Wednesday, July 01, 2009

The Iqbal Briefs: The Falsely Accused Players

As I noted Monday, several new filings in the lacrosse case have come in, all dealing with the Supreme Court’s recent decision in Ashcroft v. Iqbal, described by one commentator as “an unexpected gift for the business community.”

Today’s post summarizes the filings in the three falsely accused players’ lawsuit. Some of the briefs are repetitive, and, as I noted Monday, the Iqbal finding probably will benefit the DPD supervisors against whom no direct evidence exists. But there were four items worth noting in the batch of new briefs.

1.) The Most Craven Defendant

It appears as if disgraced ex-DA Mike Nifong has taken time away from writing poetry and singing in the church choir to write legal memoranda. Though the nine-paragraph brief filed on his behalf was signed by James Craven, its tone and content suggests that much of the drafting came from the disbarred Nifong himself.

The brief features the combination of poor lawyering, ill-concealed rage, and treacly self-pity for which Nifong became infamous during the case itself. The nine paragraphs include almost nothing in terms of plausible legal analysis. Instead, Nifong uses his filing to lash out at the three innocent people he tried to send to jail, and at their parents—even though his doing so runs the risk of alienating Judge Beaty.

“It is alleged,” writes the Craven Nifong, “that Nifong and others, aware of occurrences they may or may not have been aware of, ‘willfully ignored and/or were deliberately indifferent to this evidence demonstrating Plaintiffs’ innocence1 in their rush to charge the three innocent2 Duke lacrosse players.’”

Footnotes in legal briefs normally reference additional case law, or explicate a minor point not significant enough for inclusion in the body of the text. Not so, however, for the Craven Nifong. Footnote 1 merely says, “Does it?” Even more stunningly, footnote two—which follows the word “innocent”—reads, en toto, “Were they?”

Like Gollum with his Precious, Nifong is determined to cling to his “something happened” theory—even if, as occurred with Gollum, he loses all vestiges of his humanity in doing so.

The Craven Nifong also uses his experience as a formerly regular participant in local, state, and national media to reinvent himself as a media critic. “It must be remembered,” he sniffs, “that the complaint in this case, though utilized to begin the lawsuit, was hardly written for the Court alone. Rather it was clearly written for the New York Times, the Washington Post, Court TV, and of course the parents of the three plaintiffs.”

“Of course” there is “clearly” no evidence for Nifong’s assertion that the plaintiffs’ attorneys used their filing to influence the media rather than for a legitimate legal purpose. (Nifong appears to assume that all other lawyers are as unethical as he was.) Beyond that, the claim is an almost laughable one. Court TV no longer exists—the network disbanded on December 31, 2007, with its legal coverage taken over by CNN and its programming fare becoming “TruTV.” And perhaps the disgraced ex-DA has forgotten that throughout the case, the New York Times served as his de facto stenographer, even to the point of producing major articles riddled with factual errors that slanted the portrayal on his behalf. Why the “parents of the three plaintiffs” would expect fair, much less sympathetic, coverage from the Times the Craven Nifong never says.

In any event, the filing proves that despite having lost his power with his forced resignation, Nifong still has no class.

2.) The Return of Mr. Obfuscation

In the Nifong ethics trial, Lane Williamson labeled former DNA Security lab director Brian Meehan “Mr. Obfuscation,” and the label continues to apply. Attorneys for Meehan filed a three-paragraph memo, claiming the following: “At the time of the events alleged in the Complaint, Meehan was the Laboratory Director for DNA Security, Inc. (‘DSI’), the DNA testing laboratory retained by the State of North Carolina. Accordingly, the legal arguments set forth in DSI’s Supplemental Brief in Support of Motion to Dismiss which refer to ‘the DSI Defendants’ apply with equal force to Meehan.”

It’s worth remembering that the brief for DNA Security president Richard Clark had cited Iqbal to suggest that no evidence exists that Clark knew of what transpired at the key meeting between Meehan and Nifong—that Clark himself attended. (This was the “Our President Is Clueless” defense.)

But Meehan has testified, under oath and in great detail, about what occurred at his meeting with Nifong. He so testified (albeit inconsistently) not once, not twice, but three times, in three different courtrooms. So now Meehan is claiming that the court should simply ignore all that testimony, and accept his new claim that, because of his title as “lab director,” no evidence exists that he knew what occurred at a meeting that he himself chaired, to present findings from DNA tests that he himself conducted.

In a case that has seen more than its share of breathtaking legal claims, this might be the single most outrageous assertion.

3.) Arguing the Plaintiffs’ Case?

In her somewhat peculiar brief, Durham attorney Patricia Kerner tries to argue that ex-DPD officers Mark Gottlieb and Ben Himan did nothing wrong (or if they did, it was all Nifong’s fault) and that the behavior of Gottlieb and Himan conformed to departmental norms in a city that has no pattern of practice of allowing poor police behavior. On at least two occasions, she falls off this tightrope.

The first time comes when Kerner describes the performance of the DPD as “police doing the best they could to faithfully execute their investigatory duties under trying circumstances.” Keep in mind that, in the case of former Sgt. Mark Gottlieb alone, the DPD:

  • claimed to have taken no notes at the key initial meeting with the complaining witness;
  • conducted a lineup that flagrantly violated city procedures;
  • inexplicably declined to take any notes at a key meeting with the man selected by the department to conduct DNA tests;
  • produced a months-after-the-fact typed “memorandum” transparently designed to paper over holes in the case

That behavior, according to the City of Durham, represents the conduct of an officer trying to “faithfully execute [his] investigatory duties under trying circumstances”? If we take that claim at face value, it would seem to directly undercut Kerner’s subsequent assertion in her brief that the normal patterns and practices of the DPD aren’t designed to violate citizens’ constitutional rights.

