Monday, July 07, 2008

The Lying Game

Over the extended holiday weekend, the defendants in the Ekstrand lawsuit filed their expected motions to dismiss. For the most part, they make similar arguments to the motions to dismiss the Cooper lawsuit—it was all Mike Nifong’s fault, Duke has no legal obligation to enforce its own anti-harassment policies or its Faculty Handbook, and the Durham Police Department did nothing wrong in the case.

Here, for instance, is how Durham attorney Patricia Kerner describes the rigged April 4, 2006 lineup—in which Nifong, who had improperly been given supervisory authority over the police investigation, instructed Mark Gottlieb to violate DPD procedures and conduct a lineup confined to suspects, with no filler photos: “On April 4, 2006, at Durham County District Attorney Mike Nifong’s direction, DPD officers shared the photos from the NTO with Mangum.” Who could criticize a Police Department committed to “sharing”?

Beyond such comical (and probably self-defeating) legal spin, a few items in the responses were noteworthy.

1.) Duke’s “Let Levicy Lie” defense. In evaluating a motion to dismiss, courts treat plaintiffs’ factual claims as true. Yet in their brief to dismiss the Cooper lawsuit (involving 38 unindicted players and their families), Duke attorneys Jamie Gorelick and Dan McLamb went out of their way to challenge the factual premises of the lawsuit. They flatly asserted that former SANE nurse-in-training Tara Levicy “did not” give to the police “false and misleading” information. And, as if to reconfirm the legitimacy of Levicy’s findings, they described Crystal Mangum as the “victim.”

Such passages vanished from the Gorelick/McLamb response to Ekstrand. Perhaps the Duke attorneys decided that it was unwise to so aggressively challenge the AG’s conclusions on actual innocence. Or, perhaps, the recent filing of Mark Gottlieb, who blamed none other than Levicy for the investigation getting off the ground, spooked Duke.

To neutralize the Gottlieb claim, the Duke attorneys responded to the Ekstrand suit by reversing themselves almost 180 degrees from their “something happened” insinuations. Now, they assert, civil procedure law gave Levicy (a figure who would have been the most significant “expert” witness in a criminal trial from this case) a license to lie; therefore, even if she did manufacture evidence, neither Duke nor Levicy herself should be held liable.

In a remarkable passage, Gorelick and McLamb write, “Plaintiffs fail to show how the health care providers could have foreseen—much less that they knew—how their supposed negligence might have resulted in harm to these Plaintiffs.”

Is Duke really asserting that the Duke Hospital could not have foreseen how placing a barely qualified feminist ideologue—a figure who later told defense attorneys that she had never encountered a woman who lied about rape—in a position to pass expert judgment on whether a rape occurred “might have resulted in harm to these Plaintiffs”? And is Duke really asserting that the Duke Hospital could not have foreseen how its own administrators not supervising this barely qualified feminist ideologue as she dealt with police and prosecutors “might have resulted in harm to these Plaintiffs”? Such an assertion doesn’t pass the laugh test.

The heart of the Gorelick/McLamb brief, however, argues that Levicy’s fabricated testimony was not necessary for the DPD and Nifong’s office to obtain the (all-but-unprecedented) non-testimonial order against the 46 white lacrosse players. They write,

Even if that information provided by Duke health care providers and included in the affidavits were fabricated, there was no Fourth Amendment violation because the affidavits established probable cause without that information.

As the Fourth Circuit has made clear, “even if an affidavit supporting a search warrant is based in part on some illegal evidence, such inclusion of illegal evidence does not taint the entire warrant if it is otherwise properly supported by probable cause. Thus, unless the tainted information is so important that probable cause did not exist without it, the warrant will be deemed valid.” The Fourth Circuit, moreover, “has always applied a highly deferential standard of review in considering the sufficiency of a finding of probable cause by a magistrate.” Under this standard, the relevant inquiry is “whether the magistrate had a ‘substantial basis’ for his conclusion that probable cause existed” . . . It is clear that the affidavits supporting the NTID and Search Warrant applications were sufficient without the allegedly fabricated evidence . . . The affidavits provided the magistrate judge with ample reason to support his conclusion that there was probable cause to issue both the NTID and the Search Warrant . . . This would be true under any standard of review, but it is certainly true under the Fourth Circuit’s “highly deferential” standard.

It’s striking that the Duke brief doesn’t cite even one case in which a court ordered a non-testimonial order against dozens of people solely on the basis of an interview (not even an official statement!) by a complaining witness—and, in this case, a complaining witness whose claims were contradicted in every important detail by a neutral witness’ (Kim Roberts) written statement filed before the NTO was issued.

