Monday, December 17, 2012

The 4th Circuit (Essentially) Gives Durham a Free Pass

[Update, Tuesday, 1.08pm: As requested from a couple of the commenters, there is a link to the opinion. And a reminder: this appeal terminated the process at its inception (before discovery even occurred). That is, the 4th Circuit held that the falsely accused lacrosse players had no federal civil rights claim. The message the three-judge panel sent was clear: in towns and cities in the 4th Circuit, it's possible to frame innocent people without incurring federal civil rights violations, provided that the police are candid in discussions with the prosecutor that no evidence exists against the innocent people (even if, at the same time, at least one police officer misleads the grand jury and violates departmental guidelines and confines a photo array or lineup to suspects); and that the police can claim the prosecutor made the decision to indict. Chilling.]

The 4th Circuit (as previously predicted, based on the tone and substance of the oral arguments) has issued a ruling that for all practical purposes ends the civil suits against Durham and associated parties.

A basic summary of the opinion and concurrences:

(1) The panel dismissed all federal claims. A two-judge majority, Judges Diana Motz and J. Harvie Wilkinson, appeared concerned that doing otherwise could permit frivolous cases to proceed and thus have a chilling effect on legitimate law enforcement activity.

(2) A two-judge majority allowed one state claim, of malicious prosecution against Gottlieb and Himan, to proceed. It’s not clear at this stage how this section of the lawsuit will play out.

(3) The panel sent a clear message to prosecutors or police officers who might be worried that they’re seeking indictments without good reason to do so: if you obtain a grand jury indictment (regardless of whether the officers tell the truth to the grand jury), you should be home free.

(4) All claims raised by the unindicted players were dismissed, and the merging of the three lawsuits simultaneously to the 4th Circuit probably helped Durham.

(5) The intersection of how the opinions were written and Judge Beaty’s previous decision to stay discovery on claims relating to Tara Levicy makes it possible that the former SANE-nurse-in-training might never have to appear under oath to justify her . . . dubious . . . conduct. But it's also eminently possible (indeed, probably more likely) that discovery against Levicy could proceed, under Count 23 of the Carrington lawsuit (which had a mixture of Duke and city defendants). This will be an issue before Judge Beaty as the unindicted players’ case proceeds. The 4th Circuit's ruling certainly calls into question Beaty’s earlier decision to stay discovery regarding Levicy as the city conducted its appeals.

(6) The falsely indicted players were hurt by the ideological concerns of two of the judges—from the right, Judge Wilkinson’s general distrust of the excessive aggressiveness of trial lawyers; from the left, the breathtaking hypocrisy of Judge Roger Gregory, who gave the impression at oral argument (an impression confirmed in his partial concurrence and partial dissent) that he could have been a card-carrying member of the Group of 88.

Judge Motz’s Decision

Speaking for the panel, Judge Motz did five things:

(1) In the most significant aspect of her ruling, Judge Motz dismissed the § 1983 malicious prosecution claim against Officers Gottlieb and Himan filed by the falsely indicted players. Why? Because Nifong, not the officers, made the decision to indict, and because the officers gave all the information about the case to Nifong.

Given the context of the case, this was a deeply troubling finding, in two respects. First, as of several days into the police investigation, DPD supervisors had placed Nifong in charge of the police investigation. The message the Motz panel sent to 4th Circuit jurisdictions, then, is that allowing a prosecutor to run a fraudulent police investigation—and then having the city’s officers stand aside as he resumes his prosecutorial role and seeks a fraudulent indictment—is a sure-fire way to avoid a federal civil rights claim. Second, we know that the grand jury that indicted the three lacrosse players (who heard from only these two witnesses) was misled—first, thanks to excellent reporting from ABC’s Law & Justice Unit; and second, thanks to an unwitting revelation from Sgt. Gottlieb in his deposition for Nifong’s ethicstrial. Apparently, then, even helping to bring about a grand jury indictment under false pretenses is enough to gain immunity from federal claims.

(2) Having found that no federal claims against city employees exist, Motz dismissed all claims against supervisory officials and against the City of Durham (except on limited grounds that seem unlikely to survive summary judgment).

(3) Motz dismissed all claims against Durham and Durham employees filed by the unindicted players. Yet her ruling didn’t discuss Judge Beaty’s somewhat unusual decision to stay discovery for former SANE-nurse-in-training Tara Levicy, on grounds that Levicy’s actions were bound up with those of the DPD, and allowing discovery to proceed against her and against Duke Hospital would be inefficient. Now that the claims against the DPD conspirators have been dismissed, will Judge Beaty allow the discovery against Levicy to proceed? Or will he find a way to excuse Levicy from being held accountable for her actions?

(4) Motz, joined only by Wilkinson, allowed state-law claims by the falsely indicted players for malicious prosecution against Gottlieb and Himan. Based on the filing, she held, and “taken together, the officers’ multiple alleged acts certainly present plausible claims of malice.”

(5) All claims against Mike Nifong remain open. But, of course, Nifong has declared bankruptcy.

Judge Wilkinson’s Concurrence

For a jurist who enjoys a sterling reputation and has even been mentioned as a Supreme Court nominee, Wilkinson’s concurrence was disappointing and at times illogical.

Wilkinson seemed less upset at what Nifong and the DPD did to three innocent people than about the temerity of plaintiffs’ attorneys aggressively representing their clients. He issued a lengthy defense of Cpl. David Addison (as he had done in the oral arguments, as well). Wilkinson characterized Addison as merely one of the many public “spokespersons (who are often given limited information by their superiors on a need-to-know basis)” who the plaintiffs’ attorneys wanted to expose “to the threat of monetary damages for expressing a departmental position in the most general of terms.” Imagine, he ruminated, what might happen to the spokesperson for a town’s local school board if Cpl. Addison were held accountable for his actions.

Here’s a sampling of the (fact-free, misleading, and inflammatory) Addison statements that so roused Judge Wilkinson’s need to defend the spokesperson: “You are looking at one victim brutally raped. If that was someone else’s daughter, child, I don’t think 46 (tests) would be a large enough number to figure out exactly who did it.” Or, “Addison said police approached the lacrosse team with the five-page search warrant on March 16, but that all of the members refused to cooperate with the investigation.” Or: “Addison said police can’t force samples from anyone they believe to be implicated in a crime. But he said that, in this situation, there was ‘really, really strong physical evidence.’” Or, “We do know that some of the players inside that house on that evening knew what transpired and we need them to come forward.”

In a case in which innocent college students were falsely charged and saw their reputations trashed by most of the media, by political leaders in the city in which they attended school, by dozens of their own professors, and—yes—by an off-the-reservation Police Department spokesperson, Judge Wilkinson somehow sees Cpl. Addison as a victim in the affair?

The judge also denounced “the glacial pace at which this litigation has proceeded (we are now nearly six years removed from the dismissal of the last charges against the three Duke lacrosse players).” Yet these delays were caused almost exclusively by the City—by dragging out mediation efforts, then by fighting the opening of discovery, then by demanding months to file Iqbal appeals, then by dragging out the case even further by appealing Judge Beaty’s ruling to the 4th Circuit. The idea that the plaintiffs’ position could be criticized because of their opponents’ seemingly deliberate pattern of delay is shocking.

Finally, after including an unsubstantiated assault on the falsely accused players' character, Wilkinson reached an almost insulting conclusion: “We run the risk here of replicating in civil litigation the very maladies that plaintiffs complain infected the criminal process to which they were subjected. That is to say, individuals would be pulled into the coercive proceedings of courts when they have no business being there.”

To summarize the facts of the case again: a district attorney used the powers of the state—and the cooperation of the local police leadership and at least one police investigator (Gottlieb)—to bring charges for a crime that never occurred against three people against whom no evidence existed. But for a providential, 9-8 decision of the State Bar, the case would have gone to trial, at which it was at least possible these factually innocent people would have been convicted of a crime that never took place. Those were the “maladies” of the “criminal process to which they were subjected.” Judge Wilkinson is comparing that record to the plaintiffs’ attorneys’ filing claims against a DPD spokesperson whose inflammatory remarks fanned the witch-hunt atmosphere and the DPD supervisors who stood aside as Nifong improperly took charge of a police investigation?

He should be ashamed.

Judge Gregory’s Partial Concurrence & Partial Dissent

In contrast to the concurrence from Wilkinson—who at least went through the pretense of having an open mind at oral arguments, and who at least recognized that Nifong and the DPD accused innocent people—little could have been expected from Judge Gregory, based on his performance in oral argument.

Nonetheless—and this can’t be reiterated forcefully enough—Gregory is a judge who has a reputation for standing up for the rights of victims of governmental misconduct. What, I wonder, could have caused this graduate of Virginia State University and protégé of former governor Doug Wilder to pen an opinion that seems to wholly contradict his general approach to criminal justice issues?

According to Gregory, the court shouldn’t have even allowed the state-law claim against Himan and Gottlieb to proceed. In his concurrence, Gregory—again, a judge who normally is deeply suspicious of police misconduct—chose to function as a de facto defense attorney for Himan and Gottlieb, suggesting that in meeting with Dr. Meehan about a misleading DNA report, or putting together a photo array that wildly violated DPD procedures, or (in Gottlieb’s case) giving misleading testimony before the grand jury, they were merely “doing their job and investigating a case assigned to them, in collaboration with the prosecutor.” He did allow that the photo array was “not perfect,” but didn’t see anything particularly problematic with it as a tool “to identify a suspect to further investigate Mangum’s claims, which they did not know were false.”

