Thursday, July 31, 2008


I’m back in the United States, and yesterday participated in a lacrosse-case roundtable at the SEALS conference. My views on the case are, obviously, well-known to any reader of the blog. But here’s a summary of some points presented by the other panelists.

Jim Coleman

Nifong’s behavior took the case off the rails from the start. He probably believed (or allowed himself to believe) that Crystal Mangum was raped, but did nothing right.

Coleman explained the fraudulent lineup for those in the audience who hadn’t heard of it.

He (correctly) termed Nifong “unsophisticated” in dealing with the media, and chastised the national press for turning the case into a Tom Wolfe novel.

Nifong, he noted, wasn’t incompetent—he fully understood what he was doing, at every stage of the process. The only difference: he didn’t get away with it this time. Coleman observed that the unusual aspect of the case came in the State Bar/AG intervention, and predicted that such a scenario would be very unlikely to occur again.

A lesson of the case, in his opinion: the press needs to care more generally about what prosecutors are doing. There’s no accountability for rogue prosecutors.

Angela Davis

An inherent tension exists between a prosecutor as accountable to local voters and the need for a prosecutor to be an independent decisionmaker.

Nifong’s early actions might have been justified because sexual assault complaints by black women rarely are taken seriously. Davis excoriated Nifong for withholding the DNA evidence, but suggested the original indictment might have been justified*. (I don’t think that viewpoint can be reconciled with the AG’s finding of actual innocence.)

Davis argued that prosecutorial misconduct is rampant in the United States—she noted that in cases with plea bargains (95 percent of the total), people don’t get any sense of the prosecutor’s handling of events. She urged state bar associations to be more aggressive in going after prosecutors who violate ethical standards, and called on judges to be more aggressive in referring prosecutors who misbehave to Bar grievance committees.

Davis praised Brad Bannon’s work in the case and pointed out that his experience shows why public defenders need far more resources to do their jobs adequately.

She also chastised the press for paying more attention to the falsely accused lacrosse players than minority victims of prosecutorial misconduct. It’s worth remembering, however, that the press also paid more attention to the initial charges against the lacrosse players. Without that initial burst of publicity, it’s hard to imagine that the press would have picked up the story midstream and simply focused on Nifong.

I also pointed out that the North Carolina NAACP—which might have made the connection between the Nifong behavior and the normal victims of prosecutorial misconduct—instead aggressively sided with Nifong. But Davis suggested that the state NAACP had little power, and seemed not to see their performance in the lacrosse case as worthy of criticism.

UNC Law professor Michael Gerhardt

The case demonstrates our dysfunctional media system in covering legal events. The Duke lacrosse case perfectly played into the 24/7 news cycle, providing a good show for the media.

Nifong’s behavior also demonstrated the profound wrongs of trying a case in the public eye. Gerhardt pointed out that Nifong’s conduct caused the defense attorneys to appropriately recognize that they needed to get facts out to counter the false narrative the D.A. had created.

Gerhardt termed it a mistake to expect that the media will perform an educational role in covering criminal justice issues. Journalists, he reasoned, have too much trouble focusing on simple facts. The solution to the problem is to ensure that prosecutors have the right kind of ethics, since public accountability through elections is rarely a check for prosecutors. Davis agreed with this point.

University of Florida Law professor Lyrissa Lidsky

As Nifong gave 50+ interviews in the initial days of his involvement, it would have been hard for the media not to have taken account of what he said. But most journalists—at least early on—didn’t stop to consider the tremendous power of a prosecutor’s statement, especially in a national media firestorm.

The lacrosse case provided an “irresistible story” for many in the media, because of its dualities (differing races, classes, genders, etc.).

What should the media keep in mind in covering such cases? Journalists, Lidsky argued, needed to be particularly careful in reporting pre-indictment matters—and she believes the falsely accused players might very well have had grounds for a lawsuit against some journalists’ coverage of the case, especially since the lacrosse players in no way could be considered public figures or even involuntary public figures. She cited the Richard Jewell and Stephen Hatfill cases as illustrating the danger of the media’s rush-to-judgment culture.

Lidsky singled out the Times for criticism, noting that the mainstream media is too often like “sheep,” following the Times’ lead.

