December Events in the Case

New developments in the civil suit, and old names up to no good dominated December.

A Duke filing issued a blunt warning to parents of prospective students at the institution: the Faculty Handbook might require professors to teach students with respect, and the student bulletin might state that Duke students should not experience discrimination based on race, gender, or other personal status, but “the Duke bulletin is not a valid contract.” In another words: if a new manifestation of the Group of 88 chooses to go after your son, the university sees itself under no legal obligation to enforce its own policies.

Attorneys for the lacrosse players discovered that in a filing claiming partial immunity, Durham attorneys had decided to . . . rewrite . . . the precise wording of the city's insurance policy to conform to the recent Pettiford decision that seemed to expand a city's ability to shield itself from lawsuits under North Carolina law.

Durham attorneys piled up more legal fees in a filing admitting that they had . . . incorrectly . . . transcribed the wording of the city's insurance policy to make it seem as if Durham's policy was the same as the city's policy in Pettiford. But, they claimed, they still deserved immunity.

Tracey Cline implied an upcoming office purge for those who don't conform to her idea of "justice" and "teamwork."

The Rev. William Barber continued to dissemble, and in an almost comically inept fashion.

Duke Magazine presented an intriguing view of security on campus; and also provided the first time that a Duke publication has conceded on the record that the University possessed some legal jurisdiction over the events at the lacrosse house.

Duke is appealing an unfavorable ruling in the Pressler lawsuit.

And Reade Seligmann received the Intercollegiate Men's Lacrosse Coaches Association (IMLCA) Boston Market Humanitarian Award for his work on behalf of the Innocence Project.

There is, of course, a dissenting view of Seligmann's character, expressed by Richard Brodhead in his first public appearance after Seligmann's arrest on trumped-up charges. Even if Seligmann and Collin Finnerty were innocent, Brodhead proclaimed, "whatever they did was bad enough." The president has never retracted or apologized for his statement.

Alternate Realities

As John in Carolina has noted, Duke Magazine (the journal sent to all Duke alumni) recently published a long article detailing efforts to improve campus safety. Nothing in the article was in any way objectionable, and much of it was commendable. The head of the volunteer Duke student EMS—an organization once under Student Life but now, more appropriately, under the jurisdiction of the Duke Police—discussed his positive experiences with the Duke Police, who he praised for their professionalism and dedication. The article also summarized the impressive list of safety-first changes adopted by Duke in the wake of the Virginia Tech massacre.

Yet much of the article seems, to put it most charitably, inconsistent with the University’s record in the lacrosse case. And this approach is, sadly, all too consistent with the magazine’s pattern of one-sided portrayals of the issues and problems arising from the case.

To begin with, here is how author Bridget Booher describes the case:

Though the majority of reported crimes are relatively minor incidents, two major events accentuated the need for Duke to think more strategically about campus safety and emergency preparedness. In the spring of 2006, allegations of an off-campus rape by Duke students exploded into a racially charged, nationally followed case that has come to be known simply as “lacrosse.” As the tangled mess slowly began to unravel, senior administrators identified a number of areas for improvement, including the university’s internal and external lines of communication.

Having mentioned Mangum’s allegations, doesn’t Booher have some obligation to point out that the Attorney General declared the Duke students actually innocent? It’s not entirely clear, indeed, what she means by “the tangled mess slowly began to unravel.” Even allowing for Booher’s peculiar word choice, didn’t the “mess” completely “unravel,” not merely begin “to unravel”?

Perhaps as interesting is Booher’s follow-up clause: “Senior administrators identified a number of areas for improvement, including the university’s internal and external lines of communication.”

In her discussion of the second “major event” that “accentuated the need for Duke to think more strategically about campus safety and emergency preparedness”—the Virginia Tech massacre—Booher devotes seven paragraphs to the specific (and commendable) ways in which Duke enacted changes.

And yet the “areas of improvement” from the University’s handling of the lacrosse case merit a mere one sentence.

Booher’s phrasing—“Senior administrators identified a number of areas for improvement, including the university’s internal and external lines of communication”—suggests the University identified “areas for improvement” beyond “the university’s internal and external lines of communication.” Yet no such “areas for improvement” have been publicly identified.

How, moreover, has the University acted to improve “internal . . . lines of communication”? Booher doesn’t reveal—nor, of course, has any other Duke administrator. Perhaps such changes have occurred. But it’s odd that the administration hasn’t chosen to share those changes with the broader Duke community.

And how has the university acted to improve “external lines of communication”? Again, Booher offers no specifics. The University’s acknowledged record involving improving “external lines of communication,” however, isn’t exactly encouraging, involving as it did only two stated issues:

• (1) the Bowen/Chambers report, which faulted (of all people) Larry Moneta for having the temerity, in an external line of communication, to warn Duke students of a possibly violent response from Durham residents; and

• (2) President Brodhead’s Sept. 2007 apology for his not having reached out to the families of the falsely accused players, an apology that came months after BOT chairman Bob Steel had privately assured other Trustees that such lines of communication had, in fact, existed. Neither Brodhead nor anyone else associated with Duke has publicly said (a) why Brodhead didn’t stay in touch with the families; (b) what steps have been taken to ensure that a repeat of this performance doesn’t occur; and (c) what steps have been taken to rebuke Steel for misleading other trustees.

