The Other Briefs

Any case with multiple defendants (each of whom have behaved in what at the very least could be described as a dubious fashion) creates the possibility of the defendants falling out among themselves. In this case, of course, Mike Nifong represents an easy target. But the brief of former Sgt. Mark Gottlieb chooses another target: Duke Hospital, and especially former SANE nurse-in-training Tara Levicy. The result is the clearest assertion to date of Levicy’s pernicious role in the origins of the case.

Filings from the current and former Durham Police officers:

Cpl. David Addison

David Addison’s brief revolves around a claim that he was merely performing his official functions when he made myriad false statements about the lacrosse players, and therefore deserves qualified immunity. In Addison World, a Police Department spokesperson can make false statements—adding in his own editorial comments, as well—about a group of residents of his city.

The brief makes one other important point: celebrating the activities of CrimeStoppers, Addison warns that allowing the suit against him to proceed could have a chilling effect. (The alleged danger of “chilling” effects forms a recurrent theme of all the defendants’ briefs.) The court, he maintains, should avoid any ruling suggesting that “discussion of such an investigation in the public realm be prevented, as such discussion can and often does assist in law enforcement investigations.”

This argument is extraordinary: can it credibly be asserted that a Police Department spokesperson making inflammatory and materially false statements of fact “can and often does assist in law enforcement investigations”?

Inv. Ben Himan

Ben Himan’s brief, much like Addison’s, says he can’t be sued: “Investigator Himan’s performance of his duties as a law enforcement officer also means that his actions are protected by the doctrine of qualified immunity for federal constitutional claims and that the doctrine of public official immunity for state law claims.” In any event, the brief suggests, none of the players who filed suit were arrested, so they have no legal grounds for filing a suit against Himan.

Himan’s brief also defends his handling of the procedurally flawed non-testimonial order. (The brief concedes that the NTO might have contained false representations, but denies that Himan knew they were false.) “Under North Carolina law,” the brief notes, “a Nontestimonial Identification Order may be obtained on a showing that a police officer has ‘reasonable suspicion’ or ‘reasonable grounds’ to believe that the subject may be responsible for a crime,” a standard that “‘is significantly lower’ than the standard for probable cause.”

No one denies this restatement of the law. But the brief leaves unanswered the obvious question: what “reasonable suspicion” or “reasonable grounds” did Inv. Himan possess to believe that Brad Ross—a lacrosse player who wasn’t even in Durham the night of the party—committed any crime? Indeed, what “reasonable suspicion” or “reasonable grounds” did Inv. Himan possess to believe that Brad Ross even attended the party? Even in Durham, having no grounds for a belief isn’t the same as having “reasonable” grounds for filing a court order.

Sgt. Mark Gottlieb

The briefs of both Himan and Addison make expected arguments along expected lines. But Mark Gottlieb’s brief moves off in new directions. As anticipated, Gottlieb suggests that he deserves immunity because nothing he did could be termed “malicious” or recklessly indifferent to the lacrosse players’ rights—i.e., the “Durham-is-Wonderland defense.”

Much more intriguingly, however, Gottlieb blames anything that he did wrong on Duke—and, specifically, on Tara Levicy. To a greater extent than any document thus far produced in the case, the Gottlieb brief targets the SANE nurse-in-training.

Time and again, the Gottlieb brief returns to Levicy’s role in the investigation.

1.) Levicy’s corroboration of Crystal Mangum’s claim, he asserts, “gave investigators ample legal grounds to conduct an investigation and to seek a ‘nontestimonial order’ requiring the white Duke lacrosse players to provide DNA samples.”

2.) Through her statement to Ben Himan on March 16, 2006, “Ms. Levicy advised Himan and Gottlieb, in effect, that a rape had likely occurred [emphasis added].”

3.) According to the brief, “Sgt. Gottlieb decided to continue to pursue the rape investigation because the SANE nurse advised him that the medical evidence was consistent with Mangum’s account of a sexual assault.”

4.) Yet again: “Sgt. Gottlieb’s decision to conduct an investigation was based upon the legitimate rationale that Crystal Mangum’s rape claim was persuasively corroborated by the medical evidence provided by Tara Levicy.”

Gottlieb also targets Duke:

Perhaps the sergeant presented false information to the court (or, presumably, to the grand jury), but the brief reasons, “Sgt. Gottlieb could not be aware of information in Duke’s exclusive possession.”

On the lacrosse players’ keycards issue: “Assuming a private right of action for a violation of FERPA existed, the burden of complying with FERPA would not belong to Sgt. Gottlieb or the Durham Police Department.” The burden of compliance, of course, falls on Duke.

In discussing his own behavior, Gottlieb either reinvents the past or suggests a standard of behavior for police officers that would lead to a stark diminution of civil liberties.

