Sunday, June 01, 2008

The Other Briefs

Any case with multiple defendants (each of whom have behaved in what at the very least could be described as a dubious fashion) creates the possibility of the defendants falling out among themselves. In this case, of course, Mike Nifong represents an easy target. But the brief of former Sgt. Mark Gottlieb chooses another target: Duke Hospital, and especially former SANE nurse-in-training Tara Levicy. The result is the clearest assertion to date of Levicy’s pernicious role in the origins of the case.

Filings from the current and former Durham Police officers:

Cpl. David Addison

David Addison’s brief revolves around a claim that he was merely performing his official functions when he made myriad false statements about the lacrosse players, and therefore deserves qualified immunity. In Addison World, a Police Department spokesperson can make false statements—adding in his own editorial comments, as well—about a group of residents of his city.

The brief makes one other important point: celebrating the activities of CrimeStoppers, Addison warns that allowing the suit against him to proceed could have a chilling effect. (The alleged danger of “chilling” effects forms a recurrent theme of all the defendants’ briefs.) The court, he maintains, should avoid any ruling suggesting that “discussion of such an investigation in the public realm be prevented, as such discussion can and often does assist in law enforcement investigations.”

This argument is extraordinary: can it credibly be asserted that a Police Department spokesperson making inflammatory and materially false statements of fact “can and often does assist in law enforcement investigations”?

Inv. Ben Himan

Ben Himan’s brief, much like Addison’s, says he can’t be sued: “Investigator Himan’s performance of his duties as a law enforcement officer also means that his actions are protected by the doctrine of qualified immunity for federal constitutional claims and that the doctrine of public official immunity for state law claims.” In any event, the brief suggests, none of the players who filed suit were arrested, so they have no legal grounds for filing a suit against Himan.

Himan’s brief also defends his handling of the procedurally flawed non-testimonial order. (The brief concedes that the NTO might have contained false representations, but denies that Himan knew they were false.) “Under North Carolina law,” the brief notes, “a Nontestimonial Identification Order may be obtained on a showing that a police officer has ‘reasonable suspicion’ or ‘reasonable grounds’ to believe that the subject may be responsible for a crime,” a standard that “‘is significantly lower’ than the standard for probable cause.”

No one denies this restatement of the law. But the brief leaves unanswered the obvious question: what “reasonable suspicion” or “reasonable grounds” did Inv. Himan possess to believe that Brad Ross—a lacrosse player who wasn’t even in Durham the night of the party—committed any crime? Indeed, what “reasonable suspicion” or “reasonable grounds” did Inv. Himan possess to believe that Brad Ross even attended the party? Even in Durham, having no grounds for a belief isn’t the same as having “reasonable” grounds for filing a court order.

Sgt. Mark Gottlieb

The briefs of both Himan and Addison make expected arguments along expected lines. But Mark Gottlieb’s brief moves off in new directions. As anticipated, Gottlieb suggests that he deserves immunity because nothing he did could be termed “malicious” or recklessly indifferent to the lacrosse players’ rights—i.e., the “Durham-is-Wonderland defense.”

Much more intriguingly, however, Gottlieb blames anything that he did wrong on Duke—and, specifically, on Tara Levicy. To a greater extent than any document thus far produced in the case, the Gottlieb brief targets the SANE nurse-in-training.

Time and again, the Gottlieb brief returns to Levicy’s role in the investigation.

1.) Levicy’s corroboration of Crystal Mangum’s claim, he asserts, “gave investigators ample legal grounds to conduct an investigation and to seek a ‘nontestimonial order’ requiring the white Duke lacrosse players to provide DNA samples.”

2.) Through her statement to Ben Himan on March 16, 2006, “Ms. Levicy advised Himan and Gottlieb, in effect, that a rape had likely occurred [emphasis added].”

3.) According to the brief, “Sgt. Gottlieb decided to continue to pursue the rape investigation because the SANE nurse advised him that the medical evidence was consistent with Mangum’s account of a sexual assault.”

4.) Yet again: “Sgt. Gottlieb’s decision to conduct an investigation was based upon the legitimate rationale that Crystal Mangum’s rape claim was persuasively corroborated by the medical evidence provided by Tara Levicy.”