The Booher article does provide one intriguing nugget of information. Under the heading “Law and order,” Booher writes,

Reciprocity between community partners extends to the Duke and Durham police departments as well. The two agencies have a concurrent jurisdiction agreement, which means that Duke can ask the Durham police for help with crimes on campus, and the Duke police can respond to crime involving members of the Duke community who live in surrounding neighborhoods.

The Ekstrand lawsuit has provided the most complete discussion regarding the question of Duke Police’s jurisdiction over events at 610 N. Buchanan. But Booher’s article appears to be the first official Duke publication to concede that, at the very least, Duke Police had concurrent jurisdiction over the lacrosse case—since “the Duke police can respond to crime involving members of the Duke community who live in surrounding neighborhoods.”

Booher’s clause, therefore, raises a troubling question: if the Duke Police had concurrent jurisdiction over the lacrosse case, why did they decline to exercise that jurisdiction—and who made this decision?

Other sections of Booher’s article contain boilerplate items that, alas, contradict the University’s known record in the lacrosse case. For instance, under the heading of “off-campus dangers,” Booher quotes Larry Moneta, noting that in dealings with the Durham Police, the university “can’t position itself as having a greater need than other parts of Durham.”

Over the past few years, however, the central issue in the relationship between Duke students and the Durham Police hasn’t been a demand for special treatment for Duke students. It has been, instead, Durham’s official policy (acknowledged by Duke) that Duke students, and only Duke students, will receive separate, and harsher, punishments in alcohol cases. The article has nothing to say on this issue. I e-mailed Booher to ask her why the article contained no mention of this “Good Neighbor Policy”; she didn’t respond, though I will post a response if one comes in.

Or take this Booher paraphrase of Moneta: “He assured the group that Duke officials do follow criminal cases very closely, and work with the local law-enforcement agencies and the attorney general’s office to expedite prosecution when appropriate and feasible.” In the lacrosse case, however, Duke’s official policy appeared to be to refuse to “work with the local law-enforcement agencies.”

Or take this passage:

In this case, as in others involving students of concern, the young woman’s name is added to a database maintained by Amy Powell, the student-affairs case manager. A position created just this year, the case manager coordinates the efforts of student-focused campus entities to ensure an integrated approach to addressing a spectrum of needs a student might have.

For example, the loss of a parent or close family member could have an impact on a student’s academic performance, his mental health, and even his financial-aid package should the family’s income fluctuate. In a situation like that, Powell would collaborate with the student’s academic deans, who alert the student’s professors to the situation; professional staff in Counseling and Psychological Services, to which the student might be referred; and the financial aid and registrar’s office.

This all sounds wonderful. The record of the lacrosse case, however, revealed that when some Duke professors—Kim Curtis, for example, or John Walsh’s spring 2006 professor, Claire Ashton-James—they not only did nothing, but behaved in an unprofessional fashion to further damage the student. What will Powell’s new position do to address such matters?

Or take this Moneta quote: “One of the things we tell parents during orientation is to contact us if something doesn’t seem right.” That, of course, would be the same Larry Moneta who, in March 2006, when a vigilante mob traveled from 610 N. Buchanan to a nearby house rented by other lacrosse players, where members of the mob shouted threats and banged on the doors/windows of the house. One of the players called Moneta for help; Moneta responded that there was nothing he could do. Could it be that Moneta doesn’t consider a mob banging on a Duke student’s window as “something [that] doesn’t seem right”?

Or take this quote from DUPD head Aaron Graves: “But as sworn police officers, we have an obligation to enforce the laws of the state, the orders of the city, and any other federal laws that apply.” In the lacrosse case, however, the DUPD unlawfully provided to the DPD the key card information of Duke students, information that was protected under “federal laws that apply” (FERPA). Duke officials then appeared to conspire with Durham authorities in an elaborate cover up scheme involving the issuance of fraudulent subpoenas. Why did Graves not adhere to his stated policy in the lacrosse case? Either Booher didn’t ask, or Graves didn’t tell.

Duke could have addressed to the lacrosse case as if a university’s fundamental mission were pursuit of the truth—by appointing, perhaps a truth and reconciliation commission, or by soliciting a white paper on how the University, its administrators, and its faculty members responded to the case. Duke, of course, didn’t choose this path. And Booher, doubtless, would have written a different article had the University chosen to confront publicly its handling of the case.

Duke’s decision is probably unsurprising. But the University’s approach also renders ridiculous such statements as Booher’s: “With their own children heading off to college, these parents want assurance that safety precautions and safeguards are in place to protect them from harm.”

