Sunday, November 30, 2008

Crime & Punishment

The Chronicle reports that Michael Burch was recently arrested on charges of rape. Burch is the same man arrested for rape after a February 2007 party at a house rented by members of Duke’s predominately African-American Phi Beta Sigma Fraternity. The Chronicle reminded us that “police had found marijuana, cocaine and Oxycontin in the house” at which the February 2007 party was held. Burch, who is not a Duke student, is African-American; his February 2007 accuser, who was a Duke student, is white. Neither the Chronicle nor the N&O revealed the race of Burch’s second accuser.

After his February 2007 arrest, Burch was held on a $50,000 bond. It was hard to miss the disparity between this figure and the amount ex-Nifong boss and current Durham judge Ronald Stephens assigned to the falsely accused lacrosse players—$400,000, with a requirement for posting the entire amount in cash, rather than (as Burch received) a 10% bond. The father of Burch’s accuser certainly noticed how Durham Justice operates:

We feel eschewed because the Duke lacrosse players had to post $400,000 and this individual had to post $50,000. From a racial aspect, on the outside looking in, [it seems they thought] ‘four white kids from the North let’s make it $400,000 and for a black guy let’s make it $50,000.’ A crime is a crime.

Of course, the Burch case revealed not only the double standards in Durham Justice but in Duke Justice. The clarifying faculty told us that the Group of 88 had—based only the version of events presented by Mike Nifong and Sgt. Mark Gottlieb—proclaimed that something “happened” to Crystal Mangum, had thanked protesters who carried a “castrate” banner, and had promised to continue their crusade “regardless of what the police say or the court decides” because of “the atmosphere that allows sexism, racism, and sexual violence to be so prevalent on campus.”

Certainly, then, we should have expected a cacophony of protest from the Group targeted at Burch—given that his alleged victim was a student at the University from which the Group members draw their salaries. And yet the Group’s sound was silence.

Burch’s second arrest? Again, not a peep. I’ll be checking the pages of the Chronicle for another Wahneema Lubiano-organized ad, but I’m not betting on it. Could the Group members have become latter-day civil libertarians?

As for the University? In the Burch I case, Larry Moneta appeared to shift the blame to the accusing Duke student, commenting that the situation was “part of the reality of collegiate life and of experimentation and some of the consequences of students not necessarily always being in the right place at the right time.” (Imagine if Moneta had issued a statement early in the lacrosse case seeming to blame Crystal Mangum.) Neither Moneta nor anyone else from Duke has issued a statement in Burch II; it’s unclear if Moneta still maintains his selective blame-the-accuser approach.

The house rented by the fraternity members had four students; Moneta told the N&O that Duke had moved the quartet to temporary campus housing, because “we wanted them to be able to concentrate on their classes.” That’s the same Moneta who, in the lacrosse case, told two Duke students whose house was besieged by a mob of potbangers that they should call the Durham Police for assistance, since he couldn’t do anything.

By the way: Burch will come to trial sometime in 2009, so his case will be handled by a D.A.’s office under the leadership of newly elected D.A. Tracey Cline. That’s the same Cline who issued misleading or outright false statements about her role in the office’s lacrosse case misconduct, and was scheduled to assist Nifong in the prosecution of the bogus charges. How reassuring.

Wednesday, November 26, 2008

Duke As Plaintiff: Sues Its Insurance Company

Both the N&O and the Herald-Sun are reporting that Duke is suing its insurance company, National Union Fire Insurance Co--who Duke accuses of acting in a manner "willful, wanton, malicious, without justification or excuse." The H-S reports,

Sources close to the case say National Union is refusing to pay because it believes its policy is capped at $5 million for legal expenses and Duke has submitted legal bills -- alone -- of about $11 million to date, and that Duke refuses to accept the $5 million cap.

Duke's demands are considerable: it wants National Union to "advance and/or pay all of Duke’s Defense Costs (as defined in the insurance policies) for the Underlying Claims and the full amount of Duke’s settlement with certain claimants," and "a declaratory judgment (i) that National Union is liable to advance the costs for any future defense of Duke in connection with the Underlying Claims, and (ii) that National Union is liable for any reasonable settlement entered into by Duke in the Underlying Claims and/or any judgment entered against Duke in the Underlying Claims."

A key issue in the case seems to be the role of Duke Hospital (home, of course, of former SANE nurse-in-training Tara Levicy), and the degree to which Levicy's misconduct could or should have been supervised by Duke officials. Duke actually has two insurance carriers--National Union, which insures Duke Hospital, and United Educators Insurance, which insures Duke. The H-S reports that sources say the two companies "are bickering over which company -- if not both -- has the responsibility to pay." National Union's argument appears to be that the wrongdoing was either committed by Duke University employees, or, in the case of Levicy, a failure to supervise by Duke University employees, and therefore it has no responsibility to cover Duke's misconduct.