Gottlieb also targets Duke:

Perhaps the sergeant presented false information to the court (or, presumably, to the grand jury), but the brief reasons, “Sgt. Gottlieb could not be aware of information in Duke’s exclusive possession.”

On the lacrosse players’ keycards issue: “Assuming a private right of action for a violation of FERPA existed, the burden of complying with FERPA would not belong to Sgt. Gottlieb or the Durham Police Department.” The burden of compliance, of course, falls on Duke.

In discussing his own behavior, Gottlieb either reinvents the past or suggests a standard of behavior for police officers that would lead to a stark diminution of civil liberties.

The lacrosse players’ complaint, according to the Gottlieb brief, “fails to plausibly allege that Sgt. Gottlieb included any deliberately false statement or omission in the NTO Application that was material to the Court’s determination that reasonable suspicion existed to issue the NTO.” Really? The NTO falsely claimed that the players used first-name aliases, a vital assertion to obtain the NTO against all the white lacrosse players.

Anyhow, the Gottlieb brief blandly asserts, the state’s acquisition of a person’s DNA represents “only a very limited intrusion upon personal autonomy.” Really? Has Gottlieb ever read the Bill of Rights?

Analyzing the sergeant’s role in the investigation, the brief denies that “a reasonable official” would consider Gottlieb’s performance “malicious,” or “reckless[ly] indifferen[t] to the rights of others,” or “prejudicial or injurious” to the lacrosse players. Really? If that claim is true, Police Departments around the country are in big, big trouble.

Duke Hospital

The significance of the Gottlieb brief becomes particularly apparent in evaluating the claims presented in Duke Hospital’s call for dismissal. As in Duke’s own (“we-don’t-have-to-enforce-our-own-rules”) brief, the filing on behalf of the Hospital (also penned by Duke attorney Jamie Gorelick) describes the players’ claims in terms that no one who has followed the case would recognize. According to the Duke attorneys, the players filed suit merely because of the conduct of an individual nurse who provided, upon request, information about that medical treatment to police officers and the District Attorney in connection with a criminal investigation.”

Duke’s description of Levicy’s conduct likewise bears no resemblance to anything that actually occurred in Durham. According to the brief, “A patient was brought to the hospital claiming an atrocious deed had been done to her; the hospital staff rendered her assistance, as they should have done; and subsequently when the police officers and prosecutor carrying out the investigation asked a hospital employee for information, the employee cooperated.”

Is Duke now going on record saying that Tara Levicy behaved as she “should have done”? Apparently so. The Duke brief specifically denies that Levicy or her supervisors engaged in “negligent conduct.”

And again: “Under North Carolina law, reporting a crime to the police and prosecutors is not ‘extreme and outrageous conduct,’ even if that report is inaccurate—indeed, even if that report is false or fabricated. To the contrary, North Carolina law encourages individuals to report suspicions of crime to the police, and it is the responsibility of public authorities to then determine whether the reports are well-founded.”

Nothing in the lacrosse players’ filing would dispute such an assertion. Its inclusion suggests a public relations, rather than a legal, motive.

The claims in the Duke brief, however, are badly undermined by Gottlieb’s opposite assertions.

For instance, the Duke brief asserts that even if she were negligent, Levicy’s conduct was “too attenuated from Plaintiffs’ alleged injuries to support a negligent infliction of emotional distress claim.”

Yet the Gottlieb brief asserted precisely the opposite. The judge, presumably, cannot believe both briefs.

Attempting to diminish Levicy’s role in the non-testimonial order that started the media firestorm, Duke’s attorneys maintain, “The affidavit supporting the application for the NTO was sufficient to establish probable cause, and the magistrate had a ‘substantial basis’ for determining that probable cause existed, even without the information from Levicy.”

Yet the Gottlieb brief asserted precisely the opposite. The judge, presumably, cannot believe both briefs.

Two sentences, however, most stand out in the Duke brief.

