Tuesday, April 29, 2008

Brad Ross

For those who haven't seen it, Brad Ross, one of the heroes of the case, is up for the Lowe's Senior Class Men's Lacrosse Award. You can vote here; people can vote once daily.

Race, Obama, and the North Carolina Primary

I posted the item below some time back, but considered it timely for reposting (with an edit) now, given:

1) The North Carolina primary is a week away.

2) Barack Obama took a similar approach to the Sean Bell case as he did to the lacrosse case, calling for people to respect the rule of law and urging the importance of fair procedures. He said, “We’re a nation of laws, so we respect the verdict that came down. Resorting to violence to express displeasure over a verdict is something that is completely unacceptable and is counterproductive.”

For this position, Al Sharpton has criticized him for taking an “opportunity to grandstand in front of white people.”

It’s worth noting that Hillary Clinton responded to the Bell verdict quite differently in both substance and tone than did Obama. She pointedly declined to uphold the verdict, remarking, “This tragedy has deeply saddened New Yorkers - and all Americans. My thoughts are with Nicole and her children and the rest of Sean’s family during this difficult time. The court has given its verdict, and now we await the conclusion of a Department of Justice civil rights investigation. We must also embrace this opportunity to take steps — in our communities, in our law enforcement agencies, and in our government — to make sure this does not happen again.”

And so: in the lacrosse case, an acknowledged injustice involving one of her own constituents, Clinton was silent about a DOJ inquiry. In the Bell case, where few neutral observers are suggesting anything untoward in the authorities’ conduct, Clinton has implied she’s expecting the DOJ to take a look at what happened.

3) Given the efforts of the Clintons (Hillary cares about “people like you,” the former President informed a heavily white audience recently in North Carolina) and surrogates such as Lanny Davis to exploit the Wright affair to appeal to the candidate’s new base—whites without a college-level education—it’s worth pointing out how, on issues, it should be very difficult to play the race card against Obama.]


Not since 1976, when Ronald Reagan’s victory over Gerald Ford revived his then-floundering campaign, has North Carolina’s primary played a significant role in the nominating process. That will change in 2008. The early May primary provides an opportunity for Barack Obama to rebound from the Clinton victory in Pennsylvania, and in the process gain ground in the Clintonslatest measuring stick for success, the popular vote total. The state seems to play to Obama’s strengths: it has a sizable black population, as well as a good number of college-educated whites in the Research Triangle and in Charlotte. Moreover, unlike Pennsylvania and Indiana (and Ohio before them), the state’s political leadership is either supporting Obama or is neutral. That said, Obama’s lead in North Carolina dropped precipitously in the latest poll.

Obama made his first campaign swing to the Tarheel State the day after his Philadelphia speech on race relations, and NBC’s First Read noted the irony:

He will speak less than 24 hours before state legislators come together for a special session to vote on the expulsion of a black [state representative] suspected of fraud; the accused lawmaker alleges that the charges are racially motivated. Obama also will walk into a local news cycle spinning around the death of a beloved UNC student at the hands of a troubled black juvenile, who is widely believed to represent the failures of the state's probationary system.

When he lands in Fayetteville, where he will talk about Iraq, he'll be 100 miles south of Durham, the site of the explosive racial confrontation kindled by the Duke lacrosse case. He'll be 100 miles northwest of the North Carolina house district that will be examined by the U.S. Supreme Court this fall to determine the constitutionality of racially gerrymandered "influence" districts. Just southwest of that is Wilmington, which saw a formal apology from the state's Democratic Party last year for the violent race riots perpetrated there by white supremacist Democrats in 1898.

Shortly after Obama’s Philadelphia speech, Fox News ran a story suggesting the candidate’s inconsistency on high-profile racially charged cases, noting that Obama had recommended Don Imus’ dismissal after Imus’ attack on the Rutgers women’s basketball team. The clear implication: Obama had one standard for whites (Imus) and another for blacks (Rev. Wright), and that he pandered to his African-American base.

