Monday, October 13, 2008

Ekstrand Filings

Last week, Bob Ekstrand—on behalf of lacrosse players Breck Archer, Ryan McFadyen, and Matt Wilson—filed a lengthy series of responses to Duke, Duke Hospital, and various Durham officials.

Ekstrand urged a broad view of case, with events the unfortunate if likely outcome of the Duke/Durham policy of treating Duke students as second-class citizens in the city: “It was,” he wrote, “not the natural consequence of a false allegation made by a drug-addled woman who, at the time, was in the midst of an apparent psychotic break, in police custody, and in the process of being involuntarily committed. It was the product of a well-worn policy and custom of police to deprive ‘temporary residents’ of their constitutional rights in all encounters with law enforcement. So ingrained was Zero Tolerance in the police apparatus that, six months into the “fiasco,” when news reports unmistakably documented Sgt. Gottlieb’s miserable record of deliberate, inhumane violations of Duke students’ rights, the Durham Police Department’s Internal Affairs Chief reflexively held a press conference to say that Sgt. Gottlieb was following his ‘orders’.”

Some of the highlights:

1.) The lawsuit has a legitimate civil rights claim, since the matter involves an established city policy to deny rights to a class of individuals.

There is no doubt that the City and its Police Department, are responsible for the violations of Plaintiffs’ federal rights—just as Duke and its Police Department were responsible for the violations of Plaintiffs’ federal rights—through their official policies and their customs. That is particularly true of their jointly devised and jointly executed Zero Tolerance Policy, the application of which the [original complaint] describes in vivid detail, from its application in the time before Mangum’s bogus claim to the period covering the “investigation.”

2.) The March 2006 non-testimonial order, which Ekstrand correctly noted “fabricates and omits material facts,” puts both Durham and (through former SANE nurse-in-training Tara Levicy) Duke on the hook.

A reasonable officer in Gottlieb’s, Clayton’s, and Himan’s position would know—even to a moral certainty—that what they were doing violated clearly established law. Further, a reasonable officer would also know that leaking the NTID Order they obtained by fraud to the press to ignite a media firestorm and to publicly vilify [the lacrosse players] not only violates clearly established law, but is also arbitrary.

3.) Ekstrand easily rebuts the bizarre Duke (and, to a lesser extent, Durham) claim that the essence of the players’ case was an assertion that they had a right not to be investigated.

Plaintiffs do not contend that they have the right to remain free of investigation or that investigations by nature are extreme and outrageous conduct. Instead, the difference is that in this instance, the fabrication and other actions of the City Defendants were used to continue the investigation, in furtherance of the Conspiracy to Convict, even after they knew that neither Plaintiffs nor their teammates were guilty of anything, and thereby continued to subject them to public trauma and humiliation.

4.) Duke’s September 2006 suppression of the Duke Students for an Ethical Durham voter registration drive (which included the three Ekstrand plaintiffs) exposes the University to civil liability.

The voter registration effort was a lawful attempt to redress Durham’s discriminatory custom and policies that abused the criminal laws and processes in all matters where “permanent residents” complained of “non-permanent” residents of North Carolina. Defendants’ seizure of Plaintiffs and the confiscation of their registration forms violates federal voter registration law and was in furtherance of the unconstitutional Zero-Tolerance Policy for “non-permanent” residents. This is an overt violation of Plaintiffs’ First, Fourth, and Fourteenth Amendment Rights.

5.) The efforts of Durham employees (chiefly CrimeStoppers head/acting police spokesperson David Addison), figures to whom Durham had improperly delegated authority (Mike Nifong) and various Duke employees, including faculty members to “break” the lacrosse players’ alleged “wall of silence” violated the players 1st amendment rights.

The complaint alleges multiple admissions by Defendants who openly confessed that the conscious object of their conduct was to coerce Plaintiffs into speaking, or, in the language of the element, to chill Plaintiffs’ exercise of their protected right not to speak. For example, on March 25, 2006, Addison admitted publicly—on television—that there would have been no NTID Order (and, of necessity, no fabricated, sensationalized Affidavits) if the Plaintiffs had cooperated with Gottlieb and Himan. Nifong later admitted in sworn testimony—twice—that his sole purpose in publicly vilifying Plaintiffs was to coerce their speech.

