Monday, January 14, 2013

Updates

A few updates in a quiet period for case-related developments:

(1) Attorneys for the three falsely accused players have indicated they plan to appeal to the Supreme Court the 4th Circuit’s ruling dismissing—before discovery even had begun—their federal civil rights claims against Durham and Durham employees. The Supreme Court accepts less than 1 percent of cases submitted to it, most frequently when a federal law is struck down (not relevant in this instance) or when a difference occurs between circuits. That route would seem the most promising: will the attorneys be able to argue that the 4th Circuit’s ruling—that there’s no conceivable federal civil rights claims when police, acting in concert with a prosecutor who was improperly placed in charge of the police investigation, attempt to frame innocent people for a crime that never even occurred, as long as the police are candid with the prosecutor (but not the grand jury) that there’s no evidence for the crime—conflicts with standards in other circuits?

The notice, by the way, came in response to the latest offering from Linwood Wilson, acting as usual as his own counsel, whose legal filings throughout the case have regularly provided an unintentional dose of comic relief. In what might be the single most bizarre legal document of the entire case, Wilson—acting, again, as his own attorney—provides what he terms legal definitions “for us common men” (the “definition” comes from the dictionary), cites unnamed and uncited “legal experts” who say the Supreme Court will not hear the appeal, speaks of himself in both the first person (“I”) and the third person (“Defendant Wilson”), and wildly threatens to sue the falsely accused players for defaming his character.

The oddest of the many odd lines in the filing: “Wonder what the going rate on Attorney’s [sic] fees are to go to ‘The Supreme Court’”? Bolding, lack of a subject for the sentence, and odd quotation marks in the original.

(2) The McFadyen plaintiffs (represented by Bob Ekstrand), meanwhile, petitioned the 4th Circuit for an en banc review, requesting that the Circuit overrule part of the decision of the three-judge panel. You can read a comprehensive analysis of the petition at the Liestoppers forum.

The petition—irrespective of its legal merits—is a longshot: assuming that each of the three-judge panel votes against Ekstrand, eight of the circuit’s remaining judges would then need to vote for a re-hearing. It seems more likely that the circuit’s conservatives will be swayed by Judge Wilkinson’s reasoning (toss out the case lest it provide a precedent for other victims of police misconduct to sue local governments) while the left fringe on the court can point to Judge Gregory’s “reasoning” (toss out the case lest it lead people to believe that Mangum’s politically correct claims were, in fact, utterly fraudulent).

[Update, Wed., 6.05pm: As predicted, the petition for an en banc hearing was denied.]

(3) The latest from the annals of non-accountability: the Mellon Foundation has appointed none other than Richard Brodhead as a trustee, with his position to take effect in March 2013.

The past president of the Mellon Foundation is none other than William Bowen—co-author of the whitewash Bowen/Chambers report.

(4) In recent weeks, in large part due to hacks from activist groups, media attention has centered on Steubenville, Ohio, which was rocked by allegations of what appeared to be a desultory investigation into allegations that players from the high school football team raped a girl. Two of the players were charged and await charges in juvenile court, but none of the other partygoers—who appear to have witnessed the incident and done nothing—have been charged.

To date, the most chilling release has been a video of a Steubenville graduate who went onto Ohio State named Michael Nodianos. Deadspin describes the video in this way: “The video is over 12 minutes long. It's not very easy to watch. Nodianos tells jokes about how ‘dead’ the alleged victim is and openly and jokingly acknowledges that she has been raped.

Among his many chilling comments was the following: “They [the Steubenville football players] raped her more than the Duke lacrosse team.”

The comment is horrifying in many ways. From the standpoint of the lacrosse case, it’s a reminder of how the case is perceived in popular culture—and of how the disparity between the massive media coverage of Mangum’s allegations and the far more limited coverage of the exoneration shaped at least some elements of the popular memory.

(5) I’ve written some on the Penn State case—which is, effectively, the anti-Duke. Unlike Duke, which has allowed the Bowen/Chambers Committee report to stand as the sole official investigation of how the administration (and much of the faculty) so botched the university’s response to the case, Penn State held responsible powerful university leaders (ex-president Graham Spanier, ex-football coach Joe Paterno), conducted a comprehensive investigation (headed by ex-FBI director Louis Freeh) of what went wrong, and enacted reforms to ensure that the failure isn’t repeated.

There has been, however, one darker difference between the two universities’ responses.  At Duk,e the true believers—the Group of 88 and allies—largely went silent once the administration adopted its “let’s-move-on” mantra. At Penn State, on the other hand, significant elements of the alumni and even faculty communities appear intent on relitigating events to render blameless at the least Paterno and at the most the whole group of disgraced administrators.