*Prof. Davis clarifies below: "I can't imagine that I used the word 'justified.' If I did, I certainly did not mean that I agreed with Nifong's decision to indict. What I said was that there was nothing illegal or improper about him bringing the indictments. My point here was that indictments are based on the low standard of probable cause, and indictments are brought every day based on the word of the complainant alone. Most states do not require corroboration in rape cases. This is the law. That doesn't mean that I personaly agree with this low standard for bringing indictments. Any person who has read my work knows that throughout my professional life (as a PD and law prof) I have criticized the low standard for bringing indictments. I was stating the law as it is, not as I would like it to be. I also offered what I believed to be a possible explanation for why Nifong pursued the prosecution in the first place (his desire to treat black rape complainants the same as he would white complainants). I then went on to say that he engaged in misconduct when he withheld the exculpatory evidence."

Sunday, July 27, 2008

Nifong "Contributes" To Obama

From yesterday's Herald-Sun:

Even former District Attorney Mike Nifong, who lost his job last year because of the Duke lacrosse scandal, spent much of Saturday morning canvassing homes for the Democratic presidential hopeful.

"He's the right man at the right time," said Nifong. "We need to get him elected."

Local Obama spokesman Paul Cox said later that Nifong "has no official role in the campaign and was not recruited by the campaign. He simply showed up as a volunteer."

Alone among the 2008 presidential candidates, Obama endorsed a Justice Department criminal investigation of Nifong. So if Obama rather than George W. Bush had been president in 2007, Nifong very likely would be on his way to jail.

What better way for Nifong--among the most politically poisonous figures in North Carolina--to pay Obama back? To the extent that voters in the Tar Heel State (a swing state) associate Obama with Nifong, John McCain will benefit.

Monday, July 21, 2008

Tone & Substance

I suspect that the 9/11 Commission public hearings introduced most people to Jamie Gorelick. In contrast to ineffective questioners such as Bob Kerrey, Jim Thompson, or Richard Ben-Veniste, Gorelick—and fellow commissioner Tim Roemer—proved an incisive cross-examiner, someone with impressive knowledge of the myriad issues associated with the commission.

How, then, to explain the contrast between the brilliant Gorelick of the commission hearings and her intellectually pedestrian motions in the civil case? Partly, of course, it’s a matter of role: as a 9/11 commissioner, Gorelick was seeking the truth; as a lawyer in the civil case, she’s representing a client.

Even given her role as an advocate, though, how does this Gorelick passage advance her client’s legal case?

A patient was brought to the hospital claiming an atrocious deed had been done to her; the hospital staff rendered her assistance, as they should have done; and subsequently, when the police officers and prosecutor carrying out the investigation asked a hospital employee for information, the employee cooperated. There is nothing tortious, much less a violation of civil rights, in this conduct.

[The claim, of course, is that the “hospital employee,” former SANE nurse-in-training Tara Levicy, provided false and misleading information when she “cooperated,” and that her supervisors either looked the other way or simply failed to perform their duties.]

Or how does this passage help Gorelick legally?

[The lacrosse players] contend that Duke and its employees violated their legal rights by providing the police with information about the alleged rape during the investigation. They also contend that the University had a legal obligation to quell public debate about the alleged rape. In essence, Plaintiffs argue that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime.

[Nothing even resembling such a claim was ever made.]

Federal judges have a reputation as no-nonsense jurists; it’s hard to see how such transparently absurd descriptions of the case will enhance Gorelick’s credibility.

Nor is there any obvious legal explanation—given that motions to dismiss assume all plaintiffs’ facts as true—for Gorelick’s strange assertion that the Group of 88 enjoyed an academic freedom exception from complying with Duke’s anti-harassment policies; or her claim that Levicy actually have given honest testimony, despite the wording to the contrary of the Attorney General’s report.

Such passages do, however, serve another interest of Gorelick’s client: maintaining the narrative of the case that Duke has presented to its alumni. Some alumni followed the case closely: recall the 88-cent donations to the alumni fund; or Jay Bilas’ public demand that Richard Brodhead and Bob Steel resign.

But most alumni (unsurprisingly) know about Duke’s response to the case via communications from Duke and from the alumni magazine, whose narrative suggested that after a brief initial difficulty (and perhaps an extremist statement from a scattered professor or two), the university did everything it could to bolster the players. In this narrative, the lacrosse players are nothing more than gold-diggers, out to get money from the university that stood behind them in their time of trial.

This narrative was relayed effectively when Charlie Rose interviewed members of the Duke family, in a July 4 broadcast.

CHARLIE ROSE: Let me talk about today. Duke University has gone on to be a great university.

MARY DUKE BIDDLE TRENT SEMANS: It really has. It really has.

CHARLIE ROSE: You’ve both contributed to that, the endowment and the trustees.

MARY DUKE BIDDLE TRENT SEMANS: Uncle Buck, grand pa, it is what they wanted.