Tracey Cline: Purge Ahead?

Employees of the Durham County district attorney’s office received a letter recently from the county’s soon-to-be “minister of justice,” Tracey Cline:

A few items to keep in mind:

1.) It is nothing short of laughable to believe that Cline—a figure who at best misled Durham voters about her role in the case and at worst outright lied about it—can evaluate anyone on the basis of their commitment to “justice.”

2.) Cline’s demand that all current employees of the D.A.’s office re-apply for their position, with a subsequent evaluation on the basis of their dedication “to the success of our team,” seems like nothing more than an ill-concealed rationalization for cronyism.

3.) Notably absent in Cline’s list of qualifications: a commitment to prosecutorial ethics. This oversight is unsurprising coming from Nifong’s key deputy, although for public relations reasons, Cline might have at least paid lip service to ethics. The omission speaks volumes of the direction in which Cline intends to lead the office. I emailed Ms. Cline to ask her why she declined to list a commitment to ethics as among her desired qualifications; she has not replied.

4.) Given Cline’s non-existent transparency (she still hasn’t provided an accounting of her role in the lacrosse case), it seems unlikely that Cline will provide public reasons for her demotions, promotions, and dismissals as the basis of her new standards.

5.) Two interim district attorneys, Jim Hardin and David Saacks, have presided over the office since Mike Nifong resigned. Neither conducted an office purge, although, based on her performance in the lacrosse case, Tracey Cline would have been an obvious candidate for dismissal. Neither required all members of the office to reapply for their positions, either.

6.) Why didn’t Cline reveal her plan during the primary contest?

Ten Questions for Rev. Barber

Perhaps I’m naïve, but I think that most people expect ministers to tell the truth. But the head of the North Carolina NAACP, Rev. William Barber, seems to have a lot of trouble with that qualification.

In a WRAL on-line forum, Barber was recently called to task for his organization’s guilt-presuming approach to the lacrosse case. Here is the question, and his response, in its entirety. My discussion is below.

The NAACP and other civil rights organizations and leaders were very outspoken in support of Crystal G. Magnum during the Duke Lacrosse rape investigation. When it became apparent that her allegations were not supported by the evidence, why didn't these same organizations/leaders offer apologies to the wrongly accused? – Roger Williams, Fayetteville

I’m sorry that you have been misinformed about our position. I know, however, that is easy especially in a time when so many can say through the Internet what they think you stand for without truly hearing or reading what you actually said. Below is a copy of our position.

Also, remember we supported the attorney general having a special investigation and prosecutor. The uniqueness of the NAACP is that we have been there when black girls/women have been raped and there were no consequences and when black boys/men have been accused of rape when they were innocent. With that history in mind, we have always called for fairness.

The following was our official public position that very few media outlets chose to print in its entirety:

1. We must denounce any code of silence, which seeks to inhibit ascertaining the facts.

2. We must have deep compassion and concern for the survivor and challenge any attempts to demean or destroy her rather than to seek and ascertain the truth.

3. We must ensure the D.A.’s investigation is completed thoroughly and promptly and that serious consequences be meted out if the allegations are proven. These allegations include: sexual violence/gang rape, racial slandering/hate crimes, underage alcohol use, and any prior history of racial bigotry and intimidation must be fully investigated. We do not want a rush to judgment or a delay of justice. Duke should be conducting its own thorough investigation. Who was at the party? Who violated Duke’s Code that night? How many times had they violated the law or Duke’s Codes before?

4. We must monitor the legal process to insure justice is carried out in this investigation without special privilege or treatment to anyone. Our position as an organization interested in civil rights and community justice, is that the investigation of allegations are fair, meticulous, comprehensive, aggressive, and thorough.

5. Those who are calling for justice and fairness in the investigation must not be wrongly described as a “lynch mob” no matter how zealous [sic] one seeks to defend their client.

6. Those who want to ensure justice must insist there are no short cuts to justice. We demand that the alleged perpetrators have rights to be protected. We must also be prayerful if the allegations are true and for whoever committed these acts because they are suffering from a great sickness of the spirit and hatred for humanity.

7. We must face this investigation when all of the facts are in.

8. We must face the truth and the justice that the truth demands.

9. We must consider in the wake of all that has and will occur, how we repent, repair, restore, and move forward. We must not engage in retaliatory violence. Our faith must insist that hope can still be rise out of hurt, what is meant for evil can yet be turned to good, and out of tragedy can still come triumph.

10. We must recognize that in a moment like this moment we need the guidance of God and a moral compass, which keeps us focused on the fact that only the truth can set us free.

Two obvious questions:

1.Which of these 10 “principles” guided the NAACP’s decision to post on its website an 82-point memorandum of law that not only presumed guilt but also was riddled with outright factual errors that made it appear as if a crime could have occurred?