An example comes in this blog post, which compares the Duke students—falsely accused of a crime that never occurred, victims of massive prosecutorial misconduct—to Penn State senior administrators and ex-coaches who decided, for their own reasons, not to report a graduate assistant’s report that he had witnessed a boy being sexually assaulted in the football showers.

Simply an astonishing framing of events.

40 comments:

Ray Blehar said...

Sorry, KC, you don't have your facts straight in the PSU scandal.

PSU reported the incident. One PSU official testified to it under oath. A second person's e-mail is included in the Freeh Report who also claims to have contacted local officials.

Please check Chapter 8 of the Freeh Report. Freeh cites the reporting law but doesn't say anyone violated it. Instead, he reverts to making irrelevant statements on the Clery Act, which wasn't even implemented at PSU until 2007.

BTW, I cite you in my upcoming report. How do you like your crow?

Ray Blehar said...

Also, the false accusation in the PSU case was that McQueary told PSU officials, in 2001, he saw something in the shower. He told them what he witnessed was around a corner and out of sight and only saw Sandusky and the child after they exited the shower.

In 2010, he changed his story to actually seeing Sandusky and the child in the shower. One of six witnesses to lie on the stand in the case, including the janitor, who story does not hold water.

This case is going up in flames in February.

Oh, and thanks for linking to the blog. More people need to know the truth about the PSU case. I appreciate you getting the word out.

William L. Anderson said...

You might recall that Justice Samuel Alito was at the signing party for UPI. I wonder how he will rule if certiorari is granted.

My sense is that the initial review will be done either by Kagan or Sotomayor, and both of them are so politically-correct that I doubt they will want to see justice done here.

Scot Foley said...

Four justices must agree to hear a case in order for it to be placed on the Supreme Court's docket. Despite the seemingly long odds, I can actually see a promising avenue for the three falsely accused players here. The Court doesn't often shy away from high-profile cases, and if there is a discernible split among the circuits relating to any of the claims that were brought I would wager that four justices would be eager to hear the arguments.

I agree with KC that the petition for en banc rehearing by the non-indicted players is far less likely to prevail. Of course, they could then also file a writ of certiorari to the Supreme Court, but I suspect the Court would not be inclined to take this case, where the defendants' breach and the harm to the plaintiffs are far less obvious.

Anonymous said...

Does anyone know the time and place for Mr. Wilson's nest Gospel Singing Crusade?

sceptical said...

Request for en banc hearing denied.

http://www.heraldsun.com/news/localnews/x1888455373/Appeals-court-denies-request-for-new-lacrosse-hearing

Anonymous said...

There is not a snowball's chance in hell that the Supreme Court will grant cert here. As I keep repeating ad nauseum, the Court will not think it necessary to spend its resources on a case where the indicted players were exonerated by the NC Attorney General, the DA was disbarred and the indicted players received a monetary settlement. It's also a case that's "too messy" for the court to take up-- because of the extraordinarily badly drafted complaint where the players' lawyers threw up every possible claim against every conceivable defendant, the Court would have to wade through too much extraneous material to be even able to narrow down what the issues are that they might address. The Court will have no interest in doing the work that the players' lawyers should have done before filing their case .

Anonymous said...

" the Court will not think it necessary to spend its resources on a case where the indicted players were exonerated by the NC Attorney General, the DA was disbarred and the indicted players received a monetary settlement."

Totally irrelevant to the civil rights issues involved. (One wouldn't want them to endorse what Nifong did...)

" where the players' lawyers threw up every possible claim against every conceivable defendant"

I doubt that will surprise the court; that's what lawyers usually do.

Anonymous said...

To Anonymous at 5:51: Unfortunately, I believe you are incorrect. The Court will rarely take a civil rights caseby a non-protected class (here, whites) in order not to "endorse" behavior that, while wrong, did not result in meaningful harm to the non-protected class. Yes, we all know the laxers got mistreated but, in the end, they weren't tried, they weren't convicted, they were exonerated and they received compensation. The Court will not view this case as one worthy of their attention.

As to your view that the horrendous complaint will not surprise the Court, you have to understand that, as a rule, the Court proceeds slowly-- they like to review cases where the issue is narrowly framed and the consequences of a decision are foreseeable. That is hardly the case here. The 4th circuit decision made it very clear that the case was poorly crafted and had the ability to drag numerous irrelevant parties into a litigation quagmire. See the circuit court's concern over Addison for example.

Quasimodo said...

" The Court will rarely take a civil rights case by a non-protected class (here, whites) "

Any group treated differently by law enforcement specifically because of their membership in that group, automatically becomes a member of a "protected" class. (There can even be a "protected class" of one, when one individual is specifically treated differently by authorities than every other citizen.)

The idea that Congress only intended for African-Americans to be beneficiaries of civil rights laws,
as argued in the Fourth Circuit, is a throwback to the logic of Dred Scot (where regardless of what Congress wrote, the laws were "opined" by the justices to apply only to whites).