The Fox story didn’t mention Obama’s stance on the lacrosse case (perhaps because it undercut the story’s premise). Obama was, of course, the only presidential candidate of either party to support a DOJ investigation of Mike Nifong. (He did so in early 2007, joining only two other Democratic officeholders—New Jersey senator Bob Menendez and Long Island congresswoman Carolyn McCarthy. Eleven Republican members of the House, led by Walter Jones, urged a DOJ inquiry, though neither of North Carolina's two Republican senators did so.) Hillary Clinton remained silent on the issue, even though one of her constituents was among the falsely accused. And the third major Democratic candidate, John Edwards, hired as his official campaign blogger a guilt-presuming ideologue who maintained as late as January 2007 that an attack had occurred. Given that the state NAACP had championed Nifong’s cause, it’s hard to argue that Obama’s position on the lacrosse case represented political pandering on a racially charged question.

Shortly after Obama left North Carolina, the state House of Representatives resolved another of the racially charged matters mentioned by First Read: by a vote of 109-5, the body expelled Wilmington Democrat Thomas Wright. The allegations involved campaign finance improprieties; Wright has been criminally charged with shifting as much as $350,000 from his campaign account to his personal savings. The attorney who claimed that the House vote denied Wright due process was none other than Irving Joyner—one of Nifong’s most aggressive defenders in the lacrosse case. Joyner didn’t explain how he had suddenly discovered the value of due process.

The vote marked only the thirteenth time in history and the first occasion since 1880 that the state House had expelled one of its members. Most of these previous cases had involved some form of financial fraud, though state Representative Josiah Turner met his fate in 1880 for a quite different reason. The House expelled Turner, as the N&O dryly notes, “for calling other legislators names.” Turner, it turns out, had labeled the Speaker, John Moring, a “gander head.”

If this rationale for expulsion from a legislative body still existed, Congress would have no members.

Wednesday, April 23, 2008

A Lubiano "Publication"

Wahneema Lubiano, whose last scholarly publication was entitled “Interview with Wahneema Lubiano,” recently took a break from her two “forthcoming” manuscripts, Like Being Mugged by a Metaphor and Messing with the Machine. Both of these manuscripts, it’s worth remembering, have now been “forthcoming”—a designation that normally means completed and under contract—for eleven years.

Lubiano joined fellow Group member Michael Hardt and “clarifying” professor Robyn Weigman to co-author a scholarly article (published in a Duke University Press journal called Social Text) designed to . . . defend the Group of 88. This piece joined Charlie Piot’s effort as at least the second “scholarly” Group apologia—providing an unintentional commentary on what passes for scholarship among the Group of 88.

Lubiano, Weigman, and Hardt had little difficulty in identifying the true victims of 2006-2007 events in Durham—themselves, and their fellow members of the Group of 88.

The victimizers? Not Mike Nifong, or Sgt. Gottlieb, or Duke administrators who failed to enforce the Faculty Handbook. Not the Duke professors who rushed to judgment or abused their classroom authority. No, the victimizers, according to the Lubiano Trio, were “the blogs.”

According to the Lubiano Trio, “the most extreme marginalization was reserved for the faculty whose professional expertise made them most competent to engage the discourses on race and gender unleashed by the inaugurating incident — scholars of African American and women’s studies. Instead, administrators, like the bloggers themselves, operated under the assumption that everyone was an expert on matters of race and gender, while actually existing academic expertise was recast as either bias or a commitment to preconceived notions about the legal case. Some faculty thus found themselves in the unenviable position of being the targets of public discourse (and disparaged for their expertise on race and gender) without being legitimate participants in it.”

If the Group’s expertise made its members “most competent to engage the discourses on race and gender unleashed by the inaugurating incident,” there was nothing, to my knowledge, to prevent them from doing so. Instead, of course, Group members by and large pursued an opposite approach. They rushed to judgment in issuing their statement when most people presumed the lacrosse players guilty—and then, when the case started to collapse, they either refused to explain their earlier position or offered almost comical rationalizations for their spring 2006 statements and actions.

The Lubiano Trio’s new narrative requires some . . . creative . . . re-interpretations of the past. To take some examples:

The Group of 88’s Ad

Here’s how the Lubiano Trio’s article described the Group of 88’s ad: It “sought to grapple with issues of campus life and the cultures of privilege sustained by elite institutions such as Duke University.”

Yet here’s how Lubiano herself described the ad in early April 2006, when she invited people to sign: “African & African-American Studies is placing an ad in The Chronicle about the lacrosse team incident [emphasis added] . . . We will not be listing the names on the ad itself (only the supporting departments and program units).”

