Monday, June 23, 2008

A Gorelick Essay

As mentioned below, Duke civil attorney Jamie Gorelick is presenting today at the NACUA conference, held in Manhattan’s Marriot Marquis hotel. Her topic: “The Best Defense: Navigating Complex Criminal Matters on Your Campus.”

An essay prepared by Gorelick and Christopher Zimmermann provides background for her talk. Much of the article deals with matters extraneous to the Duke civil case—notably how university counsel (or outside lawyers hired by the university) should behave when dealing with alleged criminal conduct by university employees, or when handling internal investigations of alleged improprieties. Three Gorelick passages, however, stand out, in light either of Duke’s conduct or of Gorelick’s own recent filings.

Gorelick and Zimmermann write,

During execution of a search warrant or otherwise, government agents may attempt to speak with employees or students. It will often be the case that the organization has no reason to suspect such inquiries, but if a college or university does anticipate government contact, relevant employees should be advised how to respond. In any conversation with the government, employees should tell the truth. However, employees should be advised that they are not required to speak with government agents and have the right to consult with an attorney before consenting to any interview.

The Gorelick essay doesn’t spell out how a university should respond when “government agents may attempt to speak with . . . students,” but it would be hard to argue that Duke administrators—at least one of whom urged the players not to tell their parents about the case, and who were involved in organizing a mass interrogation of the players without counsel—lived up to the spirit of Gorelick’s guidelines.

Moreover, at least by the time of the nighttime Durham Police visit to the Duke dorms (mid-April 2006), Duke had good “reason to suspect such inquiries.” Yet the University appears to have made no protest about Durham Police officers surreptitiously gaining entrance to a Duke dorm and trying to interrogate Duke students outside the presence of their counsel.

Some of the victims of these policy failures are the plaintiffs in both the Cooper and the Ekstrand lawsuits.

Gorelick and Zimmermann write,

Counsel may represent both the organization and its employees personally when their interests are aligned. However, . . . there may be situations in which the interests of the college and university itself and those of its employees diverge, such as a decision on the part of the organization to divulge privileged information regarding an employee to an investigative agency. An organization should consider whether and when a dual or multiple representation is appropriate.

Duke’s handling of the civil case doesn’t seem to reflect this guidance. To take the most glaring example, unless the motion to dismiss is granted, “the interests of the college and university” and the interests of former SANE-nurse-in-training Tara Levicy would seem directly in conflict—yet Gorelick represents them both.

It is in Levicy’s best interest to maintain that she consulted regularly with her superiors, and that her “change-her-story-to-fit-Nifong’s-new-theory” approach to the case had her superiors’ blessing. It is in the university’s interest to portray Levicy as a rogue employee, whose initial involvement in the case might have been an honest error, but who was subsequently reined in, only to continue trying to bolster Nifong’s case secretly, outside established university channels.

Gorelick and Zimmermann write,

If the witness is an employee of the college or university, he or she may have a duty to cooperate set forth in employee handbooks and policies pursuant to which the organization has the right to demand cooperation . . . Refusal to cooperate with the investigation, including maintaining its confidentiality, may amount to a breach of loyalty and become grounds for termination. [emphasis added]

In her recent filing, however, Gorelick outlined a radically different conception of the power of “employee handbooks and policies pursuant to which the organization has the right to demand cooperation.” According to Gorelick’s motion to dismiss, employee handbooks (like the Duke faculty handbook) or “policies pursuant to which the organization has the right to demand cooperation” (like Duke’s anti-harassment policies) are little more than scraps of paper. The university has no obligation to enforce them; professors and students can, apparently, violate them at will.

Up until the lacrosse case, Duke’s approach to enforcement of “employee handbooks and policies pursuant to which the organization has the right to demand cooperation” corresponded more to Gorelick’s position in her essay than in Gorelick’s position in her motion to dismiss.

This record, of course, raises the obvious question: how can a Duke student (or a Duke parent) know when the University will choose to enforce its “employee handbooks and policies pursuant to which the organization has the right to demand cooperation”—if, on the one hand, a violation of these policies could “amount to a breach of loyalty and become grounds for termination,” but on the other hand, violations of these policies might be ignored, on the grounds that the University has no legal obligation to enforce its own policies?