To relate the Duke “probable cause” theory fits to the actual facts, take the experience of Brad Ross. According to the new Gorelick/McLamb theory, the DPD and Nifong’s office had probable cause to obtain a non-testimonial order requiring Ross’ DNA (an extraordinary invasion of privacy)—even though they had no evidence that Ross attended the party, much less held a reasonable belief that Ross could have committed the alleged crime—solely on the basis of a police officer’s recapitulation of an interview with Mangum. (Ross, of course, wasn’t even in Durham on the night of the party.)

If the Gorelick/McLamb standard actually applied across the nation, whole groups of people would be subject to NTO’s all the time, solely at the whim of vengeful or mentally imbalanced accusers.

To give a sense of the breadth of Duke’s legal theory, consider that in March 2006, Mark Gottlieb and then-ADA Tracey Cline didn’t believe that Mangum’s allegations alone could obtain the desired NTO from Judge Ron Stephens. That’s why they included Levicy’s false recapitulation of the evidence. So Gorelick and McLamb are now saying that “probable cause” existed for an NTO under standards that even Gottlieb, Cline, and Stephens—hardly paragons of due process or civil liberties—considered insufficient.

Truly remarkable.

2.) David Addison’s “Lying Is Reasonable” defense. In an unintentionally entertaining brief that cites an Idaho decision to prove that North Carolina Police Department spokespersons have no obligation to the public and laments “the emotional ‘costs’” of the case to Addison(!), the recently promoted DPD officer claims immunity from the civil suit.

The reasoning of his attorney, James Maxwell? “All of the factual assertions and ultimate claims arise out of [his] alleged positions as ‘official spokespersons’ for the Durham Police Department.”

Alleged positions”? In March 2006, did Addison misrepresent himself to the media when he described himself as acting official spokesperson for the Police Department?

The brief continues, “In addition, the creation of the ‘flyer’ for publication on behalf of CrimeStoppers was a normal part of David Addison’s responsibilities as the Coordinator of that program.”

Is it a “normal part” of “Addison’s responsibilities” to offer editorial commentary, in his own voice, that heightened public condemnation of the suspects? If so, why didn’t his brief produce any other examples of his guilt-presuming editorializing?

More from the brief: “Each and everyone one of those published statements was made in the course and scope of [his] function as a governmental official. It has long been established law and good public policy that ‘public officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.’”

In effect, Addison maintains that a “reasonable person” would not have considered it wildly improper for an acting department spokesperson and a CrimeStoppers community liaison to make inflammatory public statements, or to offer editorial commentary that heightened public condemnation of the plaintiffs in civil suit, or to falsely characterize the evidence in the lacrosse case.

It’s probably true that neither Bill Chafe nor Victoria Peterson—to pick two prominent figures from the case—would have considered Addison’s statements unreasonable. Unfortunately for Addison, most courts would not deem Chafe, Peterson, or their ilk “reasonable people.”

The brief’s conclusion: Addison was merely “carrying out his responsibilities as a police officer.” [emphasis added]

In the Wonderland that is Durham, it is evidently part of the “responsibilities [of] a police officer” for a Police Department spokesperson to make inflammatory public statements, offer editorial commentary that heightened public condemnation of suspects, and falsely characterize the evidence in a pending case.

3.) Civil Procedure according to Linwood Wilson. Most people recognize the saying, “A man who is his own lawyer has a fool for his client.” Fired D.A. investigator Linwood Wilson’s motion to dismiss seems to prove the point.

In his brief, Wilson (who is acting as his own attorney) notes that absolute immunity applies only to prosecutorial functions, not those considered “administrative” or “investigative.” Having established this bar, however, Wilson renders the distinction meaningless. Yes, he concedes, he might have interrupted a defense attorney’s press conference to falsely describe the evidence in the case—but that was a “prosecutorial” function, not an “administrative” one. And yes, he concedes, he might have gone on his own, without a police officer in violation of DPD regulations, to interview Mangum, at which time she gave a wholly new version of events, resulting in the D.A.’s office dropping some charges and completely changing its version of the “crime”—but that too was a “prosecutorial” function, not an “investigative” one.

Most prosecutors, of course, would not consider such behavior “prosecutorial”—as Wilson doubtless would have learned from his attorney, had he hired one.

Wilson also seizes upon a 5th Circuit case (Brandley), which, he reasons, “affords absolute immunity to attempts by prosecutors to intimidate or tamper with witnesses.” Unfortunately for Wilson, North Carolina isn’t in the 5th Circuit (prosecution-friendly Texas and Louisiana), nor is there anything in the Brandley decision which applies this absolute immunity to non-lawyers in a prosecutor’s office functioning in an investigatory role.