At times, Gregory went even further than Nifong did in justifying the investigation. For instance, he cited the McFadyen e-mail as a possible justification for the criminal investigation—raising the question, of course, of why McFadyen wasn’t indicted if Gottlieb and Himan could have viewed this e-mail as somehow establishing criminal intent.

And how did Gregory describe the case overall? “In retrospect,” he suggested, “it may be clear to some that Mangum’s accusations were baseless.” He clearly is not among the group to which this obviously “clear” case is, in fact, clear.

Imagine if someone of Judge Gregorys indifference to fair play and even-handed justice had ever been assigned to the case as trial judge.

90 comments:

skwilli said...

I'm not sure any of us can take more of this. Which, I suppose, is the whole point of dragging it on and on in the first place. I expected most of this, and would appreciate those smarter than I to tell me how to "feel" about it. Where do things go from here, and how long until they do it all over again?

Anonymous said...

This reinforces my opinion that the judicial system is just a bunch of cronies protecting each other.

Heaven help the next defendants, who have to live with these rulings.

Anonymous said...

please provide a link to the court's opinion.

sceptical said...

The Fourth Circuit is saying,"Just move along. Nothing to see."

The ruling, which is a slap to Judge Beaty, could be appealed to the Supreme Court, but will the plaintiffs spend the time and money to do so?

Anonymous said...

So basically, if a police officer planted drugs on you while on video while repeating over and over again that he was planting drugs on you, as long as he told the prosecutor that he did what he did, there would be no way to sue him for his actions as that's not a civil rights violation.

Chris Halkides said...

One day we will have a criminal justice system worthy of the name, but I do not believe it will happen for a very long time.

Anonymous said...

Durham gets a PC "attaboy" slap on the back and all is well. It will happen again.

Dan Kurt said...

re: "What, I wonder, could have caused this [Roger L. Gregory] graduate of Virginia State University and protégé of former governor Doug Wilder to pen an opinion that seems to wholly contradict his general approach to criminal justice issues?

He is black and RACE trumps all.
He is a Liberal/Progressive and EVERYTHING IS RELATIVE.
He is a lawyer and NO OBJECTIVE TRUTH EXISTS.

How KC do you remain a creature of the Left?

Dan Kurt

Anonymous said...

link to the opinion (which must go down as one of the worst pieces of legal reasoning around--simply incredible stretches to get to a place where the claims of the plaintiffs can be dismissed, IMHO )

http://www.ca4.uscourts.gov/Opinions/Published/111436.P.pdf

IMHO, it's almost like the judges were determined that no matter what happened, or what Nifong and co. did, the plaintiffs would not be allowed to prevail.

Jim In San Diego said...

Ironically, those who will eventually suffer most from this extreme pro-police decision are minorities.

Blacks and Hispanics suffer disproportionately from abusive police practices. They receive more and longer criminal sentences. They are disproportionately sentenced to death.

The Innocence Project has now obtained release of nearly 300 convicted felons on the grounds they were factually innocent of crimes for which they spent, on average, 11 years in prison. A disproportionate number of these are minorities.

Of several dozen of these who had been on death row (!), a hugely disproportionate number of these (innocent) men were minorities.

Therefore, it is painful to continue to watch the Duke case portrayed within black identity politics as if it were actually a race/class/gender issue. It is not, and never has been.

It is a justice/injustice issue. It is a right/wrong issue.

Since minorities are disproportionately injured by the injustices and wrongs of abusive police and prosecutorial misconduct, it is they who needed, but did not get, some relief from the 4th Circuit.

Jim Peterson

Anonymous said...

All of us who have followed the case and who have shared outrage at what happened to the falsely accused need to step back and realistically consider the decision of the appeals court.

First, the lawsuit by the unindicted players should never have been brought. It was a strategic error. As I have tried to point out in the past, the unindicted players were, in the words of Ken Burns, merely "inconvenienced." Yes, they had their DNA tested but they did not object to that. Yes, there card key information was disclosed illegally but there does not seem to be a private right of action for that. Yes, their lax season was cancelled but it's hard to make a federal case over that. They got screwed but getting screwed is not enough to get you a court remedy. But by bringing what in my mind was a stupid lawsuit, they opened the door to all of the Circuit Court's concern with frivolous litigation because, indeed, this lawsuit was frivolous litigation.

Second, the lawyering for the plaintiffs in these cases was terrible. The complaints were, to put it mildly, pathetic. They were wordy narratives taking pages and pages of largely conclusory story telling rather than concise statements of the causes of action. I am sure that the Circuit Court looked at the complaints, realized that six years had elapsed since the incident and said to themselves that this was a nightmare. While the Court's reasoning may not have been the most compelling, I believe the plaintiffs' lawyers brought the result upon themselves by making themselves an easy target.

Third, I think it highly likely that the Court had little sympathy for the indicted players. The court system exists to settle real disputes between parties. They do not exist to make policy. It seems likely to me that the Court was influenced by two factors with respect to the indicted players. First, they had entered into a settlement with Duke. While this does not, of course, preclude actions against over parties, it may have been in the back of the minds of the judges-- simply: "guys, you got a settlement, move on." Second, I seem to recall that one of the indicted players-- Reade?-- said at the time of the filing of the suits something to the effect that this was not about the money but was intended to bring about change. I also recall that the complaints mentioned reform type relief as part of the "damages" that we're being sought. This approach was also strategically unwise because reform of the police and the criminal justice system is not something that courts like to undertake in the absence of "traditional" abuses such as racially biased or sexually biased administration of "justice". Stepping in to order remedial steps to reform a police department or a DA's office because three white guys nearly got their asses handed to them-- but ultimately didn't-- is not something any one should have expected.

In conclusion, while the reasoning of the Circuit Court was strained at best, I am not at all surprised at the outcome. I warned people on the Liestoppers Discussion Board when the suits were brought that their enthusiasm was misplaced. I said that we would all waste years of time waiting for something to happen in the civil suits but that, ultimately, nothing would come of them. For playing Cassandra, I was, like Cassandra, not believed and was banned from further posts to that site.

Anonymous said...

Jim wrote, "Therefore, it is painful to continue to watch the Duke case portrayed within black identity politics as if it were actually a race/class/gender issue. It is not, and never has been."

It is indeed painful but the Duke Lacrosse hoax/fraud was all about race/class/gender and all the emotions and manipulations flowed from that reality. The (il)legalities were just the mechanism for the hitech lynching.

It was a total breakdown of due process as the average person (I am one) thinks things work.

Right seems to have mainly gotten the upper hand over wrong, at least for now, but many of the main actors in that horror show still have yet to feel real pain for their actions. As KC points out, many have been rewarded (Group of 88) for what they did.

Jim In San Diego said...

To anonymous at 9:49.

It is the duty of courts to enforce the law.

At the appeal level, this very often means making "policy". Witness the typical Supreme Court Decision on any number of issues.

In our society laws are often broken, bent, or ignored unless or until a court somewhere sets us straight. Moreover, there are sometimes factual situations which are not contemplated or handled well that affect fundamental but ill defined principles like "due process".

You appear to have bought the argument that the unindicted players were merely inconvenienced.

Excuse me, but that is a bizarre characterization for what happened. They came within a whisker of far worse(one vote on the NC bar panel deciding whether to start proceedings against Nifong). As father of three boys, I count a dozen disasters that needed but have not yet received court attention.

What, exactly, were you outraged about? Has anything, in your view, changed to prevent similar outrages in the future?

I am afraid you disclose your platform in your penultimate paragraph: ..."three white guys nearly got their asses handed to them, but didn't".

I would bet a cheeseburger that you are Black. I would bet much more that you actually buy Ken Burn's heartbreaking argument that what happened to "three white guys" was no big deal.

Please read and, if you wish, respond to my earlier post on this thread, concerning the true victims of the Fourth District decision.

You clearly are intelligent and articulate. I wish we could talk over a cup of coffee. It seems however we are shouting at each other across a canyon, and do not look at things through the same set of lenses.

Jim Peterson

Anonymous said...

If the courts are not concerned first about the fact that innocent persons (and blatantly so) could be prosecuted for a crime which never happened,
they have misplaced concerns (everything else, including protecting prosecutors comes in a very distant second).

Anonymous said...

"First, the lawsuit by the unindicted players should never have been brought."

People sue because they spilled hot coffee on themselves at McDonald's. The issues in these cases were of a bit more import than that. If the courts are not prepared to deal with the false and contrived prosecution of innocent persons,
then they may as well shut down.

KC Johnson said...

To the 9.49:

On the unindicted players' suit: it seems to me their filing had a negative effect at the 4th Circuit, at least with Wilkinson, in that it allowed for the conflation of their claims against Durham with the far more substantial claims from the indicted players (and also allowed Wilkinson, through the McFadyen e-mail, to introduce gratuitous character attacks against the falsely accused players). In this respect, having the 4th Circuit hear the cases simultaneously very much hurt the indicted players.

The suit regarding the keycard info, etc., was against Duke & Duke alone & was not before the 4th Circuit.

I also agree with you that at least one judge (Gregory) not only had no sympathy for the falsely accused players, but was positively hostile to them. Motz & Wilkinson thus were in the challenging position of knowing that if they allowed the case to proceed, they almost certainly would receive a highly racially-charged dissent.

