Late November featured several filings in the civil suit—some from the plaintiffs, mostly repeating previously advanced arguments, and an explosive filing from Bob Ekstrand, raising serious questions about the Durham legal team’s veracity. Today’s post will look at the defendants’ filings; Wednesday’s will examine the Ekstrand filing.
Some of the old and new defendants’ assertions that raised eyebrows:
1.) Durham and Duke authorities continue to defend the non-testimonial order that kicked off the media firestorm.
Under North Carolina law, an NTO requires both probable cause that a crime was committed and a reasonable belief that the subject of the NTO could have committed the crime. In March 2006, with the drafting assistance of Durham DA-elect Tracey Cline, the DPD obtained an NTO requiring DNA and photos from all 46 white lacrosse players.
In analyzing the lacrosse case NTO, apply the Brad Ross test: he’s blonde (Mangum hadn’t described any of her attackers as blonde); none of the captains listed him as attending the party (as, in fact, he did not, since he was in Raleigh that night); and his name didn’t match any of the names of the people Crystal Mangum alleged “attacked” her.
Not only did the DPD lack a “reasonable belief” that Ross committed the “crime”—they had no belief at all on the matter. Yet they sought and obtained an NTO against him. And attorneys representing both Durham and former DPD officers (and, even more incredibly, Duke) continue to assert that they had every legal right to seek an NTO against Ross.
Durham attorneys Reginald Gillespie and Roger Warin describe the non-testimonial order as “reasonable.” Duke attorney Jamie Gorelick suggests that the NTO was legally justified. Attorneys for former DPD officers Ben Himan and Mark Gottlieb go even further, asserting that “ample grounds” existed for the NTO. Indeed, the Himan/Gottlieb brief contains a 26-point chart justifying the NTO. The inference: Durham police would do it all over again.
This line of argument effectively makes the plaintiffs’ case for them, since it suggests that the Durham Police (and, incredibly, Duke as well) see nothing wrong with violating residents’ civil rights, as an official policy. The logical extension of the Durham/DPD argument is that once the city has “probable cause” that a crime has occurred, it doesn’t need “reasonable belief” against a particular subject in order to obtain an NTO against that person.
2.) Blame someone else.
The Himan-Gottlieb brief is particularly aggressive in throwing co-defendant and former SANE nurse-in-training Tara Levicy under the bus. “The SANE nurse [in training],” attorneys Edwin Speas and Joel Craig write, “told investigators in this case that Mangum ‘had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally.’”
The officers, they suggest, can’t be held liable for the fact that Levicy lied to them. The brief asserts that Gottlieb and Himan had no obligation to interview the person who actually performed Mangum’s medical exam, Dr. Julie Manly. Speas and Craig don’t explain why it was OK for Gottlieb and Himan not to interview Manly.
3.) Don’t let the facts of the case stand in the way of an argument.
From the Durham brief: “The City has explained that, as a matter of law, Michael Nifong acted solely on behalf of the State of North Carolina, rather than the City.” Yes, that’s how the law is supposed to work. But in this case, of course, it didn’t, since Durham decided to allow Nifong to run a DPD investigation. That’s a major reason why Durham faces a lawsuit.
From the Durham brief, regarding Mangum’s failure to identify any of her “attackers” in lineups that loosely followed the DPD’s requirement of five filler photos for every photo of a suspect: “The fact that Mangum appeared to have difficulty identifying her attackers in the photo arrays was not material to the probable cause determination.” Mangum, of curse, didn’t “appear to have difficulty identifying her attackers in the photo arrays.” She could not identify her attackers in the photo arrays. Why can’t the city of Durham, after everything that’s happened, admit this?
4.) Duke maintains its “straw man” legal strategy.
Duke attorneys Donald Cowan and Jamie Gorelick, still seeking to try a case that doesn’t exist, maintain that the lacrosse players’ “fundamental contention is that Duke University and its administrators were legally obligated to protect them from the consequences of a police investigation—by quelling media coverage of the case, preventing campus protests, and even interceding to stop the investigation.” And, they add, “Plaintiffs contend that the Duke health care providers, who were responsible for the medical examination of Crystal Mangum on the night she alleged she was raped, should be liable for harms allegedly caused by Durham Police officers and the prosecutor in investigating those allegations.”
