Monday, March 31, 2008

Reflections on the Duke Reply

Duke has filed its reply brief in its longshot demand that the court impose sanctions against attorneys representing the unindicted players and terminate the Duke Lawsuit website. Upon review, Powerline was puzzled by the University’s legal strategy:

Setting up this kind of website, and indeed ones that are much more aggressive, is a common thing for plaintiffs to do these days . . . I confess that it has never occurred to me to ask a court to shut such a site down. Lawyers should zealously represent their clients, but it rarely serves a client’s interest to become a laughingstock.

Duke’s lawyers, among whom are Clinton administration stalwarts Jamie Gorelick and Seth Waxman, apparently have no such qualms. They seek an order declaring, among other things, that the plaintiffs’ website violates local rules against extrajudicial attorney statements. Duke acknowledges that the material on the website either quotes or closely paraphrases the allegations contained in the plaintiffs’ complaint. Duke also concedes that the material thus falls within the safe harbor provided by the local rules for attorney comments that convey information in a public record. However, Duke takes the position that the statements nonetheless violate the local rules because they are “incendiary.”

Duke has no basis for reading into the local rule an exception for incendiary statements (or, in this case, statements it simply doesn’t like). Moreover, such an exception likely would be unconstitutionally vague.

At one time, it might have been surprising for a highly-rated university to push for unconstitutional restrictions on free expression. But not anymore and certainly not in the case of an institution like Duke.

As was the case in its initial filing, the Duke brief is notable for what it does not contain: the Duke filing does concede that “there is little precedent” for the brief’s argument, but in fact the reply provides no citation to any specific cases in which a court had constitutionally imposed sanctions against an attorney for a website or a press conference announcing the filing of a lawsuit. It’s difficult in any instance to get a court to impose sanctions. But it’s next to impossible when the party can’t even come up with one precedent to justify its demand.

The Duke position was a weak one from the start: the University’s claim, again, was that the press conference announcing the lawsuit and the Duke Lawsuit website violates Rule 3.6 of the North Carolina ethics code (which governs pre-trial publicity). That rule explicitly allows attorneys to comment on briefs and other court actions. It also includes a safe-harbor provision, which allows lawyers to address (such as, to take the most recent permutation, former New York Times and current SI columnist Selena Roberts accusing the plaintiffs of “irrefutable evidence of misogyny and race baiting”) unfavorable publicity not initiated by their clients. Finally, the rule’s provisions are not applicable to non-attorneys.

Duke’s demand to shutter the Duke Lawsuit website was particularly odd given that the University has its own website, filled with links to prejudicial statements about the lacrosse players. To take one example, here are a few excerpts from a party to the case, President Richard Brodhead, in his April 5, 2006 remarks:

We can’t be surprised at the outpouring of outrage [The “outrage,” at that point, had included “castrate” signs and “wanted” posters.] . . .

This episode has touched off angers, fears, resentments, and suspicions that range far beyond this immediate cause. It has done so because the episode has brought to glaring visibility underlying issues that have been of concern on this campus and in this town for some time—issues that are not unique to Duke or Durham but that have been brought to the fore in our midst. They include concerns of women about sexual coercion and assault. They include concerns about the culture of certain student groups that regularly abuse alcohol and the attitudes these groups promote. They include concerns about the survival of the legacy of racism, the most hateful feature American history has produced. [A University president linking the plaintiffs to the legacy of racism could be considered a highly inflammatory statement.] . . .

The objection of our East Campus neighbors was a reaction to an attitude of arrogant inconsiderateness that reached its peak in the alleged event but that had long preceded it. [Brodhead never has explained how “an attitude of arrogant inconsiderateness” could be reflected in an alleged event.] . . .

Quite separate from the criminal allegations, there have been reports of persistent problems involving the men’s lacrosse team, including racist language. [Neither Brodhead nor anyone at Duke has ever revealed what these “reports . . . including racist language” entailed. The Coleman Committee found no evidence to substantiate the president’s assertion, which he presented as an unequivocal fact.]

Certainly those remarks—which Brodhead has never retracted, and for which he has never issued an apology—are far more “incendiary” about parties to the case than anything on the Duke Lawsuit website.

The University’s reply, however, deems acceptable the Duke website that links to these remarks, since “the Duke webpage cited by Plaintiffs is an archival site that has not posted any new information since May 2007.” If that argument sounds familiar, it should: it’s essentially the rationalization that Mike Nifong made for his pre-primary publicity spree. Because he hadn’t officially charged anyone, Nifong mused, Rule 3.6 didn’t apply to his public remarks. The DHC panel emphatically rejected his claims. That ruling, of course, isn’t binding on a federal court. But since Duke’s original brief explicitly cited North Carolina precedent, it’s hard to see how the University’s attorneys expect the court to simply ignore the Nifong finding.