That said, as to the specifics and validity of the falsely accused players' case, it's worth recalling Judge Beaty's description: that the Durham argment was that “no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.”

That the 4th Circuit endorsed the Durham view is chilling. The extent of the misconduct here--the fabrication of evidence first to create signs of a 'crime' and then to produce evidence to indict three innocent people is extraordinary, & it seems to me that in most circuits (and in the 4th Circuit until this week), that it would have been viewed as grounds for a civil rights lawsuit.

Anonymous said...

To Ji,
M in San Diego: I do believe that, in the eyes of the law, the unindicted players were merely inconvenienced. One should not be able to bring a Federal case because one gave one's DNA and did not object to doing so, one should not be able to bring a Federal case against a city and its police department because one's university cancelled your lax season, one should not be able to bring a Federal case because the police and the DA did horrible things but not to you, that is, you were not arrested or indicted, one should not be able to bring a Federal case against the city or its police department because some idiot published a "wanted poster." The things that happened to the unindicted players, while extremely unfair, are not the types of things to be redressed by a lawsuit. Your words are that the unindicted players came within a whisker of far worse. But, in fact, the far worse did not happen and that's what made their lawsuit so strategically dumb. Courts do not take into account the far worse that could have happened-- courts address only what happened.

Having had a cheeseburger tonight at Bull City Beef and Brewery, I will not take your losing bet that I am "Black." I am a very white Durham resident, a lawyer and, to one up your status as a father of three boys, the father of eight I do not buy Ken Burns' argument that what happened to the three indicted guys was no big deal. It was a tragedy and was obviously an unimaginable ordeal for them.

To Anonymous at 3:55: you state in reference to my statement that the lawsuit by the unindicted players should never have been brought that courts should shut down if they are not willing to deal with the false and contrived prosecution of innocent persons. The unindicted players were never arrested, indicted or prosecuted in any way. That was kind of my point.

To KC: I did not address the "validity" of the falsely accused players case. Rather, I pointed out that their lawyers hurt their case with their horribly drafted complaint and that I thought stating that you wanted remedies involving changing police and city procedures weakened the case. As to your last paragraph, I completely agree with your sentiment. I point out, however, the point that I made in my post: the falsely accused players have received a settlement from Duke. I think the court felt less inclined to allow their suit to proceed given the fact that they had received financial compensation. I think this, again, in part because of the fact that the falsely accused players indicated that they wanted the courts to impose "governance remedies" .

KC Johnson said...

To the 8.07:

Intriguing points.

It's (obviously) difficult to imagine a counterfactual scenario, but it might be worthwhile here: what would have occurred if the lacrosse players had arrived at the 4th Circuit with (a) no settlement with Duke; (b) a statement that they didn't desire policy changes in Durham; and (c) a more tightly-written complaint?

I think it's pretty clear that even with (a)-(c), they wouldn't have gotten Gregory's vote. In both the oral argument & in his opinion, Gregory (who never seemed to meet a police investigation he liked before this one) made clear he didn't see much wrong with the Nifong-led criminal investigation--and at the very least left open the possibility that he isn't convinced the falsely accused players were actually innocent. So the best the players could have done--with this particular panel--was a 2-1 decision.

Could they gave gotten Wilkinson's vote under this scenario? Maybe--but I'm not at all convinced. Wilkinson's chief concern appeared to be creating a precedent for more lawsuits against police filed by people who weren't clearly innocent or mistreated. ("Hard cases make bad law"--his refrain in both the oral argument and the opinion.) Maybe Wilkinson would have been willing to set aside this agenda if Duke hadn't settled with the lacrosse players, or if Seligmann had said he wasn't interested in promoting policy changes to ensure this didn't happen to anyone again in Durham. But I doubt it.

My sense, then, is the best the lacrosse players could have done, given this particular panel & the judicial agendas of Wilkinson & Gregory, was a 1-2 decision with Motz voting to allow the lawsuit to proceed. As I said before, that's chilling, given the precedent this panel set regarding the inability for people who are framed in the 4th Circuit to file civil rights complaints--that as long as the police & prosecutor cooperate and share all info, even if the prosecutor is improperly functioning as head of the police investigation, there's no civil rights grounds.

Anonymous said...

Excellent analysis KC.

Chris Halkides said...

Pardon my unfamiliarity with the unindicted players' suit. Did it include Dean Sue's advising them not to get lawyers? That was bad advice at the time, but my familiarity with the Knox/Sollecito case in Italy has made me see this as unconscionably bad advice in retrospect. Parents should tell their children who are going away to college to seek the advice of lawyers as soon as something serious happens. And Duke parents should be especially wary of a university that would ever say otherwise, on top of not taking its own rules of conduct (as set forth in its handbook) seriously.

Anonymous said...

Does anyone know if Durham now has to self-insure to cover legal costs? Yes, they have exhausted their $5M AIG insurance over the Lacrosse defense (and get to pay out of pocket from here on) but do they still have legal expense coverage of any sort?

It seems like no insurance carrier in the world would touch these jokers after this amazing stunt.

Anonymous said...

My posts have dealt with the unindicted players' suit against the city, the cops and the DA. The fact that Dean Sue advised them not to get a lawyer would, obviously, not justify a lawsuit against the city the cops or the DA. I don't see ant reason why her obviously stupid advice should give the unindicted players a lawsuit against Duke either. No harm, no foul-- they weren't arrested, indicted or prosecuted. It's hard to see how yher were damaged at law by her

Scot Foley said...

I have to say that the commenter who has been critical of the unindicted players' lawsuit has made some excellent points. I myself have never been wholly comfortable with that lawsuit. Yes, that was a very uncomfortable six weeks on campus in the spring of 2006. Yes, the unindicted players shouldn't have lost their season. Yes, many of them had to, quite rightly, lawyer up and prepare for the terrifying possibility that Crystal's "eeny, meeny, miny, moe" photo identification might have selected them. But I cannot see any harm to those players that was truly actionable. Aside from having their legal fees paid, which I believe Duke did (please correct me if I am mistaken about that) and the NCAA restoring their eligibility, which it did, the unindicted players would have been better served to have eschewed litigation.

I am far more sympathetic to the indicted players' case, and am not terribly pleased with certain aspects of the Fourth Circuit's ruling. But I also have to agree that the complaint seems to have cast its net too wide. Take Ben Himan as an example. He has always been, to me, one of the least egregious actors in this case. From what we know, he did little more than act at the behest of his superiors throughout the Nifong phase of the investigation. He mildly challenged Nifong at the prospect of indicting Reade Seligmann (and he wasn't in a position to do much more than that, it seems to me). As far as we know, he played little to no part in the drafting of the Gottlieb memo that was the basis of the infamous NYT story (again, please correct me if I am wrong). He was even retained by the NC Attorney General's to assist them in their investigation. And I have heard even Joe Cheshire say that Himan was very young and inexperienced, strongly implying that he did not deserve much if any blame. Why, then, was he named a defendant in this case? The complaint would have had more credibility if it focused its attention on Nifong and his actual enablers, and not everyone who happened to be in the room.

Finally, while many of then-Cpl. Addison's statements were outrageous, and exacerbated the situation in Durham, I do think Judge Wilkinson makes a good point when he notes that spokesmen really should not be civilly liable for their official remarks. That is opening a Pandora's box that best left closed.

KC Johnson said...

To the 9.41:

Duke did not pay the unindicted players' legal fees (or anything else).

On Himan & Addison: I agree with everything you said about Himan's role later in the case. It does seem to me, though, that there were technical reasons for including him, in that he was (again, technically) the lead investigator during spring 2006.

On Addison: I quite understand Wilkinson's point, and am, like you, quite sympathetic to it regarding a typical spokesperson. But as with so much of his opinion, it's divorces from the specific context of this case.

In this instance, there are two possible explanations for Addison's behavior: (1) he was fed lies; (2) he willfully made things up, in such a way to rile racial tensions in Durham & heighten condemnation of the accused.

We'll never know which of those two actually occurred, thanks to the 4th Circuit letting Durham off the hook. But the circumstantial evidence suggests (2). The DPD had another spokesperson, Kammie Michaels, who was off for a few days in March 2006 (hence Addison's filling in for her). Michaels' statements were never anything like Addison's. So if Addison were being fed lies that he simply repeated, why did Michaels not do the same?

That leaves the question: if--as seems plausible, and even likely--an official spokesperson abuses his position by saying demonstrably false things, why should he not be held accountable for his actions?

To Chris:

Yes, the unindicted players' claims against Dean Sue (which remain alive) claim that the dean (an attorney herself) advised them not to tell their parents nor to hire attorneys--that Duke would take care of finding someone for them, which the university did, by pointing them towards the (incompetent at best, compromised at worst) Wes Covington.

Anonymous said...

Covington was pathetic. That being said, there is no way that Dean Sue will be found liable to the unindicted players. Bringing suit against her for what was clearly dumb advice is another example of how inappropriate the unindicted players' lawsuits are. Making the assumption that the unindicted players could show that she somehow owed them some duty of care (which I find to be a stretch), there's no way that the players can show that her actions injured them. As KC pointed out, they did get legal advice (woeful as it may have been) and nothing Dean Sue did caused them any injury at all. I think it highly likely that the unindicted players were advised by their current incompetent counsel that this was a free ride for them-- that Duke would quickly settle and that they and their counsel would end up with cash. Instead the players have seen years go by and, in my opinion, are unlikely ever to see a penny because I don't believe Duke will settle their lawsuit for anything other than a token amount.