The Lubiano Trio’s article makes no mention of this inviting e-mail, nor the ad’s unequivocal assertion that something “happened” to Crystal Mangum, nor the ad’s thanking—“for not waiting and for making yourselves heard”—the protesters who had presumed guilt, nor the ad’s claim that five departments officially endorsed its contents even though none of the departments actually voted on the matter. It remains unclear how any of the above items relate to “issues of campus life and the cultures of privilege sustained by elite institutions such as Duke University.”

The Blogs

Intoned the Lubiano Trio, “The latter framing [focusing on the accuracy of the allegations] was embodied most prominently by Friends of Duke University, an organization formed to raise money for the defendants.”

What are they talking about? FODU, a grassroots organization of Duke alumni and supporters, was created in summer 2006 not to raise money for the defendants but to urge the Duke administration to publicly demand that Durham authorities accord to Duke students the same due process rights granted to all other Durham residents.

The Lubiano Trio appears to have confused FODU (which wasn’t a fundraising organization) with the Association for Truth and Fairness, the organization that did raise money to help defray the defendants’ legal bills.

The only problem: the ATF wasn’t a blog—which makes its existence irrelevant to the Lubiano Trio’s commentary on the blogosphere.

The Media’s Role

The Lubiano Trio informed their readers that “the television newsweekly 60 Minutes aired five segments on the topic, and stories appeared in the New Yorker, Newsweek, Rolling Stone, and Sports Illustrated, on the editorial pages of every major newspaper in the country, and on local and national evening newscasts.”

Actually, 60 Minutes ran three, not five, segments on the topic. And the New York Times, which most people (especially, I suspect, members of the Group of 88) would consider a “major newspaper in the country,” did not publish an editorial on the case.

The Defense Attorneys and the Group of 88

After scouring the defense attorneys’ change-of-venue motion, the Lubiano Trio concluded, “Since its publication, the ad has figured prominently in both campus and media debate and was cited as evidence in a defense motion for change of venue, on the assertion that the accused players could not receive a fair trial in a town in which prominent community members, including faculty, had failed publicly to defend their innocence.”

In fact, the December 2006 defense motion contained no such assertion. (The Lubiano Trio’s article contains a footnote citing the defense motion, but the authors, perhaps unsurprisingly, elected not to specify a page number in which this assertion allegedly was made.) To my knowledge, no defense lawyer, at any stage of the case, stated that “prominent community members, including faculty, had failed publicly to defend [the players’] innocence.” Defense attorneys spoke about the presumption of innocence—a far different thing than an outright declaration of innocence. And many critics of the Group of 88, including me, spoke of the need for academics, of all groups in American society, to speak up for due process—which is also a far different thing than an outright declaration of innocence.

That the Lubiano Trio equated calls for professors to defend due process and the presumption of innocence with demands that academics actually affirm the players’ innocence gives a sense of how skewed were Group members’ conception of the justice system.

The Nature of the Internet

Asserted the Lubiano Trio, “The faculty who had signed the ad and were outspoken about long-standing problems in student culture became targets of hate mail and even death threats, especially those with affiliations in African American studies and women’s studies. Many found their e-mail and home addresses published on blog sites, facilitating an incessant flood of anonymous e-mails that were often personally vicious in nature.”

Even in North Carolina, death threats are against the law. It remains unclear why authorities elected not to prosecute those who made such threats against Group members.

Anonymous, vile e-mails are contemptible. They’re also, sadly, a way of life in the internet era. The Group members, however, prefer to imagine a reality in which they and only they were subject to such attacks. As usual, the facts contradict their preferred version of events.

Resolution of the Case

The Lubiano Trio still can’t bring themselves to admit that the whole case was a fraud. “By April 2007,” they write, “all charges against the players were dropped. In June 2007, Nifong was disbarred, and the report from the North Carolina Attorney General’s office found that “there was no credible evidence to support the allegation that a crime had occurred.’”

In fact, Attorney General Roy Cooper issued an all-but-unprecedented declaration of absolute innocence.