4.) Did Durham’s attorneys forget that they have another lawsuit pending? With these filings, the city of Durham is probably up to around $1 million in attorneys’ fees in lacrosse case-related lawsuits. The most recent batch of filings, however, raises the question of whether the city is getting its money’s worth.

A persistent theme in the city’s response: the unindicted players weren’t really harmed (at least by Durham) because, in the end, they weren’t indicted.

Leave aside, for a moment, the question of whether this is a compelling argument. Its articulation appears to offer a corollary argument: those who were indicted were harmed. Yet, of course, Durham is current facing a federal civil rights lawsuit from three people who were indicted without probable cause.

Indeed, in the brief defending former City Manager and current City Attorney Patrick Baker, Durham lawyers essentially concede the point. In attempting to describe the NTO as constitutional and even beneficial to the plaintiffs in this case, attorney Patricia Kerner reasons,

Consistent with the [law’s] purpose, Plaintiffs’ compliance with the Court’s NTO eliminated them as potential perpetrators: they were not identified as attackers by the alleged victim [sic] in a photo array, nor supported as such through DNA evidence.

(Kerner does not identify who, at this point, is “alleging” that Mangum was a “victim.”)

But if the purpose of the NTO was to eliminate “potential perpetrators,” why were those for whom no DNA evidence existed even included in the rigged April 4 lineup?

This list would include each of the Ekstrand plaintiffs (Ryan McFadyen, Matt Wilson, and Breck Archer), but it would also include the three falsely accused players. As we now know, Nifong and the Durham Police had the NTO’s oral results on March 29, 2006, two days before they reached the decision (to which the DPD leadership did not object) to violate procedure and conduct a suspects-only lineup.

Kerner’s argument, in short, would seem to bolster the claim against Durham filed by the three falsely accused players, since nothing in the NTO which her brief so robustly celebrates would indicate that a negative DNA test and a negative DNA test alone would not have “eliminated [each lacrosse player] as potential perpetrators.”


Some of the arguments in these briefs suggest that the motion to dismiss could determine the outcome of the case. That’s certainly true for Duke: it’s hard to imagine that the University would want to go into court and publicly maintain that its SANE nurses have a license to lie.


Debrah said...

In this episode from the Nifong disbarment hearings, Levicy's lies are clearly revealed.....


Anonymous said...

What an appropriate title for this post, "The Lying Game." Thus far the defendants seem to think this is some sort of game. They can say anything and never be challenged.

I know their lawyers aren't stupid so why does it seem that they are? Even when you're stalling, delaying the inevitable, shouldn't you at least try not to add to your problems by saying stupid stuff?

I've always thought that a good lawyer could come up with some valid argument in any given case. It might not be persuasive but at least it would make sense. Guess I was wrong.

I just thought the lawyer at Nifong's bar hearing wasn't very good. But it may be with these facts, there is just no valid argument.

No justice, no peace said...

Inre: "...barely qualified feminist ideologue..."

Isn't this use of words redundant?

Anonymous said...

What I cannot fathom is the game that the defendants lawyers are playing. Are they trying to maintain that the protections of one's liberties that the Constitution affords are not valid for Durham? Or are they trying to argue that said protections are only selectively to be enforced - in this case they do not apply to a class of white male athletes from certain socio-economic classes? Finally, is Linwood Wilson, by acting as his won attorney, trying to set things up so tht on appeal he can calim that he did not have proper representation?

bill anderson said...

This is an excellent post on your part, K.C., for it cuts through the legal mush that the attorneys for the defense have presented.

First, and most important, the NTO was an extraordinary piece of work. It was a mass, racially-based order, one that never could pass the smell test had the defendants been black. For example, could a white woman claims to have been raped in a black neighborhood in Durham by an unknown black lead to a mass DNA testing of all young, black males living in a certain radius? I think all of us know the answer to that question: It would be unthinkable, and every civil rights attorney in this country would have jumped on that immediately.

Yes, there is a very, very low bar for probable cause to investigate a rape accusation. North Carolina law does not require corroborating evidence besides an accusation in rape cases. However, something like race-based, mass DNA testing of individuals, some of whom could prove they were not at the party, is quite another matter.

The defense claims that an order to forcibly take DNA samples from 46 individuals at one time solely on the basis that they were white and members of the Duke Lacrosse team is not a remarkable thing. That is breathtakingly dishonest.

I would challenge any attorney or any civil rights expert to tell me that this NTO was run-of-the-mill and supported by "probable cause" of Crystal's contradictory statements. Don't forget that before Gottlieb entered the scene, the Durham police officer in this case had concluded there was no rape, so the idea that there was "probable cause" based on Crystal's claims was and is laughable.