I assume that the unindicted players's counsel is doing this case on a contingency basis.

Anonymous said...

Sorry to have to disagree; but Himan testified before the grand jury--without that indictment, there could have been no case. (Had Nifong simply arrested the players, they would have had the right to present evidence of their innocence in a probable cause hearing.)

However, SCOTUS ruled earlier this year that even if officers knowingly lie on the stand, they cannot be sued.

So, if these cases had not been delayed by three years (by Judge Beaty's stall in deciding a motion), then perhaps Himan
could have been made to testify as to how the frame was really developed.

Anonymous said...

Is Motz a Communist?

Anonymous said...

Is Dean Sue a Communist?

Anonymous said...

"...there is no way that Dean Sue will be found liable to the unindicted players."

As a member of the Bar, being asked for advice from students facing first degree rape charges, she owed a duty to them when giving them advice. Advising them, "Don't get an attorney"
is a violation of that duty.

" I think it highly likely that the unindicted players were advised by their current incompetent counsel that this was a free ride for them-- that Duke would quickly settle and that they and their counsel would end up with cash."

The players wanted/want the full story of how they were neatly framed for a crime which never happened. Because no one in law enforcement wants to investigate that, they have had to go the civil suit route.

Unfortunately, compelling testimony from government officials who violate your civil rights under color of law is well nigh impossible, given recent court rulings.

"Instead the players have seen years go by and, in my opinion, are unlikely ever to see a penny because I don't believe Duke will settle their lawsuit for anything other than a token amount."

Duke has spent millions avoiding getting to court, and if Duke was so certain of its own innocence, you'd think Duke would have been eager to get into trial. If money was the prime concern of the plaintiffs, they could have settled with Duke years ago and Duke would have been happy to have saved that money. But the plaintiffs need closure and an admission of wrongdoing by Durham and Duke. Without that, the case remains open,
whether still in the courts or not.

Anonymous said...

The fact that Dean Sue is a lawyer does not mean that she had a duty as a lawyer to the unindicted players. They had not hired her to act as their lawyer nor was she acting in a legal capacity at the time she advised them. She was acting in her role as Dean of Students, not as their attorney.

Civil law suits are brought to settle wrongs between parties not to "tell a story." The story had already been told in the Attorney Generals' report and the media and nothing would have prevented the unindicted players from telling their story any way they wanted to. By bringing their lawsuit, they also cut off any chance that an official investigation into the conduct of the police and the DA would take place. Recall that the investigation that was started was terminated upon the bringing of the lawsuits.

If indeed money was not the unindicted players' goal, their lawsuit should never have been brought. When you win a civil lawsuit, that's what you are awarded. I can assure you that, even if Duke lost to the unindicted players, they would not admit wrongdoing. I find it hard to respond to a statement that the unindicted players need "closure". Given that it is six years since the incident, I would be a bit surprised that intelligent adults would be dwelling on the fact that their key card data was released inappropriately and that their lax season was cancelled. Even if we go back to the time of the lawsuit, I find it hard to believe that the suit was brought to bring them "closure" whatever that ridiculously over used term means. Any lawyer with more than an ounce so sense would have advised them that bringing a lawsuit against a deep pockets defendant is a sure fire way to keep open the grievance one has against the defendant because of the glacial pace of litigation. When the lawsuits were brought, I remember posting a warning on this site to all those who thought that the bringing of the suits was a good thing because it meant a judge would sort things out. Judges in civil suits do very little old fashioned judging. They don't decide who was right and who was wrong; they merely play traffic cop making sure that procedural rules are adhered to; they don't try to hurry things along toward a trial because they want the parties to settle. Indeed, most civil suits are settled.

As to the notion that Duke should have been anxious to go to trial, that is a very uninformed view. I and others think the unindicted players have a weak case. The best strategy when you are a deep pockets defendant faced with a case brought on a contingency fee basis that is weak, is to have a war of attrition with the plaintiffs so that the lawyer gives up rather than spend good money after bad.

Chris Halkides said...

Whether or not Dean Sue's advice given in the capacity of her role at Duke would make her legally vulnerable is a question I will have to leave for others. Yet it was criminally stupid advice. As Saul Kassin has pointed out, innocent people are much more likely to waive their Miranda rights than guilty ones, and they open themselves up to being victimized (intentionally or not) when they do. And college-age individuals are sometimes naive.

Anonymous said...

"She was acting in her role as Dean of Students, not as their attorney."

Doesn't matter. She was dispensing legal advice.

"Civil law suits are brought to settle wrongs between parties not to "tell a story."

"One of the most important reasons for civil lawsuits, for civil rights lawsuits, is not just to get compensation for somebody who's been wrongly convicted, but to publicize the causes of that miscarriage of justice. That's why people sue -- to bring about change, to bring about reform. It's not just about compensation. ..."--Peter Neufeld, founder of the Innocence Project

A great many reforms have been wrought through civil suits.

"I find it hard to respond to a statement that the unindicted players need "closure

They were associated in the public mind with a gang rape case. They were damned with every adjective in the book--many of which were spread by Duke administrators and faculty.

Even twenty-five years later Pagonis is still suffering the effects of the Tawana Brawley lies. And it would still be helpful for Brawley to confess that she lied. The lacrosse players are always going to be known as members of that 2006 lacrosse team (with whatever public image that entails) and tarred with Mangum's lies.
Duke and Durham helped propel those lies around the world, and their admissions of wrongdoing would still help.
'
(Anyone meeting one of the Scottsboro boys would understand they were meeting a victim of gross injustice. I'm not sure yet that this would be the reaction of someone meeting a lacrosse player. And that wrong needs to be, and can be, redressed, however possible.)

Anonymous said...

"bringing a lawsuit against a deep pockets defendant is a sure fire way to keep open the grievance"

Failure to apologize is the one sure way to keep open a grievance. Permitting lies to go unanswered is another sure way to accomplish the same.

"a war of attrition with the plaintiffs"

Right. And how much of Duke's money has been spent (more than $60 million?) trying to keep Brodhead and Burness off the stand?
I think Duke could have settled years ago for far less, provided it would have been willing to issue a statement detailing the wrongful actions by its employees, apologizing,
and taking steps to prevent such things from happening in the future.

But hey, the Admin and the trustees are accountable to nobody for how they spend Duke money (even in their own legal defense). No conflict of interest there...

Note that Duke has never criticized the DPD; it has never called on Durham to apologize; it has never criticized the N&O or the HS; it has never even called on NCCU to express regret that it jumped the gun and considered Duke students guilty.

Instead, it has continued to heap almost all the blame on its own student victims.

South Africa needed a "truth and reconciliation" commission. Duke
needs the same, for the truth to come out.

Otherwise, the incident will remain alive (instead of ending as it could have, six or so years ago).

Anonymous said...

"I find it hard to respond to a statement that the unindicted players need "closure".

Note that Pagones today says he's not asking for an apology, and this is not about money.

What he wants is an admission of the truth.

Twenty-five years from now, Duke is still going to be trying to fend off criticism of how it responded to three of its students being falsely accused of gang rape. And that criticism isn't going to end just because Duke locks itself in its room and says it won't come out. It's only going to end with admissions of the truth and apologies (and now, with legal fees).

Jim In San Diego said...

A startling story by UPI today: scores of inmates in North Carolina are legally innocent, yet they are still imprisoned.

It appears a large number, in the hundreds, of inmates were convicted of illegal possession of firearms in North Carolina, when they were not in illegal possession of firearms.

About 175 of these prisoners are found in just one of the three NC federal districts. No one has yet done a survey of the other two jurisdictions.

What got my attention was the injustice(s) were discovered by an investigation by USA today, published six months ago.

Yet, Federal prosecutors in North Carolina did not tell the innocent men (and women) they were innocent. In some cases, federal prosecutors actually went to court to recommend the prisoners not be released. (Keep in mind, the USA Today investigation was published more than six months ago.)

An appeals court has finally ruled, today, that the innocent men should be freed.

Appeals court? Who was objecting to the releases?

(Btw, all the photos I have seen of the imprisoned innocent men are Black. Anyone want to conjecture on just what percentage of these men are Black?)

Innocence has apparently not been enough to get you released from prison, in North Carolina's justice system.

I know I am just a citizen, a dull tool, and not enlightened to 21st century justice. However:

It would seem that Due Process requires innocent men be released from prison. This may be one of the few First Principles we should be able to rely upon.

That being said, a few questions:

1. How many Federal prosecutors have been prosecuted for false imprisonment, or any violation of federal civil rights?

2. How many Federal prosecutors have faced ethical investigations for arguing innocent men should not be released from prison?

3. How many Federal prosecutors have lost their jobs?

4. How many Federal prosecutors have had their coffee allowances suspended?

A good guess is the answer to all these questions, is "none at all".

Which raises a couple of other questions:

1. Is there something in North Carolina water we should know about?

2. Isn't this the jurisdiction of the Fourth Circuit, whose greatest fear is that prosecutors might be held civilly liable for their behavior?

Yours in continuing astonishment,

Jim Peterson

Anonymous said...

