Friday, April 13, 2007

Live-Blogging; Additional Charges Justified?

I’m in Raleigh today, and will be live-blogging the preliminary hearing in Mike Nifong’s ethics case. The hearing is scheduled for 4.00 this afternoon.

On the docket, a motion filed by Nifong’s lawyers to dismiss the charges relating to Nifong’s withholding of exculpatory DNA evidence. It’s the job of historians to analyze the past, not predict the future, but I feel pretty safe in forecasting that Nifong’s motion will not be granted.

The more intriguing question: in light of Attorney General Cooper’s unequivocal announcement Wednesday, will the bar amend its complaint to add additional charges? Cooper’s words and actions suggest that the Bar should consider this course.

In his remarks Wednesday, Attorney General Cooper stated,

We believe that these cases were the result of a tragic rush to accuse and a failure to verify serious allegations. Based on the significant inconsistencies between the evidence and the various accounts given by the accusing witness, we believe these three individuals are innocent of these charges . . . We have no credible evidence that an attack occurred in that house that night . . . [emphasis added] Our investigation shows that:

The eyewitness identification procedures were faulty and unreliable. No DNA confirms the accuser’s story. No other witness confirms her story. Other evidence contradicts her story. She contradicts herself. Next week, we'll be providing a written summary of the important factual findings and some of the specific contradictions that have led us to the conclusion that no attack occurred.

In this case, with the weight of the state behind him, the Durham district attorney pushed forward unchecked. There were many points in the case where caution would have served justice better than bravado. And in the rush to condemn, a community and a state lost the ability to see clearly. Regardless of the reasons this case was pushed forward, the result was wrong. Today, we need to learn from this and keep it from happening again to anybody.

Cooper, in short, was unequivocal: the players were innocent, and no evidence existed (apart from an accuser’s myriad, mutually contradictory stories) to justify the charges.

Rule 3.8(a) of the North Carolina State Bar Rules of Professional Conduct states that a prosecutor shall “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

The burden of proof under Rule 3.8(a) is high. But the wording of the rule—“refrain from prosecuting”—makes clear that it applies not merely to the decision to indict, but the decision to continue prosecuting a case. Regardless of what Mike Nifong may or may not have believed on April 17, then, Roy Cooper’s remarks leave little doubt that Nifong was in violation of this rule by the time he recused himself from the lacrosse case.

Cooper’s decision to accompany the dismissal of the charges with an outright declaration of the players’ innocence gives the Bar a green light to amend its complaint. The organization should seize the opportunity.


Anonymous said...

Be sure to tell Mike that all of us blog hooligans say "Hi"!

GS said...

I would like to predict that the AG report, to be released next week, may document additional lines of investigation for the bar.

Here's hoping.

gak said...

I can't wait to hear what happens today.

William Jockusch said...

Nifong deserves to face criminal liability for his decision to indict and prosecute. Not the bar. Criminal liability.

Unfortunately, our law is not set up that way. There are other charges that can, and should, be brought, but in a just world, his decision to prosecute, in the face of his knowledge of overwhelming evidence of innocence, would be the lead charge.

Anonymous said...

Absolutely--More charges. We need to pile on, folks. Stamp out Nifong like the cockroach that he is.

Anonymous said...

I think you are right about the potential for other charges against Nifong coming to light. Cooper was so unequivocal, the truth must be worse than even any of us thought. Apparently Crystal continued to change her stories, invent more false details, the whole way through.

I don't believe there is any way that Mike Nifong could have believed a rape took place after May 2006. By that time, he knew Crystal's history of mental illness, the time stamped photos had come out, Reade's alibi information had come out and he knew that the DNA evidence completely contradicted Crystal's statements to the SANE nurse. ALL of this was known within two months. There just isn't any believable excuse that he has. He can't even say Crystal was so compelling he believed her despite her mental illness since he NEVER interviewed her until December 06.

I believe Coopers written summary will be even more scathing than his public comments. NO ONE but the true haters and maybe her nutty family will be able to continue to believe 'something' happened after the full report comes out.

Anonymous said...

The results of this case not only call into question the ethics and credibility of the DA who pursued it, but that of the journalist who fraudulently aided and abetted in the deceit. They ALL should be fired.

Anonymous said...

As an alum, it seems the University should express its sense of apology by preempting the inevitable lawsuit by the trio and their families by making an initial settlement offer with these terms: 1) cash payments of $7 million for each of the three affected individuals, reflecting actual and potential punative damages net of the present value of the money in the event of litigation; 2) a formal apology from the University; 3) an agreement to initiate a formal process of Cultural Change in the University that would lead to substantive changes to ensure future students don't face another unrestrained Gang of 88; 4) the resignation of the University's President. Of course, smart lawyers will reject the dollar amount of this initial offer, but it's only a first offer and everyone ought to know the real number will be higher. But this is how Duke goes happily forward into the future.

Anonymous said...

You guys need to get over the three boys suing Duke, it isn't going to happen. They may or may not sue the County of Durham.

Anonymous said...

Dr. Johnson, I have had Coop Cooper and his father help me with personal legal issues in the past before he became AG. For him to be as forceful and direct re: "mr." Nifong in his press conference, reconfirmed for me what you and others have long proclaimed about the case. Coop is I believe is as fair and honest as any public servant/politician can be. Nifong can only dream of being in Coop's league!
Nifong deserves to experience some of the discomfort, pain and anguish the three young INNOCENT men have endured.
Dr. Johnson thank you for your analysis of the events.

Anonymous said...

Heh!!!..... Where is Cousin Jakki (aka Clyde)?

What a bizarre Durham-in-Wonderland we have all been traveling through.

Anonymous said...

Andrew Cohen still can't admit there was no rape.
What an idiot.

Anonymous said...

Would the Bar amending the complaint today give Nifong reason to ask for (and likely be granted) a delay in the June trial?

Anonymous said...

What is up with The Chronicles poll about whether the charges should have been dropped?
Can the votes of people from this site make a difference?

jamil hussein said...

You guys need to get over the three boys suing Duke, it isn't going to happen

It has happened already. Brodhead, Duke and one Gang88 member have been sued already (for grade retaliation).

More lawsuits are surely coming. Duke money and resources were used for vigilante posters. Duke faculty were responsible for racist defamation of character. Duke officials denied Duke3 to contact their lawyers when facing aggressive DPD and DA.

kbp said...

Thanks KC!

If that Rule you point out doesn't apply here, it doesn't apply ever, IMO.

With so many charges already, they may just skip it and move on to the execution.

OT - I have a feeling that when Mikey counts the sheep trying to get sleep he keeps seeing big KC blogs popping up everywhere!

P. Rich said...

There are two egregious primary wrongs in this case:

1. "I was raped." uttered by CGM. If this is never said, there never is a case. It cannot be discounted or excused, though the state AG attemped to do exactly that. And CGM is not a victim, nor can she possibly be a responsible parent.

2. Pretty much all decisions made and actions taken by Nifong after the initial charge was made. Even the preliminary investigation and grand jury (which should have ended matters) were sloppily done and unprofessional at best, and it just got worse from there.

And then there are the enablers who created and maintained an atmosphere that encouraged Nifong to proceed with this travesty. They include members of the following groups:

- The Durham police and their ineffectual chief
- Nifong's staff
- Brodhead
- The Duke Trustees
- The Gang of 88-1
- Sympathetic liberal media/pundits
- Gullible Black Durham residents and students

And of course there are the governor who appointed Nifong and the NC State legal machinery which failed to monitor and correct his behavior earlier.

Each enabling group played a part, and each deserves its just rewards. None, however, fall under the purview of the state BAR to punish. And regarding Brodhead and the 87, apparently just rewards includes promotions and added responsibilities.

This case represents a great argument for belief in karmic retribution, which suggests the cockroach and sewer rat population is destined to increase.

Anonymous said...

I also have to wonder why this woman's children have not been put in foster care. A delusional, alcoholic who can't tell truth from lies, with a propensity to pass out when things get stressful has not business raising any children.

Anonymous said...

It is the way of our people in Durham - after all - look at Crystal's father - not exactly a grounded individual.

Anonymous said...

Don't forget the group of pathetic enablers: THE HATE 88

They played a very significant role in helping Nifong.

Abe, Stan (Art, Art History, and Visual Studies)
Albers, Benjamin (University Writing Program)
Allison, Anne (Cultural Anthropology)
Aravamudan, Srinivas (English)
Baker, Houston (English and AAAS)
Baker, Lee (Cultural Anthropology)
Beckwith, Sarah (English)
Berliner, Paul (Music)
Christina Beaule (University Writing Program)
Blackmore, Connie (AAAS)
Jessica Boa (Religion & University Writing Program)
Boatwright, Mary T. (Classical Studies)
Boero, Silvia (Romance Studies)
Bonilla-Silva, Eduardo (Sociology)
Brim, Matthew (University Writing Program)
Chafe, William (History)
Ching, Leo (Asian & African Languages and Literatures)
Coles, Rom (Political Science)
Cooke, Miriam (Asian & African Languages and Literatures)
Crichlow, Michaeline (AAAS)
Curtis, Kim (Political Science)
Damasceno, Leslie (Romance Studies)
Davidson, Cathy (English)
Deutsch, Sally (History)
Dorfman, Ariel (Literature & Latin American Stds.)
Edwards, Laura (History)
Farred, Grant (Literature)
Fellini, Luciana (Romance Studies)
Fulkerson, Mary McClintock (Divinity School)
Gabara, Esther (Romance Studies)
Gavins, Raymond (History)
Greer, Meg (Romance Studies)
Glymph, Thavolia (History)
Hardt, Michael (Literature)
Harris, Joseph (University Writing Program)
Holloway, Karla (English)
Holsey, Bayo (AAAS)
Hovsepian, Mary (Sociology)
James, Sherman (Public Policy)
Kaplan, Alice (Literature)
Khalsa, Keval Kaur (Dance Program)
Khanna, Ranjana (English)
King, Ashley (Romance Studies)
Koonz, Claudia (History)
Lasch, Peter (Art, Art History, and Visual Studies & Latino/a Studies)
Lee, Dan A. (Math)
Leighten, Pat (Art, Art History, and Visual Studies)
Lentricchia, Frank (Literature)
Light, Caroline (Inst. for Crit. U.S. Stds.)
Litle, Marcy (Comparative Area Studies)
Litzinger, Ralph (Cultural Anthropology)
Longino, Michele (Romance Studies)
Lubiano, Wahneema (AAAS and Literature)
Maffitt, Kenneth(History)
Mahn, Jason (University Writing Program)
Makhulu, Anne-Maria (AAAS)
Mason, Lisa (Surgical Unit-2100)
McClain, Paula (Political Science)
Meintjes, Louise (Music)
Mignolo, Walter (Literature and Romance Studies)
Moreiras, Alberto (Romance Studies)
Neal, Mark Anthony (AAAS)
Nelson, Diane (Cultural Anthropology)
Olcott, Jolie (History)
Parades, Liliana (Romance Studies)
Payne, Charles (AAAS and History)
Pierce-Baker, Charlotte (Women's Studies)
Pebles-Wilkins, Wilma
Petters, Arlie (Math)
Plesser, Ronen (Physics)
Radway, Jan (Literature)
Rankin, Tom (Center for Documentary Studies)
Rego, Marcia (University Writing Program)
Reisinger, Deborah S. (Romance Studies)
Rosenberg, Alex (Philosophy)
Rudy, Kathy (Women's Studies)
Schachter, Marc (English)
Shannon, Laurie (English)
Sigal, Pete (History)
Silverblatt, Irene (Cultural Anthropology)
Somerset, Fiona (English)
Stein, Rebecca (Cultural Anthropology)
Thorne, Susan (History)
Viego, Antonio (Literature)
Vilaros, Teresa (Romance Studies)
Wald, Priscilla (English)
Wallace, Maurice (English and AAAS)
Wong, David (Philosophy)

Anonymous said...


