Tuesday, September 02, 2008

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.”


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.


Anonymous said...

Point, game, match. Great work on this one. You have cut to the chase and the attorneys are to be commended as well.

Since the authorities have decided that one can commit serious crimes and get a free pass as long as the criminal wears a badge or is a prosecutor or feminist nurse, these lawsuits are the only way to expose the truth. Joe Alleva was right: for Duke and Durham, it definitely was not about the truth.

Anonymous said...

It would seem that at some point, in the face of all evidence to the contrary . . . read that as all evidence pointing to the innocence of the lacrosse team . . . remembering that the accusations of guilt were arbitrary . . . why did all of these academics and suspposedly professional people and otherwise and seemingly intelligent people behave in the way that they did? I can only surmise an answer . . . and none of what I might postulate in the way of an answer is flattering . . . that they were afraid is without question . . . that they lacked courage is without question . . . that they were caught up in the group-think of political correctness is without question . . . they were prepared to throw people under the bus to support dogma . . . and their willingness to lie and use other methods were worthy of the Inquistion . . . and they were afraid as well as ambitious. They were by turns intolerant and bigoted and ruthless in their need to "portect" their own comfort zone in the excuse of "protecting" the community rather than leading it. They were arrogant in their persons and in their power driven by ambition . . . in short they were all too human . . . even so they should be punished to the full extent of the law. God help us.

Debrah said...

This David Addison is really a piece of work.

What nerve!

His entire response is so typical of the irrational and unlawful way that town is run.

And how can anyone expect to have a productive and prosperous place to live with such "leaders" they continually elect and with such total semi-literate and illogical dimwits they hire on the police force?

I have no doubt that many "city leaders" there have the same mindset and way of looking at the outcome of the case as does Addison.

Anonymous said...

Seriously, this is going to be fun. The freight-train called justice (albeit delayed) is about ready to rumble through Durham and Duke. I wouldn't want to be a Durham taxpayer or property owner about now. Just nasty, nasty stuff.

Anonymous said...

Great summary, KC. Its no wonder that the troll posters for the G88 Duke faculty hate your involvement in this case.

The bullies are having to face their days of judgment. The bully Nifong was confident of his ability to intimidate the Duke students into plea agreements to lesser charges... as he most likely had played that game successfully with many defendants of lesser means. The bully Gottlieb was confident of his ability to victimize the Duke students with police brutality... as he most likely had gotten away with such actions many times in the past. And the bully G88 Duke faculty was highly confident of their ability to intimidate Brodhead and the rest of the Duke community, while rhetorically lynching the Duke students they perceived as idealogical enemies... as they most likely had been able to control the metanarrative in the past.

It is time that these bullies are made to face their judgment day.

Anonymous said...

So, in the face of these Plaintiff filings - and all the Defendants could surely see it coming before this - why did Durham and Duke not settle?

Anonymous said...


Curious to see who was in charge of this from the state's side; frankly, the dates seem pretty on-point with a forgettable era in Durham...

AMac said...

Somewhat off-topic, here is GNXP blogger agnostic analyzing Rational and irrational hysteria about rape: some data.

Some context for the feminist (with or without sneer quotes) responses of the radical-left Duke faculty and community activists (w-w/o sneers) to the initial hoax reports of Mangum's rape.

Anonymous said...

These supposedly educated people knew all about the Scottsboro boys. It is too bad they didn't recognize themselves in time or any time for that matter.

Sid said...

A previous poster clearly addresses the salient question. Why did Duke and Durham not settle?

The evidence is clear and has been vetted. The fault, blame, and legal responsibility all point towards Duke and Durham. Why have they not settled?

Anonymous said...

Is Gottlieb a Communist?

Anonymous said...

These supposedly educated people knew all about the Scottsboro boys. It is too bad they didn't recognize themselves in time or any time for that matter.

9/2/08 5:15 PM

Not only that, but I would guarantee you that every person in Durham believes he or she is morally superior to the people of Scottsboro in 1931 (or even now). Yet, what do we see in Durham? We see a lynch mob and protection of police criminals and lying.

Anonymous said...

On the question I had as to why Duke and Durham did not settle, I went back and re-read their responses and the Cooper rebuttals and tried to formulate an answer. The only thing I can imagine as to Duke's reasoning is that the Duke folk decided that since the others were not indicted, that they could never make an adequate case for damages.

That is, Duke settled with the three indicted because they saw no way to avoid those damage claims, but they decided that Duke could prevail against the non-indicted on civil damage awards.

As to Durham, the only thing I've ever been able to imagine is that no one or no group was willing to admit anything. That is, the Durham folk would rather kick the can down the, er, cliff than take the personal risk inherent in public reaction to any damage control effort. IOW, maybe they deemed it safer personally for Durham to be court-ordered into, say, $250M in damages than stand up and take any personal risks and maybe get Durham out from under for, say, $25M.

river rat said...

My fondest wish is to live long enough to see these actions come to a conclusion that is so horribly expensive for Duke that Broadhead and the 88 are summarily dismissed as part of the "settlement"....