Kerner makes another odd statement, one directly contradicted by the evidence in the case. Dismissing claims that Gottlieb lied to the grand jury, she maintains, “Indeed, given the secret nature of grand jury proceedings, Plaintiffs could not know what was said during those proceedings, [emphasis added] so they cannot make specific factual allegations about Gottlieb’s and Himan’s testimony at all.”

Yet Gottlieb—under oath in a deposition to the State Bar—went on record about what he told the grand jury. And what he told the grand jury—that Crystal Mangum’s story was consistent from the time she met with former SANE nurse-in-training Tara Levicy to the time of the arrests—was a lie. Mangum’s story wasn’t consistent. In fact, she never told the same story twice.

The version of events the false accuser presented to Levicy on March 14, 2006 differed markedly from the version of events she presented to Gottlieb and Himan on March 16, 2006, which in turn differed markedly from the version of events she presented to Samiha Khanna in her March 24, 2006 N&O interview—each of which, in turn, differed markedly from the version of events she presented in the rigged lineup on April 4, 2006.

Was Kerner unaware of Gottlieb’s deposition to the State Bar? Or is she now suggesting that Gottlieb lied in his deposition, and in fact gave truthful testimony to the grand jury?

4.) Linwood Is Back

The always entertaining Attorney pro-se Linwood Wilson, proving again the aphorism that a man who represents himself has a fool for a client, filed a three-paragraph memo on the matter, asserting the following: “In order not to be repetitive and overbearing on the court, Defendant Linwood Wilson joins Defendants Mark Gottlieb, Benjamin Himan, and the City of Durham, North Carolina, Durham Supervisors, in their Supplemental Briefs In [sic, cap.] Support of their [sic, cap.] Motions to Dismiss.”

Yet the whole thrust of Attorney Wilson’s previous arguments has been that his client, fired ex-Nifong investigator Wilson, should not be considered in any way a Durham employee, and that his legal status as an employee of Nifong gave him absolute immunity for any of his misdeeds. So why, now, are Wilson’s interests and those of former DPD members Himan and Gottlieb aligned? The Wilson brief doesn’t say.

Perhaps Attorney Wilson can consult with Client Wilson and file a supplemental brief in the future.

[A reminder: My clearing a comment implies neither that I agree nor that I disagree with the comment, either in tone or in substance. My opinion is expressed in the 1351 posts on the blog alone. The comments policy is explained in greater detail on the sidebar.]


Anonymous said...

This reminds me of the recent argument from Stuart Taylor that the SCOTUS ruled against Sotomayor 9-0: hard to believe anyone with a modicum of intelligence wrote it.

Gary Packwood said...

KC said,
...Nifong is determined to cling to his “something happened” theory...
In my view this is political strategy as Nifong prepares to run for public office again as the favorite son of leftist interconnected groups of octopi who have their tentacles wrapped firmly around Duke's coffers.

Most of the octopi are connected in one way or another to Duke.

They need an enemy to serve up to that large AAAmerican Black voting block. And privileged white young Division I athletes from the NORTH...seems to work just fine as enemies go in Durham.

I can only hope the AAAmerican leadership in Durham figures out and soon...that they have been duped by extremists with agendas who only care about their vote

roper said...

Excellent analysis, KC.

It appears that Nifong edges ever closer to derangement. He clearly comes from a world in which false allegations can be fabricated on the fly (a trait shared with Crystal Mangum), disregarding all evidence, and then expects his claims to be accepted as credible.

Only the mentally lame would be led by Nifong, but unbelievably there appear to be a few remaining in Durham willing to do so.

We must hope that the Judge is immune to local political pressure, and has his common sense, and integrity, fully engaged.

Anonymous said...

Excellent summary, Gary. It's always been about the AA voting block and how to service it.

Walter Abbott

A Duke Dad said...

to the 12:19 -

Stuart Taylor said that the four dissenting justices rejected Sotomayor & panel's summary decision and the reasoning behind it.

The USSC voted: 5 to approve the tests, 4 to send the case back for jury trial on whether New Haven's fear of lawsuits on the test was reasonable.

NONE of the justices agreed with the one paragraph summary ruling of Sotomajor's Appeals Panel.

Here is what Stuart Taylor said:

Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base.

The article you cite clearly shows that none of justices, nor the Obama Justice Dept's friend-of-the-court brief agree with you or with Judge Sotomayor.

Debrah said...

Apparently, the shared artistic sensibilities of Mike Nifong and Linwood Wilson overlapped many times and provided a common thread as they doled out justice in Durham.

It's always comical as well as revolting to read this brand of self-righteous tripe.

Especially when you know how utterly dishonest someone like this Lnwood Wilson is.

And how can anyone forget this exciting gem that KC brought to Wonderland!

William L. Anderson said...

In reviewing items from the Change of Venue motion as well as other documents of the case, I would say, in answer to Gary Packwood's post, that the AA leadership in Durham led the charge against the lacrosse players. We had churches hosting meetings featuring rabid antisemitic speakers to the NAACP and the lies it posted on its own website.

This case was built on lies, and the lies continue not only in the legal briefs, but in public comments coming from people like the Rev. Dr. William Barber and others. Apparently, the way to become a "leader" in Durham is to be able to lie better than other people.

The entire affair is sorry, but it seems to be typical of what we see in political "leadership" today. There was not one reasoned voice in Durham's leadership from the mayor to the top people at Duke University. People like Jim Coleman were pushed to the side and ignored.

