Cooper Response: Duke's SANE Brief

The unindicted players’ lawsuit against Duke focuses on two areas: (1) the actions of the administration; (2) the performance of Duke Hospital, especially former SANE nurse-in-training/feminist zealot Tara Levicy.

Duke attorneys Jamie Gorelick and Dan McLamb have thus far struggled to develop a consistent legal justification for Levicy’s actions—which, in all fairness, is not easy to do. First, they challenged the Attorney General’s report by asserting that Levicy had not misled investigators when she said that the medical exam could corroborate a rape claim. The Duke duo even dipped into the “something happened” mantra by joining Mike Nifong and Victoria Peterson in deeming Crystal Mangum a “victim.” In a subsequent filing, they reversed themselves, implied that Levicy might have given false information, but maintained that Duke wasn’t legally liable for her actions, since Levicy never could have known that her giving false information could cause the players harm. According to this line of argument, Nifong deserved all the blame for using Levicy’s false information to plow ahead with the case.

Meanwhile, the Duke attorneys offered a description of the issues involved in the Levicy area of the lawsuit that bordered on the comical: “Our system of justice encourages individuals to cooperate with the police, not to hinder them, and to provide information to prosecutors, not to stonewall them.”

The implication: if a medical professional whose job is to provide authorities with accurate information about a possible crime instead “cooperates” with police by providing false information; and if that individual is a SANE nurse-in-training who shouldn’t have been in that position in the first place; and if that SANE nurse-in-training’s supervisor publicly supports the false or misleading findings . . . well, that’s the way “our system of justice” is supposed to work.

It’s hard to believe many judges would find that argument persuasive.

The Cooper response:

1.) Duke’s assertion that no one at Duke could have foreseen the consequences of Levicy’s behavior defies common sense.

To quote the brief, “Defendants knew or should have known that having an inadequately trained SANE, such as Levicy, examine Mangum could foreseeably result in an erroneous criminal investigation of alleged rapists in light of the role that SANEs play in collecting forensic evidence of sexual assaults.

“As for the false statements Levicy made to the Durham Investigators, any reasonable person can foresee that a person erroneously implicated in a criminal rape investigation might suffer a variety of injuries, including humiliation, severe emotional distress, harassment, threats, financial costs, disruption, and lost reputation and opportunities. Levicy made some of her false statements about the medical and physical evidence to the Durham Investigators, in part pursuant to their subpoena, which she had induced; she therefore knew or should have known she was speaking about an incipient criminal rape investigation of Duke lacrosse players and therefore that Plaintiffs could be harmed by her statements.

“As the corrupt investigation progressed, the players suffered grievous harm in very public fashion, and Mangum’s credibility continued to erode. Levicy knew or should have known that her subsequent false statements to the Durham Investigators would cause Plaintiffs new harm. And prolong and enhance existing harm because the investigators repeatedly and publicly placed great weight on her statements – coming from a nurse ostensibly ‘specially trained in sexual assault’ at ‘the best trauma center in the area,’ Duke University Hospital – to justify the investigation.”

As for the University, “The failure of these Defendants to correct Levicy’s false statements foreseeably injured Plaintiffs. Defendants’ assertion that “medical evidence … exonerated the players” is irrelevant and incorrect. Levicy’s false statements and the other Defendants’ ratifications thereof helped create, and then stoked, the fire.”

In all fairness to the Gorelick/McLamb presentation, Duke doesn’t have much to argue with on this point. Nonetheless, a claim that no one at Duke could have reasonably foreseen the problems of putting an undertrained nurse who believed that women never lie about rape in the position of providing key medical testimony about a rape claim defies the laugh test.

2.) Duke’s assertion that the unindicted players suffered no real harm because they were never indicted misses the mark: as the brief notes, “That [the unindicted players weren’t indicted] is true but irrelevant – Plaintiffs suffered many harms because of Defendants’ wrongful actions, and formal criminal consequences are not a predicate of liability. Defendants argue, in effect, that they should not be held liable for playing Russian roulette with Plaintiffs because the loaded revolver did not fire.”

3.) Duke’s claim that the University and Levicy can’t be held liable because Nifong and the police made the key decisions on whether to indict misses the mark.

This line of argument, the Cooper brief contends, misrepresents the facts of the case: “Levicy’s false statements about the medical and physical evidence breathed life-giving credibility into Mangum’s otherwise facially implausible rape allegations, and Levicy repeatedly coordinated with Nifong and the Durham Investigators, altering medical records and continually changing her story to fit Nifong’s and the Durham Investigators’ evolving theory of the case.” Absent Levicy, in short, there was no case.

The Cooper brief maintains that Duke officials’ behavior was particularly troubling in this regard given the increasing amount of publicly available information that Nifong’s case had major holes. Therefore, they knew or should have known that Levicy’s false or misleading information was the key to Nifong’s ability to plow forward: Levicy’s and supervisor Theresa Arico’s “false statements were the only ostensibly inculpatory evidence that Nifong and the Durham Investigators had, and they carried the weight of a nurse ostensibly ‘specially trained in sexual assault’ at ‘the best trauma center in the area.’”

4.) Duke’s assertion that the players’ claim against Levicy is a claim of medical malpractice is wrong.

It’s not clear why Duke even made this assertion. Despite the odd passages in the Gorelick/McLamb brief, no attorney for the unindicted players (or the falsely accused players, for that matter) has argued that Levicy or other Duke Hospital employees mistreated Mangum. Lots of people have argued that Levicy then offered misleading information about that treatment to authorities. The first claim would be medical malpractice; the second claim is negligence.

The Cooper brief adds that Duke had an obligation to correct false statements about Duke students by Duke personnel—chiefly, when Levicy’s then-supervisor, Theresa Arico, publicly affirmed Levicy’s “diagnosis.”

5.) Grounds for a § 1983 filing exist, according to the brief, because the lacrosse players can (1) cite the Duke Police’s status as a state entity; and (2) use Levicy’s actions to establish a conspiracy between Duke and Durham officials to violate the students’ civil rights.

The Gorelick/McLamb brief strongly disputed the second claim, contending that responsibility for proceeding with the investigation fell solely with Durham and/or Nifong. Levicy, on the other hand, merely provided information to police, or at most might have pressed for an investigation.