Blog Criticism of the Group

Blogs, according to the Lubiano Trio, used “powerful tactics of harassment” against members of the Group. “Typically we [Group members] should . . . work as maids for the players’ families [or] return to the slave quarters.” Group members “have also been found guilty of numerous crimes, including treason, sedition, and tax evasion(!).”

Although the Lubiano Trio’s article does contain footnotes, the Group members elected to supply not even one citation for any of these outlandish claims. It doesn’t take a Ph.D. to figure out why.

What does the inclusion of these unsourced ramblings say about the editorial policies of the Duke University Press journal Social Text?

Blog Ideology

In a wonderfully worded passage, the Lubiano Trio situates the lacrosse case “right-leaning blogs” as part of “right-wing attacks on the university,” which were “deliberate orchestrations of a battle with earlier Left projects to define who and what will constitute the public that universities simultaneously serve and engage.”

In fact, in terms of readership, the two most significant blogs were DIW (published by, as I have noted before, an early supporter of Barack Obama who also backs gay marriage and abortion rights) and Liestoppers (a blog originally founded as part of the effort to elect the line of the Lewis Cheek—a Democrat—as Durham County D.A.).

How many people would consider either of those viewpoints to represent the right wing? That the Group of 88 does consider these viewpoints right-wing gives a sense of just how skewed the Group’s ideological perspective is.

---------

The Lubiano Trio fumed that the case resulted in “the denigration of faculty labor, especially the intellectual labor of faculty in fields inaugurated by twentieth-century social movements (African American studies, women’s studies, sexuality studies, ethnic studies).”

In light of that lament, it’s worth reiterating that the Lubiano/Weigman/Hardt article is what the Lubiano Trio considers an example of scholarship (or, in the words of the Trio, “intellectual labor of faculty”) in their fields.

hat tips: E.F., B.A.

Tuesday, April 22, 2008

Butler's Last Column

For those who haven't yet seen it, the extraordinary Kristin Butler signs off.

Sunday, April 20, 2008

More from "One of the Most Wide-Ranging Intellectuals in America"

In 1993, Terry Teachout penned a brutal review of Houston Baker’s then-most recent book. “The argument of Black Studies, Rap, and the Academy,” noted Teachout, “can be summed up briefly: (1) Black studies is an indispensable part of American higher education. (2) Rap is a creative and authentic expression of the urban black experience and should thus be taken seriously by academics, particularly those working in the field of black studies. (3) Anyone who disagrees with (1) or (2) is a racist.”

Baker’s views on rap? “They are, controlling for polysyllables, mostly indistinguishable from those of the average thirteen-year-old, and are in any case asserted rather than demonstrated.” The book itself, according to Teachout, was “a veritable omnium gatherum of latter-day academic clich├ęs”—characterized by rampant errors (Baker misspelled the names of S. I. Hayakawa, Carol Iannone, Catharine MacKinnon, and Salman Rushdie) and preening (Baker: “I recently (February 1990) had the experience of crossing the Atlantic by night, followed by a metropolitan ride from Heathrow Airport to North Westminster Community School in order to teach Shakespeare’s Henry V to a class of GCSE (General Certificate of Secondary Education) students. … To make an exciting pedagogical story brief, we took off—as a group. I showed them how Henry V was a rapper—a cold dissing, def con man, tougher-than-leather and smoother-than-ice, an artisan of words. … eight or nine of the students surrounded me after class seeking, as they put it, ‘scholarships’ to go back with me to America— ‘now, Sir!’”)

Scott McLemee has reviewed Baker’s most recent publication, Betrayal: How Black Intellectuals Have Abandoned the Ideals of the Civil Rights Era, which takes on a host of black intellectuals “through a mixture of critical analysis and personal insult — blended in portions of roughly one part to three, respectively.” That style wouldn’t surprise anyone who encountered Baker through the lacrosse case.

According to McLemee,

Baker assures readers that he, at least, is using the best tools available to the true black public intellectual. “I am,” Baker assures us, “a confident, certified, and practiced reader of textual argument, implicit textual values and implications, and the ever-varying significations of written words in their multiple contexts of reception.... I forgo ad hominem sensationalism, generalized condemnation, and scintillating innuendo where black neoconservatives and centrists are concerned. The following pages represent a rigorous, scholarly reading practice seasoned with wit.”