Message received, no need to repost that in every thread.

Anonymous said...

What is up with The Chronicles poll about whether the charges should have been dropped?

One wonders why this would be worthy of a poll (or, if many students would bother to vote on something so uncontroversial).

However, there was a case before where a similar poll was being manipulated by some leading light of the G88 submitting large numbers of votes!

Anonymous said...

I hope they can find a way to punish Hate 88-1. They really need to be put in their place and taught a lesson. Any ideas?

Anonymous said...


Thanks for posting. This message needs to be shouted loud and clear!

Anonymous said...

I predict a total Nifong smackdown at todays hearing. He knows already its game over. There is now no reason for anyone to go easy on him, even the Durham Herald finally abandoned ship. His career is over. They are going to suspend his license for at least a few years if not disbar him...depends on how strong a criminal case against him would be.

Anonymous said...


Nice sock puppetry on your 10:28 post - that was slick!

jamil hussein said...

Cleared Duke players consider suing DA

Some have suggested the players and their families might sue Duke University, which has been heavily criticized in some quarters for suspending the players and canceling the lacrosse team's season before the young men were even tried.

A Duke spokesman declined to comment on the prospect of a lawsuit.

Anonymous said...

Believe what you want, it won't happen. They are not going to sue Duke and quite honestly, they don't have much grounds. They can't sue Duke for what the professors said, and what the professors said, however repugnant falls short of slander. They MIGHT conceivably have a case about Duke attempting to coerce them to talk to DPD without lawyers but thats it. You are engaging in wishful thinking here.

Anonymous said...

When Nifong stands up to receive his "award", he needs to thank the many people who supported him in his actions. He could not have achieved so much so quickly without the direct support and collaboration of many others. These people too must be recognized.

Perhaps Nifong can find refuge in this rump of insanity by blaming all of them for "making" him do this.

jamil hussein said...

Nice to see you here, Mr. Brodhead.

Duke has been sued already and it surely will face additional lawsuits. As I said, Duke funds and resources were used for vigilante posters and the racist slander was extraordinary. Advising Duke3 not to contact their lawyers is also a solid basis for suing Duke. Duke will be sued (unless they make a deal in advance).
Coach can easily sue Duke.

Anonymous said...

Way to go KC! I find it a bit annoying how msm is jumping on the bandwagon (where have they been for the past 365 days??). For so long, you and a few others were the lone voices crying out in the wilderness. I look foward to your blogging today.

Anonymous said...

On what basis would Pressler sue? They allegedly fired him for not keeping his team under control, they can legally argue that absent a rape, underage drinking, hiring strippers and so forth showed he was not controlling the behavior of his team. I think its horrible he was fired, but he doesn't have a legal leg to stand on.

You would have to prove that DUKE UNIVERSITY, as an entity knew and approved the posters, and/or that DUKE employees were acting in an official capacity. I'm sorry this is not doable. Employers are not responsible for things their employees do that are not sanctioned. If I am at work and copy up a bunch of racist flyers I may get fired myself but my company is not liable unless it can be proven they knew and approved what I was doing. Like I said, this is wishful thinking and will not come to pass.

Anonymous said...

I believe Duke University, by its role "in loco parentis," is obligated to protect and defend students entrusted to its care. This is a moral as well as a legal obligation. The actions taken by Brodhead which exposed the students to potential physical harm are in violation of this obligation and, IMHO, grounds for a lawsuit. Coach Pressler has an even stronger case and, if he sues, he will take a considerable amount of money from the university and its trustees

M said...

Mrs. Former Prosecutor says:

Prosecutors have a classic career arc. As a newbie, through inexperience and nerves, you end up discounting good cases, and are talked into better deals than you should be by the defense lawyers. You also worry that every defendant might be innocent.

In mid-career, you learn more, try more cases, and get a much better take on the credibility of witnesses, the excuses of defendants, and just how provable any case is. You see how very few defendants are innocent.

A seasoned prosecutor can indict a ham sandwich, to use the old cliche, and generally has lots of experience dealing with the weak points of a case. If they're not careful, they forget that innocent defendants even exist.

Newbie prosecutors are tempted to unethical conduct by inexperience. Mid-career workhorse prosecutors are tempted to unethical conduct by overwork and the desire to get ahead, either in professional recognition, in intra-office competition, or the desire to stick it to an enemy defense attorney.

Seasoned prosecutors who should know better will get blind-sided by a case of true innocence. They've lost the ability to see that some defendants are innocent, and they have developed a great ability to knock down excuses, fake alibis, and "the other dude did it" (TODDI) defenses.

If you combine this calloused blindess with bad character and blind ambition, you come up with someone like Mike Nifong.

Now that-thank God-the Duke 3 are safe, I find myself wondering how Nifong got himself into this. Was he always a bad prosecutor, or was this like a Greek tragedy where the protagonist seems good until some sort of event (in this case the election combined with a chance to be a hero to the black population of Durham) reveals a tragic flaw?

What do we know about Nifong's ethical conduct earlier in his career?

Anonymous said...

So who's making the Duke "Wanted" poster for the Angry 88 And One? Wanted for stupidity

Anonymous said...


I agree, I think the elements of this case brought out all of Mike Nifongs flaws, that include unbelievable arrogance, desire for power, incompetance and a certain amount of white guilt.

There isn't any evidence that we know of that Mike Nifong was a rogue prosecutor before this case. I believe he believed her story in the first couple of weeks, and once the case began to fall apart he knew if he dropped it he would lose to Freda Black, he then had to keep up the hoax all the way through the summer and into fall into the November election because of the other write in candidates,any admission of the hoax before the Nov. election would have cost him the black vote and he would have lost. In order to keep up the hoax over the spring and summer, he had to resort to illegal moves. Possibly, also, by that time he could no longer admit it was a hoax, because that would make him a disgusting monster, he had to go with the idea that even crazy, lying, promiscuous stripper/escorts can be raped and stick to that to the bitter end. I had originally believed Nifong never intended to take the case to trial, but I changed my mind after the Dec. revelations, he was going to take it to trial and hope for an OJ jury.

Anonymous said...

"I hope they can find a way to punish Hate 88-1. They really need to be put in their place and taught a lesson. Any ideas?"

THey are pretty much untouchable. Most will have tenure, which makes them virtually impossible to get at. I think that they are fairly safe. Brodhead is more vulnerable, although I suspect that he too will survive.

Anonymous said...

From whence came the funds used to pay for the ad the group of 88 placed? Department funds? No one is saying, but if it was department funds, then the University is open to suit.

Anonymous said...

Hopefully you are not a lawyer because everything you say is absolutely incorrect.
G88 troll?

jamil hussein said...

Mr Brodhead:

You would have to prove that DUKE UNIVERSITY, as an entity knew and approved the posters, and/or that DUKE employees were acting in an official capacity. I'm sorry this is not doable. Employers are not responsible for things their employees do that are not sanctioned

This is incorrect. If Coca-Cola driver accidentally kills somebody while driving a Coca-Cola truck, it is Coca-Cola as a company who ends up paying millions. Here, tenured Duke officials were responsible of slander, they used Duke funds and resources (copy machines, PCs, internet connections, office space) to conduct their acts. Duke did not prevent them nor even disciplined them so it accepted their actions. Nothing will save Duke. Discovery phase will no doubt reveal a lot of interesting behind the doors actions at Duke.

Re coach: Wrongful termination has been used in many cases with less merit. Other coaches (esp for black teams) were not fired for identical actions (college parties).

GS said...

Let's remember the ADAs in Nifong's office. Officers of the court, have a duty to bring to light fraud in the office.

Two ADA's laughed when a lawyer from NY emailed them that they should speak out.

I know Greta is talking about these ADAs, but when Nifong gets investigated, the ADAs who knew what he was doing should be charge by the NC Bar.

jamil hussein said...

I forgot about the Assistant DAs. They fully supported Nifong's actions so they should face the bar charges as well.

Anonymous said...

Is today the day that Nifong reveals that he has a drinking problem, is seeking counseling and rehab, and all of his dastardly deeds are attibutable to that. Of course, that would be total horseshit, but he's looking for an EXCUSE for what he's done and the media would love to loudly proclaim, "the man has a DISEASE, alcoholism, and deserves our forgiveness and support for his courage to admit he has a problem blah, blah, blah". Mike the Knife will not roll over easily, and bleeding hearts everywhere would embrace "The Excuse". Hopefully all parties are ready to play extreme hardball with that POS.

Anonymous said...

It doesn't matter what happened with other coaches, it matters what was the wording in Pressler's contract.

The Gang of 88 never mentioned the Duke players by name, you are not going to be able to make a case for slander against someone who at the time was arrested for gang rape. I'm sorry to burst your bubble, this would be a huge longshot and would most likely never make it past the judge.

Anonymous said...

"There isn't any evidence that we know of that Mike Nifong was a rogue prosecutor before this case".

That means absolutely nothing. No one has looked for any evidence yet. My urgent advice would be that they start looking now. If, as is now apparent, Nifong is arrogant, bullying, power-hungry, ethically sloppy, it is unlikely that he developed these character traits in the spring of 2006. As part of any settlement in this affair, a systematic investigation should be undertaken into Nifong's other cases to look for evidence of malpractice and/or malfeasance.

Anonymous said...


Your list of points for a Duke settlement seems fair. But I would add one thing to it: the resignation of McClain as head of the Academic Council. It is depressing that her colleagues elected her to that position so recently, given her involvement in this case. It doesn't bode well. But now that the accused are "officially" innocent, her position seems untenable. Her involvement with the Gang of 88 and her refusal to endorse the presumption of innocence should disqualify her from holding ANY position in Duke beyond her professorial post (which is tenured and therefore untouchable).

Anonymous said...