Gorelick offers no answer. Had she done so, she might have provided the obvious response to this obvious question: the university will enforce its “employee handbooks and policies pursuant to which the organization has the right to demand cooperation,” except when doing so will arouse the wrath of the politically correct on campus. In such cases, the university will not obstruct advocates of the dominant race/class/gender faction.


BillyB said...

Duke University
Employee Handbook and Policies

Contained herein are policies and procedure that will be used to govern the actions and discipline of Employees of Duke University. Nothing herein should be construed to mean anything. Should actual attitudes and actions by Employees or the University be in conflict with expedience of the University to accomplish its overriding goal of implementing its constantly evolving motives and goals, Employees should adjust attitudes and actions to conform with the aforementioned evolutions. Should it be necessary to interpret any policy in a way contrary to which it is understood, Employees should note that contrary to University procedures, maintaining a state of confusion is contrary to our stated goals. Elsewise, please feel free to interpret these policies and procedures in a way that will conform to what may be the actual policies, stated or unstated, at the time of interpretation.

Anonymous said...

It seems that Ms Gorelick can't get her story straight. It would be interesting to hear her response to the points raised by K.C.

Anonymous said...

"yet Gorelick represents them both."

Unethical conduct, subject to state bar disciplinary hearing and disbarring ?

Insufficiently Sensitive said...

Amusing how even the writings of the on-so-politically connected attorney Gorelick do not stand up to a critical inquiry.

She apparently prefers to stand on the side of power, and to oppose the idea that a properly annointed bureaucrat must follow a consistent set of rules. WE write 'em, by the expedient outcome of the day, for YOU to follow.

Debrah said...

Interesting past article on Gorelick's MO

Insufficiently Sensitive said...

Bravo Debrah! No more timely reminder of Ms. Gorelick's dubious past could have been brought up.

No better example of the power of the insiders of Washington DC - when not challenged by the despicably partisan MSM - exists than the seating of Ms. Gorelick ON the 9/11 Commission, instead of answering questions under oath from a witness chair in front of it.

And no wonder that in her current position that she's doing her utmost to shield her cronies at Duke from questioning under oath during the discovery process that she's been hired to defer, deflect and dismember. Said cronies must be in awe of her escape of questioning by the 9/11 Commission (national security be damned), and must be hoping to share her teflon.

Debrah said...


........did anyone show up at the Marriot Marquis?

Or what?

Anonymous said...

Nice Forward, BillyB! I bet the "Acknowledgments" page, the Epilogue and Prologue are equally as funny. Good show!

Anonymous said...

Seems to me that the Plantiff's attorney's will be more than happy to utilize the seminar material Ms. Gorelick provided in the same context as KC's post.

She no doubt will see this material again as an exhibit in court.

Duke's attorneys are either arrogant or stupid. In Gorelick's case it appears to be both.

Anonymous said...

Duke is an absolute microcosm of what is going on with the rest of the country.

Another hack hired for all the wrong reasons. (For me Janet Reno is the low point of this behavior)

Sadly, it will cost the parents and students of Duke a great deal of money.

Anonymous said...

There seems to be no standard for these people other than power . . . it is what it is when I say it is . . . or words to that effect . . . and what are you going to do about it . . . at its narrowest point . . . how rude . . . and how dangerous to public decency and honor . . . a forgotten part of jurisprudence in

Anonymous said...

It pains me to think that Gorelick would be viewed by NACUA membership as being able to speak with authority and experience on her topic. Perhaps she should retitle her speech, "If I Did It"

Anonymous said...

Postmodernist Addendum
Duke University
Employee Handbook and Policies

Since this manual represents a post-colonialism that many in the academy reject allowances for those employees that subscribe to postmodernist theory will be made. Due to their nihilism these employees can toss the whole manual. As has been demonstrated in the past these policies are multi-valent and therefore legitimating of this document is not needed. Where policies in this book are Eurocentric they should be put under erasure. However, those people of privilege should adhere to all policies that could in fact marginalize the “other”.


Anonymous said...

Is Gorelick a Comminust?

Anonymous said...

"the university will enforce its “employee handbooks and policies pursuant to which the organization has the right to demand cooperation,” except when doing so will arouse the wrath of the politically correct on campus. In such cases, the university will not obstruct advocates of the dominant race/class/gender faction.