Debrah said...

Well......I have to say that after checking out a few blogs of contention and those who exist to scrutinize KC---(what would they do without the Diva KC photos that they swipe? !!!)---his leveled approach and decision not to---as of yet---post about the latest Duke embarrassment was a good one.

Although this case screams as Exhibit A of Duke's bizarre academic culture, there is not---as of yet---a direct line to the Lacrosse Hoax.

I do think, however, that the Triangle media coverage is very much an issue.

How the media covered the lacrosse case highly affected the legal realm and the aspects of this latest post.

One can say with certainty that if the alleged perpetrator who is an administrator at Duke had been a lacrosse coach or a lacrosse player, or anything close, the media coverage would be very different right now.

Scot Foley said...

The Craven/Nifong "brief" is astonishing. (And I agree with KC that the tone of this brief and its predecessors has the ring of Nifong himself, although his "lawyer" certainly has an appropriate name.)

For one thing, let's recall that in an earlier brief, Nifong begged Dave, Reade and Collin for "forgiveness and mercy." (This from a man who would not end a demonstrably false case, even after it had blown up in his face.) And now he reverts to form with his insipid "Were they?" footnote. Typical Nifong; always the victim, always the conquering hero doing his utmost to bring justice to a black girl in Durham.

The most noteworthy legacy of the Duke Lacrosse Case might be an awareness of the damage that can be done when you bring two sociopaths (Nifong and Mangum) together and one of them has a measure of power.

As for Nifong himself, he faces the daunting task of waking up each day and looking himself in the mirror, a formidable task for a "man" who did everything in his power to ruin the lives of three innocent young men. In order to sustain that effort, he must have his "Were they?" moments. Yet all he continues to prove is that he is a contemptible human being, unethical to the core.

In the disbarment hearing two years ago, F. Lane Williamson showed Nifong a measure of compassion by noting that the Duke case appeared to be an aberration in his life and career. I think it entirely fair to paraphrase the disgraced, disbarred former DA and ask, "Was it?"

Anonymous said...

Anonymous said...
This reminds me of the recent argument from Stuart Taylor that the SCOTUS ruled against Sotomayor 9-0: hard to believe anyone with a modicum of intelligence wrote it.

7/1/09 12:19 AM

I used to work as a law clerk at a state supreme court, but the commenter "eddy" at the site cited above shows that one needn't be an attorney to grasp Stuart Taylor's point:

"re: 5-4 versus 9-0

"If 5 justices voted for Miss North Carolina, 4 voted for Miss California and Sotomayor voted for Perez Hilton, didn't all nine justices disagree with Sotomayor?

"That's the 9-0 reference. All nine disagreed with Sotomayor."

For those with a legal bent of mind, the point is even clearer: Courts both (1) judge and (2) dispose of cases. For example, a jury might unanimously find a defendant guilty yet be divided on the appropriate punishment.

More specifically in the Ricci case, the USSC unanimously concluded that Sotomayor was wrong but differed only on the disposition of the case. All nine justices voted to reverse Sotomayor. Four voted to "reverse and remand" while five voted to "reverse and render (judgment)".

"Reverse and render" is a very rare outcome because it essentially says to the lower court, "You were so wrong that we don't trust you with this case; therefore we will render the judgment that you should have made."

Therefore, as Mr. Taylor says, all nine justices voted to reverse Sotomayor.


Anonymous said...

Can you post a link to the Nifong/Craven filing ?

KC Johnson said...

Just posted it (click on he link in the text of the post).

Anonymous said...

"The always entertaining Attorney pro-se Linwood Wilson" ---- Ya gotta love it! Steve in New Mexico

Anonymous said...

About 2 years ago Nifong said,

"Mr. Seligmann, Mr. Finnerty and Mr. Evans were entitled to the presumption of innocence when the were under indictment. Surely they are entitled to more than that now as they go forward for the rest of their lives, and that is what the attorney general tried to give them in his declaration that they are innocent."

Doesn't seem to jive with the innocent "were they" in the Nifong/Craven filing, maybe some lawyers need to remind him of his earlier statement.

William L. Anderson said...

It is interesting to see that Nifong once again is claiming that he had a legitimate cast. The State Bar said he did not, the AG said he did not, and the evidence itself said he did not.

Yet, here he goes again making the same dishonest charges. I make no apologies for calling Michael B. Nifong a liar. He is a liar and a despicable one at that.

It does not make Durham look very good when we see the voters time and again electing out-and-out liars to positions of authority.

sceptical said...

RE: Nifong's brief

I do not know Mr. Craven, but what attorney in his right mind would allow his client to write such a brief? After all, Craven did sign it. Was Mike trying to save some legal fees by doing it himself? I agree with KC that the brief reeks of Nifong.

William L. Anderson said...

Maybe the attorneys on this blog can answer for me: Can Nifong's attorney declare, even backhandlely, that Reade, Collin, and David raped Crystal Mangum, especially after the AG's report? Is this an example of legal misconduct, or simply business as usual?

It seems to me that Craven should be reported to the state bar for his comments, as he is insinuating in a legal document in a court of law that the AG was lying. Again, I am not familiar with the law here, so maybe someone else can answer.

Also, in reading R.B. Parrish's book on the Duke Lacrosse Case, a quote from Himan really is eye-opening, when he declares that the defense was turning all sorts of information over to the special prosecutors.

The reason they turned it over to them was that Nifong refused even to look at it, much less accept it. So, we now have Nifong lying in a legal document here, insinuating that he obviously did look for exculpatory information.

