Monday, June 13, 2011


The lack of accountability is a major theme of the lacrosse case and its aftermath. Whatever else could be said about rogue ex-DA Mike Nifong, the State Bar eventually held him accountable, and stripped him of his law license. That action, in turn, triggered an accountability session for the ethically challenged Linwood Wilson, who was fired from his job as DA investigator as soon as Nifong lost his position. And, with the company he founded facing a loss of accreditation, Dr. Brian Meehan eventually lost his job as well.

Compare that record to the academy and to the media. In the academy, if anything, participation in the witch-hunt is a career advancer. Several prominent members of the Group of 88 either left Duke for better jobs (Farred, Baker, Payne) or were promoted within Duke to deanships. The administration even forked over a large legal settlement to the falsely accused players in part to shield individual faculty members from legal liability.

And then there’s the media. Bob Ashley stayed on as the Herald-Sun’s editor until his retirement this past January. Likewise with the Times’ Bill Keller, who kept his position for years until recently stepping down. Duff Wilson is still at the Times, where he was promoted to cover the tobacco and pharmaceutical industries. His on-line bio adds that he’s “currently a member of the board of directors and executive committee of the nonprofit group Investigative Reporters and Editors,” and has taught investigative reporting.” (The site doesn’t feature his syllabus, but based on his Duke reporting, presumably Lesson Plan One is, “Always Trust Whatever the Prosecutor Tells You.”)

But none of these figures can compare to Nancy Grace, subject of a glowing profile (coupled with a photo of Grace in a stylish black leather jacket) in Sunday’s Times. The article, by Brian Stelter, noted that Grace’s current network, HLN (the successor to Headline News), has reoriented itself (and boosted its ratings) around Grace’s guilt-presuming coverage of high-profile trials. It doesn’t mention just how wrong-headed Grace’s trial coverage has been in the past.

And the MSM wonders why younger people increasingly trust The Daily Show for hard news?

Friday, June 10, 2011

Beaty's Levicy Dilemma

More than five years after rogue ex-DA Mike Nifong and his subordinates in the DPD obtained indictments, the discovery process has begun in the civil suits. Ironically, however, only some of the Duke defendants are currently subject to that discovery.

The reason? Durham is appealing Judge Beaty’s ruling allowing the lawsuit to proceed, on the grounds that the city has governmental immunity against the lacrosse players’ claims. In other words: the city can violate its own procedures to frame innocent citizens, and should have no civil liability for its actions.

Very broadly reading the terms of the 2009 Ashcroft v. Iqbal decision, and citing a host of other cases of which the only absolutely on-point was a 2002 holding from the Middle District of Alabama that obviously isn’t binding precedent in North Carolina, Judge Beaty granted Durham’s request to delay discovery for (at the very least) many months, as Durham’s longshot appeal winds its way through the federal court system.

On the surface, Durham’s legal strategy makes no sense, especially given its political leaders’ constantly complaining about the cost of the lawsuit to them. But at a practical level, the Durham approach is unsurprising. First, the more time that elapses before discovery, the more opportunity for the DPD to “lose” evidence, or for DPD officers to claim that they don’t recall what happened in spring 2006. Perhaps more important, dragging the case out for as long as possible means that the political enablers of the hoax (such as Diane Catotti, the Nifong-supporting city councilor who strove mightily to neuter the commission intended to investigate the DPD) will get more time before having to justify their conduct to the electorate.

One element of Beaty’s discovery order, however, provides some insight into how he (at this very preliminary stage) views the case. In his rulings on the motion to dismiss, Beaty dismissed claims of malpractice against Duke and former SANE nurse-in-training Tara Levicy on the grounds that Levicy had no legal obligations relating to care to the public. (Her only legal obligations in this regard, Beaty asserted, were to false accuser Crystal Mangum.) This finding struck me as odd, since Levicy’s primary role in this case was not to provide medical care of any type to Mangum, but rather to gather evidence and offer analysis that the state might use in any prosecution.

In his discovery order, Beaty backtracked—at least intellectually—from this finding, and has now decided to lump Levicy in with the Durham defendants. The allegations against Levicy, he wrote, are "so intertwined with the claims against the city” that no discovery relating to Levicy or Duke Hospital can proceed.

In the short term, this finding is a tremendous victory for Duke: if Durham succeeds in its longshot appeal, and either the 4th Circuit or the Supreme Court holds that qualified immunity applies even when city employees attempt to frame innocent people, then Tara Levicy or records relating to her dubious conduct will never face the plaintiffs’ attorneys.