My guess is you will find out that Nifong was never a very good prosecutor, but you won't find a history of illegal activities. But I agree, all his previous cases should be thoroughly investigated to make sure.

Anonymous said...

On the FIRST day, Nifong knew he had a mental nut for an accuser and the other stripper didn't collaborated her story. High probability that the accuser was delusional. All the rest, orchestrated by Nifong, of sound mind.

Mrs Former Prosecutor said...

11:09 and 11:16, I agree. A thorough investigation of the cases he's prosecuted is an excellent idea. I'm sure there are defense attorneys who can come up with a list of cases where they suspect they didn't get all the discovery, or who believe Nifong used coercion or threats to compel a plea. In the Duke case, the question is: did Nifong conspire to violate the constitutional rights of the lax players under color of law? How much more awful would it be if he's been doing this throughout his career?

I hope the Bar is thoroughly investigating.

good said...

To 10:33 - Post the names of the HATE88 all over the Internet to make sure they come up on any searches of any of the names. Let people know what they stand for...

Anonymous said...

I absolutely believe Nifong broke the law in his zeal to crucify the 3 boys, there is no way a reasonable person could have looked at the evidence as of May and not seen the case was a lie. I just doubt he had done it previously. This was the proverbial perfect storm.

Anonymous said...

I don't think this has been posted here yet, but a must-see segment from the Daily Show with Jon Stewart last night, covering the dismissal of charges.

You can view it by going to the link below and selecting "Duke NonRape Case" from the list of recent videos under the player. He rips into Nancy pretty well.

Anonymous said...

Whether or not the suit against Duke has merit, I believe that there is so much dirty laundry at Duke that they will settle with the boys rather than have it dragged through the national media

Anonymous said...

When can a tenured professor be removed?
Criminal activity, Reckless endangerment, Dereliction of duties, Refusal to promote the
well- being of the University?

Anonymous said...

Oh Jesus people, what kind of 'dirty laundry' are you talking about? We already know that MANY professors at Duke judged the boys to be guilty of rape as charged. There is no law against being stupid, and there is no law against making a judgement about someone's guilt or innocence before trial unless you are on a jury.

Anonymous said...

I'd like to hear what Wendy Murphy has to say about all this.

Anonymous said...

anon 11:01...

You think Nifong actually believed in Mangum's story for the first couple of weeks? Sorry...can't see that.

What was there to believe? Did Nifong have no idea that Crystal had made a gang rape claim, then bailed on it, before? Was he unaware that the cops recognized her story as a crock? Is it a coincidence that he kept away from her, so that he wouldn't have to hear her tangled lies personally? (Maybe this does shows a slight trace of shame; Nifong didn't think he could do as good a job of race-pandering and camera-mugging if her palpable lies were ringing in his ears.)

Certainly for the first couple of weeks - for much longer - Nifong assumed he could sell any one of Mangum's stories(look at how absolutely impossible it is even now to convince certain Durham residents!), but I'd guess he didn't actually believe her for two minutes, total...if that.

He didn't have to. He thought he just had to have the "stones" to do what was right for his career.

Well, he had 'em, and he lost'em. Now, hopefully, they're going to be handed back to him.

Mrs. Former Prosecutor said...

One aspect of the case I've thought about but haven't seen any comment on: the role of sexual assault victims' advocacy groups.

During my career, I saw the beginning and development of this idea. Now in every D.A.'s office there is usually a designated department to speak for "victims". These departments are funded by grants from a huge Dept of Justice agency. They do a lot of work that is valuable to DA's offices and to victims, of course.

However, for many, many of them, their motto is "victims never lie." Any prosecutor who doesn't believe a victim has to fight an internal battle WITHIN his department to drop or not file a case.

These "advocates" are usually tightly connected to a huge web of activists in the community, who are based in shelter houses, hospitals, legal clinics, health departments, etc. For a DA in a close election, the sheer number of the advocacy community alone is a factor.

We hear a lot from this community, even if they grudgingly admit this was a false case, about the chilling effect this will have on rape reporting. I, on the other hand, believe it will have the effect of strenthening the backbone of DA's who don't want to go forward with false rape reports but have to fight within their own office to make that decision.

Seeing CRIMINAL charges against Mr. Nifong for his actions will go a very long way to protecting future falsely accused defendants from overeager DA's and victims' advocates.

Anonymous said...

My guess is Wendy is going to stick with the belief that if Crystal says she was raped, then "something bad" must have happened to her, and that her mental illness made it impossible for her to tell a consistent story. If she hasn't admitted that no rape occured yet, she isn't going to do it ever.

Anonymous said...

I hope Gotlieb, Himan, Addison, and other corrupt memebers of the DPD and DA's office are not forgotten. Let them bear responsiblity for their illegal actions. How cool are you guys now?Your badges mean SH**!

One lonely person sufeering from the backlash is Nifongs young son, whom I feel sorry for. You can't choose your parerents!

Anonymous said...

JLS says....,

re: anon 10:51

So you theory is that if an airline pilot starts flying like his former fighter pilot days for the heck of it and accidently crashes the airliner into a building, neither the occupants nor the passengers have a claim on the airline company? Interesting theory, it is wrong, but still an interesting theory.

I am not an attorney but I am pretty confident that Duke is liable for anything any of its employees did on Duke time or using Duke resources. Thus the gang of 88 e-mail which was most certainly done using Dukes server for communication and posted on Duke's server is Duke's problem too.

Now I don't know if Duke will be sued. I don't know if the statute of limitation which is probably one year can be avoided since the criminal charges were just now dropped, but I am pretty confident Duke has exposure.

Anonymous said...

The poster who keeps saying Duke can't be sued must be from overseas. This is America - you can sue for anything!! Otherwise how would lawyers be so well paid when there are so damn many of them.

Predicting your response I will add - the goal is often not to win, the goal is settlement. In this case Duke will settle.

Anonymous said...


Yes I believe he believed her for the first couple of weeks. He believed that he was going to find some DNA from the lacrosse team on her. He would not have known about her previous allegations of gang rape and attempted murder within the first couple of weeks or probably the extent of her mental health issues as documented in her medical records.

Once he got the DNA report, that showed her ejaculation story was a lie and that she had lied about her previous sexual encounters he should have dropped the case right there. Instead, he went on to indict Dave Evans.

Anonymous said...

If I kill someone on the job, my company is not liable unless it can be proven they knew or should have known I had the potential to be violent. An employer is NOT LIABLE for everything their employees do while on the job. You have to establish some kind of knowledge, pattern or negligence and you would also have to establish that whatever the employee did either broke the law or broke the company rules. The Gang of 88 as far as I can see broke now laws though they may have violated some of the guidelines of Duke itself. The parallel with airline pilots and truck drivers isn't applicable in this case. But whatever, keep on believing they are going to sue Duke and win or get a settlement.

Anonymous said...

11:46 hit it on the head. The question is not whether the boys can sue, it is whether they will prevail. There are broad interpretations for "prevailing" also. I.E.; money? resignations? firing? There's lots of stuff on the table.

Joe K

Steven Horwitz said...

Just weighing in to agree with those who have argued Duke and its employees are largely safe from liability here. No one's going to sue the Gang of 88, and certainly no one is going to win such a suit. No one's going to get them fired. They are, largely, untouchable.

As a tenured faculty member, I have a good sense of what I can and cannot say that would or wouldn't put me or my school at risk. The G88, despicable as they were, did not name names. Even if they used university resources, without naming names, this isn't going anywhere.

Brodhead will survive. The Board is not going to resign. The university might negotiate some sort of quiet settlement to prevent even being dragged into court, but that's about it.

Those of you who are seeing this whole thing as a some morality play writ large about higher ed and are hoping that the G88 somehow get officially punished/sued are going to be disappointed. It ain't gonna happen.

The best you can do is, as someone suggested, keep the memory of their disgust for their own students alive on the web where kids thinking about going to Duke can find it. The best way to punish Duke and their faculty is to hit them where it really hurts - their reputation and admissions profile and alumni giving.

Anonymous said...

They won't prevail and you are also wrong about Duke settling, corporations rarely settle cases unless their guilt is clear cut especially in a situation where to settle would open a pandoras box of future law suits on similar shaky grounds. It is not going to happen.

Anonymous said...

"A thorough investigation of the cases he's prosecuted is an excellent idea".

Given the scale of this scandal, it should be automatic and compulsory. The state A-G has publicly denounced Nifong as a "rogue prosecutor". That alone should be sufficient grounds to re-examine ALL his cases. If they don't, one wonders under what circumstances would that kind of investigation be warranted?!

Anonymous said...

corporations rarely settle cases?
are you serious?

Anonymous said...

"I'd like to hear what Wendy Murphy has to say about all this".

Forget Wendy Murphy! If she won't admit she was wrong by now, she never will. The world now knows the three accused are innocent. Who cares what she thinks?

Anonymous said...

I said they rarely settle cases UNLESS their guilt is clear. Take for example the CU law suit brought by the girls who alleged they were raped by CU football players. There was plenty of evidence university officials were aware of previous rape complaints and sexual harrassment allegations against the football team, evidence that the coach and his assistants lied about their knowledge of these complaints and STILL CU did not settle and the girls lawsuit got dismissed by the judge. That case had substantially more weight and evidence and it went nowhere. In fact the CU debacle is exactly why Duke fired Pressler and went overboard, so as not to appear to condone athletes committing rape. Unfortunately, they picked a non case to do it with. Time will tell if the boys sue Duke.

Anonymous said...

The Gang of 88 are legally safe. They were (just) smart enough to not mention names. THey are also safe in their jobs, as most will have tenure. They are only vulnerable in their reputations. But one of the worst of them, Houston Baker, appears to have had no difficulty in finding a chair at Vanderbilt despite publishing a racist rant against the accused lacrosse players. (Imagine a white professor publishing a similar rant against three black accused! The United States of double standards.) This tells me that they Gang of 88 will pay no price for their rush to judgement.

Anonymous said...

Houston Baker is "Distinguished University Professor" at Vanderbilt University.

Strange use of the word "distinguished" of which I was not previously aware.

If he is "distinguished", what does that make the ordinary professoriate at Vanderbilt?

At least he's gone from Duke. Duke's gain is Vanderbilt's loss.

Anonymous said...

No point in trying to get the Gang of 88 sacked or disciplined. But pressure should be brought to bear on McClain to step down as chair of the Academic Council. That would represent a small victory, which is all that is likely in the case of the Gang of 88. Brodhead is more vulnerable and attention should be focused on disgorging him.

Anonymous said...

Baker is a straight up racist. He's no better than a holocaust denier, a white supremist or a chauvanist. At least Duke got rid of him, that is something.

Anonymous said...

Great idea to post the names of Duke's Gang of 88.....and repeat.....and repeat....and repeat.

They should have the honor of possessing as many Google hits when their names come up as they have helped facilitate for Reade Collin, and David.