First, the Duke attorneys deny that Levicy’s conduct could have contributed to a 4th amendment violation, since “even if Levicy had provided ‘false and misleading information’ that was used to support the NTO—which she did not [emphasis added]—the affidavit in support of the NTO application was sufficient to establish probable cause without that information.”

This statement, of course, is factually dubious—even Gottlieb, for instance, challenges it. Most remarkable, however, is the four-word clause “which she did not.”

Levicy made two statements to police before issuance of the NTO. In the first, on March 16, 2006, she described the medical exam as consistent with Crystal Mangum’s myriad stories. The Attorney General’s investigation made clear that there was no objective basis for this conclusion.

In the second, on March 21, 2006, Levicy asserted that the medical exam showed that Mangum had experienced “blunt force trauma.” That statement was undoubtedly false.

Yet Duke is now asserting that Levicy “did not” make false statements to the police—effectively challenging the Attorney General’s conclusions. The Duke brief provides no data to back up this remarkable, new assertion.

For good measure, the Hospital brief engages in a Nifongism. In both his ethics hearing and in the criminal contempt trial, the ex-D.A. repeatedly termed Mangum “the victim”—though how someone who had perpetrated a hoax could be “the victim” Nifong never explained.

On page 38, the Duke attorneys echo the disgraced ex-D.A. and refer to Mangum as “the victim”: “First, the affidavit included a lengthy and detailed description of the victim’s own statements to the police regarding her alleged sexual assault.”

In the hearing on these motions, perhaps the Duke lawyers can provide additional detail regarding their theories on how the statements of Tara Levicy were not “false and misleading,” and how Crystal Mangum was “the victim.”


Anonymous said...

Again, the purpose of the briefs is PR. In a 12(b)6, the judge MUST ASSUME ALL ALLEGATIONS IN THE COMPLAINT ARE TRUE. The only question in a 12(b)6 motion is, "do the allegations in the complaint state a cause of action."

Certainly, Ps are going to 'reach' in some of their causes of action, and a few claims may be dismissed b/c, for instance, "under the facts alleged, as a matter of law immunity applies." But there won't be many claims tossed, and it's unlikely any Defendant will have all claims dimissed.

Claims like, ". . . which she did not" are irrelevant. The issue isn't whether Tara did or didn't do anything. The issue is, can Duke be liable for her conduct as alleged in the Complaint? Again, the judge has to assume she did exactly what the complaint alleges - can Duke be liable for the alleged conduct. Answer: Yes.

bill anderson said...

Great post, K.C.

So, Duke University is now trying to claim that maybe a rape did occur. That is interesting, since one of the things that drove Crystal in the early days was the prospect of a big payoff from Duke, since the alleged rape occurred on Duke property.

So, by insisting that Crystal was telling the truth, Duke now opens its own liability to Crystal. I cannot say this is the most intelligent defense, but it is in line with the lies that Duke's leadership and faculty have told throughout this sorry affair.

Believe me, there will be even more lies that are exposed during the discovery process. Duke has decided it can slime its students some more and influence the courts. Perhaps that strategy will be successful, given the state of justice in the United States, but I cannot say that it makes Duke an attractive place where to send one's child.

Debrah said...

KC has all the tools to be an attorney; however, he's just too nice.

His biggest handicap would be that he isn't lying every time his mouth moves.

It's striking, however, that his posts are nothing short of intense legal analyses.

Such Diva madness!

Debrah said...

As anticipated, Gottlieb suggests that he deserves immunity because nothing he did could be termed “malicious” or recklessly indifferent to the lacrosse players’ rights—i.e., the “Durham-is-Wonderland defense.”


KC's Wonderland allusion will endure; however, the H-S and other Duke and Durham "boosters" try to make all the grit and grim and corruption seem endearing......something to embrace and feel warm and fuzzy about.

There is a kind of sinister sickness to some of those people.

Debrah said...

It doesn't look as though Ashley and company are going to print the Diva letter defending the Kristin Butler column from the Chronicle.

They sent an email saying that it exceeded the number of words allowed. LOL!

Then I deleted the paragraph which detailed Mangum's petri dish of DNA and a few choice adjectives.