CHARLIE ROSE: Uncle Buck is James Buchanan Duke.

MARY DUKE BIDDLE TRENT SEMANS: That’s right. I’m telling you, I’m sure they would be amazed at how fast it has grown . . .

CHARLIE ROSE: So Duke went through this great difficulty with the problems with lacrosse.


CHARLIE ROSE: And you’ve got some lawsuits going. Has the university -- how has it handled this? What damage has it done to the university?

MARY DUKE BIDDLE TRENT SEMANS: I don’t think a whole lot. The giving to the university has not been arrested in any way. It hasn’t gone down. We had more applications, I think, than ever. And that means something. We have very loyal alums.

CHARLIE ROSE: People still want to go.


ANTHONY DREXEL DUKE: When I go down there and I take a bunch of them out for dinner and so forth, it’s almost as though it never happened among the students, current enrollment.

CHARLIE ROSE: Even though there are lawsuits.

MARY DUKE BIDDLE TRENT SEMANS: They all talk about it a little bit.

CHARLIE ROSE: Fingered a lot of people that they thought should have done this or that.

ANTHONY DREXEL DUKE: Well, everybody has got their different opinions on that. But I find that student -- among the student body, they are unaffected. They love the university as much as people who went before this incident. And I think it’s going to come through. I personally am very fond of Dick Brodhead.

CHARLIE ROSE: He’s the new president they got from Yale.


ANTHONY DREXEL DUKE: And he’s a heck of a good guy. I think that he was caught a little bit as a young president, as a new president, I should say. And maybe he didn’t take the right advice for a few days or something.

CHARLIE ROSE: But he got control.

ANTHONY DREXEL DUKE: He got control. But there were some problems on the way towards getting control.

MARY DUKE BIDDLE TRENT SEMANS: And what a dreadful thing to happen to somebody who has just come. It is just an awful thing.


“Maybe he didn’t take the right advice for a few days or something.” “He got control.”

When, exactly, did Brodhead get control?

  • In mid-April 2006, when he declined to investigate allegations brought to him that Duke professors were abusing their classroom authority in dealing with the lacrosse players?
  • A few days later, when he responded to the arrests of Reade Seligmann and Collin Finnerty by saying, “Whatever they did was bad enough”?
  • In June 2006, when he issued an open letter minimizing the (by then massive) evidence of the players’ innocence?
  • In summer 2006, when he wrote to Friends of Duke that a trial would give the falsely accused students their chance to be “proved innocent”?
  • In fall 2006, when he used his interview with 60 Minutes to denounce the lacrosse players for their “highly unacceptable behavior”?
  • In the spring 2007 semester, when he declined to enforce the Faculty Handbook against Karla Holloway (who distributed malicious rumors about Duke students via e-mail) or Grant Farred (who publicly accused Duke students of perjury)?
  • In April 2007, when he wildly asserted, “The Group of 88 are a group of professors who signed a petition to assist students who felt threatened.”

The Duke family didn’t say—and Rose, unfortunately, didn’t press them—on exactly when in the timeline above Brodhead “got control.” Their view of the case must have left them mystified as to why Duke settled at least three lawsuits (from the falsely accused players, from former coach Mike Pressler, and from the Dowds) that flowed from the administration’s conduct.

The Duke family’s interview raises another question: if, during this period, Brodhead “didn’t take the right advice,” from whom was he getting this wrong advice? That’s a question that, doubtless, Jamie Gorelick would prefer never be answered.

Saturday, July 19, 2008

More from the Rev. Barber

In recent months, the North Carolina NAACP and Rev. William Barber have taken up the cause of James Johnson, an African-American initially accused as an accomplice to murder in Wilson, North Carolina. The two pieces of evidence that the NAACP cited to justify its “demand” that Johnson “be exonerated”?

(1) No DNA evidence linked Johnson to the crime. (2) Johnson passed a polygraph test.

Readers of this blog might recall another high-profile North Carolina case in which no DNA evidence linked the accused to the “crime,” and in which all three defendants passed a polygraph test. The state NAACP seemed to view the power of such evidence quite differently in that case.

As in Durham, some in Wilson have demanded a trial of Johnson, so that the victim (in the Wilson case, of course, there really was a victim) could have her day of court. In an interview with WRAL, the Rev. Barber responded to such demands, “I don’t think it’s important to have his day in court if he’s not guilty.” (The Barber statement comes at 21.56 of the linked video.)

As a matter of law, of course, Barber is correct. And it also appears that he’s correct on the facts of the case in Wilson. (His claims of prosecutorial misconduct in Wilson, on the other hand, appear unsubstantiated.)