Keep the list coming for all to see. Then go to other related websites.

Once again, great idea!


Anonymous said...


You are mistaken. In the CU case there were no facts only a lot of hearsay and speculation.

In the Duke case the facts are pretty well settled. The question will be interpretation of the law.

The Duke 3 would be wise to sue from their home states using well established large law firms. This will virtually guarantee the cases will not be thrown out by the judge. Duke's council will advise Duke to settle and issue some mealy mouthed statement about how they are not really guilty of anything.

Anonymous said...

Dook has liability. They own this one ladies and gents. You just can't defend the unqualified statement of "Whatever they did was bad enough." That wasn't some flunky grad student, that was the head man. That one is on them.

Dook's institutional hostility against certain of its students based upon race (both in and out of the admissions office) simply cannot be forgiven, denied or explained away. Grade retaliation, Dook's resources and employees acting in the scope defaming and libeling these kids, the list goes on but it leads to a single conclusion: Dook has liability. The blogger who said they are not suing Dook should consult an N.C. lawyer like, well, this one.

Anonymous said...

I'm not mistaken. It was a documented fact that the CU athletic department knew about sexual harrassment and rape complaints and did nothing. It was a documented fact they paid for booze, strippers and hookers for recruits, some of them under age. Documented fact they recuited a player who had been accused of raping a passed out girl in high school, and lo and behold, he was accused of the very same thing in college. Documented fact that women in their own department complained of sexual assault and sexual harrassment. The bridge that could not be crossed was whether this knowledge amounted to legal negligence in failing to prevent the alleged rapes of the girls who sued. Documented fact that the DA warmed CU about its football team being out of control. The problem with the rape complaints is the victims either backed out of criminal charges or the DA didn't believe they were winnable cases. I read all the depositions in the CU case and you would have to be nuts to believe the football team wasn't a gang rape waiting to happen.

jamil hussein said...

O.J Simpson and Ted Kennedy got away (and real people died because of them) so can you say that anybody can now start killing people without any consequenses?

Of course, Duke can be sued, and the probability of winning the case is relatively high. In anycase, Duke will not want to be involved in lawsuits for years to come, so I suspect they will settle it quietly.

Anonymous said...

What exactly would Duke be liable for?

I said before you could make a case about Duke trying to coerce the students into talking to DPD without lawyers, what else?

The wanted posters? Have to prove that employees were acting in an official capacity and that Duke knew/approved/or should have known what was happening.

The 88's 'advertisement'? No slander there, players were not named or explicity said to be guilty of rape.

Suspending the boys? That's a non starter.

Creating a hostile environment for lacrosse players? Maybe, but not the 3 players who were charged since Evans graduated and the other two were suspended.

Violation of student privacy? As I remember Duke didn't give over any private info. on the players illegally, but maybe you could make a case for giving their emails to police. Doubtful.

Anonymous said...

Carolyn says:

Christ, Brodhead - stop trolling this site! You're going to be sued and that's all there is to it!

I work at a law firm with one of this country's most famous employment law partners. Trust me, what she doesn't know about 'corporate liability' doesn't exist. I asked her about this case and the first thing she asked was - what did Duke do and when. I inhaled and began - well, a Duke Dean tried to prevent the players from getting lawyers, Duke allowed the players' pictures and emails to be put on a wanted poster, Duke said nothing as its own employees - the Gang of 88 - applauded castration of the players, Duke fired the coach without due process, said nothing when a Duke professor tried to flunk two lacrosse students, Duke rewarded the Gang by --- but I couldn't finish because my attorney screamed for me to stop! Her brain was spinning faster Linda Blair in the "Exorcist". Once my attorney calmed down, she explained the facts of what will happen to Duke in a civil law suit.

Trust me, Brodhead. You are in such serious shit from what you allowed to happen on your campus, on your watch, on your time - to your students.

Settle now, you fool. I am not joking when I say $100 million is the LOW verdict a jury will slap on Duke!!

Now for god's sake, stop trolling this site!

Anonymous said...

This case didn't come to Nofing -- he was looking for any case that might help in the election and found this non-case. He knew it was a non-case from the outset but wouldn't be stopped.

Why do you think he assiduously avoided officially speaking with her? Why the Grand Jury route? Why the destruction of evidence? Why do you suppose he didn't memorialize conversations about the DNA? Why not meet w/ the defense? Look at the dates and the conclusion is inescapable.

This is someone who knew what he had (nothing) from day one and did a very incompetent job of trying to keep his illegal actions hidden. Perhaps he didn't know how far things would go when he started down the slippery slope of prosecuting the innocent but he had every opportunity to put an end to his mess. It had to go really far over the line before others stepped in and did this.

Why do you think he assiduously avoided officially speaking with her? Why the Grand Jury route? Why the destruction of evedence? Why do you suppose he didn't memorialize conversations about the DNA? Why not meet w/ the defense? Look at the dates and the conclusion is inescapable.

This is someone who knew what he had (nothing) and did a very incompetent job of trying to keep his illegal actions hidden. Perhaps he didn't know how far things would go when he started down the slippery slope of proscecuting the innocent but he had every oppotunity to put an end to his mess. It had to go really far over the line before others stepped in and did this.

He surrounded himself with people like Victoria Peterson. He spend a careere in what is, by all appearances, a first-order cesspool. And, look at all who jumped on board. He created a monster that grew beyond any expectation and the monster has now turned on him.

Anonymous said...

I agree with you there were documented facts about - complaints and accusations. You must be a member of the "women never lie" community that mrs. former prosecutor wrote so well about in her 11:41 post.

By the way I agree there were PROBABLY major problems with the CU football team but that doesn't come close to proving your position that settlements are infrequent.

Anonymous said...

Its pretty annoying how this "Jamil Hussein" character calls anyone who disagrees with him "Wahneema" or "Brodhead".

Get over it. There is a broad spectrum of people who disagree with you on a number of topics, many of whom are THRILLED for these boys.

Disagreeing with you doesn't make us "Marqotte" or "Wahneema". Unless you are stupid enough to think they send their "student assistants" out there to raise hell on KC's blog... which has been suggested a few times, maybe even by you (can't remember).

But in the end, you will have to come to grips with the fact that you are not God. People can disagree with you entirely, or in part. They can be thrilled for these boys and despise Nifong and still think there is some heavy racism on this message board.

Anonymous said...

Can someone tell me what Cheshire meant when he said something about asking the Seligmans to endure the supreme patience in "waiting until December" for something to play out? What exactly was choreographed months ahead for the December timeframe?

Anonymous said...

I'm a member of the 'when 8 or 9 different women accuse the same group of men of rape and sexual harassment over a period of time, its safe to believe that something is wrong with the group of men' club. The chances that all those girls were lying about being raped, even the ones who never went to police, just to the university, are the proverbial snowballs chance in hell.

CT Lax Mom said...

"I'd like to hear what Wendy Murphy has to say about all this".

Wendy Murphy was interviewed last night by Tucker Carlson on MSNBC. He said it was time for her to apologize to the Duke 3, and she refused. Angry, he asked what it would take for her to admit she'd been wrong. She said she would have to see the whole discovery file, including witness statements from everyone who had been at the party. Apparently she is still fantasizing that some of the other lax players spilled the beans about the "rape." Tucker was so incensed he sputtered, "I wish I could swear on the air, so I could tell you what utter BS that is!" She should never have access to air time again.

Neither should Georgia Goslee. She was on MSNBC shortly after Cooper's press conference declaring that the 3 are INNOCENT and that NO ATTACK OCCURRED. Nevertheless, she smirked and insisted, "I will always believe that something terrible happened in that house." Dan Abrams, who was on at the same time, shot back: "Of course something terrible happened in that house, a false accusation of rape!" She wouldn't let go: "No, I mean something more than a false accusation." Dan exploded, "Right! A HORRIBLY false accusation!"

Anonymous said...

How is Cooper any different then Nifong except he was given better facts. He is using a situation important to the black community to set up a run for office(governor). To choose not to prosecute this vile piece of garbage because she has "mental issues" is just a way to keep the black community is his pocket to win the votes needed.

If he was truly a different breed, he would prosecute her just like the white girl from Georgia who didnt want to get married was prosecuted. Cooper is nothing special, just another Democrat pandering to poor blacks for votes by using their power to keep them from being held responsible for what they do.

Makes me sick the hypocrisy of guys like him.

Anonymous said...

JLS says....,

corporations rarely settle cases unless their guilt is clear cut

Wow you need to take a law and economics class. Corporations settle all the time when NOT LIABLE if defending a suit would cost more than settling. Certainly there are dynamic concerns as you mention, but the CEOs of corporations constantly have to worry about the current bottom line and keeping their jobs. Thus they do not get to worry very much about how many suits down the line settling might cause. [A few corporations do have a policy not to settle.]

As for your UC example, sure you defend a law suit if you feel that you can get an early dismissal like that. Defending it is cheap.

As for the 88 gangsters, some are untouchable some are not. Those without tenure can be fired at will. Those who went up for tenure years ago with forthcoming books that have not forth come, can be fired for cause. Anyone who misappropriated funds to pay for an ad smearing Duke and Duke students could also be fired for cause. [BTW, Duke too could be held liable for loose accounting proceedures that allow this misapporpriation of funds.] Others can not be fired unless they took actions against students in their classroom.

Tenure is an important protection for academics. It does not make anyone untouchable. Certainly, the current Duke administration does not want to fire any of the 88 gangsters, but the Duke Board and Brodhead are political and will do what they need to do to survive.

Anonymous said...

I hope you're wearing your Duke Bow Tie!!

I will be glad to testify against Duke for their shameless treatment of the boys. I was there when Duke kicked paying students out of their rooms the day before the Black Panthers were suppose to be coming. That sure seems like a contractual violation of some sort, as does having a dis barred attorney sit in on discussions with the DPD.

Brodhead, shave the fag mustache and move back to Yale.

Anonymous said...

Is there any evidence the Gang of 88's ad was paid for by Duke money? I doubt it.

Its understandible to be angry with Duke for how they shafted Pressler and the lacrosse team, bowed to the PC police and generally let anti white, anti jock sentiment run amuck among their staff.

None of this rises to any kind of liability, with the exceptions of the lawyer issue.

Anonymous said...

It is SO frustrating to read all these rants by people who have never been to Duke, are too stupid to be admitted to Duke, don't know anyone who has ever matriculated at Duke, etc. Anyone who calls Duke by the 1st grade na-na-na-boo-boo- of "Dook" doesn't deserve to be listened to. Duke is a great University, and in spite of all the hate and extreme jealousy, it will continue to be. Duke had over 19,000 applications for its freshman class this year. Minority applications were up from the previous years. You can get a brilliant education at Duke and that will continue. NO institution is perfect, no college is perfect, no college student or professor, etc. is perfect. I think Duke did about as well as it could considering the horrendous accusations made in a climate of extreme race, class and gender meltdown. Duke will not be sued. It didn't react perfectly, but it did not do anything a judge will look at.