The Cooper response: “Levicy did much more than that. At her first meeting with the Durham Investigators, she told them, falsely, that the medical and physical evidence supported Mangum’s gang rape accusations. Levicy, as the NTO states, said that ‘there were signs consistent with sexual assault during her test,’ even there were no such signs. That false statement enabled investigators to obtain a subpoena compelling production of the SANE report and Mangum’s other medical records . . . Levicy also made to Gottlieb several statements about the medical and physical evidence that were not only false or misleading, they were also patently contradicted by the SANE report: she said there was evidence of ‘blunt force trauma’ ‘consistent with’ Mangum’s allegation of forcible gang rape, but neither Levicy nor Dr. Manly had noted any such evidence in the SANE report, and she said that Mangum ‘had edema and tenderness to palpitation both anally and especially vaginally,’ but the SANE report stated that there was ‘nothing notable’ discovered during Mangum’s anal exam and the vaginal ‘edema’ was nothing more than commonplace swelling.”

“Levicy’s false statements provided the Durham Investigators with a justification for obtaining the NTO and continuing the rape investigation, despite the SANE report’s evident lack of support for Mangum’s claim. These events strongly suggest that Levicy and the Durham Investigators acted in concert.” Gottlieb and Levicy also had motive to lie: Gottlieb because of his dislike of Duke students, Levicy for ideological reasons.

Even at this late stage, very little information has come out publicly about the Duke Police’s role in the case. But Gorelick and McLamb dismissed as absurd any claim that Duke officials might have conspired with Durham authorities, citing a lack of plausible motive.

The Cooper brief had little difficulty in rebuffing this point: “the University and its Defendant officials had a powerful motive to capitulate to the demands of an angry mob and to sacrifice the rights and interests of their innocent students, too: avoiding embarrassment to Duke and minimizing criticism of Duke and its officials. For example, University officials candidly admitted that their decision to punish Plaintiffs by canceling lacrosse games, suspending and then canceling the season, and firing the coach was “not about the truth” or doing what was “fair,” but rather about keeping their and the University’s reputation lustrous.”

If we have learned nothing else in this case, it’s that a rather timid Duke president had ample reason—if only to pacify the Group of 88—to see the case go away quickly, through timely arrests.

Cooper Response to Duke

The unindicted players represented by Chuck Cooper have filed a powerful response to Duke’s motion to dismiss. Summarized below, it addresses not only the legal arguments offered by Jamie Gorelick and Dan McLamb, but also the (scarcely credible) p.r. spin that the Duke attorneys chose to include in their legal filing.

The motion concludes, “Throughout the crisis, Richard Brodhead . . . and other Duke officials consistently sacrificed the rights and interests of the accused Duke students in an effort to avoid embarrassment to Duke and to minimize criticism of its administration. Mangum’s explosive allegations had created an angry mob led primarily by activist Duke faculty members, student protestors, and a hostile media, and the mob immediately rushed to condemn the lacrosse players, to intimidate and denounce the team’s defenders, and to demand the team’s swift and severe punishment. Brodhead repeatedly succumbed to the mob’s demands, and he effectively condoned its actions.”

The motion targets Brodhead, who the players’ attorneys correctly recall described himself as “fully responsible for Duke’s statements and actions throughout the rape hoax crisis.” (BOT chairman Bob Steel then issued a statement adding that the Trustees agreed with all of Brodhead’s acts.)

The three-pronged critique of Brodhead’s behavior:

--“Brodhead and Duke failed to disclose, and actively suppressed, material exculpatory evidence in Duke’s exclusive possession; discredited exculpatory evidence that had been publicly disclosed; and refused to review exculpatory evidence compiled by the players’ defense counsel.”

--“Brodhead and the University looked on passively as activist members of the Duke faculty and student protestors waged an extraordinarily vitriolic public campaign of abuse and harassment against the innocent lacrosse players,” culminating in the Group of 88’s statement, which made “unmistakably clear that its faculty sponsors believed that the rape had occurred, and it thanked the student protestors “for not waiting” to “mak[e] your selves heard” and exhorted them “to turn up the volume.” The ad was paid for with University funds and listed fifteen academic departments and programs as its sponsors. Brodhead took no steps to enforce Duke’s applicable anti-harassment policy; nor did he criticize, let alone discipline, the activist professors and student protestors; nor did he even disassociate the University from their shameful actions and statements. Accordingly, he implicitly condoned these actions and statements and made Duke responsible for them.”

--“Brodhead issued a series of carefully timed public statements and imposed a series of increasingly severe disciplinary measures on the team in an effort to satisfy the mob’s demands for immediate and severe sanctions against the team and to distance Duke and its administrators from the intense public hostility that had been focused on the innocent lacrosse players. The intended and inevitable effect of Brodhead’s statements and actions was to impute guilt to the players and to further inflame public opinion against them.”

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Having responded to the Gorelick/McLamb p.r. spin, the Cooper brief then addresses the Duke legal arguments. Two of the brief’s elements—on Duke’s role in handing over student keycard information to Durham authorities, and on Duke’s claim that it has no legal obligation to enforce its own Faculty Handbook and anti-harassment policies—form the intellectual center of the brief.

1.) The Cooper brief argues that Duke’s release, without a warrant, of FERPA-protected student keycard records to Durham authorities is grounds for civil liability—especially since Duke didn’t tell the court that it had already improperly turned over this information when Mike Nifong subsequently subpoenaed it, in summer 2006.

There’s no doubt that Duke’s conduct in this regard action was improper. In its brief, Duke claimed that administrators and Duke police merely neglected to tell the players and their families that this information had been turned over improperly. The players’ response counters that Duke effectively perpetrated an “elaborate charade,” a fraud on the court, when—as Nifong unsuccessfully sought a subpoena for the records—Duke acted as if the records hadn’t already been turned over.

As I’ve noted previously, it’s very hard to develop an innocent explanation for Duke’s behavior on the keycard issue. And, the players’ attorneys contend, this record suggests that Duke was acting “under the color of state law,” in concert with Durham authorities, and therefore opening up the University to civil liability.

2.) The Cooper brief maintains that Duke should be held liable for failing to enforce its anti-harassment policies and allowing the players to be subjected to harassment.

There’s no doubt that behavior of anti-lacrosse faculty and students violated both the Duke Faculty Handbook and the university’s anti-harassment policies. Nor is there any doubt that Duke’s administration was either unwilling or unable to enforce those documents. Duke’s response, however, maintained that it had no legal obligation to enforce either of these documents.

If this case gets to trial, this issue will be the most significant one for educational administrators nationally. Citing a variety of cases, the Cooper brief maintains, “There is a national consensus that ‘the basic legal relation between a student and a private university or college is contractual in nature. The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract,’ as does a duty to act in good faith.” The brief also takes on Love, the North Carolina case cited prominently by Duke, arguing that it was based on a far different type (grading) of claim--the sort of issue on which courts almost always have deferred to academic institutions.

Duke also raised a number of other objections to this point: (1) the claim that the terms of the Faculty Handbook and the university’s anti-harassment policies included an unspecified “academic freedom” exception; and (2) that neither document constituted a contract because Duke could change them unilaterally.