Baker, alas, seems to have been no more careful with facts in 2008 than he was in 1993. Writes McLemee,

Baker points out that in the 1940s, Irving Kristol, the founding father of that neoconservatism, abandoned the constricted world of left-wing politics “in search of a more expansive field of intellectual and associational commerce (one in which he would be ‘permitted’ to read Max Faber)....”

That parenthetical reference stopped me cold. I have a certain familiarity with the history of Kristol and his cohort, but somehow the role of Max Faber in their bildung had escaped my notice. Indeed, the name itself was totally unfamiliar. And having been informed that this book was “the product of “a rigorous, scholarly reading practice” — one “seasoned with wit,” mind you, and published by Columbia University Press — I felt quite embarrassed by this gap in my knowledge.

Off to the library, then, to unearth the works of Max Faber! But before I could get out the door, a little light bulb went off. Baker (who assures us that he is a capable judge of social-scientific discussions of African-American life) was actually referring to Max Weber.

It’s a good thing the author of this book is “a confident, certified, and practiced reader of textual argument, implicit textual values and implications, and the ever-varying significations of written words in their multiple contexts of reception.” Otherwise one would have to feel embarrassed for him, and for the press that published it. And not just for its copy editors, by any means.

So argued the man described by Vanderbilt University as “one of the most wide-ranging intellectuals in America.”

Tuesday, April 15, 2008

See It To Believe It

Vanderbilt University has 2876 full-time faculty members. Of this number, which one has the University chosen to highlight on its website? A hint: three days after the first article on the case appeared, he demanded that Duke summarily expel at least 46 members of the lacrosse team.

This man, described by the Vanderbilt website as "one of the most wide-ranging intellectuals in America," penned the following item to a correspondent who suggested that he had rushed to judgment about the charges.

Who is really concerned about whether a woman was actually raped or not? Are you a perfect idiot? I mean the fact is that a team of 46 white (and ONE) black men were underaged drinkers, racial epithet hurlers, urinators in public, beat up people who were gay before they were admitted to the lacrosse team, and were reported as bad actors in 2004. i never said anyone was raped, but the record is clear that Duke men's lacrosse players write emails about killing and stripping "bitches" and they are a herd of bad actors. Are you white? If you would really want your son or daughter or brother or sister to act in this fashion and join the team, I pity you. Maybe you should go to Badjocks.com. Do some research and get the BIGGER picture before you fire off idiotic emails like this one, ok? ALL of "official" American history is a lie, Pal!!

Where did YOu go to school??? Read Howard Zinn, for goodness sake. Good lorad [sic], all you people think you an go "ah hah," and the polar caps will not melt, or the levees will hold. You live in a white supremacist fantasy land, and sometimes even get paid for doing so. Whew! Have you read recently? Anything?

At GOGGLE [sic], punch in "Men's Lacrosse at Duke" and see what a perfectly horrible leader in egregious behavior Duke and its 46 white men have been.

And, get over yourself, buddy. Get smart before you write to a professor, OK. Read SOMETHING.


And here was "one of the most wide-ranging intellectuals in America" responding to a lacrosse player's mother, who asked if he would consider apologizing for his actions after the case collapsed. He penned the below from his vanderbilt.edu e-mail account.

LIES! You are just a provacateur [sic] on a happy New Years Eve trying to get credit for a scummy bunch of white males! You know you are in search of sympaathy [sic] for young white guys who beat up a gay man [sic] in Georgetown, get drunk in Durham, and lived like “a bunch of farm animals” near campus.

I really hope whoever sent this stupid farce of an email rots in .... umhappy [sic] new year to you ... and forgive me if your [sic] really are, quite sadly, mother of a “farm animal.”

Here is the website screenshot.

Duke Motion Denied

In what will surely rate as the least surprising development of the civil case, Judge James Beatty has rejected the Duke demand to sanction the unindicted lacrosse players' attorneys and close the Duke Lawsuit website.

As Powerline's Paul Mirengoff had previously noted, "Setting up this kind of website, and indeed ones that are much more aggressive, is a common thing for plaintiffs to do these days . . . I confess that it has never occurred to me to ask a court to shut such a site down. Lawyers should zealously represent their clients, but it rarely serves a client’s interest to become a laughingstock."