In the long term, however, this finding poses terrific risks for Duke, since Beaty appears to be conceding that the allegations on the table (before, it’s worth reiterating, any discovery has occurred) demonstrate that a Duke employee was inextricably “intertwined” with the hoax. If he’s consistent with that finding, it will be much harder down the road for Duke to separate itself from the misconduct of Durham employees.

Wednesday, June 08, 2011

Durham: Don't Let Lacrosse Players Appeal

Both the city of Durham and attorneys representing the falsely accused lacrosse players have appealed portions of Judge Beaty’s ruling in the Evans case. The two sides, however, have exhibited differing strategies of appeal. Durham is claiming that not only was Beaty’s ruling incorrect, but also that the city should be allowed to indefinitely delay the discovery process as its (longshot) appeal works its way through the court system. As for the lacrosse players’ appeal? In a filing from yesterday, Durham is claiming that they shouldn’t be allowed to appeal at all.

The issue involves Durham’s late March 2006 decision, as documented by former Sgt. Mark Gottlieb, to ignore the police department’s command structure and instead to turn over command of the police investigation to rogue DA Mike Nifong. In his ruling, Beaty said that the city had no legal authority to have done so, and therefore the city can’t be held liable for punitive damages. (Nifong was a state employee; states can’t be held liable for punitive damages in federal lawsuits under the 11th amendment.) Attorneys for the lacrosse players are seeking to appeal this portion of the ruling, noting correctly that this interpretation amounts to a get-out-of-jail-free card for unethical entities like the DPD—they could simply turn over future police investigations to Nifong’s ethically-challenged successor, Tracey Cline, and thereby shield the city from punitive liability.

Durham wants Beaty to refuse to certify the lacrosse players’ appeal, thereby ensuring that no higher court even would hear it. In its filing, Durham concedes that the DPD violated state law by allowing Nifong to take over the investigation: “North Carolina law clearly does not permit a City to delegate its final policymaking authority to a state official, and bars a state official from acting on behalf of any governmental entity other than the state.” But, the city muses, as it couldn’t legally have taken the action that it did, in fact Nifong wasn’t really in charge of the investigation after all—the DPD, and the rogue ex-DA himself, were essentially just pretending that he was running things.

Beaty accepted this line of reasoning in his ruling—in part, it would seem, because the facts of this case were so unusual and because he permitted the falsely accused players’ civil rights lawsuit against the city to move forward on other grounds.

It’s worth remembering—as Ray Gronberg pointed out in today’s H-S—that former city manager (and current city attorney) Patrick Baker is on record claiming that the command-structure procedures employed in the lacrosse case is normal for Durham. He wrote in 2007 that “the police are a part of the prosecution team and as such it is not unusual for the investigators to work closely and coordinate their [work] with the prosecutor.” Of course, in this instance, the prosecutor was running the police investigation, well before any indictments were obtained.

Friday, June 03, 2011

Edwards Indictment

[Update, 6 June. 4.40pm: And, in another intersection between the Edwards affair and the fringes of the lacrosse case, check out this sensational co-authored piece by Joe Neff, detailing the plea bargain negotiations between the Edwards team and the Justice Department.]

Former North Carolina senator and two-time presidential candidate John Edwards was indicted today, on six counts related to his cover-up of an affair with a campaign aide. The charges were filed in the Middle District of North Carolina, and so it's little surprise that Edwards has reached out to the area's best criminal defense attorneys: both Wade Smith and Jim Cooney are members of the Edwards defense team. Cooney told American Lawyer that he took the case in part because of his longstanding ties to Edwards, dating from the time when Edwards was among the state's leading plaintiffs' attorneys.

Though Edwards' behavior was undeniably unethical (he arranged for massive payments from a 96-year-old wealthy friend and donor to his mistress, all while publicly denying the affair and the woman's resulting pregnancy), it might not have been illegal. In any event, the prosecution will be a precedent-setter, one way or the other.

This is, by the way, the second occasion in which the Edwards campaign intersected with the fringes of the lacrosse case. In 2004, during his first presidential bid, Edwards ran as a Southern moderate. But in 2008, he reinvented himself as a far-left, anti-poverty crusader. As part of this effort, in early 2007, the Edwards campaign hired as its official blogger Amanda Marcotte, known for her intemperate rhetoric and extremist views.

Though Edwards, a North Carolinian and former law partner of Wade Smith, had remained silent on the lacrosse case, Marcotte had lots to say. Among her insights: "Can’t a few white boys sexually assault a black woman anymore without people getting all wound up about it?"

Once her words attracted public attention, Marcotte deleted them from her blog.

Marcotte eventually departed the Edwards campaign after an outcry over her anti-religious rants. And, of course, Edwards eventually departed the presidential race, after losing in Iowa and New Hampshire, and then getting crushed in Nevada and South Carolina.