In other words, another day of the same from a pathological liar.

Anonymous said...

“Yet Gottlieb—under oath in a deposition to the State Bar—went on record about what he told the grand jury. And what he told the grand jury—that Crystal Mangum’s story was consistent from the time she met with former SANE nurse-in-training Tara Levicy to the time of the arrests—was a lie.”

- - - -

Gottlieb Deposition, 4/19/2007, Page 185, lines 17 -25:

And they asked me about the medical report. I told them that the SANE nurse found the information to be consistent with the story she was giving.

I explained to them that there were inconsistencies in the very beginning when she was crying, upset, whatever. But as soon as Nurse Levicy was able to calm her down, which didn't take long at all, she never changed her story from that point.

- - - -

KC, it would have been a lie if Gottlieb had been referring to the whole time up until the arrests, but the second paragraph in the transcript was from Nurse Levicy’s description of Crystal’s story during the seven hours Crystal was in her care.

KC Johnson said...

To the 10.10 (I would address you by your first name, as you so addressed me; but, alas, you did not provide a name):

Former SANE nurse-in-training Levicy encountered false accuser Mangum on one day and one day only: 3-14-06. Gottlieb testified to the grand jury in mid-April 2006. There is nothing in his testimony to suggest that he was referring only to the false accuser's statements to the former SANE nurse-in-training. No one, to my knowledge, has ever claimed that former SANE nurse-in-training Levicy ever met with Mangum any time after 3-14-06, to provide an opportunity for her to have "changed her story" to former SANE nurse-in-training Levicy.

Perhaps, if the civil suit moves forward, Gottlieb will find his memory "refreshed" and adopt the after-the-fact rationalization you have offered. I'm sure the plaintiffs' attorneys would enjoy the opportunity to explore the inconsistency.

Scot Foley said...

William (don't know if you go by Bill or not so I'll stick to the formal name),

I have a law degree but don't practice in civil litgation, nor am I terribly familiar with the Rules of Professional Conduct (and I hope never to become familiar). So take this opinion with a grain of salt, and anyone who knows better than me feel free to chime in.

I think Craven's (God, how perfect is that name?) remarks, or the ones put forward in his name, are probably not actionable by the State Bar. For one thing, he is acting in the role of Nifong's advocate, not as a prosecutor. For another, his idiotic questions, while tasteless, probably don't rise to the level of defamation.

All he's doing is asking insinuating questions about the plaintiffs in a civil lawsuit he's defending. He could always just say that all he did was put forward a question, with no direct accusation leveled against Reade, Colin or Dave. Ridiculous, I know.

sceptical said...

To the 10:10--

Mark Gottlieb was and is a master "spin doctor."

1) His after-the-fact case narrative
2) His after-the-fact timeline prepared for the City Council
3) His under-oath deposition before the State Bar

In each instance he took the basic sequence of events and then twisted
them in a favorable way to his own self-preservation.

Gottlieb kept emphasizing that Himan was the lead investigator instead of himself-- laughable.

Gottlieb went out of his way not to keep any contemporaneous records which would be discoverable.

Gottlieb conveniently forgot or failed to mention the contents of key meetings with Nifong, Meehan, Baker and the Durham-Duke Joint Command.

His grand jury comments are in the same vein-- a half-truth that is really a lie. Yes, Levicy did say that Mangum was consistent. But this is a lie because in fact Mangum was never consistent.

I hope that Gottlieb will be deposed because to see a conniver like him face an attorney skillful at examination would be worth the price of an admission ticket.


Anonymous said...

Is Kerner a Communist?

Carmine Burton said...

Nifong wrote:

1 - “Does it?”

2 - “Were they?”

KC, those are poetic devices. Nifong obviously wrote the entire brief while waiting for his turn at a local poetry slam.

William L. Anderson said...

To Scot Foley: Everyone else calls me Bill. I use the formal name for my blog and for articles, which probably is overkill and does not fit my personality very well, but there it is.

Regarding Gottlieb, I have seen people tried and convicted for "obstruction of justice" for doing much, much less. Nifong and Gottlieb and the others should consider it a gift that they are not being pursued by federal prosecutors, who easily could have made a case against them.

The reason for not prosecuting is political and nothing else. We already have seen the African-American leaders in Durham point to the lacrosse case as "proof" that the AA community has been "victimized."

I doubt that the statute of limitations has run out on their activities and am wondering why the Obama administration also is refusing to investigate this case. After all, the decision to stay out was a Republican one, and Republicans no longer are in charge.

jamil hussein said...

great article about the Ricci case..The city acted just like Durham and local University racialists provided cover. This is Amerika, in 2009.
I have a dream. One day, the racial discrimination in this country ends.

"Such is governance these days in a liberal university town. It may remind some of us old enough to remember of the machinations and contrivances of Southern white officials and agitators employed to prevent blacks from registering and voting..
This is the sort of thing Justice Ruth Bader Ginsburg described in the text as just the workings of politics. Writing in Slate, Yale Law faculty member Emily Bazelon goes further. She laments that the promotion test rewarded memorization and that it favored "'fire buffs' -- guys who read fire suppression manuals on their down time."

She is outraged that a fire department might want to promote firefighters who know more about suppressing fires, rescuing victims and protecting their colleagues rather than simply promote a predetermined number of members of specific racial groups whose self-appointed political spokesmen back the politicians in office.