5a.) What motivated the campaign of vilification? Ekstrand theorizes that the goal was to coerce a false story from the lacrosse players:

The motives of the conspirators [in going public with their false claims of a crime, from 23 March 2006 through mid-April 2006] were to retaliate against Plaintiffs for exercising their right not to speak or submit to police interrogations, to coerce Plaintiffs into providing false inculpatory testimony through the continuing threat of a prosecution that Plaintiffs knew to be a frame up and to prevent the disclosure of the enormity of their misconduct so they could not be held accountable for it in a federal civil rights action such as this one or in a federal criminal prosecution for obstruction of justice and criminal conspiracy.

6.) Tara Levicy was a critical component of the conspiracy, since her repeated alterations of her story—to conform to whatever theory of the ‘crime” Nifong happened to be espousing—suggested a “meeting of the minds” between Duke (through Levicy) and Durham authorities.”

The falsifications in the [March 2006 Levicy report] were plainly designed to fabricate a forensic medical record of things that did not happen, responses Mangum never gave, and evidence that did not exist, all designed to corroborate the sensationalized version of Mangum’s account that Gottlieb falsely reported in his factual sections of the application for the NTID Order . . . Another “meeting of the minds” involving Duke SANE Defendants is Levicy’s proffered testimony calculated to save Mangum’s identifications from suppression. The evidence that Mangum was incoherent, if not suffering from psychotic delusion, in the early morning hours of March 14th was a significant basis for excluding any in-court identifications. Levicy proffered testimony to rebut the evidence of psychosis that initiated her commitment proceedings. Nearly a year after the SAE, Levicy agreed to testify falsely that Mangum “could always speak articulately” and that she was “very alert.” Levicy proffered the foregoing fabricated testimony on the evening of January 10, 2007 just before Nifong quit the case.

7.) Despite the assertions of Duke attorneys, the lacrosse players never alleged medical malpractice against Levicy—the standard, Ekstrand contended, is entirely different.

To the extent that SANE Defendants could possibly be construed as presenting a question of law, the law in North Carolina on this issue, is well settled that there is a very important distinction to be drawn between the work performed by a forensic nurse examiner verse providing health care to a patient. See, e.g., N.C. GEN. STAT. § 90-171.38 (2008). Levicy conducted the examination of Mangum in her capacity as a member of the DUHS and Duke University nursing staff and the DUHS SANE program as a SANE­in-Training, having been retained to provide forensic medical evidence collection and analysis services in conjunction with and for the purposes of the police investigation of Mangum’s false allegations. Defendants fail to recognize that in this capacity, Levicy acted under color of state law.

Ekstrand’s filings also address several other arguments raised by Duke and or Durham in their responses to the civil suits. He contends that the showing of racial animus toward the players by both city and Duke employees provides grounds for a civil rights suit, even though this provision of the law usually is reserved for minorities. And he also effectively challenges the Duke/Durham arguments that the case should be dismissed because players were never charged.

Perhaps the most interesting sections of the Ekstrand filings comes when he addresses the troubling pattern of the defendants—especially Duke attorneys—”in recasting Plaintiffs’ allegations to find a foothold for their arguments” Many elements of original complaint, he noted, were never addressed, in part because both Durham and (especially) Durham authorities mischaracterized the players’ claims.

He adds that “the SANE Defendants make several arguments for dismissal of Plaintiffs’ negligence claims, all of which fail because they all engage in cherry-picking and recasting the Plaintiffs’ allegations in an effort to inaccurately redefine the active course of conduct alleged by the [original] Complaint.”

This pattern most clearly manifests itself in the oddest Duke assertion—that the lacrosse players’ suit against Levicy asserted that Levicy should be liable merely because she provided evidence of a crime to police officers. Ekstrand’s reply:

The SANE Defendants forget the facts as they are alleged when they assert that allowing Plaintiffs to proceed on this Cause of Action would “deter witnesses from coming forward with evidence.” Plaintiffs hope that this action has a deterrent effect, but disagree as to what conduct will be deterred. As alleged in the [original complaint], the conduct at issue is not the act of “coming forward with evidence”; rather, the conduct to be deterred is that of the SANE Defendants: the formulation and execution of a calculated, deliberate scheme pursued by multiple parties to abuse the power of the State for the purpose of convicting innocent persons for a crime the defendants knew did not occur.

