Monday, August 13, 2012


Updates on five* matters:

[Update, Wed., 7.40pm:

1) The New York Times editorializes that the Supreme Court should affirm (as, indeed, it should) that a prosecutor's primary goal is to seek justice, not to achieve a victory. Coming from an editorial page that was virtually alone among major national newspapers in never criticizing Mike Nifong's misconduct, even as Nifong was one of the highest-profile victory-over-justice prosecutors of the last decade, this argument could at best be qualified as better late than never.

2) A reminder that in the week of 18 September, the 4th circuit will hear Durham's appeal of Judge Beaty's order allowing discovery to proceed in the lawsuit filed by the falsely accused players. This move has an effect on the suit filed by the unindicted players, since Beaty allowed all discovery regarding former SANE-nurse-in-training Tara Levicy to be delayed pending the outcome of the appeal.

To summarize the Durham argument, as spelled out in Beaty's original ruling: "Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude 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."

3) In a move first reported by the H-S, Duke attorneys have filed a brief demanding the dismissal of the Katie Rouse lawsuit, partly on grounds that Rouse was considering leaving Duke even before the rape, partly on grounds that Rouse wasn't treated any differently than other Duke students who considered transferring.

The filings did reveal two previously unreported items. First--and almost incredibly--Moneta admitted that Rouse had been a student employee in his office. If the record of the Rouse case is how Moneta treats a student who had worked for him (as he told NBC-17, the situation was “part of the reality of collegiate life and of experimentation and some of the consequences of students not necessarily always being in the right place at the right time"), imagine how he'd treat a student he had never encountered but whose presence at Duke caused him bureaucratic problems.

Second, the filings indicated that the house in which Rouse was raped was owned by Duke mega-donor Aubrey McClendon. (Sports fans might know the McClendon name--he's a part owner of the Oklahoma City Thunder, and played a key role in the borderline bad-faith departure of the franchise from Seattle.) Moneta's analysis the McClendon role, as expressed to other administrators: "Unbelievable" and "Shit." Bob Ekstrand has argued that the presence of McClendon gave Duke a motive to try and cashier Rouse out of the university.

Quite apart from the specifics of the Rouse case, there's something more than ironic about a paragon of political correctness such as Moneta worrying about a need to appease an anti-gay fanatic such as McClendon. Strange bedfellows indeed.]

WRAL reports that the State Bar has declined a request from ex-DA Tracey Cline to defer her disciplinary hearing, which currently is scheduled for the first week of October.

Cline wanted the Bar’s proceedings delayed until after she had exhausted her longshot appeals of Judge Hobgood’s order removing her from office.

There thus remains a good chance that Durham’s last two elected district attorneys not only will have been removed from office but removed entirely from the legal profession.

In the H-S, Ray Gronberg reports that Bob Ekstrand has, for the most part, agreed to demands by Duke attorneys for a protective order regarding discovery material in the civil case. In previous filings, Ekstrand had attached the depositions of Duke Police officer Gary Smith and Duke athletics official Chris Kennedy, as well as five e-mails between Pres. Brodhead and his advisors.

Gronberg correctly points out that such a protective order applies to both sides of the discovery, preventing Duke from releasing discovery information about the lacrosse players. But, as the H-S reporter surely is aware, the potential impact of discovery disclosure is so wildly disproportionate that only one side could experience any damage from releasing discovery material at this stage.

Thanks in large part to the combined spring 2006 actions of the media and Duke employees, the lacrosse players’ public reputations were trashed; it’s hard to imagine what Duke could release at this stage that would materially affect the players’ reputations. Moreover, such legal tactics would pose a risk of a public relations backlash against Duke, if the university came to be viewed as engaging in gratuitous character assassination against its former students.

(If there’s discovery material featuring the lacrosse players ruminating about Brodhead as a wise and incisive humanitarian leader, such a revelation would hamper the suit, but it seems extraordinarily unlikely the discovery file contains such material.)

For the plaintiffs’ attorneys, on the other hand, attaching discovery material to legal filings would pose no p.r. problems. More to the point, for Duke, the release of any of this material (whether in pre-trial filings or at trial) runs the risk of exposing damaging information about administrators—such as Brodhead’s implication that a possible frame for the lacrosse case was a movie in which an accused killer convinces his advocates of his innocence, only to be revealed as a killer.

Duke, of course, would have no such risk if either: (a) it had conducted a Freeh Report-like inquiry into how and why the administration so badly handled the lacrosse case, since such a review would have already exposed embarrassing material from administrators’ e-mails or other files; or (b) Brodhead hadn’t offered an after-the-fact claim that a presumption of innocence was one of the two lodestars of how he approached the case, since this highly implausible assertion is so easily undermined by such material as the president’s movie-critic e-mail.

Gronberg’s article notes that John Burness’ deposition has been scheduled, but contains no mention of whether depositions of Duke’s two key decisionmakers—Brodhead and ex-BOT chairman Robert Steel—have occurred.

It’s hard to imagine that Duke would want either of these depositions to see the light of day, which would make Ekstrand’s concession an important victory for the university.

Monday, August 06, 2012


[Update, Sunday, 6.32pm: After an overwhelming number of trustees expressed support for the Penn State president, renegade Trustee McCombie, at a meeting of the Penn State board, announced that he will no longer pursue his appeal of the consent degree. Neither he nor the other most outspoken renegade trustee, Anthony Lubrano, revealed any of the factual errors that they claim exist in the Freeh Report.]