Bazelon and Sotomayor, who voted to uphold the city's decertification of the promotion test, are typical of liberal elites who are ready to ratify squalid political deals -- and blatant racial discrimination -- in return for the political support and the votes that can be rallied by the likes of Kimber. You supply the numbers on Election Day, and we'll supply the verbiage to put a pretty label on your shenanigans."

Anonymous said...

I also agree that the Memorandum shows all the hallmarks of an original Nifong. The first two footnotes are indicative of the self-destructive nature of this creature. Like a sinner on his deathbed or a criminal in front of the judge (the latter being too accurate to be a metaphor), Nifong will become his obsequious self when he soon gets called on it. In the end, it will provide even more in the way of punitive damage arguments for the boys.

I think that Nifong is self-deluded enough to believe that this provides a warning to the players to back off, when, in reality, it is just that image of the mouse giving the finger to the eagle all over again. What was the subtitle to that picture? "The last act of defiance." Very fitting.

I found the third footnote very interesting as well. "There is a lot of unnecessary duplication in the complaint, i.e. it did not have to be 162 pages in length." Of course, in the body of the Memorandum, Nifong also wrote: "Did it have to be 162 pages long ...?" The rejoinder is, did the Memorandum have to be 3 footnotes long? This is really amateur hour.

Nice analysis again, Professor Johnson. MOO! Gregory

rabbit said...

What a bizarre brief. More bitchy than analytical, parts of it read like it was written at 6 AM after an all-night bender.

What does Nifong have to gain by suggesting that (in the first two weird little footnotes) the lacrosse players might be guilty? This is a can of worms that judge is not likely to open.

And how does a man with such atrocious judgement ever rise to the level of DA?

Debrah said...

"The first two footnotes are indicative of the self-destructive nature of this creature."

Nifong doesn't look at his methods as self-destructive at all.

This is how he's practiced law for almost a lifetime and how many practice law.

In places like Durham as well as in small town America no one would challenge him.

The part that makes me angry is that paper shufflers like Nifong are out there every day causing great damage to people---innocent or not.

In a place like Durham, Nifong knew how to play the game and he never had to play by rules of ethics unless he just wanted to.

Psychologically, he's never recovered from Roy Cooper's and Lane Richardson's smack-down.

He still thinks he can get back in the game because of who and what his "victim" represents to many Durham residents.

One Spook said...

I had planned to use the same analogy that Gregory did .... but my drawing is of an elephant's foot about to crush a mouse who is giving the finger above the caption, "One Last Act of Defiance."

And that is exactly what the Craven Nifong brief is, although I'd suggest that it isn't the last act we'll see from Nifong.

But, permit me to be the "Devil's Advocate" for a moment, and in reference to Nifong, that term cannot be considered a metaphor.

In reading the actual Craven Nifong brief at the link KC provided, it seems to advance two arguments supposedly found in Iqbal, to wit; in A. that “any liability of Mike Nifong to the three plaintiffs asserting claims against him may not rest on the agency doctrine of respondeat superior.” and in B. that the plaintiffs’ allegation complaint is "is replete with the sort of conclusory allegations addressed, and appropriately criticized, by the Court, not only in Iqbal, but also in Bell Atlantic Corporation v. Twombly, ..." [my emphasis]

Thus, the footnotes 1. and 2. serve to explicate that the statements the footnotes modify are conclusory allegations: legal conclusions based on conjecture and speculation, and NOT ultimate facts. Hence, the footnotes question those statements and would seem appropriate given the arguments that the Craven Nifong brief advances.

I personally believe that the Craven Nifong argument resembles droppings from horses and bulls often found after parades, but it will be interesting to see how the court views those arguments.

One Spook

Jim in San Diego said...

Some practical observatons:

1. Statements made in legal papers filed in court are generally absolutely privileged against claims of defamation.

2. The Court is probably eager to find ways to limit the scope of this case. Note how long it has taken just to handle the first pleadings.

Our justice system is not well set up to handle so many claims against so many different persons and legal entities in on case.

Thus, the court may well use Iqbal as an excuse, if is looking for one, to cut out parts of the case. This is ultimately unlikely to save Duke or Durham from the consequences of their acts, since they were so many and so varied.

3. Iqbal may also be another example of the adage, "good cases make bad law". The justices were probably not considering all the possible uses of their ruling in cases other than the one before them, though that is part of what they should be doing.

Jim Peterson

Debrah said...

"And how does a man with such atrocious judgement ever rise to the level of DA?"

As you may recall, Nifong didn't "rise" to any level, he was appointed by ex-NC Govermor Mike Easley.

Another crook.

Click on all the reports from that page to get the details.

Easley is being investigated by the Feds.

His wife has demonstrated that she and her husband have a lot in common.

People now refer to them as "The Sleazys".

Anonymous said...

Found at

Student Press Law Center

Student editors: Police report of theft opposes witnesses, video

By implication, the information in this article suggests that the UMass police department is covering up a newspaper theft, perpetrated by a UMass administrator, of copies of a conservative student paper which had criticised that administrator.

The Hounds of TASSers'ville said...

To 5:26

FIRE has monitored this case quite closely which one can read here. The censorship by UMASS was later removed.

The more alarming state of the case in question, however, was not so much the lack of action by the University (which compared to most First Amendment outrages by institutions of higher learning is quite passive and tame), but rather the actions of the student government which appears like it could have been lead by Chauncey Nartey.

We commend as well to your attention on FIRE's page about the troubling actions at Bucknell. Read also Bucknell's response that we Hounds find rank equivalent among the PR meanderings of the Skunk, the Water Buffalo, and the Flying Squirrel.