As the plaintiffs point out, however, the academic freedom exception makes no sense: “By creating and promulgating those written policies, the University already struck the balance [between anti-harassment and academic freedom] it deemed appropriate; Plaintiffs merely ask the court to hold the University to its express promises. Moreover, the severe and prolonged harassment to which Plaintiffs were subjected can hardly be considered a legitimate expression of academic thought or an appropriate punishment for acts the University knew or should have known Plaintiffs did not do.”

Secondly, the players’ attorneys argue, while it’s true Duke has the unilateral right to change the terms of its bulletin, it didn’t do so in this case. Moreover, in a critical passage, the Cooper brief holds:

More importantly, even if the University could and did reserve the right to alter unilaterally the Bulletin’s anti-harassment policy and procedural protections prospectively, it surely could not have altered these policies retrospectively. Nor could Duke reasonably have expected that Plaintiffs would believe that the University could dispense entirely with such fundamental protections, as it in effect did in the course of the rape hoax. No prospective student or parent would select a school that reserved the power to permit and even foster the harassment of the student or to vilify and punish the student for acts the school knew or should have known the student did not do [emphasis added].

The brief also makes an intriguing argument about the University’s liability for the protests directed at the players’ private residences, asserting, “Many of the protests that invaded the privacy rights of Plaintiffs were organized and encouraged by members of Duke’s faculty, for whose conduct the University is liable.” Indeed, this pattern started with Duke adjunct professor Faulkner Fox’s role in organizing the potbangers’ March 25/26 protests.

The brief also touches on several other matters, two of which are most significant:

1.) Contrary to the Duke filing, the players’ brief contends that administration did engage in a pattern of “extreme and outrageous” infliction of emotional distress, including the following:

--attempted to suppress and then discredit Christopher Day report, while allowing then-SANE nurse-in-training Tara Levicy to mischaracterize evidence in Duke’s possession;

--“through local and national media, Defendants repeatedly maligned Plaintiffs alternately as racially motivated gang-rapists or accomplices who had built a “wall of silence” to protect those rapists”;

--passively observed protesters who either violated Duke procedures or threatened bodily harm to the players;

--punished players unfairly, including cancelling the season and subjecting them to a (public, and procedurally awkward) disciplinary investigation;

--cut corners legally, including seeking to arrange the odd Covington representation, working with Durham Police officers to allow unsupervised dorm-room interrogations, and improperly handing over FERPA-protected key card records.

2.) Duke assumed a role of providing legal advice to the players, and therefore is responsible for the bad advice provided.

The key legal issue on this point is whether the University had a fiduciary relationship with the players. Duke, in its brief, said no, citing a 2001 case (Davidson v. University of North Carolina) whose terms the players’ response disputed.

The players’ response said yes, citing a 1999 case (Madey v. Duke) which held that “a fiduciary relationship may exist under a variety of circumstances, and exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.”

To make their case, the players’ brief argues that Duke administrators “assumed a special role of trust. Defendants deliberately and affirmatively attempted to – and for a time did – displace the people who would ordinarily have advised the players in this situation pursuant to a confidential relationship – namely, the players’ parents and lawyers.” In that respect, the attorneys claim, Duke’s behavior was not academic or administrative but legal in nature.

Duke’s brief maintained that allowing a lawsuit on these grounds would expose universities to frivolous lawsuits (“Don’t like the course your faculty advisor urged you to take? Sue the university!”) The players’ response: “Here, Defendants intentionally or recklessly gave advice at war with the players’ interest because they intended to protect Duke, even at the expense of Plaintiffs.”

If the motion to dismiss fails, the issues raised in this brief show why this case will be watched by every university counsel’s office in the country.

Q&A Regarding the Mangum Opus

In the comments section and through e-mail, I’ve had some questions regarding the Mangum Opus. Here are my replies.

Q: What new could come from this book?

A: There are a few items related to the case (Mangum’s April 11, 2006 meeting with Mike Nifong, for instance) for which we have never received a credible explanation. (Nifong claimed in court that Mangum seemed “traumatized” and said only 15 words.) Unfortunately, since Mangum is—at best—a fantasist, anything that she would say, even about Nifong, would have less than zero credibility.

There is, however, one item that could be revelatory. Of the case file, around 1000 pages of Mangum’s psychological records were turned over to the defense attorneys but ordered sealed by Judge Osmond Smith. To my knowledge, no one outside of the defense team has seen these records (I haven’t, and Joe Neff’s articles also didn’t draw upon them).

Mangum’s publisher could comply with Wendy Murphy’s previous demand for the public release of the entire case file by posting these records on its websites. Possible questions such a move could answer:

• What type of mental illness did Mangum have?
• Did she, for instance, hear voices telling her to do things?
• How often had she fabricated charges against people in the past?
• How long had she been taking anti-psychotic drugs, and what prompted doctors to prescribe them for her?
• Did her mental problems have any bearing on her discharge from the Navy?

Given that Mangum has elected to pen her “poignant” memoir, her publisher (who has claimed to have seen the entire discovery file, presumably including these documents) should ensure that the information is released publicly.

Q: Why did Mangum choose to publish a book now?

A: The Occam’s Razor explanation would be money, especially since her publisher/press agent has given less-than-credible alternative theories. In his press release, he claimed that she never had told her story (false: she had given an invented tale to the N&O, and had an opportunity to speak with both ABC and 60 Minutes). Then he said the case was being prolonged by the civil suits, or by bloggers—yet Mangum isn’t a party to the civil suits (though she might now be), and most case-related blogs, including this one, had scarcely mentioned Mangum for months until she re-injected herself into the case.

The idea that Mangum could profit from helping to perpetrate this hoax is obscene; as Joe Cheshire astutely noted, she should be subject to a civil suit unless her memoir concedes that she lied and talks about why she chose to lie.

Q: Do you think that there now exists a completed, copywrited document that will be released in some commercial form in October 2008? Could the press release be referring to a work that is still surreptitiously “in progress” for which the instigating parties are looking for signals of how to best proceed and what content to include by ‘testing the waters’ with this (preliminary) announcement?

A: It generally takes several weeks (at minimum) to several months to move from a completed manuscript to the book actually appearing. Since Mangum’s publisher/p.r. agent claims the book is done, there’s no reason to doubt his statement.

I have received several (anonymous) comments—each of which appears to have come from the same person—claiming to have “exposed” the fact that no Mangum Opus exists, alleging that the Mangum publicist is merely perpetrating a fraud on the public. I haven’t cleared such comments because the anonymous commenter provided no evidence to corroborate what is an extraordinarily serious charge against Vincent Clark.