Why Duke attorneys Jamie Gorelick and Dan McLamb gave Ekstrand such an opening by wildly mischaracterizing the claims of the lacrosse players remains one of the mysteries of the civil case.


af said...

Should we be surprised at the gravitas of Jamie Gorelick? After all, she was paid more than $26 million by Fannie Mae and an addition to an $800,000 bonus. She was one of those who contributed to the downfall of Fannie Mae due to failed policies for lending money to people who should not have qualified for 120% loans. Now she's being "generous" with legalese and the continuing attack on the three INNOCENT LAX team members as well as their teammates. How ironic that she supported Bill Clinton, where the DNA evidence was, and accuses the LAX players, where the DNA evidence was not and never will be.
The Wall of Silence, espoused by Duke and the DPD, existed in Gorelick's world not in the LAX player's world. Her rantings in the briefs are laughable. She actually makes good arguments she just aims them in the wrong direction. Remember Jamie, when you point at someone, you only point one at them and three more point back at you!!!!!
Only in Wonderland.

Anonymous said...

"Why Duke attorneys Jamie Gorelick and Dan McLamb gave Ekstrand such an opening by wildly mischaracterizing the claims of the lacrosse players remains one of the mysteries of the civil case."

These weaknesses in the Gorelick/McLamb response really seem altogether unprofessional. I would love to hear a litigator comment on whether this sort of mischaracterization of allegations in the complaint is a common practice. I would expect a judge to find this practice very irritating.


Anonymous said...

I believe Ms Gorelick postulated such bizarre reasoning because she has never suffered the consequences of previous actions...notably, whitewashing her own role in the run up to 9-11 by her work on the 9-11 Commission when any sane person realizes she should never have been in the position to rule on her own actions. Additionally, her actions in the current financial crisis by her role in Fannie Mae slush funds, her profiting from her role at Fannie Mae and the subsequent lack of interest in her actions make her feel as though she is invincible. She can claim anything and get away with it...she has before and assumes she can again.

bill anderson said...

As I have said before, I think Gorelick is sending a message: We can do what we damn well please. We're Duke, and you're not.

My guess is that when Gorelick takes her position possibly as U.S. Attorney General, she will come after the lacrosse players and try to find ways of bringing criminal charges against them. In this day and age, anything is possible, given just how low the law has sunk.

Gorelick already is on the record alleging that Levicy was "reporting a crime," so if she believes a crime was committed, I guess she will be able to act on those beliefs.

skwilli said...

Jamie Gorelick cannot be this dumb. Her fingerprints are all over almost every major scandal of this new century. She has attained riches far beyond any she has earned. How much is she being paid to conduct this pathetic stalling tactic? When will she be held accountable for any ill she has done to this country? Don't get me started...

Anonymous said...

Wow, if this gets to discovery Durham and Duke will be at the apex of a meltdown they cannot even begin to imagine. The BOT is simply derelict in its fiduciary duties to let this linger any further. The BOT needs to offer up the firings of Brodhead and many other university "leaders" pronto to minimize further blood loss. That said, I hope the plaintiffs accept nothing--and I mean nothing--short of a full trial on the merits.

Anonymous said...

Gorelick is radioactive politically. I doubt she could be appointed as a business license inspector in an Obama Regime. Why would anyone draw incur that kind of liability?

The Duke strategy is clear. Delay as long as possible and hope for something to change. I suspect that they have tried to settle but that the terms did not measure up. Until discovery starts they will not have been harmed by the suit.

Gorelick will keep trying delaying tactics, stretching this out. Duke is looking for a way to raise the cost of continuing the suit to the plaintiffs. Expect more attacks on their character and on their families. Expect the 88 to keep up their unrepentant revisionism.

The court needs to slice through their strategy and force the beginning of discovery.

Justice delayed is justice denied.

Anonymous said...


You keep acting surprised by the behavior of Ms. Gorelick. How much cognitive dissonance will it take before you realize that she is an amoral attorney advocate hack?

At the very least you should no longer be surprised in this case when she does not act according to the high standards you apparently believe she has.

Other than this blind spot of yours, D-I-W is usually spot on.


Anonymous said...

So she's amoral and incompetent, and this makes her different from the rest of the Clinton folks how?

Anonymous said...