[Update, Wednesday, 1.45pm: Two additional items for the bitter-ender file. ESPN reports that a handful of former Penn State football players will appeal the sanctions, in part on grounds (you guessed it!) that elements of the Freeh Report were “clearly erroneous.” The letter offers no guidance on how, or in what manner, the findings were “clearly erroneous.”

In addition to his communication with the NCAA, renegade trustee McCombie, meanwhile, has also penned a letter to his fellow trustees, asking them (“for the glory,” as he ended his missive) to join his anti-accountability crusade. “I do not do this,” wrote he, “seeking a predetermined result nor do I claim to know what the final answers will be.”

That would be the same Trustee McCombie who told the NCAA that he did know what the final answers would be--namely, that the Freeh Report “contains findings and conclusions that are contrary to the evidence and/or unsupported by credible evidence.” Whether his fellow trustees will respond to a colleague who plays so fast and loose with the truth remains to be seen.]

In our WSJ op-ed, Stuart and I noted that—thanks largely to the Freeh Report—Penn State had responded to administrative failure far more effectively than had Duke handled its response to the lacrosse case. Yet, we argued, a potential problem remained, in which “Penn State may be doomed to follow Duke's unfortunate example. Duke's appeasing of its faculty extremists symbolized its failed response to the lacrosse case. Penn State, similarly, has shown little willingness to deal with its bitter-enders—those among the campus community who prefer to hide their eyes and ears from the evidence and cling to the belief that the late Coach Joe Paterno was somehow mistreated. Such views exist even among the board of trustees, two of whose recently elected members, Anthony Lubrano and Ryan McCombie, campaigned on a platform demanding that the board apologize to the Paterno family.”

Events of recent days confirmed our pessimism. First, the Paterno family announced a desire to appeal the various NCAA sanctions against Penn State. (No member of the Paterno family is currently employed by Penn State, and the university continues to honor the terms of the sweetheart 2011 contract negotiated between the late football coach and ousted Penn State president Graham Spanier.) Beyond expressing rage at the condemnation of a “great educator, philanthropist and coach,” the family targeted the Freeh Report:
As will become evident in a thorough and impartial review, the NCAA acted hastily and without any regard for due process. Furthermore, the NCAA and Penn State’s Board Chair and President entirely ignored the fact that the Freeh Report, on which these extraordinary penalties are based, is deeply flawed because it is incomplete [in unidentified ways], rife with [unidentified, it seems] unsupported opinions and unquestionably [at least, it seems, according to the Paternos] one-sided.  [emphasis added]
The NCAA immediately rejected the appeal on grounds that a consent decree can’t be appealed. And even if such an agreement could be appealed, it hardly seems likely that a family of someone who no longer works for Penn State would have grounds for action.

Then, yesterday, ESPN reported that a renegade group of trustees, headed by the apology-demanding Ryan McCombie, had informed the NCAA that they intended to appeal the sanctions. The McCombie group complains that Penn State president Rodney Erickson kept them in the dark about his negotiations with the NCAA, and lacked authority to enter into an agreement with the NCAA—which, if true, would be grounds for the board to dismiss Erickson.

But after raising what could very well be a legitimate governance issue, the renegade trustees’ letter veered into the absurd. Here’s an excerpt:
The NCAA decree is fundamentally unfair in that the Freeh Report, on which it is predicated, contains findings and conclusions that are contrary to the evidence and/or unsupported by credible evidence [in ways that, it seems, must remain unidentified]. The Report failed to consider evidence or afford certain [unidentified, it seems] individuals an opportunity to be heard, failed to acknowledge the absence of [unidentified, it seems] important and material evidence, and reached [unidentified, it seems] conclusions based on assumption, conjecture, and misplaced characterizations that are contrary to the [unidentified, it seems] available facts and evidence.
ESPN added that if—as is expected—the NCAA rules either the consent decree can’t be appealed or that a renegade band of trustees lacks standing to appeal, the McCombie group will file a federal lawsuit.

The two documents’ descriptions of the Freeh Report were nothing short of wishful thinking. The Paternos’ letter asserted that the report is—not “likely is,” not “could be,” but “is”—incomplete and “rife with unsupported opinions.” Yet, in what could only be deemed a highly peculiar public relations strategy, the letter (just like all of the family’s other public statements about the Freeh Report) neglected to pass along even one of these “unsupported opinions” of which the Freeh Report supposedly is “rife.” Why, do you suppose, that is?

Likewise with the McCombie letter, which maintained that the report contained findings and conclusions that are—not “probably are,” not “could be,” but “are”—“contrary to the evidence and/or unsupported by credible evidence.” Yet the renegade trustees’ letter couldn’t find space to identify even one conclusion of the Freeh Report that was “contrary to the evidence,” or even one finding that was “unsupported by credible evidence.” Why, do you suppose, that is?

We’ve seen, of course, this type of thinking in the Duke case, with the bitter-enders among the Group of 88 and their supporters. The Group statement, apologist Charlie Piot claimed, wasn’t about the lacrosse case at all—even though the e-mail soliciting signatures described the ad as “about the lacrosse team incident.” Or, Group member William Chafe wildly asserted, Bloggers who have targeted the ‘Group of 88’” were guilty of “sending us e-mails and making phone calls wishing our deaths and calling us ‘Jew b-’ and ‘n-b-’.” Yet when pressed, Chafe couldn’t identify which of the dozen or so “bloggers critical of the Group of 88” had engaged in such behavior.

Like the Paterno family and the renegade trustees on the Freeh Report, for bitter-enders like Chafe and Piot, the “facts” simply had to fit their preconceived notions.

As demonstrated most recently in the promotion of Paula McClain, Duke effectively surrendered to the Group of 88. Will Penn State likewise be drawn low by its bitter-enders?