While we are on the subject of FIRE, our thanks go to Professor Johnson who took out of his time to appear at the Campus Freedom Network Conference to remind us all that the hunt is not over.

Posted by Hound No. 2
The Hounds of TASSers'ville

Debrah said...


NAACP complains about news coverage

BY JOHN MCCANN : The Herald-Sun
Jul 3, 2009

DURHAM -- Local TV news directors acknowledged the significance of monitoring the state NAACP's push for the passage of the Racial Justice Act but didn't apologize for their stations last week not having cameras present at the civil rights organization's downtown news conference about the matter.

The Racial Just Act is a bill in the state legislature that would allow those facing the death penalty to challenge their convictions on the basis of race. The idea is to address the disproportionate number of black men on death row.

But at the news conference in front of the Durham County Judicial Building, state NAACP President William Barber had another skewed figure in mind -- the disproportionate number of TV cameras on hand to document the progress of the Racial Justice Act compared to all those lenses three years ago at those same courthouse steps trained on defendants and their lawyers when the Duke lacrosse situation was commanding so much attention.

At the news conference, Barber pointed out that seemingly everybody that day was focused on S.C. Gov. Mark Sanford's rendezvous with the woman in Argentina. But the Racial Justice Act should have trumped that in terms of importance, Barber said. So the media's response -- or lack thereof -- made a statement about the concern for wrongfully convicted black people in this city, in this county, in this country, he contended.

Asked this week about Barber's assessment regarding the press conference, local TV news directors respectfully disagreed.

"I don't think this is a conversation about importance," NBC 17 News Director Nannette Hobson said. The news conference was reported on NBC 17 and details of it appeared on the TV station's Web site, she said. "We wish we could send a camera everywhere."

Journalists never have been able to get to every event harkened by news releases. Members of the media these days would argue they're even more strapped to respond.

Barber doesn't buy that. Neither does lawyer Al McSurely and others who were at the NAACP's news conference. Journalists cover what they deem important, and the Racial Justice Act obviously didn't rise to that level for them, NAACP supporters suggested.

WRAL-TV News Director Rick Gall said other stories pulled at his crews that day, but the Racial Justice Act is something his journalists have covered and will continue to cover.

ABC 11 News Director Rob Elmore said his journalists, too, have reported on the Racial Justice Act using both video and sound bites -- not just quick reads by news anchors. This particular piece of legislation is significant, and ABC 11 journalists will stay on top of its progress in the General Assembly, Elmore said.

News 14 Carolina News Director Rick Willis said his team started covering the Racial Justice Act in August 2008. There's been more coverage this year, and Barber has been among those interviewed, Willis said. Barber even was invited to appear on a News 14 Carolina political show, Willis said.

There was no shortage of news when the local NAACP held its news conference, so News 14 Carolina journalists just had to pick their spots, Willis said.

"You have to make your decisions," Willis said.

As for the Duke lacrosse scandal being the media darling the Racial Justice Act isn't, Hobson said, "You can't weigh one news day against another."

No justice, no peace said...

"It should be the highest ambition of every American to extend his views beyond himself, and to bear in mind that his conduct will not only affect himself, his country, and his immediate posterity; but that its influence may be co-extensive with the world, and stamp political happiness or misery on ages yet unborn." --George Washington

Anonymous said...

Regarding the so-called Racial Justice Act, the reason there is such a large number of black men on death row is because a large number of black men commit murder. An additional reason is that they often have the aggravating factors necessary for the death penalty. Examples are multiple victims, torture of the victim(s), and additional crime such as rape or robbery along with murder.


Debrah said...

I just ran across this report once again while looking for something else.

This clearly shows the position taken by Obama regarding the Lacrosse Hoax and was as aggressive as any politician could or should have been who resided in another state.

It should be clear to the Gang of 88 and all their mascots and enablers which side of the Hoax Obama was on.

If this issue comes up again in the Triangle area on a public forum with discussion of those vile Duke enablers who helped orchestrate the Hoax and anyone comes on that forum taking sides and giving comfort to those enablers using Obama......

........I will personally rip their effing throat out with my bare hands!

Debrah said...

It isn't as easy as saying "I'm sorry"

Melissa Nobles who was a panelist at the Duke conference back in March opines.......

"Apologies are never easy," said Melissa Nobles, a Massachusetts Institute of Technology political science professor and author of "The Politics of Official Apologies." "These things are always hard-fought, never mind the political stuff, the implications of what they mean down the line, and who's sponsoring the resolution."

Debrah said...

You must listen to this.

Victoria Peterson might bring Mikey back from the dead yet.


One Spook said...

To the 1:59 PM, who writes:

"I just ran across this report once again while looking for something else.

This clearly shows the position taken by Obama regarding the Lacrosse Hoax and was as aggressive as any politician could or should have been who resided in another state."


What that link shows is that while Obama made a private reply in a private letter to a constituent, two politicians who resided in other states made very public demands in public letters which could be termed "aggressive positions.

I guess we need to review the facts once again.

1. Obama made no public response to the lacrosse hoax. His private reply was made public by the constituent who received the letter and by a reporter.

2. Obama said of the public call others had made that he "will be following its progress closely." There is no evidence on the record that he ever did that.

3. Now that he is president, he could direct his own appointed DOJ to pursue a federal investigation into the lacrosse hoax. He has never done that, or has he ever mentioned it.

While some may believe it is "clear to the Gang of 88 and all their mascots and enablers which side of the Hoax Obama was on." his initial response and complete lack of follow-up can hardly be termed "aggressive."

Making public statements and taking action is "aggressive," and only the most strained interpretation of Obama's response could characterize it as anything but flaccid.