Mrs. Former Prosecutor said...

Anonymous 1:19:

Put your money where your mouth is. Just what principle of law excludes Duke from the doctrine of responsibility for their employee-agents, and for failing to do what they should have done once they knew what the employee-agents were doing?

Anonymous said...

Duke will not be sued.

Duke has been sued already (for grade retaliation). Anybody can sue Duke, right now. You cannot possible know whether additional lawsuits are forthcoming.

Seems like your Duke education wasn't that useful..

Anonymous said...

"Tenure is an important protection for academics. It does not make anyone untouchable. Certainly, the current Duke administration does not want to fire any of the 88 gangsters, but the Duke Board and Brodhead are political and will do what they need to do to survive".

Tenure protects free speech. Universities are loathe to fire someone with tenure (even with cause), as it will be interpreted as an assault on free speech and provoke a backlash among academics. THat's why it is so rare for those with tenure to be fired. Don't count on it happening at Duke.

teach1975 said...

GREAT article by Jemele Hill on espn- please check it out- one of the few really honest articles out there- an apology with no qualifiers. The best part is, she didn't even 'need' to apologize and still did if only the 88 were so honest (and wrote with the same clairity).

Anonymous said...

"Duke is a great University, and in spite of all the hate and extreme jealousy, it will continue to be. Duke had over 19,000 applications for its freshman class this year. Minority applications were up from the previous years. You can get a brilliant education at Duke and that will continue. NO institution is perfect, no college is perfect, no college student or professor, etc. is perfect. I think Duke did about as well as it could considering the horrendous accusations made in a climate of extreme race, class and gender meltdown. Duke will not be sued".

Where to start! Yes, it is obviously a wonderful institution, headed by a great leader Brodhead, and staffed with brilliant and enlightened faculty like the Gang of 88. The Trustees are an impressive group too. It practices affirmative action for legacies, athletes and minority groups. And now all of this has been exposed for the world to see.

A fine institution.

Anonymous said...

I've already said that in order for Duke to be liable for what their employees did you would have to prove it was done as part of their employment, scope of work; it would have to be against either Duke policy or NC law; and you would almost certainly need to prove that Duke either knew about it, condoned it, or should have known about it.

I don't see how the printing of the wanted posters by individuals NOT acting on behalf of the Duke or in any official capacity can reasonably be considered Duke's fault.

Anonymous said...

"I think Duke did about as well as it could considering the horrendous accusations made in a climate of extreme race, class and gender meltdown. Duke will not be sued. It didn't react perfectly, but it did not do anything a judge will look at".

Obviously some Duke people are worried that their Duke stock is falling and must talk it up.

Anonymous said...

I hope Gotlieb, Himan, Addison, and other corrupt memebers of the DPD and DA's office are not forgotten.

They won't be, thanks to "no credible evidence that an attack occurred". Next week the spotlight will be on Nifong but there won't be many shadows suitable for hiding.

Anonymous said...

Poster at 1:38 --

Can't see how Duke could be sued? Open your eyes.

I don't need a law degree from Duke (which I happen to have) to think of a myriad of claims that could be asserted and would be sufficient to get to a jury. Once in front of a jury, anything can happen...

Anonymous said...

Okay Duke "can" be sued, but it would be pointless based on what I know of the facts. I don't believe the three boys will sue Duke for any reason, the idea that Duke is going to settle for "millions" is purely stupid and wishful thinking.

I have yet to see any reasonable outline of exactly what Duke might be liable for, other than the allegation that Duke officials attempted to influence the boys to talk to police without lawyers, which would be I assume some kind of breach of trust.

The wanted posters? Not happening. The ad? Not happening. The suspensions. Not happening.

Many of you seem unable to differentiate between doing the 'right' thing, which Duke most certainly did not do, and commiting some kind of legal infraction.

Anonymous said...

I think any claims against Duke are purely hypothetical. True, there are causes of action that you may learn about for completeness sake in the torts segment your bar review course that seem to fit this case... but the professor teaching it usually says: "Now, in real life, these claims are almost non-existant. However, the bar examiners like to throw in obscure causes of action into their multiple choice and/or essay questions".

The grade retaliation thing was objectively wrong, and the fact that there are legitimate grounds to sue in that instance is in no way instructive with regards to the University and the rape hoax case.

Your purported JD from Duke apparently doesn't mean that much. Why else would you confuse the issues by bringing in the legally irrelevant suit for grade retaliation? Yes, it involves Duke being sued... yes, it in some way involves the rape allegations... but otherwise it is entirely irrelevant.

Good lawyers know that things that sound persuasive as a matter of common sense don't necessarily hold water in the legal realm.

Anonymous said...

Universities are quite often sued by students on a breach of contract theory -- based on the concept that the student handbook (or some equivalent) is a contract.

How about slander or libel? It is quite possible to make a case that the idiotic faculty who just couldn't keep their mouths shut were acting within the scope of their employment. Didn't one professor specifically suggest Seligman was of poor character? Doesn't the Listening Ad amount to 88 faculty members calling these kids rapists?

I don't understand how you can dismiss offhand any claims based on the posters on campus? Do you know who posted them, whether copies were run on a Duke copier, how long they were up, etc? The evidence suggests the school was quite aware these had been posted on its property and that they were contributing to a hostile, unsafe environment to some of its students. Why didn't the school remove the posters immediately? I'd bet Duke has guidelines on what is or is not acceptable for posting on its bulletin boards and around campus. And I'd bet those guidelines include a prohibition on hateful, hostile and baseless criminal allegations.

Anyway, my only point is this - none of us know whether Duke will be sued. But if the question is whether a lawyer could find enough facts to assert a variety of very serious claims against Duke that would cost Duke hundreds of thousands if not millions to defend, the answer is indisputably yes.

Anonymous said...

The reason you want to initiate civil suits is for one reason and one reason alone: Discovery.

Everybody watched while 3 innocent young men had their personal lives played out in the sewer of Main Stream Media. Now it is time for those vile enablers, from police to professors to journalists to judges, to have their underwear examined under the microscope of Discovery.

Even if it does not get that far, merely the fear of Discovery will wet alot of underwear. Remember the fear that 3 young innocent men endured for one year?

Turnabout. Discovery. Go.

Anonymous said...

Usually, lawyers will be looking out for their own bottom line, not making a University pay dearly in defense fees to the tune of a few hundred thousand dollars, merely because they wronged three kids they have never met.

The lawyers will take the case if it has a chance of success, period. Not for revenge on behalf of others.

Anonymous said...

Let me take a crack at it.

Mike Pressler sues for wrongful termination. Highly unlikely.

As I remember, they didn't specifically or explicitly link his firing to the rape case, but on the grounds that he'd been warned to keep the team under control and the booze+party+strippers+rape charges was evidence he had failed. I think it was WRONG and UNFAIR of Pressler to be fired, but don't see any legal recourse for him.

Lacrosse Season cancelled. Never happen.

Playing sports is not a right, but a privilege, Duke was within its rights to cancel the season as as result of booze party+strippers+mysoginst email+rape arrests. It was WRONG and UNFAIR of Duke to punish the team for these minor infractions and further punish the whole team for the alleged criminal actions of 3 players. This was obviously done to prevent a CU like meltdown and in the heat of the moment. Wrong and unfair do not a legal case make.

Wanted posters. Unlikely.

As I remember it, Crimestoppers, not Duke printed these up. I don't recall whether Duke objected to them or had them taken down, but even if they didn't this would be a long shot. You can't sue for potential damage only actual damage. No one was harmed as result of the posters. The other players might make a case for a hostile environment, but that wouldnt' include the 3 players, since I think they were already off campus by then, but if not, maybe. A longshot and only possible if Duke failed to take steps to get the posters down or explicitly approved them.

Group of 88 Advertisement. Nothing there.

The text did not explicitely state the players were guilty and it didnt' mention them by name. The other players could make a case that it created a hostile environment, but again, they need to prove real damage, documented hostility, not potential hostility and again, the 3 players charged were already gone.

Suspending them? No way.

They were charged with several felonies. The university would have been more liable by NOT suspending them. If they had been charged with rape and kidnapping, allowed to stay on campus and raped someone else, the university WOULD probably be liable. Duke was well within its right to suspend them even thought its true that not all students accusd of rape get suspended, some only have to stay away from their alleged victim. Was it an overreaction, considering the woman wasn't a Duke student. Absolutely. A legal liability issue. Nope.

Anonymous said...

Yeah, I have to question your legal credentials if you really think that there are slam dunk or even likely-to-be-successful causes of action against Duke.

Sure, we'd like there to be real consequences for the way they acted... but our desire does not a legal cause of action make.

Are you really an attorney?

Georgia Girl said...

12:39, AMEN to that!

Anonymous said...

Poor Precious Georgia Girl returns. What an idiot. Go back to mindin' your slaves.

Anonymous said...

Discovery? WTF are you talking about?

Discovery of what? We already know the Gang of 88 believed the boys were guilty from Day One. Duke is not responsible for those opinions no matter how vile they were.

And BTW, your 'discovery' has to be a match to the charges you are making.

Georgia Girl said...
This comment has been removed by the author.
Anonymous said...

I personally supported John Edwards' proposal during the '04 campaign to make a "Three Strikes and You're Out" policy with regards to frivolous lawsuits, resulting in your being stripped of your right to bring personal injury suits.

There are consequences as it is, however. They include sanctions and attorneys' fees for frivolous actions, or ACTIONS THAT ARE UNLIKELY TO SUCCEED ON THE MERITS. You can be disbarred, or at the very least have your license suspended if it gets too ridiculous.

But I'm sure there are plenty of attorneys who want to bring suit, despite the dire professional consequences, just to "punish" Duke on behalf of those who were wronged by liberal professors.

Anonymous said...

2:22 anon
We're talking about a civil complaint, not a criminal complaint. These are usually protracted and messy.

Anonymous said...

Would someone please show me the complaint that the Duke 3 would file against Duke University that would survive a 12(b)(6) motion or the NC equivalent? I have yet to see the legal theory (with each of the elements) that would supposedly apply. I'm not saying it doesn't exist, but it would be far more productive to discuss an actual theory than to throw around random "facts," most of which might not be legally actionable.

Anonymous said...

Oy, you can't play 'go fish' with discovery. Your discovery request has to be related to whatever you are suing over. You aren't going to get access to every email that was sent on the Duke server for 13 months. It is very, very unlikely that any litigant would get access to Broadhead's emails or the emails of the group of 88.

Duke copped out and threw its students to the wolves in an orgy of poltiical correctness. That sucks. It's not illegal.

Anonymous said...