This NTO by itself was a massive violation of the civil rights of those players. It is one thing to investigate someone for a crime; it is quite another to forcibly take DNA and do examinations of their bodies to check for "scratches" that could have come from Crystal.

No, we are dealing with dishonesty. Duke and Durham were dishonest at the start, and the dishonesty continues. One wishes that a person in position of authority and trust -- at least ONE person -- in Durham and at Duke University, would act in a manner that would have some integrity. Instead, we get slime, slime, slime.

Anonymous said...

What 'probable cause' remained by the time of the May hearing before Judge Stephens? By then it was known that the warrant had been obtained through the use of false information (Levicy's descriptions).

There was no other evidence other than Mangum's accusations (and her flawed ID).

And the defendants had been cleared by DNA testing.

What judge would not have thrown out the charges at that point, and admonished the prosecution about submitting false information on a warrant request?

Why would any judge have let this case continue?

Anonymous said...

One should take a look at Dorothy Rabinowitz's column in today's WSJ ("America's Politics Aren't Post-Racial"). She references the Duke case as the starting point for the actions of Purdue University against a student janitor who was reading a scholarly work that one of his co-workers (a person of color) took exception to and claimed racial harassment as a result. Once the ACLU got onvolved on the student janitor's behalf, the history of the case was suddenly rewritten.
Unfortunately, the Purdue case, as well as the Duke case, demonstrate that we have really progressed not one iota in the goal of a colorblind society. Whereas in the past, the fact that one was black was enough to be guilty, the pale color of one's skin is now the evidence of guilt.

Re Bill Anderson's post: What if the city of Chapel Hill had decided to issue an NTO and required all young blacks in the city to come down and give DNA evidence and submit to body searches in the Eve Carson case? The police knew (from photographic evidnce at the ATM) that her credit card had been used by a young black man. There would have been (and rightfully so) a hue and cry raised across the land - and the first and loudest cries would have been come from the Triangle area. Yet, when the NTO was issued in the Duke case, the silence was deafening. Why was this the case - one can only surmise that racial politics was at play.

Anonymous said...

What the Duke/Durham lawyers are trying to do is provide cover for a Judge who has already knows how he/she is going to rule. I hope I'm wrong and this case is decided on the merits but I fear the fix is in.

Gary Packwood said...

I think it is safe to assume that Duke and Durham attorneys have now read judicial, telephone and correspondence files where the learned that a few faculty and staff members at Duke created the appearance and perception within the community of Durham that young white males lacrosse athletes (with a swagger) were evil.

Now the attorneys for Duke and Durham have to somehow teach their clients that appearances and perceptions don't mean much with respect to the Constitution of the United States of America.

After all, we founded this country to escape members of the royalty and the clergy in the old countries who judges our forefathers and mothers based on appearances and perceptions.

Duke and Durham would be wise to settle the law suits and agree to on-going remedial education classes for their leadership in US History 101, Legal Evidence, Due Process and the Rule of Law 101 and Management and Corporate Ethics 101.

I don't know what to do about the insane SANE program at Duke which is ...unbelievably...government funded and tied to the Durham DA's office.

The discovery process seems to be one step away from triggering the first RICO charges.

Anonymous said...

“Plaintiffs fail to show how the health care providers could have foreseen—much less that they knew—how their supposed negligence might have resulted in harm to these Plaintiffs.”

Gee, who could have forseen that driving drunk might have resulted in harm to innocent drivers?

Duke Prof

Debrah said...

Courthouse views from where the action takes place:



And the Old Durham Courthouse

Anonymous said...


Imagine this scenario:

A medical professional (R.N., M.D., etc.) is treating a comatose patient in the emergency department.

When asked by another treating professional, the first treater communicates both verbally and in writing that the patient has no known drug allergies, when in fact the patient has a severe (anaphylactic) allergy to penicillin.

In the course of the patient's hospitalization and because of the negligence of our first treater, the patient receives penicllin; her heart and breathing stops and she dies.

In the medical malpractice trial for negligence, the treater's attorneys argue, "Plaintiffs fail to show how the health care providers could have foreseen—much less that they knew—how their supposed negligence might have resulted in harm to these Plaintiffs."

Is this the standard of care Duke University Medical Center wants to uphold?

That the communication in writing and verbally of erroneous and false information is acceptable as long as those involved hadn't anticapted that harm would come of it?


Just askin'.


bill anderson said...

You have done a good job of demonstrating how the attorneys for Durham and Duke have pushed themselves into mutually-exclusive positions. Moreover, it is clear that the NTO eliminated NO ONE, and Nifong at the bar hearing and in his contempt hearing made it clear that he considered the DNA results to be irrelevant.