In his/her most recent comment, the anonymous commenter said that my refusal to clear his/her comments showed that “for you, it’s just not about the truth.” I’d urge the commenter to look at the comments policy: while I try to clear as many comments as possible, I don’t clear potentially libelous comments. I would urge, therefore, the anonymous commenter to produce evidence for his/her serious charges against Clark.

Q: Do press releases announcing book publications typically have a completed “book” to point to?

A: Yes.

Q: Do you find the injunction included in the press release by the triumvirate of parties putatively representing CGM that we (the public) desist from contacting her directly a little bizarre? Wouldn’t it be up to her to refer us to them if she chose not to deal with any of us directly? Their verbiage implies a contractual arrangement between them that we are somehow bound by.

A: Yes, this is bizarre: but what else should expect by this stage?!

Q: Does the book have to be cleared by an attorney?

A: With every publishing house I have ever heard of, controversial manuscripts first are cleared by an outside attorney (to avoid possible libel claims). It’s hard for me to see how any reputable attorney could clear a manuscript by someone like Mangum. I e-mailed Clark several weeks ago to ask him the name of his outside counsel; he declined to provide one.

Q: What have been the best responses to the book thus far?

A: Joe Cheshire talking about the Opus in this video.

And Bill Thomas appropriately observing, “Any book written by Ms. Mangum should be displayed in the fiction section. I think it’s very sad she's trying to capitalize off the false and malicious allegations she made against members of the Duke lacrosse team.”

The Mangum Opus

[updates: Joe Cheshire talks about the Opus: it's worth watching the video.

And Bill Thomas appropriately notes: "Any book written by Ms. Mangum should be displayed in the fiction section. I think it's very sad she's trying to capitalize off the false and malicious allegations she made against members of the Duke lacrosse team."]

The Mangum Opus, once scheduled for release in June, is now due out in October—at least according to this press release, which is riddled with grammatical and other errors:

Poignant Memoir Reveals Details of a Difficult Life

(Los Angeles) - The Duke Lacrosse case is no longer the lead story on the network and cable news shows, but there is one central figure, who was there on the night in question and who’s [sic] voice has been silent. She’s been called an exotic dancer and a prostitute, and the public was led to believe she wanted to frame some “good college students” [sic: no such quote was ever cited] from Duke and put them in jail. Although most of the questions appear to be answered in the Duke Lacrosse Case, one still remains. Who is Crystal Gail Mangum? During the investigation and in its aftermath, she never spoke publicly [sic: she gave an interview to the N&O, in which she gave a falsified version of the party], that is until now.

The Last Dance for [Nancy?] Grace: The Crystal Mangum Story is the only definitive account of the life and struggles of the woman at the center of the Duke Lacrosse case, the alleged accuser [sic? Is anyone denying that Mangum was the accuser?]. Were it not for the Duke Lacrosse Case, she likely would be described as a bright [sic], young woman from Durham, North Carolina, who has had a difficult life. Like so many of us, Crystal has made mistakes and has struggled to make amends. Her biggest mistake just happened to lead to one of the most controversial legal cases in American history.

Published reports throughout 2006 and 2007 portrayed Crystal as a gold-digging hooker searching for a big payday or as a [sic] unstable, troubled young woman.

The truth about Crystal’s life, her account of what happened on March 13, 2006, accusations[??], and the motives of the people criticizing her were never seriously explored [sic!! We heard of little else for the early months of the case.]. As people appeared from out of the woodwork to offer their opinions about Crystal, no one ever asked the one person who could set the record straight [sic: Mangum was repeatedly asked—for instance, by both 60 Minutes and ABC News—and, of course, presented her “levitation” story to the Attorney General.]

To complicate matters, the State of North Carolina was in the throws [sic] of a monumental legal battle. Criminal defense attorneys argued over how much evidence should be turned over by district attorneys in all criminal cases [there was no argument here: it was the law of the state], not just the Duke Lacrosse Scandal; a principal [sic] called “Open File Discovery”. The result was a very complicated legal theory [there’s nothing too complicated about a law that said the prosecutor had to turn over everything to the defense] that collided with Crystal Mangum’s desire to have the case heard in open court [!!!].

The Last Dance for [Nancy?] Grace can’t and doesn’t deal with the complex legal aspects of the case. Disbarred Durham County, North Carolina district attorney Michael Nifong was removed due to misconduct in the case. Nifong’s misunderstanding or some will say willful disregard for open file discovery was the reason the case fell apart. The muddling of facts about Crystal’s life, along with North Carolina Attorney General Roy Cooper’s desire to settle the dispute over open file discovery [what? When did Cooper give an impression that he wanted “to settle the dispute over open file discovery”?], swallowed the case whole.

The Last Dance for [Nancy?] Grace deals openly and honestly with Crystal Mangum’s life. It shows the portrait of a real person and not some caricature. Crystal’s story is at times heartbreaking. She has endured a series of very difficult periods in her life, but each time she has emerged stronger, striving to do better.

This book is an important tool to discuss race, class, sex and the judicial process [I bet.]. It also provides very important lessons for any young person trying to make good life-choices [!!!].

Crystal Magnum is donating one dollar from the purchase of each book to help battered women.

Ironies

In justifying his character assault on the lacrosse players, History professor Peter Wood mused that the lacrosse players were undesirable upper-classers, while “the football players here are often rural white boys with baseball caps or hard-working black students who are proud to be at Duke.”

Ryan McFadyen is now a football player at Duke. See Wood's stereotypes collide.

In his first off-campus remarks after the arrests of Reade Seligmann and Collin Finnerty, Richard Brodhead asserted, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.” Since Seligmann and Finnerty attended a party they played no role in organizing and drank some beer, Brodhead apparently was asserting that underage drinking was “bad enough” to merit the national assault on his two students' character.

According to the Washington Post, Brodhead has now adopted a far less judgmental (and far more realistic) view of underage drinking.

Thirty-Six Questions

“Equal justice for all in North Carolina begins with justice for Mike Nifong!”

At one level, this statement is undeniable: equal justice for all would be served by Mike Nifong standing trial, an outcome prevented by then-Attorney General Alberto Gonzales. But the line above serves as the motto of the “Justice for Mike Nifong” committee, the organization led by Durham’s resident homophobe, Victoria Peterson. The committee wants to end Nifong’s unemployment by undoing the Bar’s “despicable” actions and restoring Nifong’s law license.

The committee has produced a 10-part, 36-question document—filled with leading yes-or-no questions, seemingly designed to demonstrate the myriad ways in which Nifong was wrongly treated.

In its statement of purpose, the two-person group plays off demagogic beliefs deep-seated within the Durham political and legal atmosphere: the group defends Nifong’s behavior on the grounds that he merely “used the principle of ‘equal justice for all’ in prosecuting three Duke University athletes who came from families of wealth, status, and privilege.”

