Wednesday, June 19, 2013


The liberal arts are “endangered,” according to a new report. The New York Times describes the document’s high profile: “Requested by a bipartisan group of legislators and scheduled to be distributed to every member of Congress, it is intended as a rallying cry against the entrenched idea that the humanities and social sciences are luxuries that employment-minded students can ill afford.

And who was the co-chairman of the commission that produced the report? None other than . . . Richard Brodhead.

In what other profession would a figure as utterly discredited by his actions—at least to anyone outside the profession—as Brodhead then be tasked with writing a major policy document justifying the existence of a key portion of that same profession?

Perhaps, it might be surmised, a reason why the liberal arts are “endangered” is that they embody a profession in which accountability seems like a dirty word.

Monday, June 17, 2013

The Cert Petition

Now that Supreme Court has at least forced Durham to respond, I thought it might be worthwhile to analyze the falsely accused players’ petition, written by Williams & Connolly attorney Kannon Shanmugam. A couple of general points:

(1) The petition doesn’t even bother to respond to JudgeGregory’s race-based opinion in the 4th Circuit—perhaps presuming, correctly, that any Justice who would find even one word of Gregory’s rant persuasive would never vote to grant cert anyway.

(2) The petition frames the question for the Court in a narrow manner: “Whether police officers who conspire with a prosecutor to fabricate evidence for subsequent use are immune from liability as a matter of law by virtue of the conspiring prosecutor’s decision to use the evidence.” This framing accomplishes two purposes: first, to preemptively meet at least some of the concerns expressed by Judge Wilkinson in the 4th Circuit; and second, to more clearly distinguish the Evans case from the McFadyen case, which might also still be appealed to the Supreme Court.

The petition opens by pointing to a 2009 case, Pottawamie County, which revolved around the question of whether a prosecutor had absolute immunity if he conspired with police to procure false evidence, and then used that evidence at trial. The case was ultimately settled before the Supreme Court decided it, but the cert petition notes that the Solicitor General and (at oral argument) five justices argued that the police in such a circumstance could be held civilly liable. On this point, of course, the 4th Circuit disagreed; and since Pottawamie County was settled before resolution, these sentiments didn’t form a clear precedent.

The petition’s description of the lacrosse case facts pulls no punches. Noting that although Mangum “provided wildly inconsistent and patently implausible statements concerning the circumstances of the alleged rape to Durham police officers and to personnel at the Duke Medical Center,” Durham authorities elected to turn the case over to Sgt. Gottlieb, “an officer with a known history of malicious prosecution, false arrest, excessive use of force, fabrication of evidence, and filing of false police reports directed against students at Duke University.” (Keep in mind that news of Gottlieb’s past was initially broken not by defense attorneys but by the N&O and then in greater detail by the Chronicle.) Gottlieb and Himan, in turn, were instructed to take orders from Mike Nifong, who despite acknowledging that the lack of evidence left the trio “fucked” made dozens of inflammatory statements to the media. Those “false statements inflamed the Durham community” to such an extent that on “March 29, Durham police supervisors . . . ordered them to expedite the identifications and arrests of Duke lacrosse players.” Misconduct continued through the rigged photo array to the meeting with Dr. Meehan, and directly led to the indictments of the falsely accused players.

But the misconduct did not end when Nifong achieved his twin goals: indictments, coupled with his successful nomination.

In a clever and important point, the petition notes that Nifong, Gottlieb, and Himan continued their wayward behavior—whether overseeing the arrest of cab driver Moezeldin Elmostafa, or through Gottlieb’s production of an “after-the-fact ‘report’ of his purported activities in the investigation.” Even by the 4th Circuit’s claim that indictments broke a chain of misconduct, this behavior occurred after indictments. As the petition notes, the 4th Circuit opinion did not explain how these examples of post-indictment misconduct were shielded by “an independent intervening act—i.e., (p)rosecutor Nifong’s decision to seek the indictments,” between the arrests on false causes and the untoward pre-indictment behavior of Gottlieb and Himan. The 4th Circuit nonetheless dismissed the federal civil rights claims against the duo, which in turn provided grounds for the dismissal of the suit against the city of Durham.

The petition invites the Court to determine that the 4th Circuit erred on any of several different grounds. First,  several courts of appeals have taken much different approaches than did the prosecution-friendly 4th Circuit panel on what sort of intervening conduct can shield police officers, and the city that employs them, from a federal civil rights suit. The 2nd and 6th Circuits, for instance, “have held that police officers may be liable for the ‘natural consequence’ or ‘reasonably foreseeable result’ of their investigative misconduct, despite a prosecutor’s subsequent action that contributes to the injury.” The 9th Circuit wasn’t quite as broad, but did render an opinion that would seem to allow suits for clear cases of police misconduct leading to indictments. And while, the petition asserts, the 5th, 7th, and 11th Circuits have adopted standards that an intervening indictment “breaks the causal chain absent evidence that the officers misled or pressured the prosecutor,” their specific guidelines would not have shielded Gottlieb and Himan.