Judge Beaty will not concede (in his various opinions in these and other cases) that Native Americans, Asians, or Hispanics, are covered by those laws; nor even white women (when women's rights are considered).

That kind of thinking didn't belong in the 19th century, let alone the 21st.

And if that has to be addressed again by SCOTUS, then so be it.

"Yes, we all know the laxers got mistreated but, in the end, they weren't tried, they weren't convicted, they were exonerated and they received compensation."

"Compensation" isn't an apology, nor a confession of what led up to their false prosecution; both of which are necessary for a restoration of their reputations; and before any reconciliation can take place. If Duke and Durham want their self-fashioned albatross to remain about their necks for the next seventy-five years, then they are surely on the right course to accomplish this.

"The 4th circuit decision made it very clear that the case was poorly crafted and had the ability to drag numerous irrelevant parties into a litigation quagmire."

Not everyone agrees that only Nifong was involved in the frame-up...

Anonymous said...

Quasimodo: I was referring to "protected class" in the sense of the Supreme Court's jurisprudence where certain actions against certain groups (eg, blacks) are subjected to "strict scrutiny." My point was merely that a bunch of white guys represented by some of the best lawyers in NC who aren't tried, aren't convicted, are exonerated and are compensated are not going to be the type of victims who then Court will bend over backwards to protect. I have no idea where you are going with your references to apologies and confessions an reconciliation. My point was merely that Federal courts will tend Tim intercede in local governmental affairs when they believe their is a need for remedial action. Where the plaintiffs have been compensated, the need for intervention may not be perceived to be as great. As to your statement that not everyone agrees that only Nifong was in on it, true but so what? The point was that the complaint made itself unbelievable by casting too wide a net. You don't seriously think spokesman Addison was in on the frame do you? Moreover, the 4th Circuit was properly concerned with the complaint's allegation of a broad "conspiracy." The essence of a conspiracy is an agreement among the conspirators to engage in a concerted activity. You don't seriously think that all the people named in the complaint agreed to frame the laxers do you? I have always been of the view that the principal actors (Nifong, Gottlieb, Levicy etc.) acted individually based on their individual twisted motives, not that they agreed to act in concert to conduct a frame. But the complaint, by alleging a vast conspiracy, gave the 4th Circuit the ability to say that the case was dragging people in who could not possibly have been involved in a conspiracy.

Quasimodo said...

. . . are not going to be the type of victims who then Court will bend over backwards to protect. "

Why not? Haven't they got the same right to constitutional protections when they are criminal defendants, as everyone else?

And if violations of their rights establish a precedent, who will suffer in the future?

"You don't seriously think spokesman Addison was in on the frame do you?"

He was certainly giving false information about the case to the public. If he was not the source of that information, then who was his source?

" You don't seriously think that all the people named in the complaint agreed to frame the laxers do you?"

Legal definition of "conspiracy":

"It is not necessary to prove that the criminal plan actually was accomplished or that the conspirator was involved in all stages of the planning or knew all of the details involved.
"The main elements that need to be proven are a voluntary agreement to participate and some overt act by one of the conspirators in furtherance of the criminal plan.
"If a person has an understanding of the unlawful nature of a plan and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict him for conspiracy even though he had not participated before and even though he played only a minor part.
"A conspiracy may exist when the parties use legal means to accomplish an illegal result, or to use illegal means to achieve something that in itself is lawful."

A great many people appear IMHO to have been involved in such a "conspiracy" in Durham, even if they were not privy to all the details all the time.

(MOO)

Anonymous said...

Quas: You do not highlight the many aspects of a conspiracy: that a participant has to be aware of the unlawful nature of the plan; that the participant has to knowingly join in the plan; that the participant has to voluntarily agree to participate in the plan. If your contention is that there was a frame, then participants can only be conspirators if they were aware that there was an unlawful plan to frame the laxers and such participants voluntarily agreed to join in the plan. The 4th Circuit was correct in thinking this a stretch as to many of the named defendants-- Addison, a spokesman for goodness sakes, was aware that a plan was afoot to frame the laxers a couple of days after the alleged rape and gave out false information in furtherance of the unlawful plan he voluntarily agreed to join? I think not. The time line is also bad for a conspiracy-- many of the complained of activities occurred too early in the case to be evidence that an unlawful plan had been hatched, that the various actors knew of the plan and did things in furtherance of it. It seems to me that if anyone was a conspirator with Nifong it was Meehan. I truly believe that most of the actors were, as I said, acting individually, often with twisted motives, but were certainly not aware that there was a conspiracy. As to your comment regarding why the Court shouldn't look out for the rights of the falsely accused, I can only say it so many times-- the court takes very few cases; it takes only cases where it perceives that it is necessary to get involved. Getting wrongfully indicted is totally unfair to the person wrongfully indicted but the Court is not going to use its extremely limited resources to weigh in when a group of well represented white guys are not tried, not convicted, are exonerated and are compensated and where the principal bad actor was disbarred. It may not be justice as you see it, but bad things sometimes happen to good people but that certainly does not mean that the Supreme Court needs to get involved.