Perhaps the most striking element of the JMN document comes in what it does not include. Nifong was disbarred in part because of his barrage of false and defamatory public statements about the case and the lacrosse players. The JMN questionnaire makes no mention of the ethically improper statements. Justice for Nifong, it would seem, requires pretending that these statements never were made.

The JMN document likewise neglects to mention of Nifong’s decision to prosecute a case without probable cause, or his ordering the DPD to violate its own procedures and run a third lineup after Crystal Mangum couldn’t make any identifications. Justice for Nifong, it would seem, requires pretending that the rigged lineup never occurred, or that probable cause existed.

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The questionnaire itself consists of ten sections, only one of which deals with Nifong’s actual misconduct. According to JMN, Nifong’s only improper behavior in the lacrosse case was his “withholding non-exculpatory evidence that had no relevance or advantage for the defense.”

That’s the description given to Nifong’s repeatedly lying to the court about the content of his conversations with DNA lab director Brian Meehan, his decision to violate North Carolina state law by not reporting all results from a DNA test obtained through a non-testimonial order, and his decision not to report evidence proving (a) that Mangum lied when she claimed she had no sex a week before the party and (b) that an innocent explanation existed for Tara Levicy’s Hail-Mary effort to suggest that “diffuse edema of the vaginal walls” suggested that a rape occurred.

JMN questions on this issue borrow from the unique legal analysis of Wendy Murphy and imply that Nifong had the right to unilaterally cherrypick which DNA test results to report, and then to lie to the court about his actions. From the JMN questionnaire: “Do you believe it is possible that the reasons Mr. Nifong may have withheld the multiple male DNA evidence from the defense are because it had no relevant value, and he may have wanted to spare [Crystal Mangum] from unnecessary shame and embarrassment?”

Nifong, of course, didn’t simply withhold this evidence from the defense—he withheld it from the court, twice falsely informing judges that nothing existed in the tests beyond what was contained in Dr. Meehan’s incomplete report. As to a possible motive of sparing Mangum “from unnecessary shame and embarrassment”: North Carolina law, alas, doesn’t give prosecutors the unilateral right to withhold evidence for any reason. Perhaps JMN should devote itself to persuading the legislature to include a “shame and embarrassment” clause in the NTO statute.

Having described both the case and North Carolina law in a wildly inaccurate fashion, the JMN questionnaire asks test-takers to compare the (inaccurate) description of Nifong’s misconduct with the misconduct committed by other North Carolina prosecutors. (Three of the ten sections revolve around this theme.) Two more sections contain leading, negative questions about Gov. Mike Easley’s and Attorney General Roy Cooper’s public remarks about Nifong.

The JMN questionnaire makes clear the central villains of the case: the three falsely accused players and DHC chairman Lane Williamson. Two sections of the questionnaire minimize the harm experienced by the falsely accused players (despite the acknowledgement on this point by Nifong’s own apology). A third bizarrely asks whether the outcome of the case would have differed had the accuser gone to Duke and the accused gone to NCCU. Given that Nifong desperately needed the black vote for his primary, it’s hard to imagine what political benefit he would have received from bringing charges without evidence against black students.

For good measure, the JMN authors assert that “for reasons unknown, each of the defendants received $1.5 to $1.7 million from Duke University.” No clue is given as to the basis for this figure (it seems to have as much validity as Nifong’s assertion that he couldn’t pay more than $34.99); the suggestion that Duke just decided to hand over millions of dollars for no apparent reason is almost laughable.

As for Williamson, the JMN questionnaire leads off with five questions insinuating that the DHC chairman had a conflict of interest because he was a law school classmate of Nifong’s who had a daughter who attended Duke. The only problem: Williamson disclosed both items publicly, and Nifong indicated that he saw no reason for Williamson to step aside from the case.

The JMN’ers wind up with a “question” asking readers if they agree with the premise that “the North Carolina State Bar should take responsibility for its mistake in unjustly disbarring Mike Nifong, and it should reinstate his license to practice law immediately and without restrictions.”

Indeed. About the same time that Bigfoot is named North Carolina’s state animal.

Nifong: "$34.99 Is My Final Offer"

The N&O reports that Nifong attorney Jim Craven filed a brief today asserting that the three lacrosse players unethically prosecuted by the disgraced ex-D.A. "will never collect so much as $35 from Mike Nifong." Apparently, then, $34.99 is still on the table.

Attorney Jim Craven also implied that Nifong was being victimized by the system and the lacrosse players, who knew of his inability to pay more than $34.99, "yet still they come." His brief also cited a heretofore unrevealed "Duke University alumnus" of unknown identity (the tooth fairy, perhaps?) who allegedly paid off all the players' legal bills.

Even if Nifong had more than $34.99 to spare, Craven implied, the case against his client would be without merit. Craven dismissed the civil suit filings (which detailed Nifong's decision to press ahead with the case despite having no credible evidence, his decision to instruct the DPD to run a third lineup violating the department's own procedures, his ethically improper and factually inaccurate public statements, his lying to the court--resulting in a criminal contempt conviction, and his decision to withhold exculpatory DNA evidence) as "hyperbolic pleading, unworthy of belief."

The filing did not disclose how much of Nifong's remaining $34.99 went to pay Craven's bills. Based on the quality of the argument, I suspect not too much.

[Update, 11.38pm: The full filing is now online. Craven describes Nifong as "unemployed, with
little else to do" than to "testify" in the various cases resulting from his misconduct. Remarkably, Craven also contends that the findings of disbarment and criminal contempt against Nifong do not rise to the level of "willful and malicious" conduct. Such a claim is difficult to take seriously.]

Airbrushing

When asked for an anecdote of why history is important, I usually cite a story from March 1948, shortly after a coup that installed totalitarian rule in Czechoslovakia, when the Czech Communist Party (KSČ) convened a celebratory gathering in Prague’s Old Town Square. Tens of thousands braved chilling temperatures to hear KSČ leader Klement Gottwald speak. The new communist foreign minister, Vladimír Clementis stood beside Gottwald on the podium, and gave up his fur hat to shield the prime minister’s bare head from the cold.

Four years later, a wave of anti-Semitic show trials occurred throughout the Eastern Bloc; Czechoslovakia experienced the most spectacular purge. In late 1952, the government denounced Clementis, KSČ first secretary Rudolf Slánský, and twelve other prominent Communists as “Trotskyite-Zionist-Titoist-bourgeois-nationalist traitors, spies, and saboteurs.” Eleven of the fourteen arrested leaders were Jews. All were found guilty in show trials; eleven, including Slánský and Clementis, were executed.

