who made Ihe call about the racial slurs at 610 N. Buchanan to enSure there was not Ii second incident needing to be
looked at

1437
J sat down ·with lnvestigtltors Williams and Himan and taught them how to put together tI power Point presentation since neit~r one
of them had that experience. I asked them to set it up by using the IR number. create blank item number slides in between " \"
corresponding photographic slides: They had access to each of the mug shots with the Lacrosse Players names em Ii copy ofa CD
provided by the Durham Police Department Forensics Unit.

/

1445
I conlacted Kim Pittman to confirm she was the caller to 911 about the racial slurs. She stated she made the calls, and said it was
definitely her.

1500
. .
.
ilw. Smith and Stotsenberg from Duke Police drove up to the District 2 substation as I was leaving. They had three reports they
delivered reports to me requested by us. Two were for staf'fat Duke who are being harassed due to this case (Duke repolts
#2006-1548 and 2006-1515), and one is a key card report fartlle team members on 3113/06 to 3114/06.
1515

[ went to Duke IT Security at the request of Inv. Himan and picked up information that was required by a court order from Chris
Cramer.
1538
The information collected ~y me from Chris Cramer was delivered to Ryan Johnson at EIS. I completed a property form and turned
it over to Inv. Himan.
.
4/312006 1235
investigator Himan made contact with me and advised me the Power Point presentation was completed.
4/412006 0800
I made telephone contact with Crystal Mangum and made an I 1:30am appoilltm.eJIt for her to view the presentation.

0900
I spoke to Vice President Graves at Duke University Police via telephone.
1011
J set up a desk in the briefing room of tile District 2 Substation and placed Investigator Williams laptop computer on t~p of~at desk.

Suppfemellls • Case II: 06-0(/8310

Page 8