But how is it possible to reconcile Barber’s statement—“I don’t think it’s important to have his day in court if he’s not guilty”—with his and his organization’s behavior in the lacrosse case?

After all, Barber himself praised the Lord in July 2006, when Judge Kenneth Titus granted the NAACP’s request for a “gag order” in the lacrosse case—a move designed to bolster Mike Nifong’s prosecution of people who had passed polygraph tests, had no DNA evidence against them, and were “not guilty.”

And in August 2006, Barber’s photograph stood above a guilt-presuming, error-laden 82-point “memorandum of law” designed to bolster Mike Nifong’s prosecution of people who had passed polygraph tests, had no DNA evidence against them, and were “not guilty.”

And in December 2006, after Nifong wholly changed the theory of the crime and dropped rape charges but retained the other charges, Barber’s case monitor preposterously suggested that the move would aid Nifong’s case—against people who had passed polygraph tests, had no DNA evidence against them, and were “not guilty.”

And in January 2007, the Rev. Barber himself preached at Duke Chapel. But rather than mention that he didn’t “think it’s important to have [their] day in court if [they’re] not guilty,” the reverend engaged in a character assault on Duke students.

What accounts for the Rev. Barber’s dramatic shift in perspective? Those inclined toward Christian charity might suggest that the outcome of the lacrosse case convinced the Rev. Barber on the need for due process and the dangers of overreaching prosecutors. Those less charitable might offer a different, and I fear correct, explanation.

Hat tip: K.D.

Wednesday, July 16, 2008

The Rev. Barber

The N&O reports that William Barber, president of the North Carolina NAACP, has been elected to the NAACP national board.

That's the same Rev. Barber who:

--demanded a gag order against defense attorneys in the case, with the head of his organization's Legal Redress Committee suggesting that the defense attorneys, not Mike Nifong, had committed ethical misconduct; and then rejoiced when the order temporarily was put in place;

--had his photo above an 82-point guilt-presuming memorandum of law riddled with factual errors and unfounded speculation about the lacrosse players, a document for which neither he nor author Al McSurely has ever apologized;

--went to Duke Chapel to attack the lacrosse players' character while remaining silent as the grave about Nifong's procedural abuses;

--suddenly rediscovered his concern with prosecutorial misconduct after the lacrosse case had concluded;

--is, according to last report, overseeing his organization's own "investigation" into the lacrosse case.

Quite a figure to provide leadership for a great civil rights organization.

Monday, July 14, 2008

A DIW Contest

Two recent breathtaking assertions prompt this two-part DIW contest.

Part One.

Duke attorneys Jamie Gorelick and Dan McLamb wrote,

[The lacrosse players] contend that Duke and its employees violated their legal rights by providing the police with information about the alleged rape during the investigation. They also contend that the University had a legal obligation to quell public debate about the alleged rape. In essence, Plaintiffs argue that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime.

I have followed the case very closely. Unfortunately, I seem to have missed the filing or statement in which an attorney for the unindicted players made such assertions.

Contest participants are, therefore, urged to identify the statement to which the Gorelick/McLamb brief refers. To account for the Duke attorneys’ possible confusion, the contest will accept even a statement by an attorney in the criminal case arguing “that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime.”

Part Two.

Yesterday’s N&O contained the following passage about Board of Trustees chairman Bob Steel’s performance in the lacrosse case.

Steel said in such a situation many decisions are made, sometimes based on incorrect information. “There’s no way you can go through something like that and do everything perfectly.”

Contest participants are urged to identify which piece of correct information—if known to the Duke administration—would have caused the administration to pursue a different policy. Three points need to be kept in mind:

1.) At the time of Mike Nifong’s pre-primary publicity crusade (late March/early April 2006), Duke administrators knew that a key Nifong claim—that the players had erected a “wall of silence” and refused to give their version of events to police—was false. Yet not only did administrators decline to reveal this information, there’s no evidence that their knowledge of this correct information had any impact on their approach to the case at the time.

2.) Two months after public revelation of Mike Nifong’s most serious procedural breach—instructing the Durham police to run the rigged April 4, 2006 lineup—President Brodhead declined a request from Friends of Duke University to publicly demand that Duke students receive the same due process rights as all other residents of Durham. Instead, he wrote, a trial would allow “our students to be proved innocent.” No evidence exists that their knowledge of the correct information about the rigged lineup had any impact on administrators’ approach to the case at the time.