Saturday, April 12, 2008

Good News on Elmostafa

From the Readers' Digest hero of the year, Moez Elmostafa:
The good news is, yesterday, the Department of Homeland Security called me in for an interview, and I was finally awarded my citizenship. I am very happy as it has been a very long wait . . . I called my family back home and they too are very happy for this news.

He thanked the Liestoppers posters "once again for all of your kindness and support."

Wednesday, April 09, 2008

Kevin Finnerty Letter

A powerful letter by Kevin Finnerty, in the most recent Metro:

Finnerty Family Remembers Article on Duke Lacrosse Case

To writer Sharon Swanson:

I hope this note finds you and your family doing well. We sure are. Easter has just passed, and I must say, we enjoyed a very warm family holiday, completely different from just a year ago.

As we approach the first year anniversary of Roy Cooper’s “Innocent” speech on April 11, my mind just cannot steer clear of the events of that day. I subsequently have realized it was rather courageous of Attorney General Roy Cooper to announce the three young men as “innocent” of all charges within the politically sensitive environment in which we live. Courageous, even though it was totally truthful.

I would like to reiterate for all interested parties that might have any doubt that “the truth does set you free!” I have also just re-read your article for Metro magazine (January 2007) after spending one short day with us, and I have to tell you, I believe you captured the spirit of the moment within our family at that time. Doing so while on such a relatively short visit to our home, speaks volumes of your perceptiveness, as well as to your abilities as an author. - I really just wanted to let you know how much I truly appreciated your taking the time to travel and meet with us at that day, and how important your heartfelt article was for all of the Finnertys at that time. (Especially my wife Mary Ellen!)

It was not only sensitive, but it too was courageous in that it ran directly in the face of the “media madness” that was running amuck with District Attorney Nifong’s bogus, election-driven assertions.

One year later, as I re-read it, I enjoy it all the more, and it actually made me cry, once again.

Thought you’d like to know,

Kevin Finnerty

New York

Saturday, April 05, 2008

Remarkable

Even now, there are case-related events that leave me stunned. The below is an actual press release.

LEXINGTON, Ky. (April 7, 2008) – The University of Kentucky Libraries Wendell H. Ford Public Policy Research Center will present a talk on the now infamous rape case lodged against members of a Duke University athletic team. Bob Ashley, editor of the Durham Herald-Sun, will present "The Kaleidoscopic Narratives of the Duke Lacrosse Case" at 4 p.m. Wednesday, April 9, in the William T. Young Library Auditorium. The talk is free and open to the public.

In March 2006, three Duke lacrosse players were charged with rape by district attorney Mike Nifong. Over the next 18 months, as tumultuous events in the case unfolded, the issues of race, gender, class, and the sometimes negative “town gown” relationship that existed in Durham, were exposed in ways that received national media attention. In the middle of the affair was the local newspaper, the Durham Herald-Sun, which reported and editorialized on the matter, earning widespread praise [from whom: the Group of 88? Anti-lacrosse extremist Orin Starn?] and criticism from many corners.

On April 9, the editor of the Herald-Sun comes to UK to present “The Kaleidoscopic Narratives of the Duke Lacrosse Case.” Although charges were dropped against the defendants and Nifong was disbarred for his prosecution of the case, the case left an indelible mark on the school and the community. Ashley will discuss his own controversial role in the case, as well as how the case has affected many different constituencies at Duke University and in Durham . . .

For more information on the Ashley presentation, contact Esther Edwards at (859) 257-1742 or by e-mail.

Thursday, April 03, 2008

Reply to the Motions to Dismiss

Attorneys for Dave Evans, Collin Finnerty, and Reade Seligmann have filed a robust, 122-page reply to the parties’ motion to dismiss the civil suit against the city of Durham, various Durham officials and police officers, and employees of DNA Security. The reply cites 183 federal cases and 46 North Carolina cases to bolster its claim that the civil suit should proceed.

The civil suit itself rests on the overarching claim that

The “Duke lacrosse case” involved a coordinated campaign of politically- and racially-charged misconduct that was authorized and ratified by officials at the highest levels of the City of Durham; it involved longstanding policies, customs, and practices of the Durham Police Department that have not been changed and will continue to result in further misconduct; and it involved a DNA laboratory whose owner and Laboratory Director participated in a conspiracy to fabricate and conceal evidence.