I sent back an email with a new version saying: "I knew we wouldn't be able to tell the whole truth about Mangum. The cover-up continues. Here's a shorter version."

They won't print the letter because I mentioned Chan Hall. That nut's views were echoed by members of the H-S editorial staff, if anyone recalls.

The H-S wants to "move on". Like the editorial staff at the N&O, they don't wish to revisit their key role in the Hoax.

Sometimes I send scathing letters just to irritate them.....knowing they will be too dishonest to print them.

Like a little game.

My goal with that letter was to remind them of the huge role NCCU played in the Hoax, and also, allow them to revisit the DNA samples Mangum was sporting that night.

(BTW, I left a copy of KC's post today on Zane's blog about "media bias".)

Anonymous said...

Slightly O.T.

Something I've wondered about: the DNA of 5 men was found on/in Crystal, none of them from the LAX team.

If Nifong was so positive Crystal was raped, why go after the team and NOT try and find a DNA match?

Also, what are the dimensions of the bathroom where the 'rape' occurred?

Keep up the great work K.C.

Eyes_Wide_Opened said...

If Duke did "nothing wrong" why did they handle things differently with the “other” Duke rape? Yes, the one Duke wants everyone to forget.

Debrah said...

Some still try to blame the lacrosse layers just as the monotonous mantra "something must have happened" was the last resort for the loonies.

This little blog provides terrific insight into the mentality of so many in Durham.

Joey7777 said...

All I can guess, with all this throwing the blame around at each other, is that this case is going to get uglier and uglier for all guilty parties. And it couldn't happen to a nicer bunch of folks.

Debrah said...

Here's a funny story and it's not off topic because it's related to the behavior of the city of Durham and Nifong.

In the Spring of 2006 it didn't take long for the public to catch on that this case was bogus.

And of course their reactions were at a boiling point because of the behavior of people in Durham and at NCCU---revving up such a mob environment.

Like the OJ case in the '90s, my first reaction was "Oh, my gosh. That's awful."

No one I know had anything but concern and sympathy for the supposed "victim" when it was asserted by the media that all the things Nifong and the DPD said were true.

No one was concerned about the race of the woman. People were just sorry that "it happened" to anyone.

As with the OJ case, RACE was used by others to cover for guilt and divert attention away from real issues. May just before the primaries in Durham to elect the DA this rap tune It's Hard Out Here For a Pimp had just won some awards and was getting a lot of play.

I sent in a very short letter to the H-S. Only about two sentences, which is so unusual for the Diva.

It was something like: When voters go to the ballot box on Tuesday, show Mike Nifong the door. Let him know that "It's hard out here for a pimp."

You can't imagine the attacks I got from that, and the H-S gladly printed them. I certainly didn't care because it was fun to see the Hoax enablers so upset when confronted with another scenario.

One guy--Robert Paul--was really seething. He was a Kim Brummell ally and his reply was full of vile ad hominems. He said he was glad the H-S no longer printed my columns.


What this nut didn't even know is that I have never been employed by that paper. He just assumed they had "fired me" and he was "very glad".


We don't hear much from Paul, Brummell, or Victoria Peterson on the subject anymore.

Further, I was thinking the other day how I would have handled it if I had been a strong supporter of Nifong and the Hoax designers--(just theoretical.....this could never have actually happened--ever!)

I would have to sit down and write a column explaining my views and how I allowed myself to be duped. Then I would apologize to the public for aiding in the Hoax, unwittingly. Then I would apologize to myself for not being objective enough in light of such a lack of evidence.

But none of those people will ever think about doing that in a million years.

anon said...

It is interesting to me that a large part of Duke's justification for siding with Chrystal Mangam and throwing their own students under the bus was her race and her weakness versus the strong, privileged Duke Lacrosse players. Members of the group of 88 went so far as to say it mattered little whether a rape had occurred and that the players should be punished anyway.

With all due respect I would like to post a segment from Barack Obama's Senatorial Web Site where he explains why he is voting against the confirmation of Judge John Roberts. Basically, his reasoning goes along the lines that if one of the participants in a trial is weaker than the other, judgement should then be in their favor regardless of the facts of the case and the rule of law. This seems to me the essence of the Duke Lacrosse Hoax. It troubles me that K C has done such fine work exposing this injustice but continues to support a candidate who would have thrown the players under the bus due to their wealth and privilege compared to Ms. Mangam.