3.) Apart from Prof. Petters (and, briefly before their subsequent retreats, Profs. Thorne and Moreiras), the Group of 88—the key campus pressure group on the case—appeared impervious to any new, correct information after they issued their statement on April 6, 2006.

Contest answers will be posted Friday.

[Update, 6.45pm: Prize for anyone who can actually identify the statements to which Gorelick and McLamb referred: One share of Wachovia stock.]

Thursday, July 10, 2008

Steel to Wachovia

The Wall Street Journal is reporting that Wachovia has hired Bob Steel as its new chief executive officer.

Notes the Journal, “Mr. Steel said he was approached about the job in the past few days. He has a long friendship with Mr. [Lanty] Smith [who chaired the Wachovia search committee] as both share ties to Duke University; Mr. Steel is the current chairman of Duke’s board of trustees, and Mr. Smith is a former trustee.”

Wachovia’s shares and earnings have declined noticeably in the past 12 months, and the bank has been the subject of takeover rumors. Said one financial analyst about Steel, “He is an ideal choice for this time of turmoil.”

Steel might have many qualifications for taking the helm of the nation’s second-largest chain of banks, but surely his track record in leading institutions in a “time of turmoil” is not among them.

Steel’s handling of the lacrosse case suggested a leader who was mostly concerned with upholding the position of the man he selected as president of Duke, Richard Brodhead. The fact that Duke already has paid out three settlements (to the falsely accused lacrosse players, to the Dowds, and to former coach Mike Pressler) and is facing two other massive lawsuits reflects poorly on Steel’s ability to fulfill the chief requirement of his position: looking after the fiduciary interest of his university.

Moreover, Steel’s performance on issues associated with the case raised profound questions about his judgment. This is, after all, a man who:

  • In August 2006 informed the New Yorker that the University had cancelled the lacrosse season because “we had to stop those pictures [of the players practicing]. It doesn’t mean that it’s fair, but we had to stop it. It doesn’t necessarily mean I think it was right—it just had to be done.” The quote hardly inspires confidence of a BOT chairman providing moral leadership for the University.
  • Seemed unconcerned that many Duke faculty members refused to adhere to their contractual guidelines (the Faculty Handbook) or even Duke regulations (departments not paying for political ads, departments actually voting on issues before they claimed to provide an official endorsement).
  • In a fall 2006 private meeting with Friends of Duke head Jason Trumpbour, passed on unsubstantiated personal attacks about the lacrosse players’ character, suggesting that something “terrible, terrible” occurred at the party; and dismissed Trumpbour’s concerns about Mike Nifong’s ethical behavior. In both respects, of course, Trumpbour’s judgment was proved correct, and Steel’s was proved wrong.
  • Promoted the African-American Studies program to full departmental status, despite the abysmal performance in the case of many of the program’s leading faculty members.
  • Behaved, in general, as if he were more afraid of arousing the wrath of the politically correct on campus or “activists” in the Durham community than in upholding the due process rights of his own institution’s students.

  • Justified the dismissal of Coach Mike Pressler to one lacrosse parent by musing, “Life sucks. Bad things happen to good people and you better get used to it.”

This record, it’s worth noting, led to an extraordinary call for Steel’s resignation from Duke alum Jay Bilas, who wrote “Based upon Bob Steel’s letter of April 11, 2007, in which Mr. Steel stated that the board agreed with the principles President Brodhead established and the actions he took, the resignation of Mr. Steel and any board members that acted in lock step with President Brodhead are also appropriate.”

If Steel runs Wachovia like he oversaw the lacrosse case at Duke, I fear the institution’s “time of turmoil” might just be beginning.

Monday, July 07, 2008


For those who missed it, the extraordinary Dorothy Rabinowitz from today's Wall Street Journal. IUPUI, the university of which Rabinowitz writes, is a leading backer of the AAC&U, an academic organization that captures a lot of the Group of 88's ideology, and about which I wrote a few years ago here.

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 5th 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 5th 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.”


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.

Tuesday, July 01, 2008

Only in Durham

The People's Alliance didn't exactly distinguish itself during the lacrosse case: the far-left group announced in April 2006 that it "wholly supports the struggle of this young woman [Crystal Mangum]"; resolutely stood up in November 2006 for prosecutorial misconduct in its enthusiastic support for Mike Nifong; and then stood four-square in summer 2007 for police misconduct when its most prominent City Council backer, Diane Catotti, did her best to frustrate the inquiry into why the Durham Police Department helped indict three demonstrably innocent people.

Now this only-in-Durham allegation, involving the People Alliance's office manager and former city Democratic Party official, courtesy of Powerline.