To Anonymous at 8:32:
It certainly does matter in what capacity Dean Sue was acting in. If she did not have a duty to the players, she is not liable for the advice she rendered. If she was acting in her capacity as Dean-- which it seems clear she was-- I don't see how she can be held responsible for dumb advice that was later corrected. First, the players were referred to a lawyer (boob that he was) and second, they later got their own lawyers. Moreover, as I constantly try to remind people, just because someone does something stupid to you doesn't mean you have a lawsuit against them. The players would have to show that Dean Sue's advice caused them an injury that can be remedied at law. I fail to see how her dumb advice resulted in an injury.

Your quotation of Neufeld is a little much. His quote was in respect of wrongly convicted persons bring lawsuits after their convictions were overturned. That's a far different thing than a federal case being brought by the unindicted players--people who weren't arrested, indicted, charged or tried

The Pagones thing actually supports my view in part. He did bring a lawsuit and he did win damages. If he doesn't have "closure" after all these years, it sounds like he needs something other than a lawsuit; perhaps the apology you refer to.

I find it hard to respond to the claim that the unindicted players need closure because (1) the term is vague and over used and (2) who says the unindicted players need closure? Have they been quoted as saying they need "closure" or is saying that they need it a commentor's mere assumption as to what motivated them to bring their lawsuit? I am fairly certain that the need for closure is being projected onto them and, is so, I find it inappropriate

Anonymous said...

"Innocence has apparently not been enough to get you released from prison, in North Carolina's justice system."

Nonsense. Just ask Robert K.Steel--who was sure that even if the lacrosse defendants were convicted it wouldn't matter, "because everything would be sorted out on appeal anyway."

Anonymous said...

"It certainly does matter in what capacity Dean Sue was acting in. If she did not have a duty to the players, she is not liable for the advice she rendered"


Rule 4.3 of the Bar’s Rules of Professional Conduct: Dealing with Unrepresented Person.

Rule 4.3 states:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:

(a) give legal advice to the person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client; and

(b) state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

-----

Who was Dean Sue representing (in any capacity)--the interests of Duke, or the interests of the students facing rape charges?

What lawyer is ever right in telling accused persons not to get an attorney?

Anonymous said...

"Your quotation of Neufeld is a little much."

It's spot on. The lawsuits are being brought in part to force reforms in NC. They demand oversight of the DPD, reform of DPD practices in to insure there is a chain of command and that ID procedures are not unduly suggestive;
and a number of things which will benefit all future NC defendants (and not benefit the plaintiffs at all).

Anonymous said...

"I am fairly certain that the need for closure is being projected onto them"

" What judges and lawyers never seem to understand is how little the lay person cares about the evolution of rules and precedents, and how much he simply wants to tell his story. The best way to heal a grievance is to name it, to have it proclaimed, to discover the underlying truths,
to unbury the silences, to find the facts that are true both literally and emotionally--so that the pain becomes acknowledged to the world.

"Put simply: the story itself is and provides its own remedy. The story is what people come to the courthouse to recite, and it is as powerful as any punishment or judgement. If nothing else gets accomplished, if criminals go free and tortfeasors succeed in causing further negligence, the telling of the story, by itself, is still the morally correct outcome.

"Giving people an opportunity to speak about what happened to them, and to confront those who are responsible for their hurt, is an indispensable part of what it means to do justice, and to administer a legal system that is just."


--(The Myth of Moral Justice )

Anonymous said...

To Anonymous at 9:06, Dean Sue was not acting as counsel to Duke in her dealings with the players and thus the b
bar's Rules don't apply in this circumstance. That said, her advice was stupid. To Anonymous at 9:14: I have no idea how your quote has anything to do with my point which was simply that a commentator asserted that the unindicted players brought their lawsuit to obtain that holy grail of "closure" and I asked whether there was any actual evidence that this is what they were seeking or whether this was the commentator's projection upon them.

Anonymous said...

To Anonymous at 9:09: I was speaking of your quote of Neufeld in connection with the case brought by the unindicted players. It's a little hard for guys who weren't arrested, indicted, tried etc. to claim that they need reforms of the police and the DA or the administration of NC justice. In the eyes of the law, nothing happened to them that requires reform.

Anonymous said...

"my point which was simply that a commentator asserted that the unindicted players brought their lawsuit to obtain that holy grail of "closure" and I asked whether there was any actual evidence that this is what they were seeking or whether this was the commentator's projection upon them."

Henkleman statement at start of lawsuit:

(snip)


"So why with this outcome should we bring this lawsuit today?

"Because no one in Duke’s leadership has been willing to accept real responsibility for
their wrongful conduct. Because no one in Duke’s leadership has taken any action
against those at Duke who violated the University’s own policies specifically designed to
prevent the type of abuses and harassment inflicted on our sons. Because no one in
Duke’s leadership has had the integrity to look these young men and their parents in the
eye and personally apologize. And because no one in the City agencies of Durham has
acknowledged their responsibility for their inexcusable efforts to circumvent justice.

"Only with this lawsuit may it be possible for the full truth to come out, to hold Duke’s
leadership accountable, to help further the restoration of our sons’ damaged reputations
and to hopefully make it less likely that other parents and their sons or daughters at Duke
or any other school will have to go through something like this again."

Anonymous said...

To anonymous at 4:59: I don't see the word "closure" mentioned

Anonymous said...

To Anonymous at 4:59: statements like the quoted one always amuse me. If the true reason a plaintiff brings a law suit is to get an apology or to obtain an acknowledgement of responsibility or so the whole truth will come out, why does the plaintiff always ask for millions in damages? What is also interesting about this statement is how much of it is directed at Duke versus how little of it is aimed at the city, the cops and the DA.

Anonymous said...

"why does the plaintiff always ask for millions in damages? What is also interesting about this statement is how much of it is directed at Duke versus how little of it is aimed at the city, the cops and the DA."

The plaintiffs haven't asked for specific sums; just a laundry list of reforms that would benefit every future defendant; and then financial compensations listed last. The suits have never been about money; but
it's only the fear of the financial consequences of lawsuits which cause institutions to change their ways. Alas, in this world they won't often do so just because it's the "right" thing to do.

Duke is mentioned more often because Duke's wrongdoing include betrayal; and the betrayal by one's 'alma mater'--'mother of my soul'. Surely when one is falsely accused one should be able to expect support from one's teachers? (And not an open letter from the gang of 88)--or worse, cooperation of the educators with one's persecutors (as in the turnover of FERPA information).

Anonymous said...

As I have mentioned before, the fact that the suits requested "a laundry list of reforms" as the principal relief was stupid. Courts exist to right the wrongs between parties and expect to resolve disputes through the awarding of monetary damages to the wronged parties. Yes, reforms are awarded in cases of serious problems. For example, where there is patent racial discrimination in the administration of justice or a governmental program-- prisons for example. But step back people and remember that the DA is an elected position in Durham County, the trial court judges are elected positions in Durham County, the Mayor is elected inThe City of Durham. The plaintiffs and those who sympathized with them had free access to the political process to vote out the people who wronged them but, instead, they brought a lawsuit seeking to ask the courts to not only award them monetary damages but to decree a laundry list of reforms. I can assure you that, had the suits been permitted to go to trial, and had the plaintiffs won, the last thing the court would have done was to have decreed "reform" relief. In the eyes of the court, the plaintiffs would have been viewed as not making a case for "reform" relief. As to the unindicted players, the court would have said "no harm, no foul." They weren't arrested, indicted, tried or subjected to any judicial process whatsoever other than the NTO which they did not object to at the time. As to the indicted players, yes they went through he'll but they were exonerated by the NC attorney general. By asking for a "laundry list of reforms" the indicted players made a strategic mistake. They asked for remedies that courts seldom wish to grant in the absence of serious (usually racial discrimination) activities-- instructing local governments how to manage their affairs. By asking for reform relief, the plaintiffs put themselves on the wrong side of the appellate court. That court is clearly hesitant to award reform relief unless the circumstances are extreme-- not the case when all plaintiffs were exonerated and those most obviously injured received financial compensation

I can only say it so many times, the notion that the wrongs suffered by the laxers was going to be solved by these civil suits was a profoundly stupid notion. These cases, particularly that by the unindicted players, should never have been brought. The suit by the indicted players should never have been predicated on "a laundry list of reforms." The players were poorly advised by their lawyers and their lawyers performed poorly in their approach to this litigation.

My reason for pointing out that the quoted statement emphasized Duke more than the police and the DA is simply this: if you get screwed by the justice system, your beef is against the justice system. Here the quote focused on Duke. Assume-- correctly-- that Duke behaved horribly in the incident. Do we really think that the way to resolve a justifiable beef against one's university is to bring a lawsuit. Do we really think that the courts will want to review Dean Sue's advice or whether Dickless Brodhead should have reviewed the players' exculpatory evidence?

Anonymous said...

Merely "inconvenienced" and "got screwed"? This is absurd. For the average citizen, fighting a speeding ticket is a mere inconvenience. Tolerable, but inconvenient.

A rape charge is not merely an "inconvenience" interrupting a class or two. A prosecutor was not disbarred and jailed because he merely "inconvenienced" anybody. Public condemnation by city officials, prosecutors, cops or otherwise, to influence a public election is not an "inconvenience" . Involuntary placement into a racial tinderbox by city officials is not an "inconvenience". City officials committing perjury to influence a grand jury against you is not an "inconvenience". Academic and athletic censure is not a mere "inconvenience". Needing a team of attorneys to maintain your civil rights in a systematically corrupt law enforcement system is not a mere "inconvenience". Denied the presumption of innocence is not merely an "inconvenience".