Remarks of Senator Barack Obama on the Confirmation of Judge John Roberts

Thursday, September 22, 2005

.........The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the Court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.

The bottom line is this: I will be voting against John Roberts' nomination. I do so with considerable reticence. I hope that I am wrong. I hope that this reticence on my part proves unjustified and that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court's historic role as a check on the majoritarian impulses of the executive branch and the legislative branch. I hope that he will recognize who the weak are and who the strong are in our society... .....

Debrah said...

TO "anon"--

Everyone understands the basic theme of your post.

You make some valid points which would extend to any of the presidential candidates and to any member of Congress.

Those remarks are from 2005.

I'm quite sure that the Lacrosse Hoax--which happened in 2006---has awakened many to the real dynamics of race and justice in this country.

The fact remains that Obama was one of few politicians who spoke out and called for a civil rights investigation for the lacrosse players.

No politician is going to personally intervene and take an active role in any such case; however, Obama did a hell of a lot better than the ones representing North Carolina voters in the House and Senate.

Lastly, KC will no more "disown" Obama than the Diva will ever "disown" KC.....just because I disagree with him on certain issues.

Ex-prosecutor said...

It is interesting that finger-pointing already has started among the defendants. The lawyers will have thought through carefully their written words. While the claims in the motions are a preview of what the respective defendants will say during their depositions, witnesses generally go a good bit further as their depositions are taken and they can't depend on their lawyers to parse their answers.

My experience is that campus police often are jealous of the local police department which, in turn, looks at campus officers as cop wantabes. Even before the hoax, there likely was no love lost between the Durham police department and the various Duke entities. There's less now and I'll bet the parties will blister each other.

I hope the depositions will be available, for they will be fascinating reading.

Anonymous said...

More than a year ago, the excellent blogger John in North Carolina posted this:

"[M]any of us pointed out that as part of the ... N&O’s deliberately malicious framing of the Duke lacrosse players ..., the N&O repeatedly told other media and its readers Mangum was 'the victim.'

Why did the N&O do that?

Why did N&O reporters, including Anne Blythe, Samiha Khanna and others, as well as senior editors John Dresher and Melanie Sill decide to call Mangum 'the victim' and frame the lacrosse team as her victimizers ...."

In a blog published in May 2007, Delores Williams posted on "Associated Content" as follows:

"The women willingly went to the place where the rape occurred. The victim in the Duke case was hired to dance at a party."

I'm well aware that the N&O was swept up in baiting the races and selling newspapers. I suspect Delores Williams made a simple blogging mistake -- not considering the import of her words.

What is Jamie Gorelick's excuse?

I imagine Gorelick is being paid a lot of money to use words in a precise manner. Is she not familiar with the word "victim"? Does she not know that the word "victim" presupposes at least one "victimizer"?

The better question is this: Will the Plaintiffs' attorneys use Gorelick's use of "victim" before the jury as still more evidence of continued reputational damage to the lacrosse players?

My opinions only unless someone else agrees with them. Gregory

Anonymous said...

I also wanted to thank the first anonymous poster on this thread for his or her excellent (and continuing) discussion of 12(b)6 motions. Thanks. Gregory

sleptinskool said...


I believe in the lax case the "strong" were the prosecuting atty, the City of Durham, and Duke. They are, and have been, systematically using their position of authority/deep pockets to trample the rights of individuals (the weak) for their own personal gain.
In this particular case, the "strong" had the misfortune of choosing victims that were not as willing to roll as their usual victims, and hence the controversy.
Obama's criticism of then nominee Roberts from 2005 is similar to the criticism many have had in the lax case (including KC) of the judges that initially heard the case and turned a blind eye to injustice because their powerful friends were benefiting from the injustice.
Just the way I read it though.
You are right though that from Crystal M's perspective, she probably saw the lax players as relatively rich and powerful. You imply an interesting twist that Obama, Duke, Roberts, Senators (the people Obama was addressing), or you would see these 18-22 year old young men as powerful compared to the Durham Prosecutor, an entire state, and several armed police forces and vigilante groups.