In the above lies the distillation to its essence the rape hoax.

It is this: ALL of what happened could easily have been stopped or avoided at any number (a large number at that) of stochastic moments.

Yet for the sake of their blind allegiance to their chosen Narrative, the University and its leaders followed a determined path to ruin.

Or not.

After all of the money is paid to the plaintiffs without any public recognition of wrong-doing, Duke will continue on its journey to farce. As too, will most of the American academy, and even America itself.

What is so intriguing about the hoax after these many months is the lack of critical analysis on the part of the actors involved, many of them represented as academics.

It is shocking but not surprising, and ultimately depressing.

The clarity of the analysis here stands in stark relief to the buffoonery of the 88, their supporters, the disgraced Nifong, and so many others.

It just never ends.

Nor will it.

Just sayin'.


Anonymous said...

This is interesting, but hardly surprising..

Remember the noose "hate crime" at Columbia U, by one of the gang88 style fraudster?

Columbia Fires 'Noose' Professor

"Columbia University’s Teachers College announced today that it planned to fire Madonna G. Constantine, a tenured professor, for plagiarism"

Let's wait for the Al Sharpton led march against racist Columbia U. Anyway, this is another sad story of race privileges in academia. First reaction to accusation of fraud is always racism, or faking hate crime. This country is doomed, unless race privileges are terminated once and for all.

Anonymous said...

I goofed on my last sentence here is my rewrite:

Postmodernist Addendum
Duke University
Employee Handbook and Policies

Since this manual represents a post-colonialism that many in the academy reject allowances for those employees that subscribe to postmodernist theory will be made. Due to their nihilism these employees can toss the whole manual. As has been demonstrated in the past these policies are multi-valent and therefore legitimating of this document is not needed. Where policies in this book are Eurocentric they should be put under erasure. However, those people of privilege should adhere to all policies that could in fact if not followed marginalize the “other”.


Debrah said...

Bill Anderson continues to respond as do a few others.

Some of the comments are provocative and might stir KC's interest.

Debrah said...

A must-read column by Dennis Prager

Especially the very last paragraph. Illustrates a lot of the Gang of 88 and Gorelick mentality.

And yes, it is very easy to be depressed as a woman. Our basic natures have been mutilated by external forces.

"......while society continued to teach boys to control themselves, it stopped teaching girls to do so. Girls' emotions and feelings were inherently valuable. And denying this was attacked as sexist if not misogynistic."

The Diva will let the men in on a little secret:

No matter how women protest, we have a fundamental desire---actually, a need---to know that the man is in charge. Even strong women with strong opinions will never be happy when they are browbeating the men in their lives.

And one can only imagine what this does to their intimate relationships.

Many members of Duke's Gang of 88, like many in the academy, seem to have a need to tear down all natural roles of men in society.

Unless a woman really, really hates men, this cannot make her a happy person on any level.

Allow the man to do his thing, and as a result, you will most often get what you want as well.

If you just want a dry partnership, start a business. Don't get married.


Debrah said...

I found this to be an excellent point from "Ralph Dubose" at reharmonizer's place:

"The social and sexual success of some elite male atheletes offended the PC crowds sense of how the world SHOULD work and made a lot of others intensely jealous So, of course, they must be brought down to salve the shriveling egos of the 'marginalized' hordes. Human Nature 101. You mentioned the legal arena. May I remind you that that part of this story is not even half over and it is way too late for anyone at dook to 'wall off the legal proceedings' from what the Administration did or allowed to happen under its imprimatur. It is all 'evidence' now and its baleful echoes will haunt the un-deserved sleep of Brodhead et al for years to come."

Anonymous said...

I wish people would use the correct spelling of Duke. I'm getting a bit tired of the license taken by various commenters in various fora. I despise what my alma mater has become but there's no way I would insult its graduates by mis-spelling its name.

Debrah said...

"reharmonizer" apparently rethinks his responses:

June 24, 2008 at 7:41 pm

“I don’t know what the basis for this comment is or who it’s from, but it reminds me that I meant to say something about Anderson’s claim when I replied to him. For Karla Holloway to quash a sexual assault charge would require a stunning level of hypocrisy. I assume it’s the matter Anderson commented on a number of times on DIW, and also here”:

(Don’t forget that when [Houston Baker] was at Duke, a female graduate student accused Baker of sexual assault while they were at a conference in New York.

