Chuck Cooper, joined by
The Thomas/Cooper brief regarding
Some of the points echoed the briefs filed in response to Duke. For instance,
After observing that Durham defended “the NTO with the remarkable assertion that the standard for issuing an NTO satisfied the Fourth Amendment under the circumstances,” even as Durham didn’t “even try to argue that the NTO was supported by probable cause to believe that Plaintiffs had committed the alleged crime,” the Thomas/Cooper brief uses Mike Nifong’s words to undermine the Durham position:
“When Nifong took over the investigation a few days after the NTO was issued, Gottlieb and Himan briefed him on this overwhelming mass of exculpatory evidence— precisely the same evidence that was in their possession when they applied for the NTO. Nifong’s assessment was an angry complaint: ‘You know, we’re f*cked!’ When a prosecutor as cavalier about the truth as Mike Nifong concludes that you have no probable cause that a crime was committed, you know you are in trouble. The Durham Investigators had no probable cause to believe that there had been a crime and therefore the first element of the NTO test was not met.”
Cooper and Thomas describe the behavior thusly: “When they scripted and performed their subpoena charade for Judge Titus and Plaintiffs, Nifong and his team plainly knew that they already had the data. And the Duke Defendants (having improperly given the data to
The response brief also, correctly, points out that “despite having already lost the debate about FERPA’s privacy guarantee in the North Carolina court before Judge Titus, Durham devotes a lot of energy to arguing that Plaintiffs could have no expectation of privacy in key-card information that had, by its very nature, already been transmitted to and shared with Duke.”
The Cooper/Thomas briefs are particularly effective at using the Durhamites’ words against them. Some examples:
Cooper and Thomas observe that the “stubborn insistence” of
The lacrosse players’ attorneys take note that
Responding to the city’s motion to dismiss, Cooper and Thomas note, “
Responding to the Gottlieb brief, Cooper and Thomas assert that “Gottlieb contends that the Complaint fails to allege that he ‘engaged in the requisite extreme and outrageous conduct.’ This boils down to the frivolous proposition that conspiring to frame innocent students for a crime that never happened is not outrageous. Gottlieb’s arguments that he was just doing his job and that he believed in good faith that he had probable cause.”
On another front, the brief has little trouble disposing of
Finally, items from briefs filed by David Addison and Linwood Wilson generate especially sharp replies.
Cooper and Thomas observe that
“Finally, in a truly stunning display of chutzpah,
And Cooper and Thomas make short shift of the Linwood Wilson brief, put together by none other than amateur attorney Linwood Wilson. They note that the brief prepared by L. Wilson, Esq. claimed for him absolute immunity as an employee of the DA’s office, citing Hoover v. Keith. Yet
In his brief, they speculate, “
Finally, two points in the response to Duke that might have been overlooked given the (appropriate) attention received by former SANE nurse-in-training Tara Levicy’s dubious conduct.
1.) Levicy’s “diagnosis” was confirmed, publicly and inaccurately, by her supervisor, Theresa Arico.
2.) When the report of Duke Police Officer Christopher Day appeared (Day correctly reported overhearing Sgt. Shelton pass along Crystal Mangum’s wholly non-credible report of being raped by 20 people), Duke went out of its way to discredit Day’s document.
In the response to Duke, the unindicted players correctly pointed out that Duke possessed copious exculpatory information that it declined to make public. But it’s worth remembering that—in addition to Richard Brodhead’s guilt-presuming April 5, 2006 address—with the Arico statement and the handling of the Day report, Duke went out of its way publicly to make it seem as if a rape occurred.