Anonymous said...

Several days ago I saw a claim on a blog that applications to Duke from white students are significantly down, but applications from black students are significantly up. Unfortunately I did not save the URL, and I now can't find it, even with Google. However, the information to back this up, if it is true, might be publicly available.

Anonymous said...

I'm having trouble logging on to the N&O site and so I am posting here my most recent comment to Mr. Zane before it gets "lost in the ether".

Dear Mr. Zane,

It is unfortunate for all of us that Prof. Tyson seems to have retreated behind the "blue wall of silence" that has characterized the Duke faculty since their unfounded and hate-filled attacks on their own students two years ago.

It has become a dismaying pattern to see them sally forth from time to time like so many “Father Pflegers” to launch more prevarications at innocent students or honest Hunt case prosecutors and jurors or at some of our nation's most civilizing institutions. When they are caught in this game of “lie and then fly”, they hurry back to the ivory tower where they are protected (by tenure?) from all consequences of their actions.

As taxpayers watching huge amounts of federal and state dollars pouring into Duke, we all have a vested interest in what happens behind the wall of silence. We hope you members of the "Fourth Estate" will use your rights as the first line of defense against abuse of power by the entrenched establishment to dig through that wall and disclose the truth.

Best regards,


Debrah said...

I don't think there will be any "best regards" for Zane.

Late last night I skimmed through the print version of Sunday's N&O. Zane has published the entire exchange he had with Tyson--the Q&A that is on his blog to which we all replied.

It's another glowing piece without any criticism. None of our posts were added to the mix. For most of the public who do not read the N&O blogs, they get another sterilized account with only Tyson's self-serving answers. His same libelous rendition of what HE says happened on Buchanan Blvd. was put into the Sunday paper.

Now.......what to do about that?

Contact John Drescher?

Send letters-to-the-editor complaining that the issue was not covered honestly?

Continue pounding the truth on Zane's blog?

Zane could have at least added KC's posts about this issue........but that would have shown how handily Tyson was skewered for his lies.

Anonymous said...

Is Duke a state-supported/land-grant school?

Anonymous said...

Anonymous said...

Is Duke a state-supported/land-grant school?

6/2/08 10:39 AM

Let's pull all the government money out of Duke and find out.

At the very least, one would think taxpayer funds to colleges would be tied to things like adherence to laws like FERPA.

Anonymous said...

If taxpayer supported funds were withdrawn Duke would indeed be up the proverbial creek without a paddle since that would mean that government subsidized college loans would no longer be available to students. THus would force those students who matriculate at Duke to either be from the very wealthy elite whose parents have the deep pockets to pay the expensive tab that a Duke education entails or the financila iad office will have to dip deeply into the Duke endowments to finance the college education of those who are less substantial means. The former, I am sure, will not sit well with those members of the Group of 88 who rail against the privilege classes and the latter will not make those whose job it is to oversee the financial bottom line of Duke happy.
It does not surprise me that applications from white upper middle class students is down - what parent would willingly want to send his child to a college in a town where the police and justice system is suspect; where the fourth estate works hand in glove with the local authorities; and where a college administration feels that it has no responsibility for its students? And all this for a large sum of money.
Itis all very sad - as a former resident of North Carolina and as a parent who suggested Duke as a possible college for each of my children (until the lax case), I wish that the institution and the city of Durham would own up to their responsibility, enact the changes that would ensure such a travesty would not occur again, and make restitution to those who were harmed - and make no mistake, all of those lax players were harmed in one way or another. But that would require that Duke, the police department, the various judges within Durham's legal system, the prosecutor's office, the BOT, the Group of 88, the Duke Medical Center and its employees, and the Duke administration admit to its errors. Unfortunately, Duke will pay reparations for any of a number of things before it will admit to any wrong doing in the lax hoax.

Gayle Miller said...

With Jamie Gorelick involved in this case, reality and truth are the FIRST victims!