Friday, January 18, 2008

Postscript: Durham Officials, DNA Security

The lawsuit responses of both Durham officials (Steve Chalmers, Ron Hodge, other police supervisors, and former City Manager Patrick Baker) and DNA Security touch on themes that by this point are familiar: everything bad was done by Mike Nifong and Nifong alone; and if anyone else did anything which violated the lacrosse players' civil rights, the defendants have immunity from a civil suit.

That said, both responses exhibit some notable instances of selective memory.

For instance, attorney Patricia P. Kerner, representing Chalmers, Hodge, and Baker, contends,

Deliberate indifference on the part of a supervisor may not be established “by pointing to a single incident or isolated incidents, . . . for a supervisor cannot be expected to promulgate rules and procedures covering every conceivable occurrence within the area of his responsibilities.” Nor may it be alleged absent facts that “support a finding of deliberate indifference”; bare assertions will not do. “Deliberate indifference is a very high standard—a showing of mere negligence will not meet it. A claim of deliberate indifference implies at a minimum that defendants were plainly placed on notice of a danger and chose to ignore the danger notwithstanding the notice.”

It seems that Kerner is unfamiliar with the behavior of her clients. The conduct of former chief Steve (“perpetually absent”) Chalmers certainly rises to this standard: beginning in mid-April 2006, defense attorneys repeatedly and publicly maintained that the DPD’s performance was violating all standards of due process. Chalmers—who, as chief of police, bears ultimate responsibility for supervising his department, “chose to ignore the danger notwithstanding the notice.” Indeed, that Cpl. David Addison was promoted and Sgt. Mark Gottlieb remains in the DPD’s employ suggests that the department still has “chose[n] to ignore the danger notwithstanding the notice.”

Another Kerner clause suggests a lack of familiarity with the facts of the case. She writes,

There is no allegation as why the City Manager, or any one of these particular members of Durham Police Department would have been in a position to personally know of a pervasive risk of constitutional violations by these specific investigators.

Really? This is the same Patrick Baker who, on May 10, 2006, gave an interview to the N&O, in which he asserted, “I’ve had a lot of conversations with the investigators in this case and with officials at Duke, and at no time did anyone indicate [Crystal Mangum] changed her story. If that were true, I’m sure someone would have mentioned it to me.”

In short, Baker, by his own admission, placed himself “in a position to personally know of a pervasive risk of constitutional violations by these specific investigators,” because, by his own admission, he “had a lot of conversations with the investigators in this case.”

Kerner also excuses the DPD’s performance in the April 4, 2006 photo array. After maintaining that the lineup doesn’t rise to the level of a constitutional violation, she maintains,

Even if Plaintiffs could establish a constitutional violation arising out of the “April Photo Array,” and causally relate it to either Baker or Chalmers, Defendants are protected by qualified immunity. Plaintiffs expressly allege that Prosecutor Nifong “designed” this identification process. Thus, they are immune from any claim that could arise out of this procedure.

Indeed Nifong did “design” the procedure—which, it would seem, contradicts a central assertion in the City of Durham’s response, namely, that Nifong wasn’t delegated command and control of the police investigation. Kerner doesn’t address the apparent contradiction.

Robert King, who represents DSI and DSI president Richard Clark (and whose argument also applied to DSI’s former lab director, Brian Meehan) maintained that DSI was “absolutely immune from suit and that none of the DSI Defendants owed a duty to Plaintiffs.” [emphasis in original] He then spent 50 pages justifying DSI’s conduct.

King added that “Under long-established precedent, the DSI Defendants are entitled to absolute immunity from all of Plaintiffs’ claims, which arise from Meehan’s conduct (as the laboratory director for DSI) as an expert witness for the State in the Criminal Action.”

Why? “The justice system’s interest in ascertaining the complete truth of matters in dispute necessitates such a broad grant of immunity to potential witnesses not only for their trial testimony, but also for their participation in pretrial analysis.”