Karla Holloway was a dean at the time, and she flew up to New York to “fix” the situation. In the end, Duke was able to hush-hush the whole thing, but one of the reasons that Baker never was elected chair of the English Department was this situation.)

“This strikes me as hearsay or worse. Anderson is welcome to pass on whatever evidence he has that I should take it more seriously. Any further comment on the matter will probably be deleted.”


The Diva reply:

My dear “reharmonizer”.

I see that you have altered your previous reply in a terrific way.

Although you were not honest enough to publish my response to your oily bravado, I am gratified that the one and only Diva was able to wake you up to your responsibility as the author of a blog.

Sorry if my comments seem abrasive to you.

It’s just that I get so annoyed when I read your posts and your reluctance to face reality.

Moreover, after having experienced KC for so long, everyone and everything else pales for the Diva.

Keep up the flexibility!

Anonymous said...

Posted at Re-Harmonizer...

You say…“It seems to me that virtually all of it is based on assumptions about what kind of people those professors are–much more a matter of faith than of rationality and evidence. At the very least, the case against the Group is almost entirely a matter of confirming the expectations–there is no real interest in looking for where the model might break down, not to mention a shortage of skepticism and basic reality checks.”

Could not the same thing be said about the assumptions about “The Lacrosse” team? Did this concern you? Weren’t numerous “simplistic, disparaging, mindless assumptions “made about them? Were they not lumped together in this category of swaggering callous, privileged white racists? How many Duke Faculty wrote op-eds in the Herald-Sun or Letters to the Editor in the N&O or appeared on Nancy Grace to protest this kind of all-inclusive generalization…especially at a time when it was so terribly dangerous to three individual kids: Collin, Reade, and Dave. Instead…how many wrote to expound further and elaborate on those damning “assumptions.”

Were these three kids NOT REAL? Did the jeopardy they faced not resonate in academia?

You say, “In the few cases I’ve gone through in detail (Holloway, Neal, and to a lesser extent Lubiano), when they’re disentangled from the presumptions and misrepresentations that Johnson brings to bear, they no longer look like raving, irrational, vindictive monsters, which isn’t to say that they look perfect or blameless”

Again, true of the individual members of the team. But I ask you respectfully…where was your concern, when, not the academic REPUTATIONS of those sullied were at stake…but thirty odd years of a young man’s life. Where was your voice? Where was this blog? It’s nice that your colleagues’ reputation spurred you on to debate KC. But, in fairness, you must understand…to some of us this was never an academic exercise or about faculty friends. It was about three kids facing jail on a false accusation.

Put all the “isms” aside for a moment and just look at your own kid and let yourself channel a bit of the fear and frustration that lasted well over a year. Then you may return, to de-personalizing them and disparaging the rest of us. I just want you to see US as individuals too. Like those you champion.
To me, it was about a kid (Reade) having to tell his Mother..”Mom, she picked me;”it was about Phil Seligmann falling to his knees when given the news this really good kid of his had been indicted ;it was about Rae Evans’ Dad dying before his grandson was cleared; it was about the desperation of your child victimized by false reporting, flipped witness, rigged line-ups. It was about stress-related illness. It was reading the “listening ad” in the context of all this…watching your kid read the names signed there…professors he ADMIRED..thanking the protestors for not waiting. Have you thought about the families reading through those names…reading the wording they chose?

Do you really think a young man experiences something like this and goes on “to thrive” emotionally unscathed?. Think of the cacophony of lies, hate and contempt (some still in place) Think of the revelation of institutional corruption. What zombie state does one have to attain to just brush all that off like a bad date and..”thrive.”

This is not some assigned reading we are discussing here. It’s what these families endured on a daily basis. And extrapolating it out to demean their suffering by naming others who suffered more…is a cheap sidestep.. . This was happening to YOUR students, in the city where YOU live, on a campus where YOUR voice might have resonated. There is suffering and injustice everywhere, but here was the homegrown variety. Here it was on your turf.
I’m sorry I can’t write about “tribalism” or intellectualize all this into a pleasant diversion. There was real suffering here.To the families, there were few voices that supported them in the early dark days..when Brodhead’s door was closed to them and reporters got “off the record” comments from Duke “officials” that fed the flames. There was Kc, and Gaynor and Bill and a few internet nobodies who called themselves Liestoppers and showed up every day to do whatever little they could.