I'm seriously doubting whether that poster has a JD from Duke... its supposed to be prestigious. I can't see a Duke Law grad (or ANY law grad) who has a successful career ranting and raving about obscure causes of action, and that "they should definitely sue, I mean, another student was able to bring suit regarding grade retaliation, so obviously Duke can be sued for this".

Mumbo jumbo. Horrible analysis.

Anonymous said...

Aren't there contractural
obligations that all employees -
even tenured professors - must
sign? Count on the attorneys
to use every word of whatever
the contract says about personal
and professional behavior.
If there's ANYTHING in the
contract about harming
students or engaging in
behavior that is harmful to
the University, you can count on
Duke being forced to use it
against their own 87 maladroits.

One other question: OJ had
nearly every bit of evidence
against him, and yet I'd guess
that nearly every NCCU student
would proclaim him innocent;
the players have been shown to
actually be completely innocent,
but it's likely that the majority
of NCCU students think they're

As I wrote before:
you can teach a person to read
but you can't make him/her think.


Anonymous said...

My guess is these posters who are clamoring for the slam dunk suits against Duke are not lawyers or law students. The defense team have acted professionally throughout this nightmare. They had her medical file for months, never leaked anything substantial or detailed. They surely know about her sexual actions within the weeks before and after the rape lie. They never leaked it, unlike Kobe's legal team which leaked any and every irrelevant detail about his alleged victim.

It is insane and demeaning to these students, their families and their legal teams to believe they are going to initiative frivolous lawsuits against Duke as "payback" for an ultra liberal faculty that jumped the gun.

Anonymous said...

So now you are advocating the 3 lax boys hiring lawyers... not for a personal injury suit seeking damages for themselves (and costing the school in the process)... but hiring their own lawyers in an attempt to force Duke to enforce certain contractual RIGHTS (read: NOT obligations) to fire employees for bad acts?

Thats even more ridiculous than the posts from the guy who says he is a Duke Law grad!

jamil hussein said...

Al Sharpton has been a key player in Duke Hoax (as he was in Tawana hoax).

Just to remind people, here is Al Sharpton's resume. Surely he is the right person to talk about civil rights and demanding Imus to be fired:
Al Sharpton: resume

TAX EVASION: In a 1988 interview, Sharpton said he saw no reason why blacks should pay taxes. “If we do not have a justice system that protects us, what are we paying for?” Sharpton has faced multiple charges—and one conviction—of tax evasion.
CRIMINAL JUSTICE: During the “Million Man March” in Washington, civil rights “activist” Al Sharpton thundered, “O.J. is home, but [convicted black cop killer] Mumia Abu Jamal ain’t home. And we won’t stop till all of our people that need a chance in an awkward and unbalanced criminal justice system can come home.”

This is the moral leader of Black Amerika (tm).

Anonymous said...

Jamil Hussein, the clown who thinks no one can disagree with him.

Anyone who rights anything remotely different than what he thinks is labeled "Wahneema" or "Brodhead".

I wonder if he is really dumb enough to think those who disagree with him are really Wahneema's "assistants" as he has eluded to in the past.

Someday he will realize he is not God, and even supporters of the lax boys are allowed to disagree with him!

I hear circus music whenever I read this clown's posts!

Anonymous said...

*writes, of course

Anonymous said...

Duke's Admin really needs to take a deep breath and face some facts. They are in serious trouble. No not necessarily from a judgment but from the continued damage to the University that lawsuits are going to cause.

Coercing the players early not to advise their parents or consult counsel, the G88 and their hate speech advertisement, the wanted poster produced with University funds, Brodhead's arrogant refusal to meet with the lacrosse parents, the termination of the lacrosse season, the firing of Pressler, the speech to the Chamber of Commerce, grade retaliation, allowing the DPD access to dorms without appropriate due process, intimidation of dissenting faculty, etc.

AG Cooper's words on Wednesday put all of these actions in true context. Any indivual lawsuit may not end in a financial judgment against Duke. There may never be a judgment. However, the damage and continued deterioration of Duke's image will be far in excess of any direct financial cost.

Right now I would suggest pro-active involvement in a reconciliation of relationships with all of the individual injured parties, mandatory sensitivity training for the G88 & their ilk, removal from leadership a large number of inept board, administration & faculty members.

Take responsibility. Make the appropriate sincere apologies. Offer sufficient restitution. Remove problem individuals. Reform corrupt institutional short comings.

Do not circle the wagons. Do not continue in denial. Do not engage in dysfunctional behavior.

Do the right thing. Healing Duke will not happen by magic. Act quickly!

Anonymous said...

Any lawsuit against any faculty at Duke is going to have a hard time getting around the fact that the boys were charged with rape and kidnapping. A reasonable person, on that basis alone, could have grounds to conclude they were 'probably' guilty and to condemn them. The advertisement doesn't rise to the level of slander. I don't know what was on the wanted posters, but this was not Duke printing it up. And lastly, you have to prove actual harm in these cases. The university's best defense will alwys be: they were indicted by a grand jury, the district attorney said he had incontrovertible proof of guilt, we believed him.

Mike Nifong is the monster here.

Anonymous said...

Those of you who believe Duke is going to be hit with a barage of lawsuits from the 3 innocent players and then settle for millions are as DELUSIONAL as the people who kept yammering about Nifong's secret evidence, secret witnesses and secret confessions. You are in dreamland.

Anonymous said...

Ivory tower idealists. There is a real world out there. A sub-part of this real world is the legal world. The legal world doesn't recognize causes of action to simply satisfy your thirsts for vengeance.

Anyway, these same people are for tort reform to limit what they view as "ambulance chasers" bringing frivolous lawsuits.

I gotta tell you, if you analyzed many of those cases you deride, you'd see that they satisfy the elements of their respectives causes of action much more easily than any cause of action the Duke kids might have. Yet you mock them and say we need to reform the legal system to limit a citizen's ability to redress their wrongs through the Court system.

Well many of those cases involve lost limbs, etc. But its nice to see you are consistent with your views about the fact that the boys should pursue non-existent causes of action to harass and embarass and shame the university.

jamil hussein said...

Ok, we have a Duke troll here writing pro-Duke posts and trying to convince everybody that it is impossible to sue Duke (it has been sued already) and it will never be sued (he is from the future?).

It is better to ignore this troll. I don't bother responding to personal attacks from trolls. I rather focus on Duke.

Anonymous said...

I think Pressler has a good civil case. He lost his job of 16 years, had to uproot his family, had difficulty finding another job, had trouble selling his home, suffered humiliation when a large part of his job depends on his leadership skills.

The Duke players were suspended and therefore are at least a year behind their peers, were not physically protected on campus, were humiliated, and threatened. Duke did not protect them from an illegal police search when the DPD arrived at the dorms for interviews.

The entire team lost the opportunity to complete what could have been a championship season. If it is true that Duke advised them NOT to tell their parents, the potential civil liability is huge. They also were not protected and threatened.

All Duke players were slandered by Duke employees (88 of them) and subjected to humiliation by these employees. They don't really deserve the respected title of professor and employee is a legal term. At least one employee (Curtis) used her power as an agent of Duke to retaliate against LAX players via grades.

While the Duke Admins created the CCI to (IMO) quiet the whines of the 88, they did not create a similar body to advocate for the student/athletes. How about a Campus Sports Initiative? How can Duke better support its athletes?

Cooper talked about the full weight of the DA's office. Where was the full weight of Duke. It's important to Durham; brings in lots of money. What did the Duke representatives do to support these players, their students? Very, very little. What did they do about the Duke employees who slandered the players? They put them on an executive-level body to recommend changes to the culture. What did Duke do to protect these boys? Did they provide campus security? Did they immedaitely remove the posters? Did they provide alternative. protective housing? Did they meet with the parents to crate a plan to see they boys through this? NO.

Anonymous said...

OK Jamil, once again you deny the existence of people who disagree with you.

Thats a great way to win arguments. I personally submit to your superior intelligence. How else should I respond to arguments that I don't exist?

I didn't attend Duke and live in New York. No one I know works for Duke. I personally don't care and in a perfect world, I'd love to see those professors fired and the school punished.

Ain't gonna happen in my opinion. And you are insane if you think the grade retaliation case has any relevance or legal weight here.

You forgot to call us "Wahneema" or "Brodhead" you geek.

Anonymous said...


You sure make a great emotional case as to how Duke harmed these boys...

Now fit it into a viable legal cause of action and I'll file the lawsuit for you.

Anonymous said...

The bigger and more important legal question would be did these boys ever go to Duke and say they were afraid for their safety? Did they ever ask Duke to intervene to protect them? Can they document actual damages?

Look, I'm sorry, there's no there there, in my opinion. There are a couple issues like the lawyers and room searches that might be actionable, depending on the actual facts. The rest of it, slander, advertisement, Pressler, is not viable legally.

Its terrible what happened to Pressler and I would like to see Duke rehire him, but wrongful termination? He would never win on the facts.

Anonymous said...

"I think Pressler has a good civil case."

Please share what legal theory or theories you're basing this on.

Anonymous said...

One of the concerns this case has raised is that Nifong had by most accounts an excellent reputation to date. What sort of system is in place in NC that validated and affirmed such a lawyer/prosecuter for so many years? My presumption is that Nifong did not just "snap" in this one case, but for him to have gone so far outside the pale in this case is suggestive that he has been pushing the envelope in many lesser ways before. Yet Nifong has argued that he has been consistent and given no hint that he "snapped" in this case.

And while all are aware of the appearance of political motivations here, are there not always political temptations for local officials--not to mention temptations to look better to others that all face?

I'm relieved the bar has taken good initiative in preserving the reputation of the bar and legal system, but I can't help but wonder how many remain and are said to be doing great jobs by their peers, when really they are no different from the pre-Duke-Hoax Nifong.

Anonymous said...

How the hell is Duke supposed to stop a police search conducted with search warrants?

Also, even without search warrants, what the hell is Duke supposed to do, set the campus police loose on the cops or something?

Finally, Duke has no legal obligation to make their students "feel safe".

Anonymous said...

What if a prof commits sexual
battery or commits terroristic
acts against a student?
The University may not be liable -
unless they don't do anything to
correct the behavior.


Anonymous said...

***What if a prof commits sexual
battery or commits terroristic
acts against a student?
The University may not be liable -
unless they don't do anything to
correct the behavior.***

And here comes the throw from left field...


Mrs. Former Prosecutor said...

I think the discussion about Duke's potential liability or lack thereof is interesting, and that it's hard to say just yet how that may turn out.

What I do know is that Mr. Nifong took on the wrong families.

The News-Observer, May 16, 2006, about David Evans:

"He is the son of Washington, D.C., lawyer David C. Evans, 60, and his lobbyist wife, Rae Forker Evans, 58, who is also chairwoman of the Ladies Professional Golf Association board.