The lacrosse players’ complaint, according to the Gottlieb brief, “fails to plausibly allege that Sgt. Gottlieb included any deliberately false statement or omission in the NTO Application that was material to the Court’s determination that reasonable suspicion existed to issue the NTO.” Really? The NTO falsely claimed that the players used first-name aliases, a vital assertion to obtain the NTO against all the white lacrosse players.

Anyhow, the Gottlieb brief blandly asserts, the state’s acquisition of a person’s DNA represents “only a very limited intrusion upon personal autonomy.” Really? Has Gottlieb ever read the Bill of Rights?

Analyzing the sergeant’s role in the investigation, the brief denies that “a reasonable official” would consider Gottlieb’s performance “malicious,” or “reckless[ly] indifferen[t] to the rights of others,” or “prejudicial or injurious” to the lacrosse players. Really? If that claim is true, Police Departments around the country are in big, big trouble.

Duke Hospital

The significance of the Gottlieb brief becomes particularly apparent in evaluating the claims presented in Duke Hospital’s call for dismissal. As in Duke’s own (“we-don’t-have-to-enforce-our-own-rules”) brief, the filing on behalf of the Hospital (also penned by Duke attorney Jamie Gorelick) describes the players’ claims in terms that no one who has followed the case would recognize. According to the Duke attorneys, the players filed suit merely because of the “conduct of an individual nurse who provided, upon request, information about that medical treatment to police officers and the District Attorney in connection with a criminal investigation.”

Duke’s description of Levicy’s conduct likewise bears no resemblance to anything that actually occurred in Durham. According to the brief, “A patient was brought to the hospital claiming an atrocious deed had been done to her; the hospital staff rendered her assistance, as they should have done; and subsequently when the police officers and prosecutor carrying out the investigation asked a hospital employee for information, the employee cooperated.”

Is Duke now going on record saying that Tara Levicy behaved as she “should have done”? Apparently so. The Duke brief specifically denies that Levicy or her supervisors engaged in “negligent conduct.”

And again: “Under North Carolina law, reporting a crime to the police and prosecutors is not ‘extreme and outrageous conduct,’ even if that report is inaccurate—indeed, even if that report is false or fabricated. To the contrary, North Carolina law encourages individuals to report suspicions of crime to the police, and it is the responsibility of public authorities to then determine whether the reports are well-founded.”

Nothing in the lacrosse players’ filing would dispute such an assertion. Its inclusion suggests a public relations, rather than a legal, motive.

The claims in the Duke brief, however, are badly undermined by Gottlieb’s opposite assertions.

For instance, the Duke brief asserts that even if she were negligent, Levicy’s conduct was “too attenuated from Plaintiffs’ alleged injuries to support a negligent infliction of emotional distress claim.”

Yet the Gottlieb brief asserted precisely the opposite. The judge, presumably, cannot believe both briefs.

Attempting to diminish Levicy’s role in the non-testimonial order that started the media firestorm, Duke’s attorneys maintain, “The affidavit supporting the application for the NTO was sufficient to establish probable cause, and the magistrate had a ‘substantial basis’ for determining that probable cause existed, even without the information from Levicy.”

Yet the Gottlieb brief asserted precisely the opposite. The judge, presumably, cannot believe both briefs.

Two sentences, however, most stand out in the Duke brief.

First, the Duke attorneys deny that Levicy’s conduct could have contributed to a 4^th amendment violation, since “even if Levicy had provided ‘false and misleading information’ that was used to support the NTO—which she did not [emphasis added]—the affidavit in support of the NTO application was sufficient to establish probable cause without that information.”

This statement, of course, is factually dubious—even Gottlieb, for instance, challenges it. Most remarkable, however, is the four-word clause “which she did not.”

Levicy made two statements to police before issuance of the NTO. In the first, on March 16, 2006, she described the medical exam as consistent with Crystal Mangum’s myriad stories. The Attorney General’s investigation made clear that there was no objective basis for this conclusion.

In the second, on March 21, 2006, Levicy asserted that the medical exam showed that Mangum had experienced “blunt force trauma.” That statement was undoubtedly false.

Yet Duke is now asserting that Levicy “did not” make false statements to the police—effectively challenging the Attorney General’s conclusions. The Duke brief provides no data to back up this remarkable, new assertion.

For good measure, the Hospital brief engages in a Nifongism. In both his ethics hearing and in the criminal contempt trial, the ex-D.A. repeatedly termed Mangum “the victim”—though how someone who had perpetrated a hoax could be “the victim” Nifong never explained.

On page 38, the Duke attorneys echo the disgraced ex-D.A. and refer to Mangum as “the victim”: “First, the affidavit included a lengthy and detailed description of the victim’s own statements to the police regarding her alleged sexual assault.”

In the hearing on these motions, perhaps the Duke lawyers can provide additional detail regarding their theories on how the statements of Tara Levicy were not “false and misleading,” and how Crystal Mangum was “the victim.”