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 5^th 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 5^th 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.”

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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.