The trials’ outcome required creating a new, politically correct, version of the past. Propagandists eliminated the executed party members from communist history books. Clementis, for instance, was airbrushed from the photograph at the Prague demonstration hailing the coup. In the KSČ’s version of history, all that remained of the former foreign minister was the cap that he had placed on Gottwald’s head.

The true story of Clementis and his fur cap comes from the opening of Czech dissident Milan Kundera’s novel, The Book of Laughter and Forgetting. To one of the novel’s characters, the tale showed how “the struggle of man against power is the struggle of memory against forgetting.” For historians, Clementis’ fate illustrates the willingness of totalitarian regimes to alter the past to align with their contemporary political interests; and, from the other side, the need for scholars to resist such efforts.

In the lacrosse case, the Group of 88 most blatantly imitated the Czech propagandists. Beginning in late 2006—as the case to which they had attached their cause began to implode, and the African-American Studies Department had removed the ad from its homepage, where it had been posted for 183 days—we witnessed a furious attempt to create a new, politically convenient, meaning of the ad.

Airbrushed out was Wahneema Lubiano’s e-mail soliciting signatures for the ad. In its stead, Group apologists described the ad as a general commentary on society. Airbrushed out was the overwhelming, guilt-presuming early media coverage. In its stead, Group members deemed the ad a necessary corrective to the anti-black stereotypes and defenders of the lacrosse players that allegedly dominated the early media coverage. Airbrushed out was the way in which the unequivocal statement that something “happened” to Crystal Mangum took a position on the case. In its stead, Group members affirmed that the line was merely a commentary on Mangum’s public “drunkenness.”

Alas, unlike Gottwald and his propagandists, the Group and its apologists can’t remove the many documents and images from the time of the ad. As a result, their attempted airbrushing has only made the Group look worse.

A more subtle type of airbrushing has occurred in the media, and in commentary about the media’s role in the case—as three recent items bring to light.

1.) From the Q&A session of the recent SEALS panel: the media coverage of Mike Nifong’s abuses, and in particular the 60 Minutes broadcast. The basic line: attention to the players’ exoneration proved the media’s class bias, since poor black victims of prosecutorial misconduct don’t usually get interviewed by 60 Minutes.

It’s quite true that poor black victims of prosecutorial misconduct don’t usually get interviewed by 60 Minutes. Prosecutorial misconduct often isn’t revealed until the post-appellate stage; covering it well requires reporters who both understand and can explain procedural developments, and it rarely makes for exciting television. Given this roadblock, why did Nifong’s misbehavior attract attention?

It could be that the players benefited from their class. Far more likely, however, are other explanations that advocates of the new narrative have airbrushed out.

(1) 60 Minutes detected a good story, in that a massive amount of initial coverage not only presumed guilt, but made deep moral judgments from the presumption of guilt, and was stoked by Nifong and his enablers. Most “normal” cases of prosecutorial misconduct attract little or no initial media attention, and certainly not the tens of thousands of articles that occurred in the first two months of this case.

(2) The 60 Minutes team—the late Ed Bradley and producer Michael Radutsky—don’t exactly have reputations as defenders of white privilege.

2.) Courtesy a recent post by Lead and Gold’s Craig Henry:

I’ve posted a lot on the Duke lacrosse fiasco. many of those posts have focused on the News and Observer whose reporting did much to launch and prolong the hoax.

One might expect the paper to learn their mistakes. They have not. The latest proof is this bizarre post on perp walks.*

Dan Barkin writes:

There is a good chance that the perp being walked today will never see the inside of a prison cell when all is said and done.

The feds know this, in the back of their minds, which may be one big reason for the handcuffs and the cameras. Because even if the accused [white collar criminals] win in court, they’ll still have to live down the images of being perp walked being seen on CNN by everyone who went to high school with them.

The N&O still hates the presumption of innocence when it comes to politically correct defendants. Just like the “privileged white athletes” in the hoax frame, rich white businessmen can never be truly innocent to the N&O. That makes it OK to ruin their reputation before the trial and after an acquittal.

* I first wrote about perp walks long before the lacrosse case. See here.

One of the most distasteful examples of media behavior came on the day that Reade Seligmann and Collin Finnerty were arrested—the breathless coverage of their (arranged) “perp walk” followed by journalists all but clawing the Durham County Sheriff for a copy of their mugshots (we have a photo of the latter in UPI.) How can any newspaper that covered that event continue to justify covering “perp walks,” which serve no purpose other than humiliation?

[Update, 1.27pm: After an e-mail from an astute reader, a couple of points of clarification.

(1) I didn't mean to imply that the N&O had unfairly covered the lacrosse case perp walks, although my language didn't at all make that clear (the "that event" to which I meant to refer was the arrest of Seligmann and Finnerty). In fact, the troubling "perp walk" coverage in the lacrosse case that remains in my mind was from CNN/Headline News and MSNBC. I apologize for the confusion.

(2) I would have liked to have seen a commitment by Barkin not to use "perp walk" photos, but the post does not mean to suggest that the N&O's record in using such photos is unusual. Indeed, as any regular reader of the Times could attest, the Times' record in this regard is appalling.]

(3) Perhaps the clearest case of media airbrushing, however, came in an AP article that from a couple of days ago. The headline “Race sometimes a problem in eyewitness IDs.” The article discussed a North Carolina case of a white woman who was raped by a black man, Ron Cotton, and then identified the wrong man in the lineup. DNA testing freed the man, but only after he spent a decade in jail. (A rape did occur in this case.) The victim and the man she falsely identified are now writing a book, Picking Cotton.

The article discusses how DNA exoneration of wrongly convicted people often (more than 75% of the time) involves cases where convictions were obtained in part through mistaken eyewitness IDs. From the AP article: “Of those, nearly half, roughly seven dozen, involved a person of one race wrongly identifying someone of a different color.” The article discusses the increased danger of cross-racial IDs, and contains a quote from Barry Scheck about the particular dangers of white IDs of black people.

Then came this item:

This year, North Carolina became the first state to standardize identification procedures. That includes preventing the police officer who is investigating the crime from conducting photo identifications with witnesses and requiring that lineup photographs be shown one after another rather than in groups of six.

What case provided the final impetus for this change? The AP doesn’t say—the lacrosse case gets airbrushed from history. (If anything, the article implies that the Picking Cotton case brought about the change.) This editorial decision was particularly odd given the lacrosse case demonstrated the dangers of cross-racial IDs, most notably when Crystal Mangum twice stated with 100 percent certainty that she saw Brad Ross at the party, even though Ross could provide unimpeachable electronic proof that not only did he not attend the party, he wasn’t even in Durham County that night.

It seems that the lacrosse case doesn’t fit into the article’s framework that one type of cross-racial misidentification is where the media should confine its attention.