The Duke Lawsuit website has links to other sites, including DIW. This setup also drew criticism from the Duke attorneys: because the lawsuit site has “links to community blogs critical of the Duke Defendants,” the lacrosse players’ attorneys have “responsibility for [the blogs’] content.”

The idea that linking to a blog implies responsibility for all of a blog’s contents represents a fundamental misunderstanding of how the blogosphere functions. It’s also worth examining the Duke reply’s claims about “community blog” DIW as “critical of the Duke Defendants.”

There certainly are those whose conduct DIW has consistently criticized—Wahneema Lubiano, for instance; or William Chafe; or Mark Anthony (“thugniggaintellectual”) Neal; or Charlie (“McCarthy-lite”) Piot. None of these figures, however, are defendants in the lawsuit. The “Duke Defendants” are the University, Duke Hospital, Brodhead, Peter Lange, Larry Moneta, Tallman Trask, John Burness, Sue Wasiolek, Matthew Drummond, Robert Dean, Kate Hendricks, Aaron Graves, Theresa Arico, and Tara Levicy.

Of that group, I’ve never said anything critical—indeed, have never said anything much at all—about Drummond, Dean, Hendricks, or Graves. The blog has generally praised the efforts of Peter Lange, and had good things to say about Tallman Trask’s remarks in the March 30, 2006 Academic Council meeting. On several occasions, I thanked John Burness for his assistance in responding to my inquiries; and rarely, if ever, criticized his performance. DIW has, of course, criticized Brodhead, and sometimes sharply so—for among other things his refusal to enforce the terms of the Faculty Handbook, and for his inconsistency in demanding due process for all Duke students, not just those in politically correct cases. But the blog has also praised the president (as in his Law School apology or in his January request that Reade Seligmann and Collin Finnerty return to school). And while DIW has been consistently critical of the performances of Tara Levicy and Larry Moneta, I’m unaware of any publication about the case that has reviewed the record of either figure positively.

The Duke reply’s description of the blog, therefore, is incomplete at best and inaccurate at worst—perhaps explaining why DIW received praise in, among other publications, New York, cnnsi, Slate, Volokh Conspiracy, the Wall Street Journal, the Chicago Sports Review, the New York Sun, New Criterion, and the Worcester Telegram. This issue is a comparatively minor one in the overall filing, but it gives a sense of just how far the Duke attorneys needed to stretch the facts to make their case.

Given the high quality of Duke’s counsel, what motived the filing? A DIW commenter offered this analysis, which seems to me astute:

As a litigator, my reaction to Duke’s motion is somewhat different from many on the blogs. I give the Duke lawyers plenty of credit (I learned long ago that underestimating or dismissing opposing counsel’s apparent “silly” motion strategies is potentially case killing). The Duke lawyers are smart as hell and must have thought very carefully before filing this motion. My intuitive sense of their true objective: to feel out the judge for receptiveness to limiting discovery. The “close the website” motion will provide both sides some insight into whether the assigned judge will be pro-protective order, or pro-open, public access.

A protective order under Rule 26 of the Federal Rules of Civil Procedure allows a party opposing disclosure of documents, information, or testimony to move for an order, after showing “good cause”, that the subject information should not properly be within the public documents realm.

It is normally an onerous burden to carry, but it is also judge-specific. Moreover, a judge has very wide discretion in ruling on discovery motions, and such rulings are rarely overturned on appeal.

The defendants have placed front and center the judge’s inclinations in this regard. Viewed through this lens, the motion is very smart litigation strategy. If the judge summarily rejects the motion, then I wouldn’t be surprised to see the Duke defendants aggressively seeking a settlement. If the motion is granted, the Duke defendants have some hope that they can move forward with a reasonable likelihood of success in obtaining a protective order that would prevent damaging documents and deposition testimony from being made public.

In either case, and if I am correct, it seems to me that Duke has much to fear if discovery proceeds without protective order limitations.

To paraphrase former Supreme Court Justice Louis Brandeis, “Sunlight is the best disinfectant.” Given their record over the past two years, it’s easy to understand why some of the Duke Defendants would prefer to remain in the shade.