The senior Evans is a partner in the law firm Reed Smith and heads its real estate group after previously leading its government and regulatory affairs practices.

His wife is founder and president of Evans Capitol Group, a lobbying firm with a client list that has included the Girl Scouts, the Newspaper Association of America and the Susan G. Komen Breast Cancer Foundation."

And Mrs. Evans's response to Leslie Stahl in the 60 Minutes interview:

"Last question. If Mr. Nifong walked in the room, right now, what would you like to say to him?" Stahl asks.

"I guess I'd say, with a smile on my face, 'Mister Nifong, you've picked on the wrong families. You've picked on the wrong families that you've indicted; you've picked on the wrong family of the Duke lacrosse team. You've picked on the wrong family of Duke University, and you will pay every day for the rest of your life,'" says Rae Evans. "

Whatever the liability of Duke, or criminal consequences for Nifong, I would not underestimate the power of a mother roused in defense of her young; especially a powerful, well-connected, well-financed, incredibly angry mother.

I look forward (schedenfreude, anyone?) to just how her justifiable vengeance works itself out.

Anonymous said...

JLS says....,

re: anon 2:09

Wow, let me take your post point by point:

Mike Pressler sues for wrongful termination. Highly unlikely.

As I remember, they [Duke] didn't specifically or explicitly link his firing to the rape case,

I added the part in []. You do understand that there will be two sides of any suit, right? You act like their is no discrimmination cause of action if the organization did not explicitly state they fired someone because of their race, sex, religious etc.

Working against Duke will in fact be the behavior of other teams whose coaches were not fired compared to the lacrosse teams. Working very much against Duke will be the Coleman report. Working against Duke will be the rash decision to fire him midseason without any due process. That is they fired him first and then had the Coleman report. That they needed the Coleman report at all says they fire him without fully investigating the situation of his program. He has great cause of action here.

Lacrosse Season cancelled. Never happen.

Playing sports is not a right, but a privilege,

Nice plattitude, but you are once again WRONG. Going to college is a privilege not a right, but once the college admits you and offers a degree program, they injure you if they fail to grant you a degree after you meet the qualifications.

Imagine this had been basketball and the season had been cancelled due to misbehavior of one player and a couple of subs. You think had Reddick fallen into the second round of the NBA draft, he would have had a cause of action? He probably could have gone elsewhere out of high school and thus Duke had a duty to allow him to build his basketball resume unless HE did something wrong.

There may be an issue of can a lacrosse player show damages from the season being cancelled, but your plattitude means nothing. Duke violated their contract with these players when they cancelled the lacrosse season.

Wanted posters. Unlikely.

As I remember it, Crimestoppers, not Duke printed these up. I don't recall whether Duke objected to them or had them taken down, but even if they didn't this would be a long shot.

If you are going to offer such strong opinions you really should inform yourself about the case.

1. There were two posters.

2. The posters ran in Spring term 2006 before any player left Duke via either graduation or suspension.

3. There were other lacross players who were never indicted.

Group of 88 Advertisement. Nothing there.

The text did not explicitely state the players were guilty and it didnt' mention them by name.

I tend to agree here, but one member of the 88 along with Duke has already been sued for retaliation. So the ad alone won't do it, but the ad and other behavior might. Plus Duke as you note created a hostile environment based on race. You think if a woman student at say VMI faced an ad signed by 88 profs about the terrible climate on campus because that now women were on campus, that might be a cause of action?

Suspending them? No way.

They were charged with several felonies. The university would have been more liable by NOT suspending them.

You are once again wrong. Duke is not liable here because they followed policy. In fact they violated their own policies inviting the two back while still indicted. BTW, that might be a hint to you that Duke KNOWS it has some potential liability based on other actions it took or didnt take.

Overall as you have gotten into details you have shown that you don't really know much about this case. Thus you don't really know much about where causes of action might exist. And once again I am not even an attorney, just econmics prof.

Mrs. Former Prosecutor said...

Oops, spelling error: schadenfreude

Anonymous said...

I must say in response to 2:48 that "reasonable people," in my experience, do not rush to judgment as was seen in this case. There is a total lack of shame here among those who tried and convicted the three guys so prematurely. Regardless of legal implications, there are those who committed terrible wrongs against these young men and their families, but will not try to make things right. I would not want to carry that burden the rest of my life. It makes one sick to know that so many people can be so wretched--from those in the media to the so-called academics and their leaders. The longer it takes to see real, unqualified contrition the worse they all look

Anonymous said...

As to the posters wondering how Nifong got in so deep: As an attorney who dealt with Nifong weekly for a number of years, the answer is simple.

Arrogance, pure and simple. The man is the most arrogant human being I have ever met in the NC justice system. His boss, Jim Hardin, was the same way, so he learned at the feet of a master while he was an ADA. Regardless of what the "general consensus" qouted often by the national media said (i.e. known as an honest, competent ADA) Nifong was almost universally loathed and despised by the attorneys who had to deal with him. He was rude, vain, cocky, arbitrary and , frankly, sadistic in his dealings with others.

I'm trying not to gloat at his misfortune. My better side keeps telling me to have some sympathy....but its awful difficult given what I know of mike nifong.

Once he was appointed DA, his arrogance intensified, if that was possible.

Anonymous said...

LOL, so now he is being discriminated against because he was a lacrosse coach?

Are lacrosse coaches members of a "protected class", such as race, gender, ethnicity, etc.? I didn't think so, but its been a while since law school.

As for being fired while other coaches kept their jobs... his case will be that, while he wasn't able to stop his players from drinking and hiring strippers, etc., other coaches are getting away with their teams doing the same stuff? Real strong case there, Bo-Bo!

Anonymous said...

Sorry, the idea that college students have some kind of absolute LEGAL right to play collegiate athletics is absurd. No one was deprived of their diploma or thrown out of school. Colleges have wide latitude in disciplining students and there are significant variations between schools. If you want to argue that a team that sponsored an underage drinking party, ordered strippers, ended the night in a shouting match with said strippers and 3 of them being arrested and indicted for gang rape and kidnapping is NOT enough legal justification for ending the season, you're wrong.

Anonymous said...

Economics Prof.,

I'm the broken record of the day. What is your legal theory that the Duke 3 (or any of the lacrosse players) can sue Duke for cancelling the lacrosse season.

Note: In forming your answer, remember that it is called the "Duke" Lacrosse team. Are you suggesting that there are no circumstances under which a university could cancel the competitive season of a sport? And if there are circumstances where a university could rightfully cancel a sport's season, name two of them.

Anonymous said...


That's very interesting. I've always wondered why, at least to my knowledge, no one who personally dealt with Nifong ever came on any blogs to give an inside scoop. I felt for a while that the public statements were CYA moves, but when no one ever gave anything negative about him off the record other than he was bullheaded, I had to wonder whether this was an abberition or not.

Mrs. Former Prosecutor said...

Anon 3:22 Thank you, that was just the sort of information I was interested to hear. After years as a prosecutor, it was clear to me that nobody knew my bad side (not big, just occasionally less courteous than I should have been) like the defense attorneys I'd dealt with over that time.

So, 3:22, do you think there is a body of knowledge in the defense community about further bad acts that show a pattern of unethical conduct?

Anonymous said...

JLS says....,

re anon 3:23, 3:26, 3:28

Let's see:

1. You first confused an example of what the defendant in a law suits says being the end of a case with the TYPE of suit that might be filed.

2. Have you ever heard of a National Letter of Intent? Grant in Aid paper work? There are huges amounts of paper work and promises made each way in NCAA athletics. You are even further out of your depth here.

3. A university might be able to cancel a sports season midseason IF injuries or even suspensions caused it to have too few players to compete. In this case Duke might have suspended so many of its players it could not field a team. But Duke did not do that. And those suspensions might have been appealed with the season continuing. Since Duke once again failed to followo due process, this is looking like a stronger and stronger cause of action.

Now go back and read my prior post carefully and try to understand what I said about the coach's cause of action. Duke fired first and investigated second. That always leaves you open to being sued.

Anonymous said...

3:44 I beg to differ. All student athletes sign onto to a broad code of conduct statement that gives the coach and university broad discretion in disciplining them. You do not know what you are talking about.

Anonymous said...

I'm an attorney and a former 4-year NCAA athlete (2 year letterman in football).

The coach on no less than three occasions threatened to cancel our season after members of the team got in trouble. They were accused of infractions thats weren't even close to being as serious as rape.

Granted, the coach wasn't going to cancel the season because 3 idiots on the team were accused of flipping a car over in a drunked stupor... but nonetheless, he probably could have if the school administrators agreed.

I see nothing wrong with it from a legal standpoint.

Anonymous said...

Some people think tenured
profs cannot be removed.
Well, maybe...

What if the professor fails
to uphold a Code of Conduct
that most colleges and
universities have (but don't
advertise, nor make public
for obvious reasons?)

Anonymous said...

(11:55am) Steven Horwitz-
You're an unusually smug bastard. I say unusually because you just don't have the knowledge to back up all that you say.
I guess as an academic you hope to hell that it would be difficult to sue.
Duke is already being sued!
You have a bad habit of thinking that you know a lot, when you know very little.

Duke Mom

Anonymous said...

That would be between the professor and the university, it would be pretty tough going for a third party to get standing to sue Duke for failing to fire professors who breached their employment agreement. You are grasping at straws.

Anonymous said...

Not if the breach of the code
caused students to fear for their safety, caused them shame
and so forth.

Anonymous said...

***That would be between the professor and the university, it would be pretty tough going for a third party to get standing to sue Duke for failing to fire professors who breached their employment agreement. You are grasping at straws.***

Not tough, impossible! I don't even know that there is a private sector equivalent of a "mandamus to compel" a government official or agency to perform a duty. Even in those cases, the government agency must have an affirmative duty, without discretion, to perform a given act.

Anonymous said...

I think this site is being invaded
by Lawyers for the 88
and Brodhead et al.

Anonymous said...

***I think this site is being invaded
by Lawyers for the 88
and Brodhead et al.***

Or lawyers, period. Just because we all hate Nifong and the G88 and think they are despicable, doesn't mean that a lawyer should give analysis that is inconsistent with the letter of the law.

What do you want us to do for you, lie?

Anonymous said...


The law just doesn't work that way. Fearing for one's safety, unless it can be linked to some kind of tangible damage, too afraid to leave the house so lost job or failed classes, isn't a cause of action. The law does not protect us from 'being afraid' The law protects us from harassment, stalking and violent acts on our person. Even in the wild stretch of the imagination that any LAX player could prove his fear actually damaged him, he then would have to prove Duke was in a position to prevent his fear, knew of his fear and/or was negligent in protecting him from his fear.


lm said...

Efforts bloggers will hopefully continue to make:
1. continued investigation of and disclosure of the Gang of 88’s qualifications and syllabi. Prospective students and parents should know what they are paying for. Paying parents are customers...they should get complete information about what is on the menu. They should not be forced to accept ground chuck as filet mignon just because the university thinks having ground chuck on the menu enriches its “diversity”.