The petition also explains that the breadth of the 4th Circuit’s opinion “implicitly took sides in another Circuit conflict, on an issue that stands as a logical antecedent to the causation issue: . . . whether the fabrication of evidence at the investigation stage, standing alone, gives rise to a constitutional violation.” The 1st and 8th Circuits have said it does; the 2nd Circuit said it does not. Obviously the 4th Circuit panel agreed with the 2nd Circuit.

Finally, and in perhaps the document’s most interesting section, the petition forcefully takes on Judge Wilkinson’s absurd arguments that allowing the case to go forward would initiate a floor of lawsuits from other figures, or that somehow we should see Durham police employees as victimized figures in the process. The petition argues that Supreme Court holdings dating back nearly 80 years have established that “prosecutorial action undertaken as part of a conspiracy to fabricate evidence with investigating officers does not absolve the officers of liability for their improper investigative acts in furtherance of the conspiracy.”

And yet, “in reaching a contrary decision, the Fourth Circuit heavily relied on the concern that recognizing liability in the circumstances presented here would open the floodgates to similar claims that officers conspired with prosecutors ‘render(ing) the officers’ qualified immunity from suit effectively lost and mak(ing) discovery the rule, rather than the exception.”

This fear, the petition correctly notes, is absurd. First of all, “one would hope that there are few, if any, cases in the pipeline even remotely similar to this one.” Second, judges already have more than sufficient tools to toss out weak or implausible cases under relevant Supreme Court precedent. Durham, of course, tried and failed at that task—an indication of just how strong the plaintiffs’ case is on a factual basis. Finally, and contrary to Judge Wilkinson’s concerns, the petition observes that the Supreme Court “has consistently declined the invitation to insulate officials entirely from liability in the face of similar ‘floodgates’ arguments.”

As I’ve noted previously, from a factual standpoint, the case made in the petition is extremely strong. Indeed, in light of the 4th Circuit’s ruling, the standard in Maryland, North and South Carolina, and Virginia and West Virginia is that (to quote Judge Beaty) “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.”

Will four justices be willing to evaluate the case individually, on its own merits—in a manner that Judge Wilkinson in particular did not?           

Wednesday, June 12, 2013

Supreme Court Update

A minor item from the Supreme Court docket.

Yesterday, the Justices formally requested that Durham provide a response to the falsely accused players' cert. petition. Durham, by contrast, had sought to waive its right to respond, suggesting that it viewed the players' claims as so weak that they should be rejected out of hand. The procedural move is a very minor one, but at the least suggests that some members of the Court did not consider the question an open-and-shut one. But it should not be interpreted as anything more than that.

Durham's reply was originally due next Tuesday, but the new deadline is 11 July.

Wednesday, June 05, 2013

Litigation Issues

Three litigation matters that have tangential relationships to the blog’s themes.

First, this morning’s New York Times reports that Yale (undisclosed amount) and New Haven ($200,000) have reached a settlement with James Van de Velde, a former Yale lecturer falsely accused of murdering a Yale student named Suzanne Jovin, whose thesis Van de Velde had supervised. Both New Haven and Yale denied any wrongdoing, though it’s safe to assume that they didn’t fork over six-figure amounts out of the goodness of their hearts.

In 1998, Van de Velde was a popular lecturer, but after the allegations was transformed—as the Times notes today—into a “pariah.” Even though he was never charged with any crime, he was removed from the classroom by then-Yale dean Richard Brodhead. Justifying his decision in a 1999 interview with New York Times Magazine, Brodhead remarked, “The presumption of innocence is not a trivial thing.”


Brodhead demonstrated his commitment to the presumption of innocence not merely by removing Van de Velde from the classroom, but by informing him that any letter from Yale would have to mention “the intervening controversy.”


Second, as part of its (mercifully unsuccessful) crusade to weaken the First Amendment protections of all newsgatherers in Maine by forcing me to turn over confidential, unpublished exchanges with sources, Duke sought to neuter a First Circuit case called Cusumano v. Microsoft. The ruling provides substantial protections—along the lines afforded to journalists—for professors in the First Circuit.

Acting at the behest of treaty-related demands from Britain, a U.S. government filing against Boston College threatened to do what Duke could not—undermine Cusumano. The case, which involved oral histories of former IRA members, began when the professors who conducted the oral histories did not retain possession of them (such a move isn’t necessarily uncommon), and instead deposited them in the Boston College library. But initially BC (unlike my experience in the Duke case, or most journalists who receive such subpoenas) didn’t resist a government subpoena to other oral histories in the collection, which complicated the case. A district court ordered BC to turn over 85 of the oral histories to the British government.

On Monday, the First Circuit ruled that the district court “abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.” It substantially narrowed the scope of the subpoena (to 11 oral histories), and made clear that Cusumano remained good law in the circuit.


Finally, last week came the latest in the Paterno family’s effort to restore the tarnished reputation of the late Penn State football coach. The family, along with some family-aligned trustees and former football players, filed suit against the NCAA. As Yahoo’s Dan Wetzel perceptively observed, although the NCAA is the named defendant in the lawsuit, a better title would be “Paterno v. Penn State,” since the suit appears to flow from the Paterno family’s rage that the current Penn State administration launched the Freeh Report and then accepted the report’s findings.