The H-S comments section featured a telling remark:

When one takes out a homeowner's insurance policy and then sets fire to his home, is the insurance company liable? When one takes out a life insurance policy and then commits suicide, should the insurance company have to pay? As far as I'm concerned, Duke negated its coverage when its administration willfully and purposefully undertook wrong and destructive actions against wrongfully accused students, thus violating its obligation to them. Every single Duke administrator who had a hand in perpetrating this gross injustice, and especially Richard Brodhead, should pay whatever damages are awarded out of his/her own pocket. Of the lacrosse scandal triumvirate of Nifong, Brodhead, and Bob Ashley, only Nifong has gone down. Ashley will, alas, remain unscathed. But Brodhead, however much he has suffered, hasn't yet suffered enough. Perhaps this will at last be the beginning of his end.

It will be interesting, to say the least, to read the insurance company's response to this suit. For now, one obvious effect of the lacrosse case: given that the university hasn't acknowledged any specific errors in its handling of the case, nor made changes designed to prevent a repeat performance in future, I suspect Duke's insurance premiums will be going through the roof.

Monday, November 24, 2008


For those who thought that nothing left in the case could shock them, guess again.

The Charlotte Observer revealed that Board of Trustees chairman Bob Steel has become a . . . movie investor. (Steel, of course, has additional time on his hands, having presided over the collapse of Wachovia.)

That’s the same Bob Steel who:

  • privately claimed that something “terrible, terrible” happened in the lacrosse captains’ house;
  • misled other trustees into believing that the administration had stayed in close contact with the families of the three falsely accused players;
  • said that the Trustees had approved of Richard Brodhead’s “principles that he established and the actions he took,” including the president’s indefensible statement that a trial would allow “our students to be proved innocent.”

According to financial disclosure forms required from Steel’s tenure at the Treasury Department, Steel invested between $1 million and $5 million in a movie based on a book penned by a Duke faculty member.

The faculty member? Tim Tyson.

That’s the same Tim Tyson who:

  • in seeming violation of the Faculty Handbook, participatedas a teacher” in a “candlelight vigil” outside the lacrosse captains’ house;
  • suggested that that Duke students refusing to speak to Sgt. Mark Gottlieb without presence of their attorneys “may be illegal”;
  • wildly claimed that Duke students embodied “the spirit of the lynch mob”;
  • blamed society for Crystal Mangum’s conduct.

And then, when the case upon which he had based his calumnies utterly collapsed, Tyson proclaimed that he would “stand by” everything he said, and that he had articulated a “reasonably thoughtful stance(!!)” on the case.

That’s the faculty member whose work product has benefited from a huge investment the chairman of the Duke BOT?

Will we next hear that Steel has doubled down, and donated to the Mike Nifong legal defense fund?

Monday, November 17, 2008

Odds & Ends

The shameless Wendy Murphy is back, this time spouting off in a Boston Globe letter to the editor. Conducting an investigation and presenting physical or DNA or witness evidence in court? Not a requirement, it seems, to Murphy: “There's nothing inherently difficult about prosecuting rape. It is, in fact, the easiest and least expensive crime to investigate and prosecute. The victim takes the stand and says she was forced to have sex without her consent. If the jurors believe her beyond a reasonable doubt, they vote guilty.”

The villains? “We've always used the law as a way of indulging male entitlement over women's freedom. That we allow defense attorneys to obfuscate and eroticize rape trials as a way of distorting the truth to produce an unfair result only adds insult to injury.”

In reality, what “only adds insult to injury” is that anyone could take seriously the utterances of Murphy, a figure who seems oblivious to the truth, and someone who seems unaware of the basic tenets of due process. What does it say about the values of the Massachusetts Bar that it allows such a person to practice law in the Bay State?


The Durham “grassroots” has also made its return, this time in the form of Fahim Knight, “chief researcher for the “Keeping It Real Think Tank.” (The think tank’s mission: “to inform African Americans and all people of good will of the pending dangers that lie ahead; as well as decode the symbolisms and reinterpret the hidden meanings behind those who operate as invisible forces, but covertly rules the world.”)

In a recent post, Knight brought his . . . unusual . . . analytical tools to the lacrosse case. How and why were charges dismissed? Due to the machinations of . . . Duke! That, of course, is the same Duke that reached a settlement with the falsely accused players and is currently facing massive civil rights lawsuits for violating the unindicted players’ rights. But, in the world according to Knight, Duke was actually rigging the case in the players’ behavior.