The defendants based their various motions to dismiss on three major points: (1) that, as government employees or entities, they were entitled to either absolute or qualified immunity for their acts, even if those acts involved civil rights violations; (2) that the grand jury indictment, as a matter of law, proved that no malicious prosecution occurred; and (3) even if there were civil rights violations, and even if the grand jury indictment did not provide a sufficient shield for the defendants, everything bad that happened was Mike Nifong’s fault, and the disgraced former D.A. is solely and entirely liable.

Keeping in mind that, when evaluating a motion to dismiss, courts must accept the plaintiffs’ factual claims as true, the players’ reply aggressively rebuts each of these claims—with unintentional, if humorous, assistance from some of the defendants.

For instance, in his brief, Linwood Wilson demanded dismissal of the suit against him, claiming that he possessed absolute immunity as a former employee of Nifong. But Wilson elected to act as his own counsel—which perhaps was not the former investigator’s wisest decision. As the players’ reply points out,

Many of Wilson’s other cases [cited in his brief] actually reject his argument. See Gobel v. Maricopa County, 867 F.2d 1201, 1204-05 (9th Cir. 1989) (denying absolute immunity for role in false arrest, false statements to media, and illegal detention); Auriemma v. Montgomery, 860 F.2d 273, 279 (7th Cir. 1988) (denying absolute immunity for “unlawful investigative activities”); Joseph v. Patterson, 795 F.2d 549, 556-57 (6th Cir. 1986) (denying absolute immunity for participation in unlawful search and investigation of obstruction allegation). As the Sixth Circuit explained in Joseph: “when the nonjudicial official undertakes action on his own initiative or when he carries out administrative or investigatory functions of the prosecutor, he can only claim the affirmative defense of qualified immunity.”

Wilson, alas, was no more competent a legal researcher than he was a D.A.’s investigator.

The reply similarly cites myriad cases to reject claims by former Sgt. Mark Gottlieb and former DNA Security lab director Brian Meehan that they deserve absolute immunity for their acts.

The fall 2007 election season—and virtually every column on the case penned by the N&O’s Barry Saunders—featured heated remarks suggesting that the players deserved no damages because the charges were dismissed before trial. However effective such demagogic claims are in Durham’s poisonous political environment, the reply brief makes clear they have no legal standing. It observes,

Other Defendants . . . attempt to downplay Plaintiffs’ seizures as “temporary” to suggest that they are not actionable. See Addison Br. at 13. But the duration of custody is irrelevant to the fact that a constitutional harm occurs when one is arrested without probable cause. See United States v. McCoy, 513 F.3d 405, 412 (4th Cir. 2008) . . . As to Plaintiffs’ claims for reputational damages, it is well settled that because § 1983 incorporates “the common law of torts,” it permits a plaintiff to recover all damages that flow from a constitutional deprivation, including any damages for “impairment of reputation . . . , personal humiliation, and mental anguish and suffering.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) . . .

The case law establishes that a plaintiff need not have been convicted in order to bring a § 1983 claim under the Fourth Amendment for unlawful seizure without probable cause . . . The only prerequisite for such a claim is that the criminal proceedings have been terminated in the plaintiff’s favor . . . A “conviction” requirement would make no sense in the context of a malicious prosecution/unlawful seizure claim under § 1983: where, as here, defendants inflict constitutional harm by fabricating probable cause to cause a seizure, it would be folly to preclude liability simply because the charges were ultimately dismissed prior to conviction.

The brief cited four cases beyond the ones quoted in the above excerpt to make the point.

The city and its employees based much of their motions to dismiss on the assertion that the grand juries’ indictments shielded everyone except possibly Nifong from suits for civil rights violations. Their argument: “As a matter of law, a prosecutor’s decision to proceed or a grand jury’s decision to indict insulates all pre-indictment misconduct by others; second, . . . because Nifong had all of the relevant information relating to Defendants’ misconduct and decided to seek indictment anyway, Nifong’s decision was an independent and intervening cause of the constitutional deprivation.”