It was, as he declared, a "non-ejaculatory event." Indeed, that might be the only time he spoke the truth, as all of us can say without a doubt that no ejaculation occurred on that fateful night. Of course, none of the rest of the alleged events occurred, either.

It is amazing to me that the defense can do this with a straight face. First, they tell us Levicy told the truth; now they admit she did not, but they tell us that what she said and did was irrelevant to the case at large.

Interestingly, they did not try to challenge the claim that Levicy fabricated an interview with Crystal Mangum. I guess Jamie Gorelick considers that to be legal and proper behavior.

jamil hussein said...

I think this is another interesting aspect of the Duke Lacrosse Hoax: The incompetence of Duke and Durham lawyers.

I thought attorneys have some sort of duty to give the best advise/defense to their clients. Seriously, would you hire these attorneys? Politically-connected welfare jobs are pretty much the only available jobs for these hacks (such as in White House for Gorelick).

Maybe we see another round of lawsuits and bar hearings against the attorney hacks in this case?

ryanpaige said...

"Plaintiffs fail to show how the health care providers could have foreseen—much less that they knew—how their supposed negligence might have resulted in harm to these Plaintiffs."

Yes, because I remember how no one ever mentioned the "blunt force trauma" that Levicy made up in any official filings, or statements from the prosecution or the police, or in media reports.

Why do they do medical exams if they have no legal meaning and have no bearing on whether the police and/or prosecution pursues a case (same with any other evidence)?

Why not just require DNA Security to make up a solid DNA match? What harm would there have been?

Jim in San Diego said...

One of the many puzzles of the Hoax is the total absence of moral courage and integrity anywhere within the Duke hierarchy (Prof Coleman is not within this hierarchy).

Folks, this is Duke University, after all.

What selection process caused the office of the Dean and the BOT to be so filled with such people?

One explanation of the complete failure of moral courage is that the Duke administration and BOT are, in fact, a criminal conspiracy.

This is so because so many different people, at all levels, have done so many things that are either wrong or illegal, or both, that no one can be punished.

Everyone knows too much.

Jim Peterson

Anonymous said...

On the lighter side. . . DUMC admits they have a duty to the patient to chart and report ACCURATELY. . . Is it just me, or have Crystal and her lawyer just gotten an engraved invitation for pay day after all?

Meanwhile, HEY GARY, GOOD TO SEE YOU!! How about medical fraud? Hospital and doctor reimbursement are based on medical record documentation. False documentation = medical fraud. Oh dear, and the payor was the government - oops! Another federal crime.

xutag77 said...

This NTO is not designed to be part of any general trail. This is a to decern the attitude of the court to some of Duke arguments. If they can pass the smell test (improbable, but remember this is Durham-in Wonderland), these argument would be used at trial. If they don't pass the smell test, a settlement will be reached in short order.

It is a way to find out whether their arguments will fly without the expense and discovery involved in a trial.

It is their only chance.

Anonymous said...

Is Wilson ?a Communist

sceptical said...

Very perceptive analysis!

Readers may be interested in this new Readers Digest article about the news media and the law which mentions the Duke case:

bill anderson said...

I saw on the John-in-Carolina blog that Addison's attorney is claiming that the plaintiffs were not suspects after March 21. Gee, that certainly would have been news to Judge Ronald Stephens, the DA's staff, and the police.

Can attorneys be reprimanded for making obviously false statements in legal documents? It seems to me that the lying in Durham continues without end.

Debrah said...

sceptical's link

Michael said...

Wilson also seizes upon a 5th Circuit case (Brandley), which, he reasons, “affords absolute immunity to attempts by prosecutors to intimidate or tamper with witnesses.”

Does this mean that Wilson admits that he intimidated and tampered with witnesses?

Anonymous said...


Not to put too fine a point on it, but as I have maintained all along, the problem for Duke lies firmly in their responsibility for DUMC.

In general malpractice precedent is firmly established (concretely, even.) In this case there is no way for them to disown, disavow, or mitigate against Tara Levicy's negligence.

Duke's legal must know this, there is no way for them not to.

As you wrote, "’s hard to imagine that the University would want to go into court and publicly maintain that its SANE nurses have a license to lie."

Not only is it hard to imagine, it is impossible for them to do such a thing.

There is no way out.

Just sayin'.


Anonymous said...

What does not pass the laugh test, KC, is you asserting that an "anybody In Training" is an expert,an expert witness or had the credentials to make an expert judgement.
This Levicy thing is going to bite you and your followers in the nose and deservely so.