What makes the items above particularly depressing is that the AP and the N&O joined the Chronicle as the top performers among the print media in the case. And while, as Craig Henry points out, political correctness appears to be behind the N&O’s approach to perp walks, it’s hard to characterize the AP as a paragon of political correctness. Indeed, the wire service’s coverage of this year’s campaign has been almost laughably tilted in John McCain’s favor, as Talking Points Memo has detailed convincingly.

There is, in this respect, a difference between the media airbrushing—which, it seems, comes more from a subconscious worldview—and that of the Group of 88, which obviously stems from more malevolent intent. But in the end, the result seems to be the same.

Still More: Only in Durham

It appears that NCCU has been improperly awarding degrees for a satellite campus that it set up in, of all places, the state of Georgia.

More Only in Durham

The "Committee on Justice for Mike Nifong"--which consists of two people, one of whom is Durham's resident homophobe, former Nifong citizens' committee chair Victoria Peterson--has been sending out the following item:

The "Committee on Justice for Mike Nifong" is conducting a survey and we would consider your participation to be invaluable. If you are willing to give ten minutes of your time towards this endeavor, reply by e-mail and you will be sent a questionnaire of thirty six (36) yes/no questions, and a return stamped, self-addressed envelope for your convenience.

Please respond as soon as possible, and include a mailing address to assure delivery. Thank you for your consideration in being part of this important and informative survey.

If anyone gets a copy of the questions, please send them to me; I'll post them.

You can't make this stuff up.

The Baker File

[updated] From Ray Gronberg's article in this morning's H-S:

Notes officials took from Mayor Bill Bell's regularly scheduled Wednesday morning meetings with City Manager Patrick Baker, for example, show the two discussed the case every week after reports surfaced that police took DNA samples from team members [3-23-06] to the time grand juries indicted the three players [5-15-06].

But save for that bare acknowledgment, they don't document the substance of those conversations.

Former City Manager and current City Attorney Baker must have received his information about the case from someone in the Police Department. Who kept him informed each and every week? What did they tell him? What did he say in response? What orders, if any, did he give to cover up evidence of misconduct?

Some other questions, based on the timeline above:

When did Baker learn that the Police Department had allowed Mike Nifong to take over supervision of the investigation (3-24-06)? How did he react?

When did Baker learn that Supervisor Nifong had ordered police to run a third lineup (3-31-06), only this time violating their own procedures and confining the lineup to suspects? How did he react?

When did Baker learn that even though Crystal Mangum had "identified" people in this lineup (4-4-06), the police didn't even consider her "identification" serious enough to seek a search warrant for the rooms of the "suspects" before police went to the grand jury (4-17-06)? How did he react?

When did Baker learn of Supervisor Nifong's decision to hire an outside DNA firm (4-5-06)? How did he react?

Was Baker informed of the 4-10-06 meeting in which the DNA lab director passed on news of unidentified male DNA in Crystal Mangum's rape kit? If so, how did he react? If not, what was he told about this meeting?

Did Baker's DPD liaison inform him of the evidence Ron Hodge claimed to possess when he told MSNBC on 4-11-06 that the DPD had strong evidence against the players?

When was Baker informed that the DPD had waited three weeks before taking a statement from Crystal Mangum (4-6-06)? How did he react?

When was Baker informed that Kim Roberts' statement (3-22-06) had contradicted Mangum's in every respect? How did he react?

When was Baker informed that despite the requirement that a NTO be obtained only against those who authorities had a reasonable belief could have committed the crime, the police had actually obtained an NTO against Brad Ross, who provided police with evidence (4-12-06) that he wasn't even in Durham on the night of the party? How did he react?

When was Baker informed that Cpl. David Addison had been forced to issue multiple "clarifications" to his inflammatory CrimeStoppers poster? How did he react?

This item, in short, opens up a whole range of questions as the civil case proceeds.

Brodhead, Brown, & the Seligmanns

There has been some attention in the blogosphere caused by a recent statement from Jim Cooney about a possible letter from Duke president Richard Brodhead and Reade Seligmann’s application to Brown. The Seligmann family issued a statement on the matter to the Herald-Sun, which quoted excerpts in today’s paper:

Seligmann “knows of no support that Brodhead gave him at Brown,” lawyer Richard Emery said Wednesday after his office e-mailed a statement from his client to The Herald-Sun. “Whether that happened behind his back, he can’t be sure. It may have happened, but he doesn’t know about it.”

The statement also noted that Brodhead had contacted the Seligmann family only twice in the entire case. The first contact by Brodhead after Seligmann’s indictment and suspension from Duke came after a delay of around eight months, in December 2006, when he e-mailed them to wish them a happy holidays(!). The second contact came in January 2007, to inform them that the school had overridden Group of 88’er Karla Holloway’s objections and lifted the suspension of Seligmann and Collin Finnerty.

---------

I can add a few contextual items to this story.

(1) The assertion that Brodhead played a particular role in Seligmann’s admission to Brown seems to contradict the publicly known timeline. The Brown Daily Herald, for instance, reported on February 21, 2007 (nearly two months before the exoneration) that Brown was aggressively recruiting Seligmann—not the reverse. The process of Seligmann going to Brown, in short, was well underway before any alleged help from Brodhead could have occurred, and Seligmann’s grades were impressive in their own right, well within the range of Brown’s caliber.

(2) I had a few off-the-record conversations with people at Brown in spring 2007. Based on those, it’s not my sense that Brodhead had any particular role in Brown’s decision to recruit Seligmann. It’s also not my sense that Brodhead has any particular influence at Brown. There are institutions (Yale, for instance) in which Brodhead remains a figure of some standing—but in most of the other Ivy League schools, it’s my sense that Brodhead is looked upon in rather unfavorable terms, as an administrator who performed poorly under crisis. Moreover, Brown president Ruth Simmons has spoken out against the kind of ideological imbalance typified by the Group of 88’s dominance of Duke discourse: she is not really the kind of administrator likely to be swayed by Brodhead.

(3) Even though Bob Steel told other Trustees in summer 2006 that the Duke administration had stayed in regular contact with the families of the accused players, I don’t think anyone (including Steel) any longer retains that fiction. Indeed, Brodhead apologized for his decision not to stay in close contact with the families in his September 2007 remarks at Duke Law School. The Seligmanns’ statement that Brodhead only approached them twice—and very late in the game, and in odd ways—seems correct. I can say that at no point in the case was I aware of any more than these two (token) contacts between Brodhead and the Seligmann family, nor am I aware of anyone else who knows of additional contacts between Brodhead and the Seligmann family.