This statement turns logic on its head—can King seriously maintain that an interest in “the complete truth of matters in dispute” necessitates granting Meehan immunity from the consequences of entering into an intentional agreement with a representative of the state to produce a report that excluded exculpatory evidence?

Here’s how King describes the players’ claim against DSI:

Ultimately, Plaintiffs’ allegations as to the DSI Defendants come down to this: Even though the criminal defendants were given both a report and all of the raw data generated by DSI, and even though the DNA testing performed by DSI was accurate and exonerated Plaintiffs, Plaintiffs do not like the way that the report was written (because it did not include information about DNA from males other than the lacrosse players), and Plaintiffs object to the fact that the DNA raw data was voluminous and difficult for the criminal defense attorneys to understand (although the defense attorneys did understand the data after some effort.

So: an expectation that DSI follow its own protocols (which require the written reporting of all test results) and North Carolina state law (which requires the written reporting of all test results that come from a non-testimonial order) is, in King’s opinion, nothing more than a complaint that the “Plaintiffs do not like the way that the report was written.”

King does concede that Nifong and Meehan met three times before the report was prepared. What occurred at these meetings? “Precisely the sort of ordinary and expected interaction between witness and prosecutor that is protected by absolute witness immunity.”

Meetings at which Nifong and Meehan discussed producing a report that didn’t include all results are “precisely the sort of ordinary and expected interaction between witness and prosecutor,” according to DSI? King adds, “DSI fully satisfied any possible obligation it might have had when it informed Nifong of the results of its DNA testing.”

This assertion raises questions: since King appears to be saying that DSI had no “obligation” to either follow its own protocols or relevant North Carolina law, how often does DSI withhold test results from its reports at prosecutors’ behest?

May 12 report

King presents an interesting version of the origins of the May 12 report. He writes,

On May 12, 2006, as directed by Nifong¸ Meehan provided Nifong with a written report (“the May 12 Report”) of DSI’s findings on the issue of whether any matches were found between the rape kit samples (i.e., the samples from Mangum) and the “reference” samples (the 46 lacrosse players and Mangum’s boyfriend). Per Nifong’s directions, the report did not discuss the DNA from any “non-reference” samples (i.e., persons other than the lacrosse players and Mangum’s boyfriend).

King, therefore, has offered a completely new interpretation of the report. In court on December 15, 2006, Meehan asserted that the report resulted from an agreement between Nifong and him. In his testimony (under oath) in the Nifong ethics hearing, “Mr. Obfuscation” appeared to assert that the incomplete reporting was his idea and his alone. King is now asserting that the incomplete report had nothing to do with Meehan or DSI but was solely the work of Nifong. To make the claim, however he has to assert that Meehan lied under oath not once but twice.

What, by the way, is the worst that can be said about what Meehan did? According to King, it was “the failure of an expert to include all opinions in a report, and the failure to summarize raw data for a third party.”

But Meehan didn’t just exclude opinions: he failed to include all results of his tests, as both his lab’s protocol and state law required. (In his 50 pages, King not even once mentions either North Carolina law on NTO reporting or DSI protocols on writing reports.)

King’s memorandum does include one intriguing item: he presents a far different view of Durham’s legal liability than does the City’s memorandum of law. He concludes, “Assuming—as the Court must at this stage—that Plaintiffs’ allegations have some merit, it is perhaps not surprising that Plaintiffs have brought suit against some or all of the Non-DSI Defendants.”

I’m sure the Durham attorneys were delighted to see that conclusion.


William Jockusch said...

Since the Feds don't have the balls to prosecute, this type of civil suit is crucial to restoring confidence in our justice system. Durham deserves the 8-figure or 9-figure amount this is likely to cost them, and such costs will create a strong disincentive to the development of a Durham-type system, both in Durham and elsewhere.

Anonymous said...

From the various replies that I have read from the attorneys, I think I safely can say that Crystal Gail Mangum and Kim Roberts are not the only prostitutes in Durham.

Anonymous said...

No doubt about it --- they need to get Linwood Wilson to sing!

Anonymous said...