Anonymous said...

I have to agree with Anonymous at 5:39. Much of the behavior in the incident was "people not doing their jobs." My favorite has always been our star SANE Tara Levicy. No one except Quasimodo would think she is part of his framing theory of a conspiracy against the laxers. But, in fact, she is the epitome of what went wrong here--nobody did their job. Quas wants to finger her as a conspirator but, come on, she was in the hospital when the pathetic excuse for a person was brought in for a rape kit. The drunken excuse for a woman is lying there asserting rape and Tara and her MD partner go to work. Rape kit finished but the our Tara has to embellish. Not because she was aware that an unlawful plan that is, a conspiracy) had been concocted to frame the guys and that she was voluntarily joining the illegal scheme to frame the laxers; no, she had her own goal and was willing to make incredibly stupid "blunt force trauma" statements. She should be left beside the road homeless, car less, penniless and without clothes but, for goodness sakes, there is no way that this incredibly Misdirected woman realized that the Fong was planning a frame of the laxers.

Quasimodo said...

" Addison, a spokesman for goodness sakes, was aware that a plan was afoot to frame the laxers ...?"

Addison gave out false and inflammatory information. Either he made this up himself, or else someone gave it to him to convey to the public. If so, who was that person?

"many of the complained of activities occurred too early in the case to be evidence that an unlawful plan had been hatched, that the various actors knew of the plan and did things in furtherance of it."

Why did the police refuse to permit the players to take lie detector tests that first night? Why did Gottlieb skip all routine procedures and go directly to Levicy--a low level nurse whose SANE qualification was questionable--and find someone willing to say Mangum had injuries "consistent with" a rape? Why couldn't Bissey get police to take his statement? Why didn't the police ever interrogate the accused, or permit them to give statements? What were they avoiding finding out? (There is much more to indicate that the police were not investigating, they were framing, IMHO.)

"Why did It seems to me that if anyone was a conspirator with Nifong it was Meehan."

Gottlieb and Himan were present at those meetings. Why did no one keep any notes of the meetings with Meehan--meetings that went on for hours? Where are the officers' notes, the photos of dry erase boards, the police logs signed by superiors, etc.? This was the biggest case in Durham's history and all regular procedures were abandoned and nobody kept any records--from the very start.

Odd, that.

"I truly believe that most of the actors were, as I said, acting individually, often with twisted motives, but were certainly not aware that there was a conspiracy."

How could Himan, Gottlieb, and Meehan not be aware there was a conspiracy? How could their superiors have been ignorant of what they were doing? How could a rigged ID session have been set up, and the participating officers not realize what was intended, and why? Who told Addison to say what he did? Who made the decision to arrest the police chief's daughter? Why did the chief abandon participation in the biggest case in his career?
It's not credible that everyone in the DPD was blind, deaf, and dumb to what was happening,IMHO.

" Getting wrongfully indicted is totally unfair to the person wrongfully indicted but the Court is not going to use its extremely limited resources to weigh in when a group of well represented white guys are not tried, not convicted, are exonerated and are compensated and where the principal bad actor was disbarred. It may not be justice as you see it, but bad things sometimes happen to good people but that certainly does not mean that the Supreme Court needs to get involved."

When the courts concede that some people are expendable, then we can just say the constitution, and all our concepts of equality before the law, are void.

Quasimodo said...

" My favorite has always been our star SANE Tara Levicy. . . Not because she was aware that an unlawful plan that is, a conspiracy) had been concocted to frame the guys and that she was voluntarily joining the illegal scheme to frame the laxers... but, for goodness sakes, there is no way that this incredibly Misdirected woman realized that the Fong was planning a frame of the laxers."

Then why did she alter the medical reports later (which is a violation of procedure, because that is tampering with evidence)
to make them reflect the "towel" statement?

Why did she continue to support Nifong's version even into Jan. 2007, trying to
alter Mangum's statement that no condoms were used?

Gottlieb needed her testimony in order to get probable cause for the case; otherwise he had none. Why did he bypass normal hospital procedure and skip Dr. Manly and head straight for Levicy? Why didn't he simply ask Manly for the info--it was Manly who did the exam. Was he hunting for the
answer he needed? Why did Levicy provide it?

And then keep changing her stories to suit the prosecution?


(MOO)

Anonymous said...