The suit itself offers no new information, contending instead (as the family and its representatives have before) that the university should have adopted wildly counterintuitive interpretations of the evidence that Freeh recovered, or that the NCAA’s decision to accept the university’s investigation rather than to conduct its own inquiry violated the late Paterno’s due process.

From an academic standpoint, however, the lawsuit’s most interesting item is that four Penn State professors—Associate professor of hospitality management Peter Bordi, Professor of geosciences Terry Engelder, Professor of education Spencer Niles, and Assistant professor of hospitality management John O’Donnell—signed on as plaintiffs.

Federal courts have strict rules regarding standing. In cases such as the Paterno lawsuit, plaintiffs must be able to demonstrate some sort of injury that the courts can redress.

The lawsuit itself makes two such standing claims. First, that “the Consent Decree [between the NCAA and Penn State] has interfered with the administration of Penn State, and limited the faculty’s ability to attract and retain high-caliber faculty, administrators, staff, and students, which has reduced the value of the faculty’s own positions and their ability to compete within their fields.” I’m sure everyone is eager to hear how NCAA sanctions against the football program have prevented the school from attracting “high-caliber” professors of hospitality management.

Second, that “the imposed Consent Decree is an indictment of the entire Penn State community, including individual institutional leaders, members of the Board of Trustees, those responsible for and participants in athletic programs, the faculty, and the student body. The Consent Decree charges that every level of the Penn State community created and maintained a culture of reverence for, fear of, and deference to the football program.”

I’d say the participation of Professors Bordi, Engelder, Niles, and O’Donnell in this lawsuit provides a pretty good sign of how at least the academic “level of the Penn State community created and maintained a culture of reverence for, fear of, and deference to the football program.”

Monday, June 03, 2013


[Update, Tuesday, 2.32: I just received the following comment from Kevin Best, UNC's assistant athletic director for communications:

"We have spoken with Alec and he would like to apologize to Duke and the men’s lacrosse team for his inappropriate tweet. It was in poor taste and should not have been made. He removed it shortly after it was posted.

The University of North Carolina congratulates Duke on winning the NCAA men's lacrosse title."

I am grateful to Mr. Best for his reply.]

The on-campus crusade against the 2006 Duke lacrosse team was something of a perfect storm. The critical element was the race/class/gender-obsessed faculty that made up the bulk of the Group of 88. A president unable or unwilling to confront the faculty mob was a necessary ingredient. But the anti-lacrosse contingent also included professors who sought to exploit the affair as part of a longstanding campaign to downgrade the role of athletics at Duke. Figures such as anti-lacrosse fanatic Orin Starn and Peter Wood, whose CCI recommendations for Duke sports were far too extreme even for the Brodhead administration, typified this faction.

Not all universities, then or now, have presidents as cowardly as Richard Brodhead. Unlike Duke, most other universities would have had at least a few voices willing to speak up against the mob from the start. And, perhaps, “activist” faculty at some other universities might have been savvy enough to once reference the presumption of innocence in their public statements, even if they didn’t really mean it. Otherwise, however, I suspect that if the Duke lacrosse case had occurred at Harvard or Cornell or Georgetown or UNC, we would have seen a similar faculty reaction—race/class/gender professors combining with anti-athletics faculty members to exploit the crisis for their own campus agendas.

Perhaps this recognition that their own school’s faculty mob just as easily could have turned against them prompted a degree of empathy from college athletes and coaches at other schools. Stray comments like this one from Dom Starsia stood out from the crowd in this respect.

So too—to a much greater extent—does a recent comment from UNC football player Alec Petrocelli. After this year’s Duke lacrosse team captured the 2013 NCAA championship, Petrocelli tweeted the following item (captured by Jeff Quinton):

I e-mailed UNC athletic director Bubba Cunningham to ask if UNC had a social media policy for its athletes and whether Petrocelli’s words reflected the athletic department’s values. Cunningham did not reply at the time of this post (I had e-mailed him more than 100 hours before the post went live), but the athletic department has since issued a statement, which I included above, in its entirety.*          

Given that his e-mail makes sense only if he believed a rape occurred in 2006, Petrocelli is, to put it mildly, classless; he subsequently deleted his Twitter account. But the statement provides only the latest reminder that there will always be a segment of society that believes the version of events offered by Mike Nifong and the Durham Police Department, regardless of evidence.

As things stand now, the DPD will likely never be held accountable. The 4th Circuit decision, which largely neutered the lawsuit against Durham, has been appealed to the Supreme Court. (The cert petition filing notice is here.) From a practical standpoint, it’s hard to imagine four justices granting cert: Justices Ginsburg and Sotomayor would seem to sympathize with Judge Gregory’s race-based perspective of U.S. law, and Justices Roberts and Alito tend to adopt reflexively pro-government positions on criminal justices issues. Assuming (a big assumption) that Justices Scalia and Thomas would vote to grant cert, the falsely accused players would then need the votes of Justices Kennedy and one Democratic appointee just to get the case before the Court.

*--edited post to reflect UNC athletic department statement