2.And why has an organization that claims to seek “the guidance of God and a moral compass, which keeps us focused on the fact that only the truth can set us free” not publicly apologized for this document, which the head of is legal redress committee produced?

Barber’s commentary raises other uncomfortable questions, to wit:

3. The reverend asks people to “remember we supported the attorney general having a special investigation and prosecutor.” By omitting a qualifying clause, Barber produced a misleading statement. An accurate statement from Barber would have asked people to “remember we supported the attorney general having a special investigation and prosecutor after Mike Nifong recused himself from the case.” Before that point, of course, the NAACP had never made such a demand, and the special advisor it appointed for the case, Irving Joyner, had consistently defended Nifong’s behavior.

4. If the NAACP believed it “must face this investigation when all of the facts are in,” why did the organization essentially reject the results of the AG’s report and call for a new investigation (which it would dominate)? That’s not facing the facts, it’s denying them.

5. In principle number two, the NAACP described Mangum as “the survivor”—a term used by “rape victim” groups to describe a victim of rape. Yet at the time when Barber outlined his “principles” in spring 2006, defense attorneys were adamantly denying that any attack occurred. So, by describing Mangum as “the survivor,” did not the state NAACP’s own principles presume guilt?

6. Barber’s “principles” contain the following two contradictor items: “We demand that the alleged perpetrators have rights to be protected” and “we must denounce any code of silence.” Even the most limited view of civil liberties would hold that the “rights” of “alleged perpetrators” include not speaking to police outside the presence of their attorneys. Yet at the time when Barber announced his “principles,” the “code of silence” claim had a specific meaning—that, as Nifong and his enablers had charged, the lacrosse players had enacted a “code of silence” and refused to speak with police. (Of course this was untrue: they had only postponed a meeting with police until they could consult with counsel.) So could Barber explain how his organization was “upholding its demand that the alleged perpetrators have rights to be protected” by “denounc[ing] any code of silence”?

7. Barber’s “principles” contain another clear contradiction: “We do not want a rush to judgment” and “those who are calling for justice and fairness in the investigation must not be wrongly described as a ‘lynch mob’ no matter how zealous [sic] one seeks to defend their client.” The potbangers—who, the reverend told us, can’t be referred to as a “lynch mob”—claimed their goal was “justice and fairness.” How was their behavior consistent with the NAACP’s stated opposition to a rush to judgment?

8. In light of NAACP “principle” number 8, when will the organization “face the truth” about its record in the lacrosse case?

9. Barber asserted, “Our position as an organization interested in civil rights and community justice, is that the investigation of allegations are fair, meticulous, comprehensive, aggressive, and thorough.” Before his recusal, no one from the state NAACP ever denounced Mike Nifong’s myriad ethical improprieties, and Joyner appeared to give a pass to the rigged lineup. How was that behavior consistent with the organization’s interest in civil rights and commitment to a “fair” investigation?

10. And, finally, Barber’s “principles” held, “We must face the truth and the justice that the truth demands.” How could Barber’s misleading response to WRAL be deemed consistent with that principle?

Durham's Punctuation Thesis

Durham attorneys have made another filing—in the process, of course, upping the “defense costs” under which the city’s insurance policy kicks in and Durham loses its qualified immunity—reiterating the city’s demand to toss out all state claims.

The filing is a peculiar one. City attorneys Reginald Gillespie and Roger Warin admit that they filed a factually incorrect brief, omitting a comma when quoting the city’s insurance policy. The omission distorted the meaning of the city’s policy but had the convenient effect of exactly aligning the city’s policy with that of a recent North Carolina (Pettiford) decision that upheld a city’s immunity claim.

Remarkably, Gillespie and Warin don’t apologize. Instead, they mock the lacrosse players’ attorneys for pointing out their error, and reiterate their original argument as if they hadn’t filed a brief containing a significant factual error. The duo: “The City’s policy here is similar to the one in Pettiford.” Well, it is, provided that the vanishing comma remains vanished, and the city’s convenient use of ellipsis dots be allowed.

The filing has two other intriguing elements. First, Gillespie and Warin again cite the assurance of Durham’s Risk Manager, Darwin Laws, regarding “the scope of insurance coverage potentially available to the City in this case.” Yet, as the Ekstrand filing pointed out, Laws provided at best an . . . incomplete . . . summary of arrangements into which Durham has entered that might pierce the city’s immunity. Perhaps Laws, now chastened, has provided a comprehensive account in his new assurances to the court. But it’s hard to imagine why his words, having been impeached once, should be taken at face value now.

Second, Gillespie and Warin claim that “well established” principles of law bolster their argument about how to interpret the language of the city’s insurance policy. That assertion sounds pretty impressive—until a look at their filing’s citation. This “well established” principle of law, it turns out, has been articulated in just one case—a 2001 decision in the Missouri Court of Appeals.