Actions speak louder than words, and with respect to the lacrosse hoax, apart from a private letter, there has never been any other comment of record or action from Obama.


I, like many others I'm sure, wish he would order such an investigation, but he has not.

So much for "following its progress closely."

One Spook

Debrah said...

Let's see if we can get the ball rolling with this grand Victoria Peterson radio appearance.

That other link died on its own.

The Diva made no mistakes.

It was a cyber gremlin.

Jim in San Diego said...


Be careful in drawing conclusions.

Statistically, blacks and hispanics are disproportionately sentenced to death for the same crimes for which caucasions are sentenced to prison terms.

If you doubt this, then we can start a discussion of the facts, if KC lets us.

Experience with various attempts to discover and release factually innocent inmates, like Barry Scheck's "Innocence Project", is that innocent non-whites are, again, a disproportionate percent of those on death row.

Jim Peterson

Anonymous said...

Jim, what I don't know about the percent of innocent (or in some cases not guilty) non-whites is in the total prison population, but does the "innocence Project" concentrate on minorities due to their perceived belief that they are overrepresented? ie, selection bias.

No more comments on this subject from me, thanks KC for publishing this.

Bill Alexander

Debrah said...

City, Duke argue for lacrosse case dismissals

By Ray Gronberg : The Herald-Sun
Jul 4, 2009

DURHAM -- Lawyers for the city have joined Duke University in arguing that a new U.S. Supreme Court ruling should prompt the dismissal of all or most of the civil rights claims stemming from the Duke lacrosse case.

The court's May ruling, handed down in a terror-war case, stands for the idea that "pleadings in federal court must be plausible, no matter what the cause of action," the city's legal team told the federal district judge who's reviewing three lawsuits filed by members of Duke's 2005-06 men's lacrosse team.

The problem that creates for the players is that their lawsuits implausibly attribute to the actions of police and city officials whatever meaning happens to best serve their case, the lawyers argued.

The players "with perfect 20/20 hindsight" fault how police collected and weighed evidence as they investigated stripper Crystal Mangum's false claim she'd been raped at a March 2006 team party, they said.

The only consistency in their argument is to attribute to each action by police or city officials "an underlying wrongful purpose: multiple independent conspiracies, malicious intent on the part of investigators and unconstitutional city policies ratifying such conduct," they said.

But the actions they criticized are "also consistent with a far more obvious, mundane and innocent scenario: police doing the best they could to faithfully execute their investigatory duties under trying circumstances," one of the city's recent filings said.

The city's lawyers were reacting to U.S. District Judge James Beaty Jr.'s invitation to comment on the Supreme Court's ruling in Ashcroft v. Iqbal, an opinion court observers are now saying could be the most significant the justices handed down this year.

The court blocked a Pakistani's attempts to pursue claims against former U.S. Attorney General John Ashcroft and FBI Director Robert Mueller. The Pakistani, Javaid Iqbal, was detained after 9/11 and allegedly abused while in detention.

A 5-4 majority headed by Justice Anthony Kennedy modified the usual rule that judges, when weighing dismissal motions in civil rights cases, have to accept as true all factual claims the side filing the suit makes.

That assumption many times ensures that a suit survives long enough for both sides to undertake discovery -- preparing for a trial by swapping documents and conducting interviews, assembling in the process the evidence that bolsters or negates a lawsuit's underlying claims.

The city is trying to block that, by arguing that the players' worst-case rendition of events is exactly the kind of legal argumentation the Supreme Court barred Iqbal from making against Ashcroft and Mueller.

For example, the city's lawyers defended the Police Department's decision to search the room of lacrosse player Ryan McFadyen after learning he'd sent out an e-mail to teammates purportedly threatening to hire strippers and kill them.

McFadyen's lawyer, Bob Ekstrand, has argued that the e-mail was a joke, a play on the book and movie "American Psycho" that was easily recognizable to teammates who'd studied it in class.

The problem with that argument, the city's lawyers say, is that it assumes or claims police were somehow in on the joke. But in reality, given Mangum's claims, "this graphic and violent e-mail suggested, at a minimum, the need to investigate further," they said.

Similarly, the city's efforts to curb off-campus problems in the Trinity Park neighborhood "is more readily explained as an understandable response to complaints from neighboring residents" than as an animus-fueled campaign to discriminate against Duke students, as many of the players would have it, the lawyers said.

Beaty in inviting lawyers to address the Iqbal case gave both sides a chance to response. Briefs from the players' lawyers are due later this month.

Debrah said...

Some comments under the H-S report.

The "BobV" commenter provides a great dose of what's in Durham and the kinds of people who would have been on the jury.

Perhaps nutty Bob should join Mikey and go on the road with his outdated show.



Shut Up
Submitted by bobv on 07/04/2009 @ 05:46 AM

Those brats should shut up and go home!!!! Who will pay the Lawyers? BV

More Than Mr. Nifong Must and Will Pay
Submitted by seahappy on 07/04/2009 @ 07:12 AM

The Durham Police Department, Bill Bell , Patrick Baker , Duke University for the Complete failure to support the wrongly accused, the Gang Of 88 so called Professor's and all the taxpayer's in Durham should pay for the great Harm that was done to these young Men .....It's not over by any measure !!!!!!!

