Cooper Response: Duke's SANE Brief

The unindicted players’ lawsuit against Duke focuses on two areas: (1) the actions of the administration; (2) the performance of Duke Hospital, especially former SANE nurse-in-training/feminist zealot Tara Levicy.

Duke attorneys Jamie Gorelick and Dan McLamb have thus far struggled to develop a consistent legal justification for Levicy’s actions—which, in all fairness, is not easy to do. First, they challenged the Attorney General’s report by asserting that Levicy had not misled investigators when she said that the medical exam could corroborate a rape claim. The Duke duo even dipped into the “something happened” mantra by joining Mike Nifong and Victoria Peterson in deeming Crystal Mangum a “victim.” In a subsequent filing, they reversed themselves, implied that Levicy might have given false information, but maintained that Duke wasn’t legally liable for her actions, since Levicy never could have known that her giving false information could cause the players harm. According to this line of argument, Nifong deserved all the blame for using Levicy’s false information to plow ahead with the case.

Meanwhile, the Duke attorneys offered a description of the issues involved in the Levicy area of the lawsuit that bordered on the comical: “Our system of justice encourages individuals to cooperate with the police, not to hinder them, and to provide information to prosecutors, not to stonewall them.”

The implication: if a medical professional whose job is to provide authorities with accurate information about a possible crime instead “cooperates” with police by providing false information; and if that individual is a SANE nurse-in-training who shouldn’t have been in that position in the first place; and if that SANE nurse-in-training’s supervisor publicly supports the false or misleading findings . . . well, that’s the way “our system of justice” is supposed to work.

It’s hard to believe many judges would find that argument persuasive.

The Cooper response:

1.) Duke’s assertion that no one at Duke could have foreseen the consequences of Levicy’s behavior defies common sense.

To quote the brief, “Defendants knew or should have known that having an inadequately trained SANE, such as Levicy, examine Mangum could foreseeably result in an erroneous criminal investigation of alleged rapists in light of the role that SANEs play in collecting forensic evidence of sexual assaults.

“As for the false statements Levicy made to the Durham Investigators, any reasonable person can foresee that a person erroneously implicated in a criminal rape investigation might suffer a variety of injuries, including humiliation, severe emotional distress, harassment, threats, financial costs, disruption, and lost reputation and opportunities. Levicy made some of her false statements about the medical and physical evidence to the Durham Investigators, in part pursuant to their subpoena, which she had induced; she therefore knew or should have known she was speaking about an incipient criminal rape investigation of Duke lacrosse players and therefore that Plaintiffs could be harmed by her statements.

“As the corrupt investigation progressed, the players suffered grievous harm in very public fashion, and Mangum’s credibility continued to erode. Levicy knew or should have known that her subsequent false statements to the Durham Investigators would cause Plaintiffs new harm. And prolong and enhance existing harm because the investigators repeatedly and publicly placed great weight on her statements – coming from a nurse ostensibly ‘specially trained in sexual assault’ at ‘the best trauma center in the area,’ Duke University Hospital – to justify the investigation.”

As for the University, “The failure of these Defendants to correct Levicy’s false statements foreseeably injured Plaintiffs. Defendants’ assertion that “medical evidence … exonerated the players” is irrelevant and incorrect. Levicy’s false statements and the other Defendants’ ratifications thereof helped create, and then stoked, the fire.”

In all fairness to the Gorelick/McLamb presentation, Duke doesn’t have much to argue with on this point. Nonetheless, a claim that no one at Duke could have reasonably foreseen the problems of putting an undertrained nurse who believed that women never lie about rape in the position of providing key medical testimony about a rape claim defies the laugh test.

2.) Duke’s assertion that the unindicted players suffered no real harm because they were never indicted misses the mark: as the brief notes, “That [the unindicted players weren’t indicted] is true but irrelevant – Plaintiffs suffered many harms because of Defendants’ wrongful actions, and formal criminal consequences are not a predicate of liability. Defendants argue, in effect, that they should not be held liable for playing Russian roulette with Plaintiffs because the loaded revolver did not fire.”

3.) Duke’s claim that the University and Levicy can’t be held liable because Nifong and the police made the key decisions on whether to indict misses the mark.