Nifong, of course, is a victim in this version of reality: “Duke University used its enormous influence and power to punish District Attorney Michael Nifong and to set an example for other ambitious adversaries who might consider in the future of contesting Duke’s power. Nifong has been character assassinated [sic] and has been publicly ridiculed for daring to come up against this historical great tobacco rich and aristocratic dynastic family institution. The North Carolina Bar Association, which is controlled by Duke(!) eventually disbarred Nifong stripping him of his law license and ability to earn money.”

And what of the false accuser, Crystal Mangum? Knight writes, “This writer also believes the victim [sic] Crystal Mangum who resides down the street from where I live, and I believe she was also paid off by Duke. Duke in one sense made her to go away. She has recently published her memoirs [en]titled, “The Last Dance for Grace: The Crystal Mangum Story” and willing [sic] to bet you she has been very selective at the advisement of her attorneys[?] about how far she was going to go with telling the story because I am quite sure she had signed a clause with Duke University forbidding her of speaking or writing the truth.”

Unclear is exactly what Duke paid for. While Mangum never told the same story twice, she did claim to prosecutors that she had been attacked (while, as a reminder, she was levitating in midair, and shortly after she had spent seven minutes chatting with her father while simultaneously performing an exotic dance). Perhaps Knight is claiming that Duke paid Mangum to offer a story so bizarre that no one except Mike Nifong and most of the Group of 88 would believe it?

On Friday, I e-mailed Knight to ask him why Duke would have “paid off” Mangum to help students that the University’s leadership and activist faculty had gone out of their way to revile. He didn’t respond.


ESPN ombudsman Le Ann Schreiber recently commented on the network’s decision not to report allegations that Jets quarterback Brett Favre had phoned the Detroit Lions management to pass along inside information about his former team, the Green Bay Packers. The reason?

“When allegations are made against somebody,” [ESPN senior vice president and director of news Vince] Doria said, “with no confirmation or evidence on our part, and you go to the person and get a denial, and then use the denial to you as justification for putting the allegations out there—to me, that has always seemed an unethical way to get a story out if it involves a matter of character.”

That is old school journalistic ethics, music to any ombudsman’s ears, and yet Doria is right about the perception problem. ESPN can’t win on this one, because no one can come up with recent precedents.

One reason, of course, that “no one can come up with recent precedents” is how handled (and, by refusing to repudiate the story, continues to handle) the lacrosse case. An ESPN piece that appeared as an insert column on April 11, 2006—the day after defense attorneys announced that the DNA tests Mike Nifong had promised would exonerate the innocent all had come back with no matches—was reported by Eric Adelson.

Citing one and only one source—and an anonymous source, at that—Adelson provided “a detailed account of the exotic dancer’s arrival at the hospital the night of the alleged sexual assault.” The source claimed that Mangum was “beat up . . . She was hysterical . . . She was crying, she was pretty banged up.” Paraphrasing the anonymous source, Adelson suggested that “there were bruises on her face, neck, and arms” and “there were injuries to the woman’s pelvic area.”

Adelson’s performance would hardly conform to “old school journalistic ethics.” There were, in fact, only two logical explanations of his column: (1) He invented the anonymous source; or (2) An anonymous source—which, as a thread in the old Liestoppers convincingly argued, was probably former Duke Police Officer Sara Falcon—lied to him.

Astonishingly, even after the completion of the Attorney General’s investigation—which provided, it’s worth reiterating, not a scintilla of evidence to corroborate the claims of Adelson’s single anonymous source—Adelson stood by his story. Last summer, I e-mailed Schreiber to bring to her attention the errors in Adelson’s story. She didn't respond.


Duke scored a victory late last week, when Judge James Beaty upheld the University’s argument that it had the power to unilaterally defer meetings to discuss discovery requirements. Beaty wrote,

Having considered the arguments of the parties, the Court concludes that allowing discovery to proceed further at this time, prior to the filing of Answers and prior to a determination of the claims and parties that will remain following resolution of the Motions to Dismiss, would be premature and inefficient, particularly in light of the scope of this litigation and the number of claims asserted and the number of Defendants named. In addition, proceeding with full discovery at this time would likely result in significant discovery disputes that could only be resolved by determination of the issues raised in the Motions to Dismiss.

Under these circumstances, the Court concludes that further discovery should proceed only after the pending Motions to Dismiss are resolved.

The decision was a perfectly logical one, although, of course, normally one party in a case doesn't get to unilaterally change the rules.