Durham and Duke Weaseling Out
Submitted by pacfandave on 07/04/2009 @ 07:25 AM

The persecution of the Duke lacrosse players by Duke's administration, scared to death that to do the right thing might mean offending 88 fringe faculty members; the police department, which skewed the investigation and evidence to support a DA determined to ride this phony case to reelection, and the Herald-Sun's editors, who threw objectivity to the winds and slanted its reporting to support its liberal agenda, was the most egregious raping of both the American sense and system of justice it has been my misfortune to witness. All parties involved in perpetrating this outrageous atrocity should pay and pay dearly, so as to give pause to any others contemplating jumping into the abyss of corruption.

Submitted by bobv on 07/04/2009 @ 08:09 AM

Is the next stripper drug party?? B

Submitted by *herald on 07/04/2009 @ 08:41 AM

Looking for work Bob?

Submitted by bobv on 07/04/2009 @ 08:54 AM

For the offer-but I'm sure you know where to go!!! B

What about Crystal Mangum
Submitted by mcdade1952 on 07/04/2009 @ 09:06 AM

Shouldn't she be imprisoned for lying and falsely accusing the guys in the first place? Their reputation was tarnished and she walked away with no injuries, except that we all know she is a lying ----. The whole think was a disgrace to Duke itself. One thing for sure, God saw it all, she will have to answer to him along with Nifong and all the others responsible.

Submitted by bobv on 07/04/2009 @ 09:59 AM

They dropped charges because Nifong screwed up. They never said the brats where innocent!! B

Jim in San Diego said...

Bill Alexander, & DN:

So far as I can tell from following the results of the Innocence Project, there is no obvious selection bias.

Here are the unsettling facts, so far:

-240 prison inmates found to be factually innocent through DNA testing.

-Average length of time in prison, for those found to be innocent: 12 years

-17 innocent people had been on death row

-Approximately 70% (!!) of those found innocent were minorities, mostly blacks and hispanics.

Initial conclusion: minorities who are innocent are grotesquely more likely to be found guilty of serious crimes than non-minorities who are also innocent.

Source: Innocence Project, home page,

These cold statistics are part of what Reade Seligman called a "world of injustice" out there. They also poignantly remind us of another great tragedy of the Duke rape hoax.

Those who pretend to be interested in ending injustice towards minorities got on, and stayed on, the wrong horse. They missed an opportunity of a lifetime to join with the Lacrosse players, their lawyers, and the rest of us, to join together to actually do something to attack injustice in Durham & North Carolina.

Shame, shame.

Jim Peterson

One Spook said...

Jim in San Diego writes @ 12:40 PM:

"Those who pretend to be interested in ending injustice towards minorities got on, and stayed on, the wrong horse. They missed an opportunity of a lifetime to join with the Lacrosse players, their lawyers, and the rest of us, to join together to actually do something to attack injustice in Durham & North Carolina."

That is so well said, Jim ... you've very concisely captured one of several great lessons that have arisen from this entire shameful episode.

What should, but never will, happen at Duke is a "Campus Cultural Initiative" that examines (to use your analogy) exactly why certain professors and administrators at Duke "got on, and stayed on, the wrong horse."

It is one matter to have to suffer through one of the many "conferences" or "presentations" organized by extremist ideologues who view the entire world through the prism of race, class and gender. That is a fairly benign, albeit disturbing, experience.

But, when that ideology and pedagogy trumps all other traditional elements of the academy and the American legal system such as the dispassionate examination of facts and the presumption of innocence, then it moves beyond benign to dangerous.

The actions of certain Duke professors and Duke administrators represented a significant danger to falsely accused students. And the illegal activist behavior (to include public statements) of those professors and the failure of administrators to control that behavior using the existing Faculty Handbook represent tortious actions for which they now stand accused.

The fight against injustice should, by necessity, be blind to race, class or gender. Viewed in any other manner, it is a danger to all of us.

One Spook

Anonymous said...

William Anderson asked if Nifong's attorney can claim, even backhandedly, that RCD raped Crystal Mangum, especially after the NC AG's report. My brother is an attorney with around 25 years experience, mainly in civil practice. I asked him this question. He answered, "I believe so."


Anonymous said...

Jim In San Diego,

To see what I meant by aggravating factors that lead to a death sentence, google "Wichita Massacre." For information about a case that goes to trial next month, google "Channon Christian."

I am all in favor of DNA tests that lead to the innocent being freed. In the Wichita murders that resulted in convictions in 2002, DNA (along with the victim's property in the suspect's apartment) proved guilt. In the Christian-Newsom murders in Knoxville, the suspects pored drain cleaner down Channon Christian's throat (maybe when she was still alive) in order to remove DNA. They failed.

As of now, the trials in the Knoxville murders begin next month. I hope the people here follow it. It should prove instructive.


Jim in San Diego said...


I am not following your argument.

We all want the guilty to be convicted and punished. We all want the innocent to be exonerated.

The death penalty is reserved in most states for only the most extreme crimes, and many states require some aggravating circumstance, even for murder.

I am not aware of any statistics, whatsoever, that minorities commit worse crimes than non-minorities, as the explanation as to why minorities are disproportionatly sentenced to death.

A couple of anecdotal examples are not statistically valid. And, anecdotal examples can always be mirrored: (remember Daumer?; Richard Speck?; the Unibomber? - all Caucasian).

The statistics from the Innocence Project: 17 innocent men taken off death row.

Here is what is scary, and should cause us to lie awake at night: Virtually the only way you can be exonerated after conviction is with absolutely compelling evidence like DNA.

Since many, if not most, crimes do not have a saved DNA fingerprint at all, we can be certain, very certain, that large numbers of innocent men, black and white, have been executed over the years.

Jim Peterson

Debrah said...

Perhaps Mikey's attorney, as well as Mikey, should revisit this day in the life of a rogue prosecutor.