Sunday, March 23, 2008

The Durham Justice System: A "State of Emergency"

A comprehensive late 2007 report on the Durham Police Department's handling of gang-related activity by Deborah Lamm Weisel and Buddy Howell:

Among its conclusions--none of which would surprise anyone who observed the DPD's performance from March 2006 through January 2007:

Durham has a long-standing reputation as a high-crime city with well-entrenched gangs. Further, the economic needs of Durham’s citizens are longterm and complex, and poverty is deeply rooted in an on-going discourse about race – a discourse that may become more divisive as the population continues to diversify . . .

Durham has a highly politicized environment. During this study, we saw extensive micromanagement of government agencies by elected officials – a political style more typical of very large mayoral cities in the U.S. . . .

A major finding in our assessment is the critical need to build public confidence in the justice system and its response to gangs. While our assessment was entirely detached from the Duke lacrosse scandal, we cannot discount its contribution to further deterioration in public confidence.

Given the backlog of prosecutions, Weisel and Howell and write, "The situation in Durham is egregious and tantamount to a state of emergency. We recommend that the City and County of Durham ask the Governor to provide immediate if temporary assistance in terms of judges, prosecutors, and other court personnel to redress the problem - particularly for gang-related offenders."

Monday, March 17, 2008

Selena Roberts: Still Misleading

In the pre-internet world, tracking down a New York Times article from two years ago would have taken some time and effort. An interested reader would have to go to his or her library and scroll through reels of microfilm. Now, however, finding a March 31, 2006 article is as easy as clicking here.

It appears as if ex-Times sports columnist Selena Roberts hasn’t quite adjusted to the internet era. It’s hard to come up with another explanation for her offering wildly misleading remarks about her work in a recent interview with The Big Lead. She described her March 31, 2006 column in the following way: “Basically, I wrote that a crime didn’t have to occur for us to inspect the irrefutable evidence of misogyny and race baiting that went on that night . . . Obviously, some segments of the Duke lacrosse crowd did not enjoy the scrutiny of their world.”

Really? Here are some excerpts from that column:

“The season is over, but the paradox lives on in Duke’s lacrosse team, a group of privileged players of fine pedigree entangled in a night that threatens to belie their social standing as human beings.”

“Whatever the root, there is a common thread: a desire for teammates to exploit the vulnerable without heeding a conscience.”

“Does President Brodhead dare to confront the culture behind the lacrosse team’s code of silence or would he fear being ridiculed as a snitch?”

“Something happened March 13, when a woman, hired to dance at a private party, alleged that three lacrosse players sexually assaulted her in a bathroom for 30 minutes.” (This statement, as the Attorney General’s investigation subsequently discovered, was false—unless, of course, Roberts is now claiming that when she wrote “something happened,” she meant the filing of a false police report.)

“According to reported court documents, she was raped, robbed, strangled and was the victim of a hate crime. She was also reportedly treated at a hospital for vaginal and anal injuries consistent with sexual assault and rape.” (This statement drew a rebuke from even the Times’ milquetoast then-public editor, Byron Calame, who noted that journalists do not consider search warrants to be “court documents.” The Times ran a brief correction a week after Roberts’ column appeared.)

“Players have been forced to give up their DNA, but to the dismay of investigators, none have come forward to reveal an eyewitness account.” (This statement was false, as Roberts would have known had she read either the captains’ March 28, 2006 statement or examined the defense attorneys’ subsequent press conference. Both events, which described the captains’ cooperation with police, occurred before she penned her column. The Times never ran a correction.)

After asking, “Why is it so hard to gather the facts? Why is any whisper of a detail akin to snitching?” Roberts produced an answer from an assistant professor at John Jay College: “The bottom line is, your self-esteem is more valuable to you than someone else’s life.”

Can Roberts seriously claim that an average Times reader would take away from the quotes above a conviction that her column’s argument was based on a premise that “a crime didn’t have to occur”?

In her interview with The Big Lead, Roberts complained that she received criticism from “Duke-player supporters who felt threatened when someone, whether it was me or another columnist, started poking at the culture of affluence and entitlement.”

In fact, the criticism of Roberts’ work extended to the leadership of her former paper. In a summer 2007 interview with American Journalism Review, Times executive editor Bill Keller admitted, “I did think, and I told the columnists, that there was a tendency in a couple of places to moralize before the evidence was all in, and not to give adequate weight to the presumption of innocence... As a generalization, I’m not dismissive of the people who think that what appeared in the sports columns kind of contributed to a sense that the Times declared these guys guilty.”

More recently, Roberts’ direct supervisor at the Times, sports editor Tom Jolly, stated, “I very much regret my failure to recognize that we were dealing with a rogue prosecutor and that the university had compounded his bravado by overreacting to the initial reports about the case . . . The bottom line is that I’d do some things differently, and that knowledge gained by hindsight has informed our approach to other stories since then.”