These contentions, appropriately, generated a strong response from the players’ attorneys: “The first argument is wrong on the law. The second would turn the law on its head,” by essentially saying that if police and prosecutors could conspire to obtain a fraudulent grand jury indictment, they never could be sued for civil rights violations. Indeed, as the brief observes, in this instance, “Defendants, knowing there was no probable cause to indict Plaintiffs, decided to fabricate inculpatory evidence, conceal evidence of actual innocence, and make false statements in bad faith in order to mislead the grand juries and effect seizures of Plaintiffs. Since the indictments and seizures were not only reasonably foreseeable, but the intended result of this misconduct, Defendants cannot now point to the indictments as ‘intervening causes’ of Plaintiffs’ seizures.”

For precedent, the reply brief cites White v. Frank:

The intervening acts of a grand jury have never been enough to defeat an otherwise viable [§ 1983] malicious prosecution claim. . . . And though an indictment by a grand jury is generally considered prima facie evidence of probable cause in a subsequent civil action for malicious prosecution, this presumption may be rebutted by proof that the defendant misrepresented, withheld, or falsified evidence.

* * *

As with the grand jury, . . . the public prosecutor’s role in a criminal prosecution will not necessarily shield a complaining witness from subsequent civil liability where the witness’s testimony is knowingly and maliciously false.

The players’ attorneys also note that the “blame-Nifong” defense doesn’t let Durham, its employees, or DNA Security off the hook:

Defendants are essentially arguing that even though Nifong joined with them in the unlawful scheme to indict Plaintiffs in the absence of probable cause, they cannot be liable because Nifong, as their co-conspirator, knew that they had also fabricated inculpatory evidence, concealed evidence of actual innocence, and made false and inflammatory statements in furtherance of the scheme.

This argument does not suffer for lack of creativity or nerve. In essence, Defendants take the settled law described in the previous Section—that a deceived prosecutor cannot shield a wrongdoer from liability—and flip it on its head, arguing that since Nifong was not deceived, his actions must have been independent.”

Moreover, the attorneys argue, Durham has misrepresented a key citation: “The City and Gottlieb rely on Rhodes v. Smithers, but as that case makes clear, the actions of a prosecutor serve as an intervening cause only where he or she acts in good faith.”

The players’ attorneys have little difficulty with one of the city’s less credible claims: that because Nifong was a county/state employee, neither the city nor its employees should be held liable for his actions—even though the DPD delegated to Nifong control of the police investigation. Carried to its logical conclusion, the city’s stance would emasculate a 1988 case called City of St. Louis v. Praprotnik, which maintained, “If . . . a city’s lawful policymakers could insulate the government from liability simply by delegating their policymaking authority to others, § 1983 could not serve its intended purpose.”

The reply brief also scoffs at the city’s claim that the DPD allowed Nifong to run the police investigation as part of “the normal coordination between municipal police officers and State prosecutors” that could not have “transformed him into a City official.” As the players’ attorneys point out,

Plaintiffs are not asserting that a municipality in North Carolina can ordinarily be held liable under § 1983 for the actions of a District Attorney in his or her traditional advocacy role. Rather, Plaintiffs assert that the City is liable for Nifong’s actions because its policymakers delegated authority over the Durham Police investigation to Nifong and because the civil rights violations arose from Nifong’s misconduct in that investigative role. [emphasis in original]

Finally, the players’ attorneys bluntly point to recent events to justify the continuing need for an injunction over criminal investigations involving both the DPD and the DSI:

The requested Injunction and Court monitoring are necessary because there is no indication that the City and DSI ever intend to take responsibility for their misconduct and implement reforms that would protect Plaintiffs and others. The City announced, to much fanfare, a blue ribbon commission to investigate the Durham Police Department’s misconduct in this case, and then promptly canceled it before it could hear a single witness from the City or Durham Police. The City then announced that Defendant Patrick Baker would be stepping down as City Manager, but only so that he would become the City Attorney, notwithstanding his role in ordering arrests without probable cause and approving the unconstitutional April Photo Array. Addison received a promotion. And while Meehan is no longer employed by DSI, upon information and belief Clark continues to run the company.

Given the overwhelming number of on-point cases cited by the players’ attorneys, it’s very hard to see any of the key figures in the case—Gottlieb, Wilson, Baker, Addison, Meehan, the City of Durham—prevailing in their motion to dismiss.