This thread went from a discussion of the likelihood of a Supreme Court review of the 4th Circuit's decision to Quasimodo asking detailed questions about evidence of a conspiracy. I give up and will not comment further other than to say to Quas that if you really think that Addison was a voluntary participant in an unlawful plan, that is, that he was a conspirator, you really ought to stay off of the Liestoppers Discussion Board and try to get a life.

Anonymous said...

I agree with Anonymous at 12:33. Let's recap what happened to the bad actors. Nifong: resigned, disbarred, bankrupt. Gottlieb: gone. Levicy: gone. Meehan: gone. Meehan's company: gone. Assistant DA Cline: gone. What happened to the good guys: not tried, not convicted, exonerated and paid off. It has been years since the fateful night. The ridiculous civil cases are over despite Quasimodo's never say die attitude. A horrible injustice did indeed occur to some very nice people but, in fact, the consequences to them were not ultimately horrible. They survived with dignity. Perhaps it is indeed time to "get a life" and put all this behind us. I know the diehards at Liestoppers will not, but, for the rest of us, I truly believe that we have all said enough on the subject and that to continue discussing this would really be self indulgent and pointless. We all know that, when a loved one dies, the advice is always the same-- life goes on. Well, despite how horribly the falsely accused were treated, no one died. So it should be okay to say that life goes on and we all should just go on.

Quasimodo said...


" It has been years since the fateful night. "

What's changed? Nothing. North Carolina still has no speedy trial law, no right for all criminal defendants to a probable cause hearing, no prompt bill of particulars, no transcripts of grand jury testimony, no guarantee of videotaped police interrogations--in short, there is nothing to prevent the next Duke lacrosse case.

Oddly, none of the rights organizations in NC are supporting the reforms called for in the suits.

" So it should be okay to say that life goes on and we all should just go on."

Should we forget Scottsboro, too? Those who don't remember history--or correct past errors--are bound to repeat them.

Anonymous said...

To Quas: as to "what's changed", as far as I know, you have not been denied the right to vote or to organize in North Carolina. Perhaps you should spend less time whining on the Liestoppers Discussion Boards and try to lobby for the things that you believe should have resulted from the lacrosse incident. Frankly, your complaint that "nothing" has happened is a bit pathetic. Complaint on a blog has no influence on the real world. Get off your butt and engage if you want change. Your rants on Liestoppers are useless.

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Anonymous said...

To Quasimodo: I am puzzled by your 10:02 response. You mention that NC has no speedy trial law. As far as I can recall, the falsely accused players never complained that they wanted a trial. You also state that NC has no probable cause hearing requirement. Again, I have no recollection that the laxers ever wanted a probable cause hearing. You move on to the fact thatNC does not require transcripts of grand jury testimony. I have some recollection that this was of relevance to some in connection with the case, but I can't remember why people thought it was material. If misleading testimony was given to the grand jury that indicted the laxers, okay but they weren't tried or convicted. How would having written transcripts of the testimony have made a difference to the falsely accused players? As to your comment about video taped police interrogations, I am completely lost as to how this concern relates to the laxers. They were never interogated by the police.

Quasimodo said...

"You mention that NC has no speedy trial law. As far as I can recall, the falsely accused players never complained that they wanted a trial."

They wanted a trial immediately so that they could get the matter over with and be back in school for the fall semester. Nifong said he intended to put it off till the following spring.

"You also state that NC has no probable cause hearing requirement. Again, I have no recollection that the laxers ever wanted a probable cause hearing."

Had they had a probable cause hearing, they would have immediately have provided proof of their innocence and the case would have been dismissed. To avoid that, Nifong didn't arrest them at once but instead waited until he could have a grand jury indict them. In that way, they lost the opportunity to get the case dropped, because in NC persons indicted by a grand jury lose the right to a probable cause hearing.

That loophole ought to be shut, to prevent a repetition by another DA.

"You move on to the fact that NC does not require transcripts of grand jury testimony. I have some recollection that this was of relevance to some in connection with the case, but I can't remember why people thought it was material."

There was no evidence of a rape, whatsoever; ergo, lying to the grand jury
about Mangum's supposed "injuries" constituted the only basis on which the jury could decide to indict them. (Without those lies, no indictment.)

" How would having written transcripts of the testimony have made a difference to the falsely accused players?"

Without transcripts, prosecution witnesses can lie without limit, and get indictments even (as in this instance) against innocent persons. (And then they get no probable cause hearing.)

Again, that loophole has to be closed.

"As to your comment about video taped police interrogations, I am completely lost as to how this concern relates to the laxers. They were never interogated by the police."

It's a reform sought to safeguard future accused persons.

None of these reforms will benefit the laxers in any way; but they will benefit all future NC defendants. Part of what they are doing is trying to prevent future innocent persons from being subject to similar false prosecutions.

It is regrettable that none of the rights movements, nor the law schools, are backing the call for these reforms.