Why a federal court in North Carolina should consider an intermediate state court 1000 miles away as the barometer of “well established” principles of law Gillespie and Warin do not discuss.

Durham's Vanishing Comma

A few weeks back, Durham attorneys filed a motion requesting summary judgment regarding elements of the civil suits dealing with state law. They cited a recent decision, Pettiford v. City of Greensboro, to contend that they had immunity. The basic argument: the city has immunity from state-based tort claims, since Durham’s insurance policies were written in such a way not to pierce the immunity the city enjoyed.

At the time, several commenters pointed out that the city’s filing seemed unusually cogent. In sharp contrast to the run-of-the-mill argument from Durham (i.e.: state law says Mike Nifong wasn’t supposed to supervise a police investigation, and therefore Durham can’t be sued for results from the city’s decision to allow him to supervise a police investigation), the Durham filing looked as if had offered an intellectually consistent and on-point claim.

But as revealed in explosive filings from Charles Davant (representing the three falsely accused players) and Bob Ekstrand (representing Ryan McFadyen, Matt Wilson, and Breck Archer), we should have known better. Incredibly, it appears as if Durham’s high-priced attorneys—the same attorneys who have received more than $1 million in fees—misrepresented the city’s insurance policies in such a way that they essentially presented a false argument.

Davant’s opening pithily summarizes the implications of the city’s multiple errors:

The City’s brief misquotes the sentence upon which its argument depends, omitting a particularly important comma. The omission reverses the sentence’s meaning, transforming policy language that is fatal to the City’s position into the inaccurate language upon which the City’s motion is based. The omission also leads the City to represent, inaccurately, that this Court interpreted “identical policy language” in Pettiford. In fact, Pettiford involved an insurance policy that was altogether different from the City’s, and that only highlights the problems with the City’s argument.

Other issues about the Durham filing raised by Davant and Ekstrand.

1.) Inaccurate Quotations.

The city’s filing was [deliberately?] misleading. It removed a comma from a key sentence in its insurance policy—and by so doing, changed the meaning of the policy’s language in such a way to align Durham’s policy with the language of the Pettiford decision. Perhaps the Durham attorneys were simply, if inexcusably, sloppy?

2.) Misleading Ellipses.

The Durham brief also . . . creatively . . . used ellipses to mask the true meaning of its insurance policies. As Ekstrand points out,

The ellipses conceal the text that reveals that the City’s retained limit is exhausted not only by the City’s obligation to pay a claimant, but also by the City’s payment of “defense costs” along the way to judgment. Specifically, the City’s ellipses replace the phrase “by means of payments for judgments, settlements, or defense costs.” Restored to its original state, the quoted sentence reads: [The insurer’s] duty to pay any sums that you become legally obligated to pay arises only after there has been a complete expenditure of your retained limit by means of payments for judgments, settlements, or defense costs.

(While Durham has had no legal judgments against it in the case, its defense costs to date exceed its limit, and therefore require insurance payment.)

Even more dramatically, Ekstrand quotes an email between then-City Manager Patrick Baker and the city’s risk manager—the email about the very issue of insurance and the city losing its immunity, but from an already settled 2007 lawsuit. The city’s risk manager was clear: defense costs—not just settlement costs—pierced the city’s immunity:

The SIR [self-insured retention] applies to damages as well as legal defense expenses (but not to expense of our staff counsel, so we can't bill for your time.) When we expect that a claim could go into the excess (exceed the SIR), then we need to report it to the underwriter promptly. … We have an obligation to protect the underwriter's interest, and that necessarily affects our settlement posture within the SIR . . . . This does affect the potential for an immunity defense because immunity is waived to the extent of the insurance. … This is the dilemma of the low SIR.

The Durham brief operated as if this email didn’t exist.

3.) Ignoring Relevant Case Law.

In his filing, Davant cites 16 separate North Carolina cases that refuted Durham’s argument even if the city hadn’t misrepresented the language of its insurance policy. In one of these 16 cases that refute Durham’s argument, Durham itself was a defendant—making it rather difficult to explain how the city could have been unaware of the precedent.

Davant also quotes from the Kephart decision, in which the Court rejected the very argument offered by Durham in its filing as “basically circular” and contrary to “our case law,” which “has consistently considered purchase of limited insurance coverage by a governmental entity to constitute partial waiver of sovereign immunity.”

“In short,” Davant concludes, “the City’s legal argument is refuted not only by its prior admissions and the case law, but by the plain language of its policies.”

4.) Concealing Relevant Information.

The issue of defense costs triggering the insurance policy wasn’t the only information conveniently neglected from the Durham filing. Durham also made the following claim: “The City does not now participate, and has not in the past participated, in any local government risk pool pursuant to Article 23 of Chapter 58 of the North Carolina General Statutes.”

But, as both the Ekstrand and Davant filings observes, Durham actually does participate in such an arrangement—Interlocal Risk Fund. Could the Durham attorneys have been aware of this arrangement?