But, think what it might have meant to those families to have a few strong articulate voices at Duke speaking loudly and forcibly for them instead. You write and parse very well. You might have unclouded a few minds and even, provided a little comfort. You might have made a difference. Think about it.

W. R. Chambers said...

There is nothing new in this post. Feel free to skip it.

Marketing is one of the things many law firms do even big one's like Gorelick's. Conference sponsors want to create a buzz about their event. Buzz leads to sign-ups. The more sign-ups the more buzz. Buzz leads to success ... of some sort for some period of time for someone. But sometimes it's best to avoid the buzz.

I once heard a legendary Connecticut trial lawyer say to a group of young lawyers that sometimes the best way to make money is to decline a paying client. Counterintuitive advice to us - at the time young - lawyers.

This thread reminds of that lawyer's advice, which, through sad experience, I came to understand.

When law firms present at a conference, like everyone else, they want to put their best foot forward, to demonstrate their competence, experience and reliability, and maybe even "star power," especially in the area of preventive lawyering. No one, least of all a university that (until fairly recent times anyway) prefers to live apart from the routines and restrictions and distractions outside the academy. Lawsuits, especially those like the ones against Duke, are expensive, intrusive and worst of all, revealing: the emperor may not be so well dressed after all. Or maybe the emperor is not an emperor but a commoner all dressed up.

So of course if the risk of misery strikes, a university, especially a well known, well endowed university, would want to call a powerful, reliable law firm to guide it through the thicket, to keep it, as far as possible, above the fray and beyond reproach - to preserve the university's reputation and adherence to principle in this case to the rule of law. Of all organizations universities want to be seen as principled and law abiding.

I have no doubt that Gorelick's firm would be an excellent choice, an excellent firm to consider (taking into account the cost) when a university needs steady, reliable and powerful counsel to guide it away from danger and along the path of responsible choices.

So you see the problem, perhaps one with significant consequences for Duke and Gorelick's firm. Maybe not, but something to consider.

It appears that at the conference Gorelick and her partners, by selling their considerable expertise on how universities and other corporations should handle complex criminal matters, will also be telling the world what their client, Duke, did wrong.

In representing Duke at this stage, Gorelick is not wearing her "preventive lawyering hat." She is an advocate.

It is unfair, I think, to criticize her for saying one thing as a "preventive lawyer" and an entirely different thing as an advocate. I don't think there is anything hypocritical about saying one thing as a private counsellor and another as a public advocate. On the other hand, it is fair, I think, to suggest that it might be better not to reveal in public both what would say as a counsellor before the fact when one is defending a client after the same kind of facts.

The problem is or may be that at the conference Gorelick may be understood as describing what she and her firm would have told Duke in private had it had the opportunity.

I once represented an injured worker in a case in which I proposed to use as evidence a tape recording of a seminar presentation given by the defense counsel who, at the seminar, said what many of us in the business believed to be true: that some worker's compensation insurance companies try to starve complainants into an unfavorable settlement. (To avoid creating a misimpression, I want to note that I referred the case to a real trial lawyer, Mike Stratton. Thanks to him the case settled on terms favorable, quite favorable, to the injured worker.)

That experience of a seminar possibly being evidence reminds me of what one can so easily forget, or at least I can: much of what we do could be evidence. One doesn't often think of teaching (law firm marketing is often in the form of a kind of teaching) as possible evidence.

I doubt the Gorelick presentation will end up as evidence in either case, but even the remote possibility that the plaintiffs could somehow take advantage of it suggests that the NACUA conference is a marketing opportunity that Gorelick's firm might reasonably decided to pass up.

Anonymous said...

Anonymous 6/25 states the problem that so many (I believe) have with so many of the Duke faculty and their failure to act responsibly and ethically in the Duke case.

Anonymous said...

Thank you to the Reader who posted one of the above comments at Re-Harmonizer's blog. Your response poignantly articulated the reasons many of us are so emotionally involved in this case.

Real lives were at stake. It's too bad that Re-Harmonizer finds the 'human element" of the lacrosse fiasco so "very hard to pick out of the mix."