Is Gottlieb a Communist?

Jim in San Diego said...

It is an important technique of argument to cast, or recast, your opponent's argument into a form which you can rebut.

This is effective in intercollegiate debate. It ought not be effective in a court of law, and usually is not.

We shall see. Were this technique to be effective now would not be the first surprise in this case.

Jim Peterson

Anonymous said...

One quick point that at least partially explains Duke's position through Gorelick: THE DUKE ADMINISTrATION ACTUALLY BELIEVES THIS MALARKEY! I was down at Duke a few weeks ago and listened to some Duke officials who will continue to tell anyone who listens that the Lax playres were completely at fault, that they wanted preferential treatment and "a right not to be investigated," etc. To outside observers, this is comical. Inside the Allen Building, this is Gospel truth. They will not stop until a court tells them they are wrong. Gorelick is simply making a ton of money doing what Duke wants her to do, which is to destroy these players and their families and prove to the world that they are just God-awful people. As the Good Book says, none are so blind as those that refuse to see . . .

sceptical said...

With regrad to the SANE findings and Levicy's actions, I am taking the liberty to reproduce comments by Kethra, an experienced SANE, made today at Liestoppers Meeting:

"Hi Folks,

A couple of points here.

I too would like to know the chain of custody for the Saer. Protocol dictates that you fill it out on the spot put it in the envelope and hand it (your notes and any other participating providers notes as well) with the collection kit to the investigating officer. I have never and I do mean never heard of any SANE showing up at a DA's office several weeks later with an "amended" copy. I have seen, in the case of a trainee, amended initial evaluation forms. That being said, those changes are noted by the supervising SANE as to why they were changed and initialed by both nurses.

The forms we fill out are used as an investigative tool by both the police and the crime lab. Although the crime lab does not need them, I have had cases where they have referred to them during the course of testing. For instance, I note a bite mark, I state the victim told me she was "bitten through her bra", they will also look at the clothing for the matching bite impression. I would expect that if the forms were missing from the kit, there would have been a written notation from the crime lab to that effect. They normally inventory the complete contents as do the police. Somewhere there should be a written documentation as to the receipt of that evidence, either by the crime lab or the investigator.

The accepted legal description of a SANE's duty is evidence collection. This aspect is driven home in not only the didactic portion of our training, but also during the "hands on" portion of our training. We are not there to do a medical exam (that has already been done before we step into the room), we are there to do collection and that is clearly stated to the participants. They must sign forms to that effect as well (if they can). IF we find something that requires medical intervention, then we go get the appropriate personnel to give that treatment. We do not do it since we are not there in the capacity of a "medical" nurse. We can report medical findings for referral treatment, such as Dr. Manely (AFTER THE EXAM) prescribing or suggesting the use of a vaginal cream for a yeast infection. That would be noted in the medical record NOT the SAER.

The very fact that Levicy made diagnostic statements puts her outside of her legal scope of practice. I am referring to her comments as to blunt force trauma on a person she didn't even do the exam on. As a SANE we are automatically considered "experts in fact) even if we really aren't as in Levicy's case. It is outside of our legal scope of practice to reach a diagnostic conclusion. We render opinion ONLY under oath and then we are extremely careful in what we say. I CAN tell you what I see, I may NOT tell you what I think without extensive training to back it up ie blunt force trauma.

The next issue refers to the above. Levicy made claim to work she neither performed nor was it noted that she was asked by the Physician to observe. When I say that, I mean, the Physician slid back and got the Nurse down there between the legs to view the are under examination. If that happened, both Levicy and Manley should have noted it, which of course, they did not. To make the claim she did that work constitutes fraud. The fact that both Arico and Manly covered up for her, either directly or by omission created a fraudulent record.

To me this is a case that doesn't take a whole bunch of thought.

I would also note, that according to the "medical" record, Mangum was "asleep" for most of the night and was in fact awakened by Levicy to do the SANE. People with a 10/10 pain don't sleep soundly. She was noted as being asleep and "comfortable" for all the nursing checks (done every 30 mins) for the entire visit after the initial evaluations and interviews were done. She was noted this way by several nurses and technicians. It completely belies her self report of 10/10 pain.