Anonymous said...

To Quasimodo: thanks for your thoughts. I had forgotten the procedural trick of indicting before arrest. I would note that a number of jurisdictions do not provide for probable cause hearings after an indictment. As to the requirement of written transcripts, I agree that they should be required but do not think that the case would have turned out differently had they been required-- the bogus Mangum identifications would have been sufficient to obtain an indictment when paired with Levicy's statements to Gottlieb. As to a speedy trial, I don't recall the laxers filing a motion to set a trial date-- did they?

Quasimodo said...

"As to a speedy trial, I don't recall the laxers filing a motion to set a trial date-- did they?"

Transcript of May hearing

OSBORN [defense attorney]: And then, your honor, I understand that it is custom at least in this county that we would be permitted to actually go over to the law enforcement officer's agency and actually go through their files, all their files, all their notes and so forth, personally.

STEPHENS [judge]: Well I'm not aware of that custom. I believe perhaps maybe that's your take on the custom. I'm not aware of that custom. I mean you surely have the discovery process and you have what you're allowed by statute and then, frankly, whatever else the D.A. allows is his call.

OSBORN: Yes, sir.

STEPHENS: And so whatever he otherwise allows, voluntarily is his call. If you find something that you think that you need and that he's not allowing, then again, this court is the place to come to ask for that. No, sir, I'm not going to sign an order allowing you to go over and rummage through the law enforcement officer's files.

OSBORN: Would you sign an order requiring the law enforcement officers to turn over all of their notes, memoranda, reports, documents, data compilations, tape recordings and so forth to the district attorney?

STEPHENS: No, sir. I'll allow him to proceed as he normally does in the compilation of his information. And if thereafter for some reason you believe that you have not received everything, then we'll address that with the court order. Right now I'm not going to order things that I believe will be done voluntarily. There's no reason for me to believe as they always generally have been, they won't be done voluntarily.

OSBORN: Yes, sir. This is a serious case.

STEPHENS: I deal with serious cases every day, and frankly I respect the seriousness of this case. But this case is not going to jump ahead of the line of all the other cases that we have here or be handled in any other way. I surely respect everyone here and the seriousness of this.

But frankly, it takes priority, but we have other cases that take priority, too. And we're not going to stop what we're doing to make sure that we accommodate everybody inappropriately.

OSBORN: Well we just want to make sure, your honor, that all of the things that have been generated be preserved and that we get a chance to see them pursuant to statute, we're entitled to look through all of the law enforcement files and we just want to make sure that nothing disappears. And I think you can assure that with your order that nothing be destroyed. And I will get an order to you in that regard.

STEPHENS: All right. Anything else that you all need? Again, on the cell phone orders, you all need to either to talk about it or submit separate proposals to me and then do it as soon as you can. I will either accept one or the other or fashion my own.

OSBORN: OK.

STEPHENS: All right. OSBORN: Thank you, your honor.

STEPHENS: All right, thank you very much. Then we'll -- we're going to leave it on the first setting since you have not had a chance to look at all of the discovery. And we'll also set it for June the 19th.

OSBORN: Did we just move it for a second setting? Put it on for June 19th for a second setting?

STEPHENS: Well we can do that. We have other cases that are on June 19th. Frankly, administratively, are you satisfied that you have all of the discovery? I don't normally move it to a second setting until all the discovery has been complied with because frankly if you get too far along in the settings where you're not in a position to be able to keep -- to move it on.

OSBORN: We want to -- I want a trial as fast as we can. This young kid wants to go to school in the fall.

STEPHENS: OK.

OSBORN: And he can't until this is resolved.

Anonymous said...

Quas: this was a discovery proceeding, not a request for an expedited trial. Sure, counsel mentioned that they wanted to get to trial quickly, but that was not what this hearing was about. I repeat my comment that the issue for the laxers was not the absence of a speedy trial requirement in NC.

Anonymous said...

To Quasimodo: I agree with anonymous at 4:10. The reason a number of jurisdictions do not require a probable cause hearing after a grand jury indictment in contrast to an arrest is that such jurisdictions view the grand jury as the protection against a DA gone wild. Kind of idiotic and naive but that's the theory--the grand jury will be able to protect citizens against an evil Nifong perverting the course of justice!

Anonymous said...

To Quasimodo: I have to agree with Anonymous at 8:52. You seem to have the tendency to get off track. As that commentator pointed out, the issue at bar was not a speedy trial. As another commentator pointed out in reaction to your post stating that the cops should be required to video interrogations, the laxers were never interrogated. As another commentator pointed out, these threads deal with the indicted and the non indicted laxers cases. As far as I know, none of the cases have been concerned with requiring that Durham police interrogations be videoed or that cases in Durham be subject to a speedy trial requirement. I applaud your wish that our justice system be improved, but, in fact, the issues you want addressed have very little-- perhaps nothing-- to do with the laxers. I actually think that you should prevail on all of your issues but the Duke lacrosse case has nothing to do with what you want.