Moreover, as the Ekstrand filing further notes,

[Durham counselor] Mr. Laws states under oath— unequivocally and incorrectly—that “the City is not a party to any agreement which requires … any other entity to pay claims for which the City incurs liability.” Mr. Laws is wrong. One such agreement was attached to Plaintiffs’ Amended Complaint: the Duke-Durham Police Jurisdiction Allocation Agreement. Section 3.5 of the Police Jurisdiction Allocation Agreement contradicts Mr. Laws’ sworn declaration. It provides: “To the maximum extent allowed by law, the University shall defend, indemnify, and save harmless the City from and against all claims, demands and lawsuits that may arise in any manner from, in connection with, the acts or omissions of the University’s officers while performing their duties under this Agreement.”

Ekstrand continues,

Plaintiffs can only assume that Mr. Laws simply did not know of either the City’s “Immunity Waiver Fund,” the City’s three Resolutions deeming the fund to be a waiver of the City’s governmental immunity, the City Council’s appropriation of over $600,000.00 to participate in the League of Municipalities’ local government risk pool, or the City’s indemnification agreement with Duke University relating to all claims arising out of the concerted activities of the Duke and Durham police departments. If that is the case, Mr. Laws simply not a reliable affiant with respect to the facts at issue in the City’s dispositive motion.

The city’s pattern of . . . incomplete . . . disclosure of information, the players’ attorneys argue, should be particularly problematic in a motion for summary judgment. Davant summarizes the information that the plaintiffs’ attorneys could encounter if and when discovery actually begins:

• communications between City officials and/or the City’s insurers regarding coverage of Plaintiffs’ state-law claims;
• reimbursement of the City Defendants’ legal fees incurred in connection with defending Plaintiffs’ state-law claims;
• other statements by City officials concerning the City’s insurance coverage for Plaintiffs’ claims;
• whether the City and/or its insurers have engaged in other actions that would support a finding of insurance coverage and, therefore, a waiver of immunity.

The Davant filing presents five (logical, if almost comical) questions that the Durham filing essentially presented as unsettled:

1. Where an insurance policy provides that coverage is triggered upon the insured’s payment of $500,000 “for judgments, settlements, or defense costs,” is coverage triggered upon the insured’s payment of $500,000 in defense costs?

2. Can a city claim governmental immunity on the ground that it has no “legal obligation to pay” its self-insured “retained limit,” where the policy at issue requires only that the retained limit be paid, not that the city have had a “legal obligation to pay” it?

3. Does a city’s insurance policy extend coverage to state-law torts if it expressly covers “wrongful acts” that specifically include “negligent acts,” “personal injury offenses,” “malicious prosecution,” “false arrest,” and other state-law torts?

4. Does an endorsement to an insurance policy that is expressly made “subject to” the policy instead override the policy?

5. Should summary judgment be granted on the affirmative defense of governmental immunity where the moving party’s prior statements, at a minimum, create a question of fact, and the non-moving parties have been unable to take discovery?

The answers to each of these questions are self-evident, at least to everyone outside the Durham elite.

Some aspects of this case—chiefly involving the unindicted players’ suit against Duke, which could have far-reaching implications on higher education—involve complicated questions of law. But the only thing complicated about Durham’s interpretation of the Pettiford decision appears to be how the city’s attorneys could have ever made the claims they did.

[Update, here are the links to the Davant and Ekstrand motions.]

New Civil Suit Filings

Late November featured several filings in the civil suit—some from the plaintiffs, mostly repeating previously advanced arguments, and an explosive filing from Bob Ekstrand, raising serious questions about the Durham legal team’s veracity. Today’s post will look at the defendants’ filings; Wednesday’s will examine the Ekstrand filing.

Some of the old and new defendants’ assertions that raised eyebrows:

1.) Durham and Duke authorities continue to defend the non-testimonial order that kicked off the media firestorm.

Under North Carolina law, an NTO requires both probable cause that a crime was committed and a reasonable belief that the subject of the NTO could have committed the crime. In March 2006, with the drafting assistance of Durham DA-elect Tracey Cline, the DPD obtained an NTO requiring DNA and photos from all 46 white lacrosse players.

In analyzing the lacrosse case NTO, apply the Brad Ross test: he’s blonde (Mangum hadn’t described any of her attackers as blonde); none of the captains listed him as attending the party (as, in fact, he did not, since he was in Raleigh that night); and his name didn’t match any of the names of the people Crystal Mangum alleged “attacked” her.

Not only did the DPD lack a “reasonable belief” that Ross committed the “crime”—they had no belief at all on the matter. Yet they sought and obtained an NTO against him. And attorneys representing both Durham and former DPD officers (and, even more incredibly, Duke) continue to assert that they had every legal right to seek an NTO against Ross.