What Duke doesn't want to have happen, is this go to trial. The Physicians and Nurses outside of the SANE are going to offer testimony based on their notes that are a complete 180 from what Levicy will say. Arico was not there so can't offer any testimony other than "She told me this". So I don't know what value her testimony has other than to impeach Levicy.


Debrah said...

I've come to the conclusion that there are no mysteries.

One can get battle fatigue by stating the obvious regarding the way in which so many in the academy conduct themselves.

No surprise that they would hire the most unscrupulous attorneys--(high profile precisely because they possess amazing talent for showcasing those tactics)--to carry out the narrative.

You must exercise far too much patience to be an attorney.

Knowing what we all know to be the facts, I don't believe I could proceed this way having to play this dirty chess game.

But I suppose that's why they get paid so devilishly well.

This case has prompted many to develop a whole new hatred for deception.

Especially deception from those in the academy whose positions are designed, ostensibly, to bestow enlightenment.

Today I had simply had enough and called the N&O's Orage Quarles. He's back in town and I went through the whole story concerning their editorial pages.

They've begun to publish the Gang of 88 members and Gene Nichol again ad nauseum.

You can read all about Nichol here and KC also covered him once as well.

Gene Nichol

After his despicable behavior at William & Mary, he's crawled back to the Triangle to "teach" and to set up shop as an op-ed kibitzer.......just as he's done for years.

I wrote a letter lambasting him and explaining the irony that someone such as he would attempt to give a public lecture on the Supreme Court.

It wasn't published---and I admit it was very harsh.

So I am expecting Orage Quarles to force the editorial staff to publish it.

Having to go through this time after time as dogs like William Chafe and his 88 buddies are given a platform to spew their faded ideology as they choose without rebuttal....really gets exhausting.

This Duke case has reached the point of exhaustion as well.

I'm expecting the attorneys for the lacrosse players to begin showing some impatience.

It's past time.

Anonymous said...

Re: "Having to go through this time after time as dogs like William Chafe and his 88 buddies are given a platform to spew their faded ideology as they choose without rebuttal....really gets exhausting."

Debra, stay on the high road -- it's not nice to call people dogs.

Also, you don't know how many aticles Chafe, et al. have to submit in order to get one published. Could be they're saying, "We can't believe how easily Debra can get her stuff published. It's SO unfair."

Ken Duke

Anonymous said...

Swampleg says


You keep acting surprised by the behavior of Ms. Gorelick. How much cognitive dissonance will it take before you realize that she is an amoral attorney advocate hack?

At the very least you should no longer be surprised in this case when she does not act according to the high standards you apparently believe she has.

Other than this blind spot of yours, D-I-W is usually spot on.

The KC-Gorelick connection: Harvard. Undergrad and grad school.

There are so many Harvard fingerprints on so many of our recent disasters -- financial, legal, and otherwise -- I think, KC, you should mention your conflicted loyalties when appropriate.

Btw, if one googles "Jamie Gorelick Harvard", the first site to pop up is this good one, titled "Mistress Of Disaster". See, I had to google it because I know didn't the answer to the question behind Swampleg's recognition of KC's "cognitive dissonance" when it came to Gorelick. Perhaps due to my learned-cynicism of all things "Ivy", the Harvard connection was my first guess.

(Fair disclosure: my nephew is a first year law student at Harvard. I intend to have a serious conversation about morality with him at Thanksgiving in Texas.)


Anonymous said...

Observer said,

"Why Duke attorneys Jamie Gorelick and Dan McLamb gave Ekstrand such an opening by wildly mischaracterizing the claims of the lacrosse players remains one of the mysteries of the civil case."

These weaknesses in the Gorelick/McLamb response really seem altogether unprofessional. I would love to hear a litigator comment on whether this sort of mischaracterization of allegations in the complaint is a common practice. I would expect a judge to find this practice very irritating.

In my experience, when both the facts and the law are against them, some attorneys will resort to misrepresenting one or the other or both. How well this works depends on the intelligence and integrity (both are needed) of the judge.


Debrah said...

"it's not nice to call people dogs."

I had to read that twice. You are joking, aren't you?

(Full disclosure: I did go back to check that before I posted it. Started to alter it because I didn't like saying that about dogs.....or any other animal.)

You always bring a trusting attitude to the mix.

How does that work for you in the law profession?

I'm sure that you read the N&O. Don't you ever notice that frequent op-eds are printed from the infamous Duke 88?