Anonymous said...

To Quasimodo at 10:02: I just got back from a trip and saw your post. I think it cheap to bring up the Scottsboro boys in reference to the laxers. I understand the similarities but the non similarities so out weigh the similarities as to make those who make the comparisons small and petty thinkers whose comparisons are really quite idiotic. I know that many through the history of this incident enjoy making comparisons to the Scottsboro boys, but the fact that it is a favorable comparison by the unlearned does not give it credible for those who can actually analyze the incident involving the laxers and that of the Scottsboro boys.

Quasimodo said...

For information purposes, what the suits ask:

PRAYER FOR RELIEF

559. WHEREFORE, to redress the injuries proximately and directly caused by
Defendants’ conduct as stated in Paragraphs 1-558 above, and to prevent the
substantial risk of irreparable injury to other persons in the City of Durham as a
result of the policies, customs, practices, and supervisory misconduct alleged
herein,
Plaintiffs hereby request the following relief:

a. the issuance of an Order and Permanent Injunction (“Permanent
Injunction”) that:
i. appoints an independent monitor (the “Monitor”), to be determined by the Court, who shall oversee certain activities of the Durham Police Department for a period of ten (10) years...

iv. establishes an independent citizen Police Review Committee. . .

v. orders that all eyewitness identification arrays, lineups, and similar procedures conducted by the Durham Police Department, whether
formal or informal, and/or of suspects or “witnesses,” conform to the provisions of General Order No. 4077 and be recorded by videotape;

vi. orders that any reports of DNA or other scientific testing requested by the Durham Police Department or District Attorney’s Office include the results of all testing, and all notes, charts, or raw data generated during such testing, and that a copy of each such report be provided to the Monitor to ensure compliance;

vii. orders that the Durham Police Department provide proper training,
based on materials and plans approved by the Monitor, to all current and new personnel (the “Remedial Training”) on the following
matters:

1. the appropriate chain of command in criminal investigations;

2. the issuance of public statements relating to an open investigation;

3. the conduct of eyewitness identification procedures;

4. the service of outstanding warrants on witnesses in a criminal investigation or proceeding;

5. prohibiting threats, inducements, or intimidation of witnesses;

6. the standards for police reports, investigator’s notes, and other reports of investigations, including the timely and
truthful preparation of such documents;

7. the supervision of private companies engaged to provide scientific testing or other services in connection with a police
investigation; and

8. the standards for probable cause. . .


x. enjoins the Durham Police Department from serving any arrest warrants on a person known to be a witness in a criminal
investigation or criminal proceeding without first obtaining the approval of the Monitor;

xi. enjoins the Durham Police Department from delegating any supervision over a Durham Police investigation to the District
Attorney’s Office;

xii. orders the Durham Police Department to implement a policy requiring Durham Police personnel to present exculpatory evidence
when testifying before a grand jury.

xiii. enjoins the Durham Police Department from targeting students of Duke University for selective enforcement of the criminal laws, and from refusing to protect the legal and constitutional rights of students of Duke University;

xiv. requires the City of Durham to pay all costs relating to the Monitor, Police Review Committee, and Remedial Training for the duration of the Permanent Injunction. . .


Oddly, none of the Durham rights organizations seem to support these reforms. Neither apparently do any of the local law school faculties, nor any of Durham's local civic and religious leaders; nor the Durham media.

One might get the impression they are less interested in the protection of future accused persons than they are in avoiding the embarrassment that would come from supporting the falsely-accused lacrosse players in these demands. (But that's MOO)

Quasimodo said...

"I think it cheap to bring up the Scottsboro boys in reference to the laxers."

Of course the two cases are twins; in that they demonstrate how persons can be demonized by a public which believes in its stereotypes; and which will cling them so fervently that even though there is overwhelming evidence of innocence, they will insist on convictions anyway, rather than have those stereotypes (of the accused, and of themselves), questioned.

(Human nature is all the same and hasn't changed any between 1931 and 2006.)

Quasimodo said...

"I repeat my comment that the issue for the laxers was not the absence of a speedy trial requirement in NC."

Had there been a requirement (as exists in most other states) that the trial begin within 60 days of arrest, then the trial would have begun in mid-June, and been over almost immediately.

Instead, Nifong was able to prolong it for nearly a year--for a case with no evidence about a crime which never happened.

The right to a "speedy trial" was therefore very relevant to his ability to try and force pleas.

North Carolina desperately needs such a law to prevent future injustices (and there are instances of persons in NC being jailed for years before their cases come to trial).

But oddly, none of the rights organizations, nor law school faculties, nor media, seem interested in such reforms.