Durham attorneys Reginald Gillespie and Roger Warin describe the non-testimonial order as “reasonable.” Duke attorney Jamie Gorelick suggests that the NTO was legally justified. Attorneys for former DPD officers Ben Himan and Mark Gottlieb go even further, asserting that “ample grounds” existed for the NTO. Indeed, the Himan/Gottlieb brief contains a 26-point chart justifying the NTO. The inference: Durham police would do it all over again.

This line of argument effectively makes the plaintiffs’ case for them, since it suggests that the Durham Police (and, incredibly, Duke as well) see nothing wrong with violating residents’ civil rights, as an official policy. The logical extension of the Durham/DPD argument is that once the city has “probable cause” that a crime has occurred, it doesn’t need “reasonable belief” against a particular subject in order to obtain an NTO against that person.

2.) Blame someone else.

The Himan-Gottlieb brief is particularly aggressive in throwing co-defendant and former SANE nurse-in-training Tara Levicy under the bus. “The SANE nurse [in training],” attorneys Edwin Speas and Joel Craig write, “told investigators in this case that Mangum ‘had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally.’”

The officers, they suggest, can’t be held liable for the fact that Levicy lied to them. The brief asserts that Gottlieb and Himan had no obligation to interview the person who actually performed Mangum’s medical exam, Dr. Julie Manly. Speas and Craig don’t explain why it was OK for Gottlieb and Himan not to interview Manly.

3.) Don’t let the facts of the case stand in the way of an argument.

From the Durham brief: “The City has explained that, as a matter of law, Michael Nifong acted solely on behalf of the State of North Carolina, rather than the City.” Yes, that’s how the law is supposed to work. But in this case, of course, it didn’t, since Durham decided to allow Nifong to run a DPD investigation. That’s a major reason why Durham faces a lawsuit.

From the Durham brief, regarding Mangum’s failure to identify any of her “attackers” in lineups that loosely followed the DPD’s requirement of five filler photos for every photo of a suspect: “The fact that Mangum appeared to have difficulty identifying her attackers in the photo arrays was not material to the probable cause determination.” Mangum, of curse, didn’t “appear[] to have difficulty identifying her attackers in the photo arrays.” She could not identify her attackers in the photo arrays. Why can’t the city of Durham, after everything that’s happened, admit this?

4.) Duke maintains its “straw man” legal strategy.

Duke attorneys Donald Cowan and Jamie Gorelick, still seeking to try a case that doesn’t exist, maintain that the lacrosse players’ “fundamental contention is that Duke University and its administrators were legally obligated to protect them from the consequences of a police investigation—by quelling media coverage of the case, preventing campus protests, and even interceding to stop the investigation.” And, they add, “Plaintiffs contend that the Duke health care providers, who were responsible for the medical examination of Crystal Mangum on the night she alleged she was raped, should be liable for harms allegedly caused by Durham Police officers and the prosecutor in investigating those allegations.”

I can sympathize with the plight of Cowan and Gorelick: it sure would be easier to argue against such a case than the case that they confront: that Duke officials took money from the lacrosse players but failed to enforce either the Faculty Handbook or the Student Bulletin; that Duke’s inability or refusal to supervise one of its employees, Tara Levicy, was critical to first initiating and then sustaining the case; and that Duke employee Levicy’s false statements to police were critical to first initiating and then sustaining the case.

That said, the Cowan/Gorelick approach seems more appropriate to the world of political spin—where talking heads base arguments on wild and easily noted distortions of the opponents’ words and arguments—than to the world of a federal court, where words are supposed to mean what they say.

5.) Duke still defends its suppression of the student voter registration drive.

Write Gorelick and Cowan,

All the alleged efforts to “shut down” their voter registration drive took place on Duke’s private property. They argue, however, that the First Amendment was implicated when “uniformed police officers” carried out Duke’s alleged decision to curtail their registration efforts. That argument lacks merit; courts have repeatedly held that the police may assist private property owners in exercising their right to restrict political activities on their property without violating the First Amendment.

The 1998 Higher Education Act requires any university that receives federal funds (as Duke does) to encourage students to register to vote. I’m not aware of any litigation specifically defining the scope of the act, but surely suppressing a student-led voter registration drive would not fulfill the act’s provisions.

The lacrosse players lack standing to sue for Duke violating the Higher Education Act. It nonetheless is astonishing to see the University's legal team so nonplussed by Duke's apparently unwillingness to adhere to the HEA's terms.

6.) A no-winner for Duke.

Assert Gorelick and Cowan bluntly, “The Duke bulletin is not a valid contract.” A translation for Duke parents: if activists in the Duke faculty decide to target your son to advance their pedagogical or ideological agendas, Duke considers itself under no obligation to uphold its own policies to protect its own students.

I wonder what all the students ensnared in the Duke judicial system for real and imagined violations of that bulletin think of the argument that the bulletin “is not a valid contract.” And I wonder what prospective parents of the Class of 2013 would think of Duke’s dismissal of its own regulations. Somehow, I doubt that Duke will share with them the words of Gorelick and Cowan.