And the Durham Police Department sustains its classy reputation.

Monday, November 10, 2008

Durham: "State Law Can't Touch Us"

In its most recent filing, the city of Durham claims absolute immunity for the portions of the civil suit dealing with North Carolina law.

In some intriguing legal reasoning, Durham’s attorneys concede:

A city may waive its governmental immunity under North Carolina law by purchasing liability insurance or participating in a local government risk pool that covers losses arising from tort claims for which a city would otherwise be immune.

And they note that

The City maintains three consecutive annual excess liability policies that may potentially be implicated by the time period of conduct alleged in the Amended Complaint.

But, they maintain,

By the express terms of each policy, the excess coverage is not triggered until the City has exhausted a self-insured retention that it is “legally obligated to pay.” Because the City cannot be “legally obligated to pay” losses arising from claims for which it has immunity, it cannot exhaust its self-insured retention with those losses. Thus, the excess coverage is not triggered, and the City’s immunity remains intact.

In other words, cities can purchase liability insurance whenever they desire to do so, and fall back on a claim that they still have absolute immunity because that liability insurance never should be allowed to kick in.


On another matter, two significant North Carolina results from last Tuesday’s election.

First, in the Attorney General’s race, Roy Cooper not only won reelection, but topped the ticket, capturing 61.1 percent of the vote. The margin of victory came despite the last-minute retribution from the Wilmington Journal, which urged North Carolina voters to punish Cooper for failing to sustain charges against demonstrably innocent people.

Second, in the U.S. Senate race, North Carolina voters ousted GOP senator Elizabeth Dole. That’s the same Elizabeth Dole who not only refused to demand a DOJ investigation of Mike Nifong’s misconduct, but preposterously asserted ten weeks after Cooper exonerated the falsely accused players that the lacrosse case was still “an ongoing criminal investigation and pending judicial proceeding.”

Dole, by the way, stayed classy right to the end, closing her campaign with an ad leaving the false impression that her opponent, Kay Hagan, had cried out, “There is no God!”

Monday, November 03, 2008

October Events in the Case

October in the case was highlighted by release of serial fabricator Crystal Mangum’s “memoir.” Among other things, Mangum:

  • Invented a whole new version of the “crime,” this one in which she implicitly admitted that she had falsely accused Collin Finnerty (without of course, issuing any apology to Finnerty);

  • Lashed out at the special prosecutors, whose job she seemed to believe was to accept anything she had to say at face value, not seek the truth;

  • Suggested that “hidden” DNA evidence existed—even though the DNA evidence was publicly discussed, at great length, in the Dec. 2006 hearing and Mike Nifong’s Aug. 2007 criminal contempt trial;

  • Challenged the journalistic integrity of Ed Bradley and 60 Minutes; and

  • Described the party in such a way that contradicted not only the photos of the event but also her own cell-phone records and the credit-card receipts of her “driver.”

Mangum did have positive things to say about two people: Mike Nifong and Tara Levicy. Nifong and Levicy have another thing in common: both left the jobs they had in disgrace.

Mangum reached the bottom of the barrel in scraping up “collaborators” for her memoir:

  • Co-author “Ed” Clark came across as someone with a schoolboy crush for Mangum, a figure who uncritically accepted whatever sweet nothings his Dulcinea chose to offer;

  • Academic advisor Myra Shird (North Carolina A&T) penned a preface to the memoir in which she seemed to be auditioning for a position in any of the myriad Duke departments dominated by the Group of 88; and

  • The NAACP’s Al McSurely made his reappearance, as the “agent” for the press that published the memoir.

In other events:

  • Vanderbilt’s “Take Back the Night” event featured Houston Baker, the Group of 88 member who most aggressively defended Mangum’s hoax. Why? Gushed one of the event’s sponsors, “When I think of Houston these days and all that he has done and all that he continues to do for women, the only word that comes to my mind is gratitude. Thank you Houston, for teaching us both within the classroom and outside it, for walking with us in this struggle to end violence against women.”

  • Important civil case filings from Bob Ekstrand responded to many of the Duke straw men arguments.

In political news related to the case:

  • The Wilmington Journal, home of Cash Michaels, carried through on its January 2007 threat and endorsed Attorney General Roy Cooper’s challenger. The reason? Cooper’s refusal to try three people his own investigation had determined were innocent.

  • Academics entered the presidential campaign, but in a way that suggested extremists were the exception rather than the norm in many humanities and (some) social science departments—a portrayal of the academy at odds with a fundamental lesson of the lacrosse case.

Finally, Zack Greer is now at Bryant, where he’ll play this spring for Coach Mike Pressler. His new number? 88.