“the failure of an expert to include all opinions in a report, and the failure to summarize raw data for a third party.”

Laughable. Nevermind that whole conspiring to withhold evidence thing. But then again, it was all Nifong's fault, right? After such a closely followed and well-documented case of absolute corruption, I am amazed that these lawyers have the guts to even attempt to spin or twist the truth. I sincerely hope each and every one of these defendants get exactly what they deserve, although it seems, no matter what the outcome, this will continue to be the status quo.

Best item of the day? Nifong only owns $500 worth of clothing. I'm willing to bet each and every one of those suits he wore during his multiple press statements/conferences/interviews were worth about that much. So $500 times no, he's not at all trying to conceal assets. He's just a proven liar.

Anonymous said...

Durham PD up to no-good again and Judge Orlando Hudson makes reference to the Duke Lacrosse case.

Anonymous said...

I've never read a more eloquently written blog. Plus, "No brag, just fact", after fact, after fact.

Even a Pulitzer wouldn't suffice in this case.

Debrah said...

"Best item of the day? Nifong only owns $500 worth of clothing. I'm willing to bet each and every one of those suits he wore during his multiple press statements/conferences/interviews were worth about that much. So $500 times 50."

I'm sure that Nifong does own a wardrobe worth a bit more than $500; however, I would be willing to bet that it's not much more than real value.

Of course attorneys and others in similar professions must have an array of nice suits to wear---(probably a supply to ensure that they can go a week without repeating)---but you have to understand that people like Mike Nifong shop at places like JaS Bank, S&K, Men's Warehouse, etc.....where suits are not expensive.

BTW, did you happen to check out Nifong's sense of style when he was "king of the world" in the Spring of '06?

He has none.

Moreover, even if a man spends around $1200 on a suit and owns a quality and tasteful wardrobe, when you try to sell used clothing you might get a few hundred dollars out of it.

When I decide to get rid of something really nice that I don't wear anymore, but it's too nice just to give away, a consignment shop takes 50 percent of an already-very-reduced price.

You might get $75 for something you paid $500 for.

I think that's where the $500 figure comes from with regard to Nifong's wardrobe. The real value.

And in his case, if you buy cheap stuff to begin with, you've got junk when assessing value.

Anonymous said...

Duke Students for an Ethical Duke, are doing a good job of getting Duke’s lawsuit facts out to students. Their three lawsuit breakdown articles are excellent.

They have also opened up a comments section. The paragraph below is unbelievable, well, not really.
Lawsuit Breakdown: Duke's Treatment of Breck Archer

“In the Summer of 2005, Breck Archer was called into Defendant Stephen Bryan’s office to answer to a charge that damage was done to his room during a party. The room was only technically Breck’s at the time of the party; he had not moved in, he did not have a key to it, and he was not present at the party.”

Anonymous said...

Well, Miranda states "You have a right to an attorney - If you can not afford one, the state will provide, etc. Adhearing to the law is now prostituion???? I though all these lessons had been learned during Nifong's attempt to steal the constituation. Guess NOt.

Anonymous said...

While it is certainly nice to have new DiW posts, I must admit I miss the more prolific comment threads of old.

There is a particularly interesting, well written comment by "drewski01" in response to Tuesday's Kristin Butler column.

W. R. Chambers said...

Maybe, in the end, the defendants will claim they are not responsible because of Groupthink, which they may claim is a type of temporary insanity. See A Brief History of Groupthink in the current Yale Alumni Magazine.

Anonymous said...

Maybe and most probably, there was no "frame" - Just an arrogant DA run amuck.

Jim in San Diego said...

To anonymous 12:59

The Miranda statutes are criminal statutes that do not apply in civil cases.

You are correct that attorneys have a duty to represent their clients vigorously, even with stupid arguments if they think they might stick.

You are wrong that attorneys do not behave, often, like prostitutes. If their client pays, they will do, so to speak.

The argument is that defendants' attorneys are behaving like attorneys. They are.

Jim Peterson

Gary Packwood said...