7.) When all else fails, count on Linwood Wilson for comedy.

Fired DA office investigator Linwood Wilson, acting as his own lawyer, demands that sanctions for unethical behavior(!) be filed against the lacrosse players’ attorneys.

We’re talking about a man who denied ever seeing Mike Nifong behave in an unethical fashion. So it could be argued that Wilson doesn’t understand what constitutes unethical conduct. Speaking of himself in the third person, Wilson writes:

Defendant Wilson had no arrest powers and no prosecutorial powers and could not have arrested nor prosecuted any of the Plaintiffs’. Defendant Wilson had no supervisory authority placed upon him by the City of Durham Police Department nor did Defendant Wilson share with Nifong and have “certain final policymaking authority, delegated from City Officials”. Plaintiffs’ have continued to group Defendant Wilson as a law enforcement officer in all their pleadings knowing full well that was not true. Plaintiffs’ failure to properly investigate, if by nothing else but simply reading the State Statute (GS 7A-69), or by simply calling the Attorney General’s Office, would have verified those facts. Defendant Wilson argues that Plaintiffs’ failure to do so, and by filing an action against Defendant Wilson knowing that certain allegations were false, has resulted in a Rule 11 Violation and the sanction for that violation should be dismissal as set out as a remedy in the Federal Rules of Civil Procedure.

In other words, Nifong wasn’t supposed to be supervising the police investigation, and Wilson, his employee, wasn’t supposed to be engaged in de facto police activity, and because the players’ attorneys pointed out these inconvenient facts, they should be sanctioned.

Wilson’s legal creativity rises to even greater heights, however, in his concluding section, which tries to promulgate new law:

Plaintiffs’ [sic] were never even charged with any crime and have no foundation for this action and it is increasingly clear that Plaintiffs’ motives are to extort money from these defendants by bringing an action they know to be frivolous. Therefore Defendant Wilson’s Motion to Dismiss should be granted.

Wilson’s filing only confirms the old aphorism: A man who is his own lawyer has a fool for a client.

November Events in the Case

November was a relatively light month in the case, with politics taking center stage:

• North Carolina's senior senator, Republican Elizabeth Dole, lost her bid for re-election. Ten weeks after AG Roy Cooper declared the players innocent victims of a rogue prosecutor, Dole had preposterously claimed that the lacrosse case was still “an ongoing criminal investigation and pending judicial proceeding.”

• Cooper, meanwhile, received more votes than any other North Carolina statewide candidate, after leading off his campaign with a TV ad celebrating his work on the lacrosse case.

• And after her primary victory, Tracey Cline won an unopposed bid to become district attorney--meaning, as Freda Black recently pointed out in the Chronicle, that we won't find out the truth about the actual role that Durham County's new "minister of justice" played in the lacrosse case until the civil case trials.

In the department of Duke double standards:

• Michael Burch, who allegedly raped a Duke student at a 2007 party hosted by a Duke African-American fraternity, was arrested for another rape allegation. The Group of 88, despite their stated concern with the prevalence of "sexual violence," remained as silent as the grave.

• The chairman of Duke's Board of Trustees chose to invest between $1 million and $5 million of his own money in the work product of a faculty member who had--in seeming violation of the Faculty Handbook--compared Duke students to a lynch mob and had suggested that the law might require Duke students to talk to Durham police outside the presence of the students' attorneys.

Duke is now suing its own insurance company.

Wendy Murphy is up to her old tricks.

The Durham "grassroots" re-emerges.

The City of Durham claimed that a recent court ruling means that the city is invulnerable to civil suits claiming violations of state law.

Several civil suit filings came in right at the end of the month; I'll be profiling these on Monday.

Nifong Loses Ruling

Unsurprisingly, Judge James Beaty has upheld the ruling of a bankruptcy judge denying Mike Nifong's efforts to use the bankruptcy law to get out of the civil suit.

Asking Questions

Two figures whose performance in the lacrosse case left much to be desired are taking on-line questions:

• New York Times sports page editor Tom Jolly (the person who supervised Duff Wilson);

• NAACP head William Barber (the person whose organization posted the guilt-presuming 82-point "memorandum of law").

I invite DIW readers to submit questions at the links provided above. Jolly previously provided one, vague, comment on the lacrosse case:

As far as our coverage of the case itself, if the essence of your question is whether I feel good about it, the answer is that I very much regret my failure to recognize that we were dealing with a rogue prosecutor and that the university had compounded his bravado by overreacting to the initial reports about the case. I don't recall another instance of a university canceling the season of a team that was a contender for a national championship. Nor do I recall a similar example of a prosecutor launching such an aggressively wrongheaded investigation.

But the bottom line is that I'd do some things differently, and that knowledge gained by hindsight has informed our approach to other stories since then.

Jolly has never revealed what he would have done "differently," nor what specific changes resulted from the "knowledge gained."