Duke is now attempting to have sanctions imposed on the attorneys representing the unindicted players, alleging that lead attorney Charles Cooper violated the pre-trial publicity guidelines of Rule 3.6. Cooper’s response is here; given that Duke’s filing failed to cite even one case in its favor, I’d say the chances of Duke prevailing at this stage are pretty slim.

But beyond the weaknesses of Duke’s motion overall, Rule 3.6 has a safe harbor provision regarding pre-trial publicity: it states that “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client.”

Most people would consider a former Times and current Sports Illustrated columnist accusing the lacrosse players of “misogyny and race baiting” as creating an “undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client.” This safe harbor would apply even when the prejudicial remarks come from a figure who, for anyone who followed the lacrosse case closely, sacrificed her journalistic credibility in an attempt to advance a preconceived ideological agenda.

Tuesday, March 11, 2008

Bannon at Campbell Law Day

DIW readers in North Carolina might want to set aside time this Saturday morning, for Brad Bannon's appearance as keynote speaker for Campbell Law School's Law Day. The announcement:
Campbell Law School’s 31st Annual Law Day to Feature Distinguished Alumni Brad Bannon and Lt. Col. Stuart Couch

WHO: Mr. Brad Bannon, a 1997 graduate of Campbell Law School is known for his work in the 2006-07 Duke Lacrosse case, which garnered national headlines. Bannon served as a defense attorney and ultimately changed the course of case events with his DNA discovery. He was also an expert witness during testimony that led to the removal and disbarring of former Durham County District Attorney Mike Nifong. Bannon currently serves as an associate at Cheshire, Parker, Schneider, Bryan & Vitale in Raleigh.

WHAT: The Norman Adrian Wiggins School of Law at Campbell University will host Brad Bannon as the keynote speaker for the morning family portion of its 2008 Law Day.

WHEN: Saturday, March 15, 10:00 a.m.
(Interviews available)

WHERE: D. Rich Hall
Turner Auditorium
Campbell University
Buies Creek, NC 27506

Wednesday, March 05, 2008


This blog began in an attempt to analyze the twin scandals of spring 2006: the transparent signs of Mike Nifong’s prosecutorial misconduct; and the decision of Duke faculty activists—personified by the Group of 88—to set aside the academy’s traditional fidelity to due process and instead advance their personal, pedagogical, of ideological agendas on the backs of their own students.

Gradually, the blog expanded to include coverage of the media, the Duke administration, the intersection between politics and the law, the role of the police, and the dubious record of the SANE nurse.

The blog provided live coverage from North Carolina and analysis of the fall 2006 hearings and all major 2007 events related to the case:

The blog also summarized and analyzed:

  • all filings by the Bar and Nifong in the ethics proceeding;

The blog provided the most comprehensive analysis of the activities of:

The blog’s media analysis included the only overviews of coverage by:

On the media front, the blog also featured regular critiques of the pro-Nifong coverage on the New York Times (ranging from columnists Selena Roberts and Harvey Araton to reporter Duff Wilson and public editor Byron Calame) and the Durham Herald-Sun (including the work of editor Bob Ashley and reporter John Stevenson).

The blog provided extensive coverage and analysis of the Duke faculty’s rush to judgment, including:

  • an analysis of the pedagogical interests of the Group of 88;
  • a profile of the spring 2007 “clarifying” faculty;

In a 13-part series, the blog profiled some of the Group of 88 members, explaining the connection between their scholarship and their guilt-presuming approach to the case.

The blog also explored the administration’s:

The blog highlighted the most outrageous quotes of the case; along with some of the best work.

The blog was the first to report several case-related items, including:

  • Mike Nifong loaning his campaign nearly $30,000 at about the same time he took over the lacrosse case, six weeks before the May 2006 primary;
  • The first publication of Crystal Mangum’s March 16, 2006 police photo, which showed that she had no bruises, despite police claims;
  • The revelation that Nifong citizens’ committee co-chair Victoria Peterson had advocated burning down the lacrosse captains’ house;
  • The refusal of the state NAACP’s case monitor and legal redress committee chair to challenge in any way Nifong’s procedural irregularities;
  • The full details of the potbangers’ late March/early April 2006 crusade;
  • Group of 88 member Grant Farred publicly asserting that unnamed lacrosse players committed perjury;
  • Uncovering that despite the statement’s claims, five academic departments had, in fact, not endorsed the Group of 88’s ad;

  • Duke’s suppression of a lacrosse team-led October 2006 voter registration drive.