Anonymous said...

To Quasimodo at 9:34: by quoting the prayer for relief as you have done, you have supported the numerous commentators at this and other threads who have pointed out that this request for relief is indicative of how utterly stupid these cases were. The types of relief requested in the quoted paragraphs in your post are the types of things that courts only consider when there is evidence of pervasive official misconduct against a disfavored class of people who, because of their status, are unable to use the political process to redress the wrongs that they have suffered. Contrast that paradigm with the facts of the laxers: white guys represented by the best lawyers in NC; no evidence of disenfranchisement; no material injury in the eyes of the law-- that is, not tried, not convicted and not uncompensated. By asking for the type of relief they did in the passages that you quoted, they actually hurt their case. Courts don't want to interfere in the normal local governmental process unless there is a reason to-- a bunch of white guys who were exonerated by the state's AG and who got a financial settlement are not the types of plaintiffs that the Federal courts sympathize with. Asking for this type of relief was a strategic error by the plaintiffs and is further evidence of how poor was the legal advice the plaintiffs received in connection with the bringing of these cases.

From everything I can see, you are just not willing to recognize that these were very misguided cases. I really think you should simply realize that there will be no "legal" resolution of the laxers situation. Where we are now is where we will be ten years from now unless you and other concerned parties use the political process to achieve the changes that you want. Those changes are not going to be brought about by foolish litigation brought by the incompetent lawyers representing the laxers.

Anonymous said...

Just got back from NC Opera's Wagner Concert. From the sublime to the ridiculous. I have decided to stick with the sublime. This thread is really bad-- why is Quasimodo bringing up the things the plaintiffs requested be done to change the Durham police practices when these cases have been dismissed and there is no likelihood that they will be reinstated? I thought these government practices requests for relief were really stupid requests at the time-- the passage of time has not helped at all.

Anonymous said...

To Quasimodo at 9:49: you mention that no other organization helped . How have you done getting replacement help?

Quasimodo said...

"The types of relief requested in the quoted paragraphs in your post are the types of things that courts only consider when there is evidence of pervasive official misconduct against a disfavored class of people who, because of their status, are unable to use the political process to redress the wrongs that they have suffered.

The lacrosse players aren't asking these things for themselves, but "to prevent the substantial risk of irreparable injury to other persons in the City of Durham. "

If the courts aren't interested in protecting
future accused persons in Durham, then
they can ignore these reforms. (The lacrosse players will not benefit in the least if they are enacted.)

"Contrast that paradigm with the facts of the laxers: white guys represented by the best lawyers in NC"

See above. These reforms are not intended to benefit the lacrosse players.

" Courts don't want to interfere in the normal local governmental process unless there is a reason to"

If "a bunch of white guys" can be treated this way, how are the rest of the citizens of the city going to fare--those who can't afford good attorneys?

" Those changes are not going to be brought about by foolish litigation brought by the incompetent lawyers representing the laxers."

How many reforms in civil rights have been brought about through court decisions, after suits were brought?

Anonymous said...

To Quasimodo at 11:33: you seem to be missing the point. Courts only order relief such as that outlined when there is no redress available through the political process. If the " other persons in Durham" want the things that are specified in the request for remedies, there is nothing to stop them from electing a mayor and a city council to bring about these reforms. There is nothing in the laxers' case to indicate that the courts must fashion remedies because a class of people in Durham who are marginalized politically have been systematically discriminated against. I would also note that courts generally fashion remedies to compensate the plaintiffs; they don't generally like to provide relief for "other persons." This changes when the plaintiffs can show that a disfavored class of politically marginalized persons have suffered injury-- something obviously not the case with the laxers.

Anonymous said...

Oh wonderful, the plaintiffs don't care about themselves. They just want justice for the people of Durham. How utterly stupid. The people of Durham were not wronged by this case. Specific people were. The fact that this case by it's own terms was intended to benefit other people was indicative of how stupid it was. Cases are meant to redress wrongs done to the plaintiffs. Cases brought to benefit the "persons of Durham" are looked upon unfavorably.

Anonymous said...

KC:

Have you had a chance to read former Attorney Dick Thornburg's report identifying the numerous mistakes and deficiencies in the Freeh report? Mr. Thornburg's report can be found at http://www.paterno.com/Expert-Reports/Dick-Thornburgh.aspx

KC Johnson said...

To the 12.26pm:

I did a long post over at MTC analyzing the document, and linked to it in my new post.

I didn't notice any relevant "numerous mistakes and deficiencies" uncovered by the Paternos' attorneys, and can't imagine that the report will have any influence except among Paterno apologists. I did see a lot of wildly counter-intuitive interpretations of the evidence that Freeh uncovered, coupled with occasional bizarre assertions (the Paternos' hired expert on pedophilia instead hailing Paterno's character).