Cooper Response: Durham Filings

Chuck Cooper, joined by Durham attorney Bill Thomas, also filed briefs opposing the motions to dismiss of Durham and various Durham employees (including ex-DA investigator Linwood Wilson). A summary is below.

The Thomas/Cooper brief regarding Durham’s motion to dismiss opens by commenting on the intriguing tendency of each party to concede that wrongdoing occurred but to blame someone else for it. Citing a 1980 case (Murray), which held that “the defendants should not be permitted to ‘get off the hook’ by merely pointing the finger at each other,” the Cooper brief recapitulates the blame game of Duke and Durham defendants. “Durham Police officer Himan points at Nifong, as does the City of Durham. Durham Police officers Gottlieb and Addison point their fingers at Duke University and Nurse Levicy. The Duke SANE Defendants point at the Durham police and Nifong. All of this finger pointing indicates that this case is not suited for resolution on a . . . motion to dismiss.”

Some of the points echoed the briefs filed in response to Duke. For instance, Durham, like Duke, preposterously claimed that the March 23, 2006 non-testimonial order would have occurred even absent Tara Levicy’s false and misleading statements.

After observing that Durham defended “the NTO with the remarkable assertion that the standard for issuing an NTO satisfied the Fourth Amendment under the circumstances,” even as Durham didn’t “even try to argue that the NTO was supported by probable cause to believe that Plaintiffs had committed the alleged crime,” the Thomas/Cooper brief uses Mike Nifong’s words to undermine the Durham position:

“When Nifong took over the investigation a few days after the NTO was issued, Gottlieb and Himan briefed him on this overwhelming mass of exculpatory evidence— precisely the same evidence that was in their possession when they applied for the NTO. Nifong’s assessment was an angry complaint: ‘You know, we’re f*cked!’ When a prosecutor as cavalier about the truth as Mike Nifong concludes that you have no probable cause that a crime was committed, you know you are in trouble. The Durham Investigators had no probable cause to believe that there had been a crime and therefore the first element of the NTO test was not met.”

Durham, like Duke, also defended the propriety of Duke handing over FERPA-protected student keycard information to Durham, and then neither Duke nor Durham attorneys admitting this transaction to the court when Nifong (unsuccessfully) subpoenaed the keycard information in summer 2006.

Cooper and Thomas describe the behavior thusly: “When they scripted and performed their subpoena charade for Judge Titus and Plaintiffs, Nifong and his team plainly knew that they already had the data. And the Duke Defendants (having improperly given the data to Durham) also knew it. Yet both groups of Defendants acted their part to mislead the lacrosse players and Judge Titus, each side fully aware that if it failed to do so, or if the other side failed to do so, they would both be exposed.”

The response brief also, correctly, points out that “despite having already lost the debate about FERPA’s privacy guarantee in the North Carolina court before Judge Titus, Durham devotes a lot of energy to arguing that Plaintiffs could have no expectation of privacy in key-card information that had, by its very nature, already been transmitted to and shared with Duke.”

The Cooper/Thomas briefs are particularly effective at using the Durhamites’ words against them. Some examples:

Cooper and Thomas observe that the “stubborn insistence” of Durham supervisors (Patrick Baker, former Chief Chalmers, etc.) that the Police Department’s performance “amounts to nothing more than ‘negligently inflicted harm’ and ‘unwanted police questioning,’ and that there is nothing the least bit ‘shocking’ in government efforts to frame innocent people for non-existent crime is itself shocking.”

The lacrosse players’ attorneys take note that Durham’s response appeared to concede that ex-Sgt. Mark Gottlieb had a vendetta against Duke students—even though the city then bizarrely suggested that the vendetta applied only to minor crimes, not serious ones. Yet “if a policeman is willing to break the law and violate the Constitution to add a piddling alcohol bust to his list of collars of Duke students, who knows how far he would go to get credit for rape and kidnapping arrests in a case that is in the national spotlight?”

Responding to the city’s motion to dismiss, Cooper and Thomas note, “Durham contends that the allegations in the Complaint do not, as a matter of law, plead ‘extreme and outrageous conduct’ sufficient to make out claims for intentional infliction of emotional distress. The City insists that falsifying evidence, suborning perjury, tampering with witnesses, and inflaming racial animosity in order to prosecute innocent college students for a crime that never happened is not ‘extreme and outrageous conduct.’ Simply stating that proposition is enough to explode it.”

Responding to the Gottlieb brief, Cooper and Thomas assert that “Gottlieb contends that the Complaint fails to allege that he ‘engaged in the requisite extreme and outrageous conduct.’ This boils down to the frivolous proposition that conspiring to frame innocent students for a crime that never happened is not outrageous. Gottlieb’s arguments that he was just doing his job and that he believed in good faith that he had probable cause.”

On another front, the brief has little trouble disposing of Durham’s absurd allegation that because Nifong wasn’t supposed to be supervising the police investigation, the city shouldn’t be sued for the fact that he was, improperly, supervising the inquiry.

Finally, items from briefs filed by David Addison and Linwood Wilson generate especially sharp replies.

Cooper and Thomas observe that Addison “protests that he is given short shrift in the Complaint, being named (he says) in only one cause of action and mentioned (supposedly) in no more than five of 398 paragraphs. We are unsure where Addison is going with this argument, because he identifies no legal principle justifying dismissal of a given claim on grounds that more pages are devoted to pleading additional claims against other defendants.”

“Finally, in a truly stunning display of chutzpah, Addison actually seems to want some credit for the exoneration of Plaintiffs. He argues that the claims should be dismissed on policy grounds, for otherwise criminal miscreants would enjoy ‘constitutional immunity from being investigated for an alleged criminal act when it later develops that the charge was baseless. This should be particularly true in this case when the State recognized the charges had no merit and, not only dismissed the charges, but declared the charged individuals as being ‘innocent.’ The Plaintiffs were, of course, exonerated only when District Attorney Nifong and the Durham Police were removed from the case and replaced by the State’s Attorney General, Roy Cooper. General Cooper’s investigation, far from endorsing the work of Addison and his Durham police brethren, concluded that there was no evidence to justify their year-long witchhunt.”

And Cooper and Thomas make short shift of the Linwood Wilson brief, put together by none other than amateur attorney Linwood Wilson. They note that the brief prepared by L. Wilson, Esq. claimed for him absolute immunity as an employee of the DA’s office, citing Hoover v. Keith. Yet Hoover, as the Cooper brief points out, applied to an assistant district attorney, not a non-lawyer employee of the DA’s office who was conducting investigatory duties.

In his brief, they speculate, “Wilson may be confusing this case with another.”

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Finally, two points in the response to Duke that might have been overlooked given the (appropriate) attention received by former SANE nurse-in-training Tara Levicy’s dubious conduct.

1.) Levicy’s “diagnosis” was confirmed, publicly and inaccurately, by her supervisor, Theresa Arico.

2.) When the report of Duke Police Officer Christopher Day appeared (Day correctly reported overhearing Sgt. Shelton pass along Crystal Mangum’s wholly non-credible report of being raped by 20 people), Duke went out of its way to discredit Day’s document.

In the response to Duke, the unindicted players correctly pointed out that Duke possessed copious exculpatory information that it declined to make public. But it’s worth remembering that—in addition to Richard Brodhead’s guilt-presuming April 5, 2006 address—with the Arico statement and the handling of the Day report, Duke went out of its way publicly to make it seem as if a rape occurred.