Inconvenience?...I guess it is relative to your inclincation to commit crime.

The 4th and 6th amendments are inconvenient to some of you. So sad.

Anonymous said...

"Yes, reforms are awarded in cases of serious problems. For example, where there is patent racial discrimination in the administration of justice... The plaintiffs and those who sympathized with them had free access to the political process to vote out the people who wronged them..."

And in the Jim Crow South, where reform at the polls was impossible, the courts took a hand at forcing reforms themselves (to help prevent bias against innocent defendants).

" I can assure you that, had the suits been permitted to go to trial, and had the plaintiffs won, the last thing the court would have done was to have decreed "reform" relief.:

IIRC, the courts have done that many times in cases involving civil rights abuses by elected officials.

"As to the unindicted players, the court would have said "no harm, no foul.". . As to the indicted players, yes they went through he'll but they were exonerated by the NC attorney general."

Get indicted for gang rape sometime and see how that affects you for the rest of your life.

"They asked for remedies that courts seldom wish to grant in the absence of serious (usually racial discrimination) activities"

And what were Nifong's actions in rousing
racial animus against the players? How different was that from the old segregated South? When a DA says he doesn't want his city known as a place where black girls (sic) can be raped by white Duke lacrosse players, isn't he stirring local resentment--and poisoning the jury pool, and playing on local bigotry?

"That court is clearly hesitant to award reform relief unless the circumstances are extreme"

If the circumstances of the Duke lacrosse case were not "extreme" (so much so that it has been dubbed "Scottsboro II")--then nothing is extreme.

"I can only say it so many times, the notion that the wrongs suffered by the laxers was going to be solved by these civil suits was a profoundly stupid notion. "

When the DOJ and the FBI won't investigate wrongdoing and the violation of civil rights; then the only remaining recourse for redress is civil action. (Done many times before--ask the rights organizations.)

"... if you get screwed by the justice system, your beef is against the justice system. Here the quote focused on Duke. Assume-- correctly-- that Duke behaved horribly in the incident. Do we really think that the way to resolve a justifiable beef against one's university is to bring a lawsuit."

Should the plaintiffs in the Sandusky suits bring lawsuits? How about other victims of wrongdoing in academia? The university can't claim immunity for its officers when
they violate the civil rights of anyone, including their students (nor, if they join in a conspiracy to do the same).

"Do we really think that the courts will want to review Dean Sue's advice or whether Dickless Brodhead should have reviewed the players' exculpatory evidence?"

The courts need to review how innocent persons can be prosecuted for a year on no evidence, and why; how the entire judicial system failed; and what steps need to be taken to prevent a recurrence.

Examining that includes examining the actions of those involved in assisting that miscarriage and abuse of justice in any way.

And if they aren't interested in doing that, then why are they on the bench?

Anonymous said...

To Anonymous at 12:28: I believe that I was quite clear in stating that it was the unindicted players who were "inconvenienced." Thus your protestations regarding a "rape charge" have nothing to do with my statement because, as we all know, no rape charge was brought against them. City officials did not influence a grand jury against them. I have no idea what you are referring to with respect to "academic and athletic censure"-- as far as I know, none of the unindicted players were "censured" academically. Yes, their lax season was cancelled but, in the real world, that's an inconvenience. My point all along was that the lawsuit by the unindicted players was (1) incredibly weak legally, (2) strategically stupid because it tended to turn the courts against the indicted players' lawsuit which, perhaps, was better based from a legal perspective, and (3) handled very badly by the unindicted players' lawyers.

Anonymous said...

To Anonymous at 12:50: Perhaps a little less rant and a little more perspective. Please cite me one case where a court thought it tappropriate to award reform relief where indicted persons were not brought to trial, not convicted, exonerated by the State Attorney General and awarded significant monetary damages in settlement of their claims against one of their principal wrongdoers. All the stuff you cite has little relevance here. My point was that courts are extremely reluctant to impose reform remedies where there is no reason to. Here, despite the screwing they got, there was no miscarriage of justice that really matters to an appellate court. Your ideas about what courts will do is far from what our courts actually do. Perhaps to their discredit, our courts are very "procedure focused". That is, they are far less concerned with whether a particular individual is guilty or innocent than with whether the proper procedures were followed. The 4th Circuit knew the players were innocent, but that was irrelevant to their review of the cases. Read the opinion-- so much of it comes down to a conclusion that the cops just did what cops do and the players can't show how it hurt them in a material way.

I sympathize with your obviously laudable goal that courts exist to right wrongs. Ask yourself the following question, however. If you were the unindicted players and you had to pay your lawyer's fees, would you have brought this lawsuit? My assumption is that the lawyers took that case on a contingency basis. Now ask yourself the same question if you were an indicted player. Again, my assumption is that that case was a contingency fee case as well. If you had answered either question yes, you would now be out of pocket some real serious, I mean real serious, money and the case would be in the toilet.

These were, to me, idiotic cases to bring. I have said so since they were brought. Someone earlier on this thread said that the players brought these cases so their "story" could be told. Didn't the Attorney General, Joe Neff , KC and Stuart Taylor tell the story?
c

Anonymous said...

To Anonymous at 12:50: you mention that getting indicted for gang rape will effect you for the rest of your life.do you have any reason to believe that the indicted players are "effected" now? I was at a presentation by Reade two months ago and he seemed fine to me. Are you just assuming this or do you have some basis for your statement?

Anonymous said...

To Anonymous at 12:50: You make a number of points comparing the lax case to racial discrimination against blacks in the Jim Crow south. Didn't that discrimination result in patently biased convictions of innocent people in contrast to here where patently innocent persons were exonerated before trial? Kind of different isn't it? Kind of hard to think that we need the Federal courts to come in and reform the Durham cops, the DA etc. when no one got convicted based on discrimination. I would also point out that the Federal courts are not going to worry much about "Jim Crow like" discrimination against white college students represented by some of the best lawyers in NC . No appellate court is going to think that this case bears any similarity to the Scottsboro case. To claim that it does is to belittle the Scottsboro defendants.

Anonymous said...

All rightee then.

I have visited this blog daily virtually since its inception.

My wife laughs at me and tells me to "get a life" when she sees me continuing to follow the Duke lacross fiasco.

For a viariety of valid (to me) reasons it was obvious from the start that no significant assault had occurred at the spring break party.

I thought there were important legal (and educational institutional) issues at play here and I was hoping to see them play out in a meaningful fashion.

What could I have been thinking?

The PC crowd at Duke have all been rewarded and the criminal justice "system" protects itself with the minor exception of neurotic Nifong getting a slap on the wrist at the end of his pathetic career.

I am hereby signing off- more cynical and delusioned than ever.

Last one out please turn off the lights.

RL '75

Anonymous said...

To Anonymous at 12:50 who cited Sandusky. Gee, I thought the law brought a case against him and put him away. How does this compare with the lax situation? Whatever mistakes Duke may have made in the lax case, the last thing they might be accused of is covering up for criminals a la Sandusky. If I remember correctly, most people thought Dukebdid not stand up for the laxers. Sort of the direct opposite of Penn State, no?

Anonymous said...

To Anonymous at 12:50: I am astonished ar your references to the "Jim Crow" south. Let' s try to figure out your logic. In the Jim Crow South, blacks were effectively afforded no rights. In Durham when the case arose, is it your contention that white lax players were afforded no rights? If not, what were you trying to say? If so, I guess events proved you wrong. The indicted players were able to hire top notch lawyers and were exonerated. Just like so many wrongfully accused blacks were in the Jim Crow south. Right? Oops, guess not. What a foolish comment.

Anonymous said...

To Anonymous at 12:50: you make the point that when the DOJ and the FBI won't investigate, that's when we need civil suits. Many people with no bias would say that if the FBI and the DOJ won't investigate, it's because there is no case and that's why we should relax and move on with life.

Anonymous said...

To Anonymous at 12:50: just got in after a holiday drive. Read your post but, having read it, I have no idea what you actually wish the court to have done. You just babble about how the courts should "examine the actions of those involved" without having presented any thought as to what that might mean. Consistently with many on this blog, you have a desire that the "courts" will remedy what happened to the laxers but you have no real understanding of civil litigation or the remedies customarily available thereunder. In this respect, you are not unlike their lawyers who, in my opinion, had no clue either.

Anonymous said...

To Anonymous at 12:50: you note that the DOJ and the FBI did not investigate and conclude that that fact justifies the lawsuit. Perhaps they declined to investigate because they did not think they needed to expend their resources investigating how three guys who were indicted were completely exonerated by the NC Attorney General and received a settlement from Duke. Seriously, outside forces intervene only in circumstances where the conduct at issue can't be resolved locally. Here the conduct was resolved locally-- The NC Attorney General exonerated the players, the NC Bar disbarred the DA, Duke gave the indicted players a settlement, the media published the story, KC wrote a book. What exactly did you want the DOJ or the FBI to do?

Anonymous said...

" You make a number of points comparing the lax case to racial discrimination against blacks in the Jim Crow south. . . Kind of hard to think that we need the Federal courts to come in and reform the Durham cops, the DA etc. when no one got convicted based on discrimination."