Durham's cost should be high enough that the citizens would become more circumspect about whom they elect in the future....

Anonymous said...

what would have happened if the team or any member of the team had refused to do the NTO order? Is it not likely that the cause for the order and the fallicy of including all caucasian players in the order would have been exposed, thus halting the momentum of the "something happened" group think?

Gary Packwood said...

"Yet “if a policeman (ex-Sgt. Mark Gottlieb) 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?”
Which city officials enabled Sgt. Mark Gottlieb to believe that he could target Duke students?

How much annual revenue did Durham realize from Gottlieb's arrest of Duke students?

Did Gottlieb target only a certain segment of Duke students that were already targeted by the G88 and other groups working together to change the 'campus culture' of Duke?

Anonymous said...

As each defendant tries to blame the other, they only seem to add more evidence of their collective guilt. I gave up trying to understand local government in Durham a long time ago, but I don't know why Duke would want to continue to have their name dragged through the mud two and a half years down the road. I would understand Duke's position if they were trying to clear their name, but under the circumstances they are merely making themselves look worse. The time to open up the checkbook is long past.

Debrah said...


Duke proactive on disruptive parties

Sep 3, 2008

Duke University officials and representatives of Trinity Heights have formed a task force to discuss the issue of late-night revelries that provoke neighbors. That is a positive development because Duke and the neighbors are dealing with the problems before they get out of hand.

Anyone familiar with the sometimes strained story of town/gown relations around Duke's East Campus knows that, at the moment, things are better than they have been in recent memory. And Duke should get much of the credit for the change.

About a dozen former rental properties on or near Buchanan Boulevard have been sold to private homeowners. The buzz of saws and pounding of nails is sweet music to residents who much prefer construction to the din that used to issue from some of the dwellings. The renovations and new residents are helping to boost property values and the overall quality of life.

However, since some students seem determined to party, some of the noise has shifted to Trinity Heights. This newer neighborhood of tree-lined streets, tasteful homes, condos and apartments is home to many Duke staff and faculty members and, apparently, at least one unofficial Duke fraternity. Duke Vice President for Student Affairs Larry Moneta says there are no official off-campus fraternities, but a couple continue to operate unsanctioned.

Moneta was among a high-powered trio of Duke vice presidents who met with Trinity Heights residents and city officials recently. Moneta said task force members would continue to meet and collaborate on ways to minimize disruption, and to "try to find strategies that focus on the prevention of problems rather than reacting to them." That pleased neighbors, who have seen great improvement in Duke's attitude.

Another area where cooperation has made a positive difference is law enforcement, with Duke campus police and Durham city police officers working together to respond to disturbances.

Also, we can't forget to give credit to the most important partners -- the students. Students are vital to the character and the health of the community. We especially appreciate those who make an effort to treat their neighbors with respect and courtesy.

One Spook said...

Like all of you, I am sympathetic to the position of the plaintiffs in these matters, and I hope that this case will proceed to trial and that the defendants are found guilty and ordered to pay enough that it really hurts.

That said, I'd like to play the devil's advocate and offer a few observations, thoughts, and questions of my own.

A number of you have asked about settlement. Does anyone know if any settlement has ever been offered? I was unavailable for a period of time earlier this year but I seem to recall that the City of Durham was offered some type of settlement. Is that correct?

Second, perhaps the plaintiffs have been offered a settlement and they simply do not want to settle this case. It takes two parties to agree to a settlement.

Third, it is important to remember that a settlement can take place at anytime, indeed, some cases are literally settled “on the courthouse steps,” and others settled even after a trial has begun.

Fourth, I've seen this old adage written here; "If the facts are not in your favor, you argue the law; if the law is not in your favor, you argue the facts."

What KC has presented is primarily a facts-based analysis, which is understandable since he is a historian and not a lawyer or an experienced civil litigator.

Because the facts appear to be very much on the side of the plaintiffs, some of you seem to view these cases as "open and shut slam dunk" matters; if the defendants don't settle, they'll lose, and since they didn’t settle, it will definitely go to trial.

My sense is that the law arguments in these cases are highly complex in nature, ie. the entire "conspiracy" theory, and perhaps other legal issues involved.

And again, being the devil's advocate, I would submit that these cases are far from the "done deals" some of you might think they are.

Accordingly, I'd like to see comments here from experienced civil litigators who might peruse this blog. We've seen KC’s version of the facts, in addition to the documents presented to the court by attorneys for both parties. I think a fair and balanced analysis of the applicable law would be interesting as well.

One Spook

Anonymous said...

I think you are right that finding the right legal ground to stand on is the more difficult issue for the plaintiffs than proving the bad conduct of the defendants.

As to why there is no settlement, I recall the communications around the time of filing covered this. What I recall is basically that the plaintiffs demanded any settlement include changes in policies/conduct of the organizational defendants, i.e. Duke and Durham. While Duke/Durham would likely be willing to settle financially, they are pretty dug in on never changing their ways as far as I can tell.


Debrah said...

More on Nifong's guitars