W. R. Chambers 1/18/2008~~8:38 AM said...

...Maybe, in the end, the defendants will claim they are not responsible because of Groupthink, which they may claim is a type of temporary insanity. See A Brief History of Groupthink in the current Yale Alumni Magazine.
Great article. Thanks.

I doubt that Groupthink would work with respect to Duke employees or City of Durham folks as a defense in-so-far as Groupthink is associated with behavior that is unconscious.

They knew what they were doing.

mac said...

The best arguments presented on behapf of the defendants in this case are like a "worst-in-show" category at the county fair. How ugly can their arguments get?

How does my pig look in lipstick?

mac said...

A sign that the Lacross Hoax has created a change in culture among college administrators: when a couple of student athletes at UVA refrained from signing up for spring classes, the administration would not comment, citing "student privacy" issues.

That wouldn't have been so common prior to the Duke debacle. What Nifong did for prosecutorial discretion, Brodhead did for student's rights. Now it appears that prosecutors are being more careful, and university administrators appear to have learned how to press their lips together.

I have a suspicion that the current defense tactics of those representing the defendants (in this case) will end up being a kind of template, too...and some of the attorneys had better be careful about how much lipstick they're willing to apply to their particular pig.

Anonymous said...

Here is a lot of information, folk. Crystal was evaluated by three doctors and assisted by four nurses prior to her being dumped on Levicy of this client, five hours after admittance. She was not abandoned - she was not an emergency and way low on the priority list - of course, those of you who are secretaries and not medical RNs or personall would not know that. Some call it sleep but others call it "passed out." Try and get it straight and stop making up stories.

Debrah said...

Cheeks and Gooch......very appropriate-sounding names under the circumstances.



Durham police officers under investigation resign

By Ray Gronberg : Staff writer
Jan 19, 2008

DURHAM -- Police on Friday announced that two officers have resigned after investigators looking into a sexual-misconduct allegation turned up evidence of other wrongdoing by the officers.

Sgt. Keith Cheeks and Officer Demond Gooch resigned before Durham Police Department investigators finished their work on the original allegations, which stemmed from a woman's claim she had engaged in an act of prostitution with a police officer.

Department officials announced the departures in a news release issued late Friday afternoon. It quoted Police Chief Jose Lopez as saying that when officials uncover misconduct, "it is important that the conduct and the officers [responsible] be admonished."

The news release said the investigation has yet to substantiate the woman's original claim, in part because detectives are still waiting on the results of DNA testing.

The investigation won't be closed until those results come in, the release said.

Debrah said...

Yet another Durham outlaw. LOL!!!


Herald-Sun exec arrested on drug charges

DURHAM - An executive at the Durham Herald-Sun was arrested Wednesday on various drug charges.
According to jail records, James Anthony Purdon, 41, of 1005 Goldmist Lane in Durham, is charged with obtaining a controlled substance by fraud, trafficking opium or heroin, obtaining a controlled substance by withholding information, common-law uttering, common-law forgery and possession of a Schedule III controlled substance. Uttering typically refers to issuing bad checks.

Purdon is the circulation director for the Herald-Sun, a daily newspaper servicing Durham and Chapel Hill. Today, newspaper officials would not confirm whether any of the charges involved incidents at the newspaper or whether Purdon's job would be affected by his arrest.

"We don't have any comment at all on it," said Robert Ashley, editor of the Herald-Sun.

Purdon remained jailed today at the Durham County Jail on $321,000 bond.

Gary Packwood said...

Debrah 1/18/2008 11:49 quoting the HS ...said...

..."We don't have any comment at all on it," said Robert Ashley, editor of the Herald-Sun.
Blissful silence from Robert Ashley at the Herald-Sun, how soweeeeeeeeet ...the sound.

Anonymous said...

In all the defendants' filings, it's difficult to blame the attorneys involved - they're working with the sorry set of tools that they've been given. That having been said, however, any of these attorneys who actually **argue** some of the positions taken in their filings will find themselves logically contorted to the point of irrelevance.