Reverse the colors and have the DA say he doesn't want his town to be know as a place where white girls (sic) can be raped by black athletes, and then see how fast the FBI and DOJ will rush into town to protect the civil rights of the accused.

And a lynch mob is still a lynch mob even if the intended victim is rescued at the last moment.

" I would also point out that the Federal courts are not going to worry much about "Jim Crow like" discrimination against white college students represented by some of the best lawyers in NC ."

Don't white college students have the same constitutional rights as everyone else? If those rights are violated, and they are discriminated against because of their race, class, ethnicity, gender, or anything other distinction, then the DOJ ought to be on the scene to insure "equal protection of the laws".

"No appellate court is going to think that this case bears any similarity to the Scottsboro case."

A good many people (starting in April 2006) have noticed the abundant similarities and written extensively about them. The judges surely aren't illiterate.

"To claim that it does is to belittle the Scottsboro defendants."

It belittles the Duke defendants to assert that they are not entitled to the rights and protections of the constitution because of their color or class.

Anonymous said...

"Many people with no bias would say that if the FBI and the DOJ won't investigate, it's because there is no case and that's why we should relax and move on with life."

Most people know that the FBI and DOJ won't investigate several classes of cases--to include voter registration fraud in the South and allegations against politically influential persons. It's laughable to say that the fact there is no investigation means that there was no crime.

Anonymous said...

"Someone earlier on this thread said that the players brought these cases so their "story" could be told. Didn't the Attorney General, Joe Neff , KC and Stuart Taylor tell the story?"

There are still a great many unanswered questions, so we're still a long way from having the whole story told. That's why the testimony is needed; and under oath in a court, if that's the only way to get it.

Anonymous said...

"Please cite me one case where a court thought it appropriate to award reform relief where indicted persons were not brought to trial, not convicted, exonerated by the State Attorney General and awarded significant monetary damages in settlement of their claims against one of their principal wrongdoers"

You seem to think this makes it all right--that the witness intimidation--to include the arrest and trial of a principal defense witness--police lying on warrant applications; the DA lying to judges; the stirring up of racial animus to stir up the community against the defendants; collusion between Duke and the DA to get FERPA-protected and then lying about it to the court; attempts to pressure innocent defendants to plead to a crime which never happened; and much else--are all just fine and we should forget about them.

But for the sake of the next defendants in that jurisdiction, the DOJ ought to conduct
a thorough investigation of how that could happen. And the courts should mandate appropriate reforms.

Anonymous said...

" Read the opinion-- so much of it comes down to a conclusion that the cops just did what cops do . . ."

Is this asserting that cops routinely plan to frame innocent persons? And cooperate with a DA and a university for that purpose? Because that is what is alleged in the suits. And absent testimony, the truth or falsehood of those allegations can never be established.

Duke deserves a chance in court to prove its innocence.

Ditto Durham.

Anonymous said...

" In the Jim Crow South, blacks were effectively afforded no rights. In Durham when the case arose, is it your contention that white lax players were afforded no rights?"

Right. They were assumed to be guilty as soon as they were charged, and the community was pressing for a guilty verdict
even after facts proved the accused to be innocent. (17% of those polled said they would vote for convictions even if the defendants were innocent; and those were only the ones willing to answer the poll in the affirmative.) Add a few black panthers, an NAACP determined to prevent a change of venue to get a "Durham solution", and a few church congregations ready to join the lynch mob, and you've got the Old South redux, with just a transposition of color.

And in fact, Judge Beaty later affirmed that they have no rights to sue for violation of civil rights under color of law, because they are not of African descent.

" The indicted players were able to hire top notch lawyers and were exonerated. Just like so many wrongfully accused blacks were in the Jim Crow south. Right? Oops, guess not. What a foolish comment."

So hiring lawyers means they get to be deprived of rights? So Liebowitz (who defended the Scottsboro boys) was not top notch? And how does the ability to hire top notch lawyers get turned into a mark against innocent defendants?

Anonymous said...

"you note that the DOJ and the FBI did not investigate and conclude that that fact justifies the lawsuit. Perhaps they declined to investigate because they did not think they needed to expend their resources investigating how three guys who were indicted were completely exonerated by the NC Attorney General and received a settlement from Duke."

And witness intimidation, false warrants, frame-ups of innocent persons, don't warrant investigations and prosecutions because the accused managed to escape conviction?

" Seriously, outside forces intervene only in circumstances where the conduct at issue can't be resolved locally."

And what's been fixed in Durham? Got a speedy trial law yet? Transcripts of grand jury proceedings? Guarantee of probable cause hearings? Recordings of police interrogations? A visible chain of command in the DPD?

Nothing's been done to prevent the next lacrosse case, or protect the next defendants.

"Here the conduct was resolved locally-- The NC Attorney General exonerated the players, the NC Bar disbarred the DA, Duke gave the indicted players a settlement, the media published the story, KC wrote a book. What exactly did you want the DOJ or the FBI to do?"

How about arresting those involved and prosecuting them for violating the civil rights of the falsely-accused? Usually that's what happens when one commits a crime--it's not just, let's let bygones be bygones...

Anonymous said...

"Kind of hard to think that we need the Federal courts to come in and reform the Durham cops, the DA etc. when no one got convicted based on discrimination."

The entire prosecution against them was based on their being white out-of-state rich athletes, not on anything they did. They were considered guilty on the basis of stereotypes. And that is a parallel to what happened in the South during segregation--guilt by stereotype (regardless of the facts).

If defendants are denied a fair process because of who they are (and not what they are accused of doing), then the feds ought to step in to protect their constitutional rights.

Anonymous said...

"you mention that getting indicted for gang rape will effect you for the rest of your life.do you have any reason to believe that the indicted players are "effected" now?"

How can we know anything about that when no testimony has yet been allowed to be taken?

Let's get all the testimony taken and then decide whether or not there was actual harm.

(No court can decide that before seeing the evidence, can it?)

Anonymous said...

Gee 12:50, you really got called out for your comments. We await your reply.

Jim In San Diego said...

An eery echo of the past is now being heard in Steubenville, Ohio. The question is, which past?

Two 16 year old boys are charged with rape of another 16 year old. They are football players, members of a popular football team loved by the local community.

Other football players joked about it on video. The video was leaked by a hacker (as I said, eery).

A crowd of 1000, many anonymous, led by an anonymous leader wearing a hood and mask, is demanding more arrests. The local sheriff says no, the two who are charged are the only ones for which there is evidence of a crime. The protesters claim the sheriff is just protecting the football program.

The question is, which history are we reliving? Duke or Penn State?

We learned from Duke you cannot just charge people with crimes when there is no evidence they committed the crimes. We learned from Penn State that responsible people will turn their eyes from what they do not want to see to protect a beloved football program.

The indicia I can see so far suggest the local police are pursuing justice. Two are already charged. The Sheriff, who apparently oversees cases like this, has a history of prosecuting rape cases (200 so far). Nearly 70 witnesses have been interviewed by local police. No one yet is shown to have any personal motive not to pursue justice.

So, I lean to this being a Duke-like howl from a lynch mob. But, I will keep my mind open and alert to what is going on.

Jim Peterson

Anonymous said...

KC:

I dropped by to see what the latest findings were on the lacrosse suit. I read your analysis and subsequent responses with great interest. Please allow me to add a comments.

1. A great deal of effort has gone into the initiation and maintenance of the blog. From a legal standpoint, that effort appears to have been wasted.

However, I found your analysis, conciseness and use of the English language to be extraordinary. It was a source of great enjoyment.

2. I believe the minority community has a better chance of obtaining a favorable verdict in these civil rights cases than do white plaintiffs. I don't think that was given proper weight by the attorneys.

3. When action by the courts is diluted or denied, other avenues are available. (If change needs to happen, are people so powerless they cannot organize to effect change?) Duke (and other universities) need support organizations to defend those that are unjustly accused. Does Brooklyn College have such a group?

Regards,

Ken
Dallas

Anonymous said...

To Anonymous at 10:32: so the answer to my question is "No, I have no reason to believe that getting indicted will effect you for the rest of one's life. But, let's bring a lawsuit and after years of delay and wasted time and money, we might find an answer." Reminds me of Nancy Pelosi's comment when challenged that Congress had not read the Obama Care bill. Her response was to the effect: "let's pass it and find out what it provides." That was utterly stupid. Your comments, close to utterly stupid.

Anonymous said...

Tito Anonymous at 10:28: you want the Feds to protect the indicted player's "Constitutional rights." My point was that the Feds have no interest in coming in to protect someone unless that peron has been materially injured. Yes, the indicted players suffered an unbelievable series of unfortunate events. But, get real, they were exonerated, the DA was disbarred and they got a monetary settlement. Every decision to take remedial action has costs-- dollars are spent by the Feds, time is devoted by Justice Department lawyers, other opportunities can't be pursued etc. There was absolutely no chance that the Feds would devote resources to protecting the "rights" of exonerated white guys who were ably represented by counsel and who received a monetary settlement. Welcome to the real world

Anonymous said...

To anonymous at 11:20 pm: you state that Duke should have a chance to prove its innocence and ditto Durham . You seem to have the legal system 180 degrees backward-- in civil litigation, the plaintiff has to prove the responsibility of the defendant. Durham and Duke want the cases dismissed; they have no interest in proving their innocence.