And for years before Nichol went to William & Mary---where he was forced to resign---he was plastered on their pages with his blowhard analyses very frequently.

My submission was a mere letter. Not an op-ed. Most papers have no problem printing pointed rebuttals.....unless they are in the tank for the person being criticized.

That editorial staff would never deny Duke's Gang of 88 and people like Nichol. They think those people are true "scholars" and most likely are excited by them.

You overestimate the level of intellectual and emotional development among some on the N&O staff.

Gary Packwood said...

Anonymous 10/13/08::4:03 PM ...said...

...One quick point that at least partially explains Duke's position through Gorelick: THE DUKE ADMINISTATION ACTUALLY BELIEVES THIS MALARKEY!
That is the point and has been the central point for many months, now.

It is also the reason why charitable organizations such as Universities have a Board of Trustees with fiduciary responsibility. We are to TRUST that members of the Board of TRUSTees will rein in their executive level employees.

Anonymous said...

I too am growing impatient, wish the court would "slice through their stategy" and get on with discovery but one thought comes to mind; the defendants are the wealthy and the powerful while the plantiffs are three young college kids. Judges are elected and therefore political. How far along do you think discovery would be if the defendant / plantiff situation was reversed? Steve in New Mexico

Anonymous said...

Duke knows they are in the fight with a determined opponent. Did you ever check out the CV of Attorneys who represent the LAX Players. These are not lawyers who lose either gracefully or often. The families are determined and well funded.
From The Duke position, what choice do they have?
Admitting the truth is unthinkable.
The LAX Players won't settle for the amounts and remedies offered to date.
Discovery increases the pain for Duke.
They delay. By all means necessary.
They look for ways to increase the pain and cost of litigation to the LAX players and their families.
Gorelick is what she always has been...a set of legal skills for sale to anyone with the coin to hold her interest. In that way, Jamie and Chrystal have a lot in common.
If Discovery draws near, the pain may motivate Duke to come closer to what the families demand. The court's duty is to let the wheels of justice turn so that the parties reach a resolution, either in the courtroom or outside of it.
Gorelick will be good at her delaying tactics but it's ultimately a losing game. There is too much money and too much glory in this case for the plaintiffs. They will fight it out if it takes a decade.

John said...

The other part of the Gorelick strategy is to hope for change. Who knows what might happen in the future that would change the dynamics of the case? Delay is her friend. That's why it's so important for the court to turn the wheels of justice to force both the process and a decision on the merits, not on some external change.

Anonymous said...

The problem with all of the delays is that evidence is "lost" or "misplaced" or "the dog ate it".

Anonymous said...

I don't know why anyone would expect Duke's Board of Trustees to do anything at this point. Bob Steel was the Vice Chair and Chair of the Search Committee that hired Brodhead. He's too important of a person to admit that he was wrong; after all, he was Vice Chairman of Goldman Sachs, Deputy Secretary of the Treasury and CEO of Wachovia. This is the problem with a lot of non-profit boards these days; they operate like country clubs. Two or three people call the shots and the rest of the members are window dressing. If you're on the Duke Board, you just want people to know that you gave a boat load of money to get there or you knew some big wig. Either way, no one on that board has the power to do what any good public corporation would have Brodhead and cut your losses before your brand is destroyed.

Anonymous said...

It is interesting to learn that the SANE nurse is under the "color of badge" and, therefore, not subject to civil law suits, e.g., malpractice.

This is both good and bad for Duke, as outlined above.


unbekannte said...

With regard to sections 5 and 5a, I still wonder why Nifong has not been prosecuted for attempting to suborn perjury. If no crime has been committed, if the prosecutor knows no crime has been committed, yet still tries to force witnesses to give testimony that convicts the people he has charged with the crime, he is trying to obtain false testimony. If he wants to force witnesses to give that false testimony under oath, he is attempting to subborn perjury.

Anonymous said...

The real "wall of silence" would appear to be the academics, who by now must realize that they were wrong, and who refuse to apologize, and who continue to refuse for essentially, what were their own very vicious and petty attempts to railroad people . . . people who had done nothing wrong . . . absolutely nothing . . . nothing! Shame on you! Shame on you! Shame on your bias and your bigotry too. Apologize! Apologize now!