Blog Statistics

Between August 28, 2006, and December 11, 2007, when the blog went on hiatus, Durham-in-Wonderland had 3,517,151 unique visitors and 6,248,329 hits.

These visitors came from all 50 states and from 134 countries (Fiji, Anguilla, Cuba, Saint Kitts & Nevitts, Grenada, Guatemala, Bolivia, Paraguay, Antigua and Barbuda, Northern Mariana Islands, Lebanon, Yemen, Qatar, Ghana, Benin, Nigeria, Mali, Sri Lanka, Mongolia, Cambodia, Pakistan, Laos, Malawi, Dominican Republic, Luxembourg, Moldova, Bulgaria, Azerbaijan, Kuwait, Ethiopia, Kenya, Senegal, Djibouti, Honduras, Iceland, Malta, Kyrgyzstan, Afghanistan, Iran, Sri Lanka, Nigeria, Slovenia, Zambia, Vanuatu, Cayman Islands, Bermuda, Netherlands Antilles, Ecuador, Argentina, Ireland, Denmark, Sweden, Ukraine, Poland, Latvia, Estonia, Slovakia, Croatia, Montenegro, Uganda, Kenya, Bahrain, Pakistan, Palau, Taiwan, Cambodia, Nepal, Canada, Mexico, Costa Rica, El Salvador, Panama, Jamaica, Bahamas, Brazil, Argentina, Chile, Peru, Colombia, Iceland, Ireland, Britain, Belgium, France, Germany, Switzerland, Austria, Norway, Sweden, Finland, Russia, Ukraine, Czech Republic, Hungary, Romania, Serbia, Greece, Cyprus, Turkey, Italy, Spain, Portugal, Israel, Egypt, Jordan, Iraq, Saudi Arabia, United Arab Emirates, India, Kazakhstan, Thailand, Malaysia, Singapore, Brunei, Indonesia, Australia, New Zealand, the Philippines, Vietnam, China, South Korea, Japan, South Africa, Aruba, Dominica, Venezuela, Morocco, Lithuania, Cote D’Ivoire, Zimbabwe, and Gambia).

[Updated, March 6:] The blog had 1,173 posts, totaling 923,723 words. It attracted just over 100,000 comments.

Tuesday, March 04, 2008

Gottlieb Is Out

The practitioner of "straight-from-memory" notes and wildly inaccurate grand jury testimony has left the Durham Police Department. The N&O's Stan Chambers reports that Sunday was Mark Gottlieb's last day on the job. He resigned for what the DPD termed personal reasons.

Saturday, March 01, 2008

More on Duke's Peculiar Motion

As noted below, yesterday Duke filed a motion requesting that the "Duke Lawsuit" site be shut down, and also suggesting that the unindicted players' lead attorney, Chuck Cooper, violated ethics rules in holding a Washington, DC press conference to announce the suit.

The stated rationale for the request is Duke's alleged concern that the publicity generated from the press conference could poison a jury pool in Greensboro, North Carolina. Leaving aside the fact that the ethics rule in question seems to allow the kind of remarks made by Cooper--which were designed to counter negative publicity "not initiated by the lawyer or the lawyer's client"--there are certainly less drastic ways (voir dire comes to mind) than a gag order or sanctions to deal with publicity from a Washington, DC press conference.

Even stranger, however, is Duke's demand that the website be shut down. Duke has its own website on the case, placing its own positive spin on the actions of the administration that are at issue in the civil suit. For instance, one item cited in the lawsuit is Richard Brodhead's April 5, 2006 decision to cancel the lacrosse season. The Duke website claims that "concerns including the safety of Duke’s players" played a role in Brodhead's decision. Yet there is no contemporaneous evidence--at least available in the public record--to bolster that assertion.

Similarly, the website includes a link to Brodhead's statement announcing the season's cancellation--which doesn't mention the players' (and now plaintiffs') safety--but does state that Brodhead's knowledge of "reports of persistent problems involving the men’s lacrosse team, including racist language." Yet, as the Coleman Committee subsequently discovered, there was no evidence to justify an assertion of "persistent problems . . . including racist language" [emphasis added] on the part of team members. Duke keeping this statement on its website, it would seem, could do far more to bias a potential jury pool against the lacrosse players than anything on the Duke Lawsuit website could do in the other direction.

So, Duke's official position is: it should be allowed to maintain a website that (a) contains a highly damaging false assertion on the players' character by the president; and (b) places a pro-Duke and seemingly unsupported spin on one of the items in the lawsuit that's--but the unindicted players should be forced to take down a website whose most prominent item is a copy of the civil suit itself.

That is, indeed, a most peculiar standard.