Anonymous said...

To Aninymous at 11:34: how about trying to stay on point? You ask what has been solved in Durham and ask about the passage of a speedy trial law. What possible relevance is that to the lax case. For God's sake, the indicted players case had nothing to do with the lack of a speedy trial. You follow that with a reference to the need for recordings of police interrogations. Seriously, as far as I know, the indicted players were not interrogated by the police and their case, therefor, had nothing to do with that. You then indicate that you have an interest in reforming the "visible chein of command." Wonderful idea, I guess, but of little relevance to the lawsuit. I note that, of course, getting a speedy trial law and requiring police interrogations to be recorded is something that can be achieved legislatively and, as far as I know, no one has claimed that the lax case is indicative of a disenfranchisement of the people of North Carolina.

Anonymous said...

To Anonymous at 11:10: didn't one of the earlier comments on this thread point out that the City of Durham had appointed a commission to investigate the handling of the case by the City, the police and the DA? Don't I also recall that one of the indicted players' counsel (Chesire if I recall correctly) had just gone before the commission and had given testimony when the civil cases were filed? Don't I recall correctly that, as a result of the cases being filed, the commission's inquiry was halted? Thus, years later thanks to these ridiculous cases, your desire for a search for answers has probably been irretrievably lost. Admittedly, we'll never know what that commission would have found. But we know, for sure, that since these stupid cases were filed, nothing of substance has been revealed.

Anonymous said...

Is 12:50 a Communist?

Anonymous said...

To Anonymous at 10:32: you ask "how can we know anything" when no testimony has been taken. I think that the substance of my comment was to call into question your conclusory statement about the effect of being indicted. You would appear to be seriously retreating.

Anonymous said...


"To anonymous at 11:20 pm: you state that Duke should have a chance to prove its innocence and ditto Durham . You seem to have the legal system 180 degrees backward-- in civil litigation, the plaintiff has to prove the responsibility of the defendant. Durham and Duke want the cases dismissed; they have no interest in proving their innocence."

I was using sarcasm in a paraphrase of Brodhead, who said that the accused lacrosse players should have a chance to prove their innocence in court.

(You wouldn't think Duke has a law school and law faculty, would you?)

Anonymous said...

"To Anonymous at 10:32: you ask "how can we know anything" when no testimony has been taken. I think that the substance of my comment was to call into question your conclusory statement about the effect of being indicted. You would appear to be seriously retreating."

You haven't heard from the players and their families about the extent of the damage--emotional and financial--from the false charges.

You won't hear that until depositions or a trial.

Hence, the jury (figuratively and literally) is still out on that one.

Anonymous said...

" so the answer to my question is "No, I have no reason to believe that getting indicted will effect you for the rest of one's life. But, let's bring a lawsuit and after years of delay and wasted time and money, we might find an answer."

I think the answer to that is self-evident; of course a false rape accusation will affect you for the rest of your life. It's devastating. Being pilloried in the media for a year, and having your school abandon you as quickly as possible, and seeing your coach fired,
will also affect 20-something year olds for the rest of their lives.

Any other supposition is not credible.

Anonymous said...

" you want the Feds to protect the indicted player's "Constitutional rights." My point was that the Feds have no interest in coming in to protect someone unless that person has been materially injured."

So if a black man is charged with a crime that never happened, has the klan rally outside his home and make death threats against him inside a courtroom, has a DA arouse sentiment against him because of his race, has the Aryan Nations distributing pictures of him with the expression, "Justice will be done", has a DA who conceals evidence, etc.--the feds will not become involved? I think they'd become involved in about two seconds.


"Yes, the indicted players suffered an unbelievable series of unfortunate events."

They weren't "unfortunate events". They were part of a deliberate attempt to frame innocent persons, under color of law. That comes under federal jurisdiction and is a part of the civil rights laws which the feds are supposed to enforce.

"But, get real, they were exonerated, the DA was disbarred and they got a monetary settlement."

The DA should have been sent to prison, not given one day in jail. And that exoneration doesn't mean that every time the term Duke lacrosse is used, it still doesn't bring up associations with the lies of 2006.

" Every decision to take remedial action has costs-- dollars are spent by the Feds, time is devoted by Justice Department lawyers, other opportunities can't be pursued etc."

Ditto for every case the feds pursue, including cold cases 40 years old. (What reason is there to follow through with those cases, which wouldn't apply even more to the lacrosse case?) If Durham is ever to have a valid and functioning justice system, the root of the corruption there, and a judicial system which permits it, have to be corrected. That's the feds' job, and they are remiss not to have begun.

"There was absolutely no chance that the Feds would devote resources to protecting the "rights" of exonerated white guys who were ably represented by counsel and who received a monetary settlement. Welcome to the real world"

The feds are supposed to guarantee equal protection of the laws. White students have the same civil rights as everyone else, last time I looked. And when those rights are violated under color of law, then the feds have the legal duty to intervene.

If you want to go to a two-tier citizenship model, I suppose we can do that. But we aren't there yet.

Anonymous said...

" You ask what has been solved in Durham and ask about the passage of a speedy trial law. What possible relevance is that to the lax case. . . "

Prosecutorial abuse, such as Nifong demonstrated, has to be reigned in. The players have nothing personal at stake in attempting to reform the NC and Durham legal systems; they are trying to put to use what the case taught them and bring some good out of it; it comes from a sense of trying to help out the next victim of the system. And the people there--especially the rights groups-- ought to be supportive of their efforts.

If they don't want to support those efforts, and if future NC defendants have to be subject to prosecutorial abuse, then that will be what the people of NC have chosen for themselves; and in a larger sense, that will really be "justice", since that is what they willingly inflicted on others and refused to correct when offered the chance.

Anonymous said...

"didn't one of the earlier comments on this thread point out that the City of Durham had appointed a commission to investigate the handling of the case by the City, the police and the DA? . . .Don't I recall correctly that, as a result of the cases being filed, the commission's inquiry was halted?"

Why halt it, if the city was innocent and had nothing to hide? Why not get that information out as soon as possible? Why not vindicate themselves to the public?

"Thus, years later thanks to these ridiculous cases, your desire for a search for answers has probably been irretrievably lost."

Durham didn't preserve its records? Even though it's involved in litigation?

" Admittedly, we'll never know what that commission would have found."

Willis Whichard gave us a preview when he said that the April 4 ID session was "not an ID session". I think we can guess where he would have come down on the issue of defendants' rights and prosecutorial and police abuse. (MOO)

The Hounds of TASSers'ville said...

Wonderland:

We thought we should make it known that Thavolia "DNA results; we are moving backwards" Glymph will be lecturing here at the U of ILL as a part of (of all things) "Inclusive Illinois" Iniative. Ironic that someone with so little regard for important legal documents, like the U.S. Constitution, will be taken part ina celebration of "freedom" and the Emancipation Proclamation.

http://www.news-gazette.com/news/arts-and-entertainment/community-events/2013-01-13/ui-campus-mark-150th-anniversary-document.ht

Hound No. 2
The Hounds of TASSers'ville

Chris Halkides said...

The Duke Chronicle quoted Judge Beaty's ruling: "'An administrator who is a lawyer, who discusses pending criminal charges with her students, who affirmatively cuts them off from other advice by telling them not to seek legal advice and not to tell their parents, and who then directs them to the institution’s attorney in an effort to protect the institution at the students’ expense, could plausibly be liable for constructive fraud under state law,' the judge wrote regarding Wasiolek’s alleged actions." According to this article, constructive fraud is deception without intent.

Anonymous said...

To Chris Halkides: Perhaps the judge is correct that an action under state law for constructive fraud is plausible. I have my doubts, but, for the sake of argument, assume he is correct. In order to succeed, however, the plaintiff bringing the action must show that the "fraud" caused the plaintiff damages. I fail to see any damages here. The laxers disregarded the "advice" of Dean Sue and quickly got their own lawyers. It will be extremely difficult to show that the "fraud" had any effect on them at all. As I have said before, her advice was idiotic but in the end would appear to have been of no real consequence.

Anonymous said...

It's simply astonishing to see this case fall apart. And after so many years too! Frankly, I've always worried Ekstrand's over-the-top prose and not so admirable writing style could do them all but the fact that not a single one of the lawyers [prevailed is sad to see. I guess we ought to get ready to hear the same rulings on the Duke cases? What do you think KC? And IMO there's no real hope that the Supreme Court will take this, these lawyers just did not have a case that would merit anything other than our outrage. I wish those athletes who didn't have anything happen to them had not been so eager to go after the money. Their greed (probably the wrong word)really confused matters for the four who had to be declared innocent. Now with the legal rulings stacking up against us all we have is our outrage--yes, have been reading LS. Didn't one of the 88 write something about justice vs. feelings? Even so, I'll keep my outrage. At least I know the difference between being right and being wronged and going after something for the money versus the principal.

Anonymous said...

" I wish those athletes who didn't have anything happen to them had not been so eager to go after the money. Their greed (probably the wrong word)really confused matters . . . At least I know the difference between being right and being wronged and going after something for the money versus the principal."

(Perhaps not, since you seem to think these players were just in it for the money...)

I expect that to be a talking point from the defendants also, since there really is nothing much else they can say by way of defending themselves. (MOO)

JWilson said...

Why are the lacross players suing in federal court? Would state court not have been a better venue?