This line of argument, the Cooper brief contends, misrepresents the facts of the case: “Levicy’s false statements about the medical and physical evidence breathed life-giving credibility into Mangum’s otherwise facially implausible rape allegations, and Levicy repeatedly coordinated with Nifong and the Durham Investigators, altering medical records and continually changing her story to fit Nifong’s and the Durham Investigators’ evolving theory of the case.” Absent Levicy, in short, there was no case.

The Cooper brief maintains that Duke officials’ behavior was particularly troubling in this regard given the increasing amount of publicly available information that Nifong’s case had major holes. Therefore, they knew or should have known that Levicy’s false or misleading information was the key to Nifong’s ability to plow forward: Levicy’s and supervisor Theresa Arico’s “false statements were the only ostensibly inculpatory evidence that Nifong and the Durham Investigators had, and they carried the weight of a nurse ostensibly ‘specially trained in sexual assault’ at ‘the best trauma center in the area.’”

4.) Duke’s assertion that the players’ claim against Levicy is a claim of medical malpractice is wrong.

It’s not clear why Duke even made this assertion. Despite the odd passages in the Gorelick/McLamb brief, no attorney for the unindicted players (or the falsely accused players, for that matter) has argued that Levicy or other Duke Hospital employees mistreated Mangum. Lots of people have argued that Levicy then offered misleading information about that treatment to authorities. The first claim would be medical malpractice; the second claim is negligence.

The Cooper brief adds that Duke had an obligation to correct false statements about Duke students by Duke personnel—chiefly, when Levicy’s then-supervisor, Theresa Arico, publicly affirmed Levicy’s “diagnosis.”

5.) Grounds for a § 1983 filing exist, according to the brief, because the lacrosse players can (1) cite the Duke Police’s status as a state entity; and (2) use Levicy’s actions to establish a conspiracy between Duke and Durham officials to violate the students’ civil rights.

The Gorelick/McLamb brief strongly disputed the second claim, contending that responsibility for proceeding with the investigation fell solely with Durham and/or Nifong. Levicy, on the other hand, merely provided information to police, or at most might have pressed for an investigation.

The Cooper response: “Levicy did much more than that. At her first meeting with the Durham Investigators, she told them, falsely, that the medical and physical evidence supported Mangum’s gang rape accusations. Levicy, as the NTO states, said that ‘there were signs consistent with sexual assault during her test,’ even there were no such signs. That false statement enabled investigators to obtain a subpoena compelling production of the SANE report and Mangum’s other medical records . . . Levicy also made to Gottlieb several statements about the medical and physical evidence that were not only false or misleading, they were also patently contradicted by the SANE report: she said there was evidence of ‘blunt force trauma’ ‘consistent with’ Mangum’s allegation of forcible gang rape, but neither Levicy nor Dr. Manly had noted any such evidence in the SANE report, and she said that Mangum ‘had edema and tenderness to palpitation both anally and especially vaginally,’ but the SANE report stated that there was ‘nothing notable’ discovered during Mangum’s anal exam and the vaginal ‘edema’ was nothing more than commonplace swelling.”

“Levicy’s false statements provided the Durham Investigators with a justification for obtaining the NTO and continuing the rape investigation, despite the SANE report’s evident lack of support for Mangum’s claim. These events strongly suggest that Levicy and the Durham Investigators acted in concert.” Gottlieb and Levicy also had motive to lie: Gottlieb because of his dislike of Duke students, Levicy for ideological reasons.

Even at this late stage, very little information has come out publicly about the Duke Police’s role in the case. But Gorelick and McLamb dismissed as absurd any claim that Duke officials might have conspired with Durham authorities, citing a lack of plausible motive.

The Cooper brief had little difficulty in rebuffing this point: “the University and its Defendant officials had a powerful motive to capitulate to the demands of an angry mob and to sacrifice the rights and interests of their innocent students, too: avoiding embarrassment to Duke and minimizing criticism of Duke and its officials. For example, University officials candidly admitted that their decision to punish Plaintiffs by canceling lacrosse games, suspending and then canceling the season, and firing the coach was “not about the truth” or doing what was “fair,” but rather about keeping their and the University’s reputation lustrous.”

If we have learned nothing else in this case, it’s that a rather timid Duke president had ample reason—if only to pacify the Group of 88—to see the case go away quickly, through timely arrests.