2. Information about the ADA’s. One hopes Cooper’s office is already looking into this...but from a public safety standpoint, wouldn’t anyone in North Carolina want to know the names of these people? Some of them had to know what was going on - the “Speer defense” is NOT acceptable.

3. The police - was it just a few? Addison, Gottlieb and Himan? That police department needs to purge itself ...or be investigated. I tend to feel sorry for the profession: they deal with low life lying scum 365 days of the year. It must be beyond comprehension that anyone could be a decent, honest person.

4. One hopes that crappy escort service is out of business. If those greedy idiots hadn’t sent a black stripper known to have drug problems instead of the white stripper requested....

Anonymous said...


Hi. I'm only asking for the legal theory. See, a legal cause of action has multiple elements. So, you need to tell me the theory, list the elements, and tell me the facts that support each element. If there's even one element you can't prove, it's not an actionable theory.

You cite the National Letter of Intent and a passing references to promises made by Duke. What are the promises? Because I am out of my "depth," I need you to tell me what those promises are. I am unfamiliar with any such promise. Since you are so knowledgeable about this subject, it should be very simple for you to identify the specific promise for me.

Georgia Girl said...

4:01, but isn't it refreshing to watch them in action as they speak with such clarity and knowledge without personally attacking other posters. Note also that they do not toss around big fancy adjectives to prove their superiority ... a valuable lesson in communication for "some" of you.

Anonymous said...

"As I remember, they didn't specifically or explicitly link his firing to the rape case, but on the grounds that he'd been warned to keep the team under control and the booze+party+strippers+rape charges was evidence he had failed. I think it was WRONG and UNFAIR of Pressler to be fired, but don't see any legal recourse for him".

If he was fired over the alleged rape, he has a basis for wrongful dismissal.

If he was fired for the other things, then other coaches should have been fired when there was underage drinking and strippers at other team parties. (A fairly common occurance, I would have thought.) If they were not fired in similar cases, then Duke acted in an unfair and arbitrary manner, in which case Pressler has a case.

Anonymous said...

I for one resent being called a troll for Broadhead or the Group of 88 because I'm pointing out some of the real life hurdles that any suit against Duke would face. Refusing to believe the truth because its inconvenient or not what you want it to be makes you no better than Mike Nifong.

Anonymous said...

It doesn't matter what happened at other colleges unless you are making a wacky legal argument that his firing was so outside the norm of common practices as to warrant some special legal redress, good luck with that. His firing would have to be illegal under state or federal law, it would have to have been in conflict with the terms of his employement. Do you really believe that Duke university could not find a legal loophole and pretext in his contract on which to base his firing?

Anonymous said...

Thank goodness there are some lawyers on hear addressing the ignorant drivel of a number of these posters. Most of these folks don't know what they are talking about, especially when it concerns Duke's actions and possible legal concerns. It used to be that one did not opine on subjects one was ignorant of, but the Internet has sure changed that.

Anonymous said...

"Some people think tenured
profs cannot be removed.
Well, maybe...

What if the professor fails
to uphold a Code of Conduct
that most colleges and
universities have (but don't
advertise, nor make public
for obvious reasons?)"

Legally, it is hard but not impossible to fire a tenured prof. But practically, it is even harder because, as I noted earlier, it is seen by most profs as an assault on free speech, which tenure is supposed to protect. That's why it hardly ever happens. I think the Gang of 88 with tenure are safe. Those without less so.

Georgia Girl said...

4:16, people are "listening" ... just not posting. Thanks for your sincere attempt to educate, rather than debase posters for opining on topics of which they have little knowledge.

Anonymous said...

What you MIGHT see, and I stress might see, is some of the most outspoken professors quietly matriculating to other universities like Baker did. For example, the prof. this week who went on record saying basically just because the AG said they're innocent, they might not be innocent, might get a subtle message that its time to move on. But beyond some kind of informal, under the radar screen censure, which is, to my mind, pretty unlikely, don't look for anything. The prof. who IS named in the lawsuit about grade retaliation might move on in the next year or so as well.

jamil hussein said...

Pro-Brodhead trolls are probably the same ones who predicted that Nifong cannot possibly be sued.

Duke has been sued already and more suits are likely coming. Nobody knows what the jury will eventually decide but I would expect Duke to settle those quietly before the trial phase. Discovery phase is not going to look pretty for Duke.

Anonymous said...

I'm not pro-Brodhead, or pro-Duke. I'm pro-reality. It is ALSO an uphill climb to successfully pierice Mike Nifong's absolute immunity from prosecution, but the AG I believe has handed the boys a lot of ammunition in that regard, so this could be one of those few cases. But, please, don't make it sound easy. That will be an interesting one though, will the County/City of Durham do the right thing, take responsibility and settle or will they put it all off on Nifong, claiming his actions were criminal and unethical and thus they are not liable because he had no known history of such behavior.

Anonymous said...

Ok -- I'm going throw my 2 cents into this interesting legal debate. I'm not sure how strong a case the 3 have against Duke, or even if they want to pursue it against Duke. However, I do think they might have a pretty good case against the N&O for libel/defamation (actually there would be 47 plaintiffs) for the mass publication of the "wanted" vigilante poster. Duke may be on the hook for this - - as I understand it, 2 Duke administrators are on the Durham Crime Stoppers Board which authorized this publication. If they were serving on the Board as reps of Duke, there's your liability.

As for the 88, I'm sure "academic freedom" protects their actions. However, they took pretty broad liberties signing on entire departments without a vote of the faculty. Did they use departmental funds to publish the ad?

I don't think Mike Pressler has a case. I don't know for sure, but I'd be shocked if he didn't sign a waiver & release of liability in exchange for a severance when he left Duke -- Duke's lawyers are pretty dumb if they didn't get him to sign one.

I would much rather see the 3 sue Nancy Grace for defamation than Duke -- that would be more satisfying by far. She's such a ranting idiot!

Lastly, we need to wait to see the statement of facts & findings that the AG's office is issuing next week. If the language of these findings is strong enough, the burden of proof may already be met for some claims.

Anonymous said...

When you have the law on your
side, argue the law...

Well, consider that Universities
are a form of business (nonprofit,
but incorporated.) It is a
kind of service provider.
Their professors, teachers and
instructors are providers of
most of these services.

Students are consumers of the
services provided.

Both providers and consumers have
responsibilities to uphold certain
standards. For instance, a student
might be removed for spreading
gossip about a professor.

Now will someone tell me why
a professor who spreads gossip
about a student is not as responsible to uphold his/her
contractural obligations?


Anonymous said...

"Might" being the operative word.

I hope you are not heading down the path where discussion of the guilt or innocence of players suspecred, arrested and indicted for rape and kidnapping is now considered 'gossip' or some such other damaging speech that doesn't enjoy protection under the first amendment.

Anonymous said...


Legal. Theories.

Analogies don't always translate into legal theories. If you're suggesting that the Duke 3 would be a third-party beneficiary to a contract between Duke and a professor, you'd be one of the first to actually identify a legal theory. Of course, if the professor breached the contract, then the Duke 3 would sue the professor not Duke. (I'm not saying this is a viable cause of action, but you should be commended for at least trying to identify the legal basis for a suit against Duke because so many others here refuse to do so.)

Anonymous said...


More analogies here (sorry):

Suppose Sears (for example)
sends out a repair person to do a
job. The employee is responsible
to Sears, and Sears is responsible
for making sure the work was
done properly.

Does that help?


Anonymous said...

Further analogy:

Now let's suppose that the
alleged Sears employee causes
harm to the washer/dryer they
were supposed to be servicing.
Who is responsible? The
employee, or Sears?

If the contract calls for repeat
visits, and the repair was not
taken care of the 1st time,
is Sears responsible? Of course.

If Sears sends out the same person
who flubbed up the 1st time,
and 2nd time and 3rd time,
are they not responsible still?
Sears has - in this hypothetical
case - a responsibility for the
work their employees do,
and especially for the fulfilling
of that contract.



Anonymous said...

3rd analogy:

Now let's say that the
hypothetical Sears employee
makes the machine worse each
time he/she attempts to fix it
Sears is notified, but continues to send the same employee.

Is Sears not even more responsible
as a result of continually
allowing an employee to cause
further harm?

(apologies to Sears and it's
many fine employees, who
apparently have more of a
social conscience than the
Duke Administration or 87
of the letter with 88

If you haven't gone home from your
Law Offices: when you do,
please have a nice weekend!
It's gonna get busy.


Anonymous said...


I don't think your analogy is analogous to this situation.

What 'job' did the Sears/Duke employee fail to perform?

You have to link the actions of the Sears/Duke employee...listening statement, wanted poster....with harm to the students that is provable in court.

You also have to disprove that the Sears/Duke employee was acting outside his/her employee role.

If, on his way to service the machine the Sears employee gets in a fight with someone or commits a crime, Sears is not liable for that crime unless there is evidence they knew or should have known of the employees propensity to commit the crime.

You would have to prove actual harm to the lacrosse students. You would have to factually link it to the professors and, the final and impossible burden is you would have to prove they were acting in an official capacity for Duke and that Duke knew, approved or should have known of their actions and the harm they were causing to the lacrosse players.

This just isn't a winnable case.

Anonymous said...


You just made my argument:
if you've been watching
what the players have been
subjected to at the hands
of Duke University Officials
and their subordinates,
you can see the "great harm"
inflicted upon them.
In instances of sexual
harrassment - (and this is
similar, except that there was
fear for physical well-being
inflicted upon the students
as a result of the statements
made by certain
Duke representatives, e.g.
profs, administraton) - no
actual physical harm has to
be proven.

Sexual harrassment: how about
terroristic threats. Like
the threats of castration?
Doesn't that qualify as
maybe a little more serious
than sexual harrassment?
And who incited that

People who were thanking them

Better get ready to make
a quiet settlement.


Anonymous said...


If you feel so passionately that there is a cause of action against Duke, I suggest that you write it up, send it to the Duke 3's attorneys and copy it here. Then, when the lawsuit is filed that copies your suggestion, you can tell all of us here "I told you so."

Anonymous said...

This little tempest in a teapot discussion of legal theory is amusing.

However, the real storm is the PR maelstrom Duke faces if lawsuits are filed. Winning or losing a lawsuit will be immaterial.

Anonymous said...


I don't think that'll be
neccessary: there will likely
be so many Duke alums who
are outraged, it's likely
that this will be dealt
with in arbitration of some

My main points is this:
Businesses are more likely
than their employees to be
sued if a rat-turd is found
in a chicken nugget -
(unless the customer put
it there, and then the
the customer is liable
to be prosecuted.)

In this case, we don't have
to imagine too hard who put
the rat turd in the nugget.