Anne Blythe, Staff Writer
DURHAM -
The panel looking into the Police Department's handling of the Duke lacrosse case has many questions for law enforcement officers. At the top of the list is: "Where was Chief Steve Chalmers when Mike Nifong took over the investigation?"
The panel met for the first time Friday for five hours to begin the task of finding out what, if anything, the department did wrong during its investigation into an escort service dancer's allegations that she was gang-raped at a Duke lacrosse team party in March 2006.
"I just sort of felt the chief was missing in action," said Ken Spaulding, a Durham lawyer on the panel.
The three lacrosse players indicted in the case were exonerated in April and declared innocent of all charges by the state attorney general.
As the panel looks into the department's role in a case that cast a dark shadow over Durham and the North Carolina judicial system, defense lawyers suggested a number of avenues to explore.
The defense team pointed out that the investigation was left in the hands of two district officers, Investigator Benjamin Himan and Sgt. Mark Gottlieb, who had little experience with such cases.
Nifong, the district attorney whose misconduct in the case later cost him his job and his law license, was in a tough Democratic primary fight when the rape allegations arose. He quickly took charge of the investigation.
Joseph B. Cheshire V, a member of the defense team, said some higher-ranking police officers should have tried to stop a man described by Attorney General Roy Cooper as a rogue prosecutor.
"Where were the captains? Where were the majors?" Cheshire asked. "Where were the experienced investigators? Where was the chief? Where was somebody to go over to Mike Nifong's office and say what are you doing?"
Once Nifong took charge, defense lawyer Jim Cooney told panel members, "the investigation was directed largely toward proving the truth of [the accuser's] story and the guilt of these young men, rather than trying to determine what happened."
In a two-hour presentation, Cooney pointed out many steps along the way in which investigators did not follow up on evidence contrary to the accuser's story.
Investigators never sought cell-phone records and other time-stamped electronic information left behind in a world in which college students text-message each other, use bank cards to buy food and gas, and swipe access cards to get into locked residence halls.
Cooney pointed out flaws in photo lineups and identification procedures used by police. He raised doubts about Gottlieb's 32-page report, a typed account of the investigation produced months later that seemed to try to plug holes in the case.
The 12-member panel, made up of lawyers, law enforcement officers and at least one victim's advocate, was asked by the City Council to do a third-party inquiry of the police handling of the lacrosse case after a brief report by Chief Chalmers failed to answer all concerns.
Chalmers announced his retirement plans in the middle of the case, and this week a new chief was tapped to take charge of the department in September.
After hearing about police missteps in the lacrosse case, panel members peppered defense lawyers with questions Friday afternoon.
They asked whether the defense team had tried to meet with police and been rebuffed as its members had been by Nifong when they tried to present alibi evidence to him.
"I don't think anyone in the Police Department would expect that we would go around the district attorney to speak to the Police Department," said Bill Cotter, a Durham lawyer on the defense team.
Cotter said the team began to worry early in the investigation that the case was being made to fit the accuser's stories.
"While this was progressing," Cotter added, "we were getting the idea that people were cheating."
Himan raised concerns about taking the case against Reade Seligmann to the grand jury, according to testimony at the State Bar procedure in which Nifong lost his law license.
But Himan was one of the officers who went before the grand jury in that case, and Seligmann was indicted.
Panel member Gregg Jarvies, the former Chapel Hill police chief, asked whether there was a way the panel to question the investigator about what he took to the grand jury since such proceedings are private and records are not kept.
Willis Whichard, the former state Supreme Court justice and chairman of the panel, said he and Wade Barber, a former judge and prosecutor in Orange and Chatham Counties, would meet with Durham police attorneys in early August to discuss what kind of access the panel will have to the law enforcement officers.
Whichard said Friday he does not know how long it will take the committee to do its investigation, that much will depend on what is uncovered during the process. The panel, he said, would be both thorough and fair in the process.
"Nothing less than civilization as we know it is at stake here," Whichard said.