Arguing that your client was not responsible for his/her actions is one thing; BUT, you can't selectively assert that responsibility is a question of what might otherwise be called situational ethics. Actions that are negligent are always negligent; those that are collusive are always collusive - the status quo at the time of the actions does not determine whether or not the actions are correct. However, faced with a client that would (to most observers) appear to be guilty of at least some of the charges involved, the attorneys are obliged to "gut it out", and **try** to come up with (a) plausible explanation(s) as to why their client should not be deemed guilty in respect of any of the counts in the complaint. It's the old lawyer's joke - if you don't have a good client, pound the case; if you don't have the case, pound the law; and if you don't have the law, pound the table. Well, in this case the table is getting hit from all sides by flying effluent that would ordinarily fall under the jurisdiction of the EPA.

It's going to be interesting to see if there are any other common threads to the defense pleadings in this case beyond the "Nifong did it" defense. When the various co-defendants get finished eviscerating each other, there will be enough blood on the floor to get virtually everyone smeared. The plaintiffs' attorneys will need merely shut up, and let the defendants kill each other. After the carnage, they can wade in and pick up their (rather enormous, and in my opinion well-earned) checks.

Anonymous said...

"Maybe and most probably, there was no "frame" - Just an arrogant DA run amuck. -- 1/18/08 1:34 PM"

Even the facts that we knew before the filing of the most recent civil suit made the claim of "no frame" ridiculous. The police knew how often Mangum had changed her story. They knew of her dubious mental health history. They knew that she had seen every one of the players who fit her descriptions in properly conducted lineups and had failed to recognize a single one of them being her assailants. If they had just decided to put her through another lineup that was conducted according to proper procedure, it could be explained -- possibly -- as simply tremendously bad judgment (any identification she did make in such a procedure would be impeached by the fact that she previously failed to recognize that same person.) But the fact that they chose to put her through another lineup, one that did not conform to the relevant regulations which exist to prevent miscarriages of justice AND engaged in a pretense that it wasn't actually aimed at identifying suspects at all shows that they knew damn well they were trying to put people on the hook that they had no reason to think were actually guilty. That's a frame, people.

Anonymous said...

11:59 wrote: The police knew how often Mangum had changed her story.

They also knew that although her various stories were never consistent, every version required that lax DNA be found on her. When none was found, they knew for certain she was lying.

Anonymous said...

I wouldn't be surprised if DSI gets out of this suit. There's something lawyers call "privity" (referring to a close relationship between parties) and it may be held to be lacking here. Normally a party is said to be "in privity" with another party when, for example, there is a contract between them to do work. Generally, no duty is owed to persons outside that contract.

Let me give an example: A land development company hires a surveyor to survey a new development. After all the tracts are sold, the developer goes out of business. One family builds its home on a tract, relying on the survey for the placement of the building. After the house is built, it is discovered that the survey was incorrect and the house crosses the property line of another owner, so the house must be removed. Can the homeowners successfully sue the surveyor? Apparently not in Texas they can't.

Similarly, it may be held in North Carolina that there was insufficient privity between the lacrosse defendants and DSI for a legal duty to arise. I think that would be a wrong decision -- I would argue that certainly criminal defendants are foreseeable third party beneficiaries of a evidence lab's work -- but who knows how NC law will view it?

However, don't worry too much: Even if DSI is held to have owed no duty to the Laxers, it is very likely that other defendants -- who do have privity with DSI -- would implead DSI on grounds (by way of a third-party suit) that DSI's misconduct contributed to any damages that they might be forced to pay.

Like Gregory says, MOO! Don't rely on any of this for legal advice :)


mac said...

Re: 11:59 pm,

True: the police did know how often Mangum changed her story, as you said.

What is striking is that any of them would argue otherwise. The folks on RENO 911 seem more professional than dDuhh's department.

Maybe the writers are borrowing stories from the pages written in dDuhh? Does that constitute copywright infringement? Will the striking writers have to picket dDuhh?