I can sympathize with the plight of Cowan and Gorelick: it sure would be easier to argue against such a case than the case that they confront: that Duke officials took money from the lacrosse players but failed to enforce either the Faculty Handbook or the Student Bulletin; that Duke’s inability or refusal to supervise one of its employees, Tara Levicy, was critical to first initiating and then sustaining the case; and that Duke employee Levicy’s false statements to police were critical to first initiating and then sustaining the case.
That said, the Cowan/Gorelick approach seems more appropriate to the world of political spin—where talking heads base arguments on wild and easily noted distortions of the opponents’ words and arguments—than to the world of a federal court, where words are supposed to mean what they say.
5.) Duke still defends its suppression of the student voter registration drive.
Write Gorelick and Cowan,
All the alleged efforts to “shut down” their voter registration drive took place on Duke’s private property. They argue, however, that the First Amendment was implicated when “uniformed police officers” carried out Duke’s alleged decision to curtail their registration efforts. That argument lacks merit; courts have repeatedly held that the police may assist private property owners in exercising their right to restrict political activities on their property without violating the First Amendment.
The 1998 Higher Education Act requires any university that receives federal funds (as Duke does) to encourage students to register to vote. I’m not aware of any litigation specifically defining the scope of the act, but surely suppressing a student-led voter registration drive would not fulfill the act’s provisions.
The lacrosse players lack standing to sue for Duke violating the Higher Education Act. It nonetheless is astonishing to see the University's legal team so nonplussed by Duke's apparently unwillingness to adhere to the HEA's terms.
6.) A no-winner for Duke.
Assert Gorelick and Cowan bluntly, “The Duke bulletin is not a valid contract.” A translation for Duke parents: if activists in the Duke faculty decide to target your son to advance their pedagogical or ideological agendas, Duke considers itself under no obligation to uphold its own policies to protect its own students.
I wonder what all the students ensnared in the Duke judicial system for real and imagined violations of that bulletin think of the argument that the bulletin “is not a valid contract.” And I wonder what prospective parents of the Class of 2013 would think of Duke’s dismissal of its own regulations. Somehow, I doubt that Duke will share with them the words of Gorelick and Cowan.
7.) When all else fails, count on Linwood Wilson for comedy.
Fired DA office investigator Linwood Wilson, acting as his own lawyer, demands that sanctions for unethical behavior(!) be filed against the lacrosse players’ attorneys.
We’re talking about a man who denied ever seeing Mike Nifong behave in an unethical fashion. So it could be argued that Wilson doesn’t understand what constitutes unethical conduct. Speaking of himself in the third person, Wilson writes:
Defendant Wilson had no arrest powers and no prosecutorial powers and could not have arrested nor prosecuted any of the Plaintiffs’. Defendant Wilson had no supervisory authority placed upon him by the City of Durham Police Department nor did Defendant Wilson share with Nifong and have “certain final policymaking authority, delegated from City Officials”. Plaintiffs’ have continued to group Defendant Wilson as a law enforcement officer in all their pleadings knowing full well that was not true. Plaintiffs’ failure to properly investigate, if by nothing else but simply reading the State Statute (GS 7A-69), or by simply calling the Attorney General’s Office, would have verified those facts. Defendant Wilson argues that Plaintiffs’ failure to do so, and by filing an action against Defendant Wilson knowing that certain allegations were false, has resulted in a Rule 11 Violation and the sanction for that violation should be dismissal as set out as a remedy in the Federal Rules of Civil Procedure.
In other words, Nifong wasn’t supposed to be supervising the police investigation, and Wilson, his employee, wasn’t supposed to be engaged in de facto police activity, and because the players’ attorneys pointed out these inconvenient facts, they should be sanctioned.
Wilson’s legal creativity rises to even greater heights, however, in his concluding section, which tries to promulgate new law:
Plaintiffs’ [sic] were never even charged with any crime and have no foundation for this action and it is increasingly clear that Plaintiffs’ motives are to extort money from these defendants by bringing an action they know to be frivolous. Therefore Defendant Wilson’s Motion to Dismiss should be granted.
Wilson’s filing only confirms the old aphorism: A man who is his own lawyer has a fool for a client.