(4) The only unresolved matter, therefore, is a possible Brodhead letter on Seligmann’s behalf, which Cooney mentioned to the H-S. From the Seligmann family statement: “Nobody ever communicated to [Seligmann] anything specific about any letter. There was some general knowledge that Brodhead was writing a letter to assertively help him. But [that knowledge] was very general and very vague.”

What would such a letter have entailed? To have actually been of assistance to Seligmann, any such letter would have needed, at the very least, to address Brodhead’s (false) April 5, 2006 statement that Seligmann was part of a group that had been subject of reports of racist behavior; and his (seemingly defamatory) April 20, 2006 statement that even if Seligmann and Finnerty were innocent, “whatever they did was bad enough.”

Seligmann attorney Richard Emery said that Duke should “set the record straight” and release relevant records. The response of a Duke spokesperson: “Student privacy laws constrain us from discussing such matters.”

But in this case, the student—Seligmann—has waived his privacy rights. So, Duke’s official position is that it can’t release the alleged Brodhead letter because of privacy rights that the student himself has waived?

Such a position would suggest that either: (a) no letter exists; or (b) Duke doesn’t want the contents of the letter to see the light of day.

FODU on Brodhead, the Giuliani Case

Jason Trumpbour's latest post.

Delaying Discovery

The legal skirmishing in the civil suits by both the falsely accused and the unindicted players has featured two unusual items of contention.

The first was Duke’s motion to close down the Duke Lawsuit website—even as the University hosted a website containing (among other items) President Brodhead’s April 5, 2006 letter to the community. (That document severely denigrated the personal character of the very people now suing the University.) The judge correctly decided that both websites were proper under legal ethics guidelines.

The second unusual item has been a refusal first by Duke (in the suits by the unindicted players) and then by Durham (in all the cases) to formally confer with the plaintiffs’ attorneys about discovery matters. The Duke/Durham argument in a nutshell: all the motions to dismiss will be granted, and therefore our clients shouldn’t have to submit to the burdensome requirements associated with the discovery process.

Intellectually, the Duke/Durham argument is a perfectly reasonable one: why should defendants, in a lawsuit they consider frivolous, have to deal with discovery matters before a judge has even decided whether the lawsuit can go forward?

Legally, however, the argument is bizarre, as revealed in a motion filed yesterday by attorneys for the falsely accused players. As the motion notes, Rule 26(f) requires attorneys in a civil suit to confer “as soon as practicable” about establishing a schedule for discovery issues, and the rule doesn’t give defendants the unilateral power to override its terms.

As the motion notes, some of Durham’s arguments strain credulity: the city, claims Durham attorneys, shouldn’t have to deal with discovery matters involving the falsely accused players until the court decides motions to dismiss involving the unindicted players. Or the city, claims Durham attorneys, has no relevant information to turn over, because the criminal-case attorneys conducted their own investigation and brought all relevant facts to light.

These assertions make no sense.

Other aspects of Durham’s justification for refusing to begin the discovery process are sheer demagoguery, part of the continuing effort to suggest that the “wealthy” lacrosse players should have no right to sue the “poor” citizens of Durham. In the words of yesterday’s motion,

The City Defendants’ claims that starting discovery now would waste “taxpayer money” ring hollow, given that the City has announced that it already spent its insurance deductible and that its defense, and those of its defendant employees, are now being funded exclusively by the City’s insurance carrier, not Durham taxpayers.

Moreover, as yesterday’s response makes clear, the Durham/Linwood Wilson briefs didn’t even challenge all points in the lawsuit—meaning that portions of the civil suit would still go forward even in the (wildly unlikely) event that the defendants scored a 100% victory in their motions to dismiss.

The real reason why Durham has appeared to reluctant to begin the discovery process, despite the seemingly clear requirement under federal law to do so? It’s not hard to determine. From yesterday’s motion:

Far from obviating the need to commence discovery, the parties’ prior communications regarding electronically stored information (“ESI”) demonstrate the need to commence such discovery as soon as possible. Eight months after Plaintiffs had asked Defendants to preserve potentially relevant ESI, the City of Durham’s counsel not only had failed to secure the computers used by the City Defendants—they had not even determined which of them used a City-issued computer . . . Even more remarkably, the City’s counsel revealed to Plaintiffs that the City had made no effort to locate or secure the computers used by its two lead investigators, Defendants Gottlieb and Himan, for purposes of this litigation . . . The City also claims that it has no server-based emails[??!!] for a significant portion of the relevant time period.

The explanations for such a delay don’t inspire confidence: utter incompetence, malevolence, or both.

Given that their position defies both established federal procedure and basic common sense, what really motivates the Durham attorneys’ delaying tactics? The answer, it would seem, is risk-avoidance. Despite the fact that the city has scant chance of prevailing at trial against the falsely accused players, Durham did not seriously consider a settlement offer. The move was based largely on the (perhaps correct) assumption that demagogic appeals to a civil-suit jury might hold down the amount of the ultimate judgment.

This strategy, however, carries with it one enormous risk: that the discovery process in the civil suit would uncover evidence of misconduct so blatant (such as direct intent to frame) that even demagogic appeals won’t prevent a massive judgment against the city. So why not minimize the chances of such an outcome by delaying discovery as long as possible, and then claiming that significant items (such as Gottlieb’s and Himan’s computers) somehow got lost in the shuffle?

July Events in the Case

I realize that as the case has moved into the civil suit process, many DIW readers drop by only periodically to check in on developments. For these readers, here’s a review of case-related events in July:

• The major parties filed their motions to dismiss the Ekstrand lawsuit. Duke attorneys—having earlier labeled Crystal Mangum the “victim” and challenged the Attorney General’s report regarding the validity of former SANE nurse-in-training Tara Levicy’s testimony—now offered a new defense, suggesting that Levicy effectively had a license to lie. In his response, ex-Sgt. Mark Gottlieb blamed Duke and Levicy for the case getting off the ground in the first place.

• North Carolina NAACP head William Barber—having been elected to the national board of the NAACP—suddenly discovered the value of lie detector tests and negative DNA results in determining innocence from criminal charges.

• Beleaguered Wachovia Bank hired Board of Trustees chairman Bob Steel as its new CEO, with the remarkable assertion that “he is an ideal choice for this time of turmoil.” Wachovia shares promptly plunged.

• The disgraced Mike Nifong resurfaced—to urge North Carolina voters to support Barack Obama. And if Nifong’s endorsement led most voters to recoil from Obama, the only presidential candidate to urge a DOJ criminal investigation of Nifong . . .

And, a while back, a commenter criticized me for suggesting that the Lubiano Trio’s apologia for the Group of 88 could be considered “scholarship,” since Wahneema Lubiano listed the article not on her CV but only in her “recent publications” section. Well, now the article is on her CV, too.