Monday, July 27, 2009

No Comment

I recommend sitting down as you read the identity of the lawyer "representing" the 911 caller in the Gates case.

What's next? Crystal Mangum as a PR consultant?

Who Were the Sociologist Signatories?

At this stage, nothing should surprise me about this case. But I admit that even I was a little taken aback at reading the May 1, 2006 Sociology professors/graduate students letter that was uncovered in the Campus Cultural Initiative archive. (I summarized the letter here and reprinted it here). The letter proclaimed that “an exclusive focus on whether the administrative response operated within the scope of the law would ignore the important responsibilities the Administration has to students, faculty, and staff, as well as the citizens of Durham. The entire Durham community is directly affected by this situation, in particular, and the culture of Duke more generally. The events that transpired on March 13th [even though, at the time this letter was written, grave doubts existed as to exactly what “the events that transpired on March 13th” were] call for an immediate response and decisive leadership to ensure that everyone affected can be certain that the administration of Duke will never tolerate any form of racial, sexual, or gender violence from any individual of the Duke community regardless of their race, class, and privilege status.”

Keep in mind that this document appeared 25 days after the Group of 88 ran their ad and three full weeks after reports of no DNA matches cast strong doubt on whether Crystal Mangum was even remotely telling the truth. By almost any measure, the Sociologists’ letter to President Richard Brodhead was more ideologically extreme than the Group of 88 statement—which is, of course, saying something.

Who were the people who could have actually thought that signing such a document was a good idea?

Ten of the signatories taught in the Sociology Department—with seven professors, one professor emeritus and two “visiting assistant professors.” Of the ten:

  • Rebecca Bach remains at Duke, where she is associate director of undergraduate studies in the Sociology Department and a “visiting assistant professor.” She has a special interest in LGBT studies, a trendy, politically correct field.
  • Eduardo Bonilla-Silva , the professor who in a course syllabus (considered a contract between the student and the university) described the country in which he lives as the United States of Amerikkka (I will remove the three Ks from this word when the USA removes racial oppression from this country!),” continues to teach Duke undergraduates and train Duke graduate students.
  • David Brady remains at Duke, as a professor of sociology and as director of the university's Center for European Studies.
  • Nan Lin remains a professor of sociology at Duke.
  • Philip Morgan remains a Sociology professor at Duke. He is the former chair of the Sociology Department, and was recently named director of Duke's Social Science Research Institute, an entity that also includes case stalwarts Paula McClain and the excitable Kerry Haynie.
  • Emilio Parrado is now teaching at Penn.
  • Martha Reeves remains at Duke, as a “visiting assistant professor.” For those who have followed the case since its inception, the name of her spouse might ring a bell: Alex Rosenberg, the professor who claimed he signed the Group of 88 statement because of his disgust with underage drinking, even though the statement never mentions the problem of underage drinking or even uses the word "alcohol."
  • Suzanne Shanahan remains a Duke Sociology professor, where she is, incredibly, associate director of the Kenan Institute for Ethics.
  • Kenneth Spenner is currently chairman of the Duke Sociology Department.
  • John Wilson is a professor emeritus in the Duke Sociology Department.

Eight more signatories have obtained their Ph.D. degrees and have gone on to receive jobs in the academic profession since they affixed their signatures to the May 1, 2006 letter.

Five on this list received tenure-track positions—a reminder, if one was still needed, that race/class/gender extremism is a plus in the search for employment in an academy dominated by race/class/gender groupthink. This list includes the following:

One signatory, Donald Ebel, received his Ph.D. in 2008, but no record exists of his receiving an academic job. Most of the remaining signatories are either still at Duke or just graduated from the institution. Those who remain at Duke are working toward Ph.D. degrees in Sociology—in some cases, studying under one or more of the professors who themselves signed the letter. This list includes:

Finally, four signatories (Joanne Durchfort, Steven Frank, Jessica Sautier, and Xueguang Zaou) no longer appear to be at Duke, and do not appear to have received other academic appointments.

The significance of this list of 37 extends beyond exposing this "Hall of Shame." The new conventional wisdom coming from apologists of Duke's groupthink atmosphere is that perhaps the Group members are extremists, but they have no real influence on campus. As you ponder that line of defense, consider this: at Duke in early April 2006, there were no fewer than seventeen academic departments and programs that had a higher percentage of members who joined the Group of 88 than did the Sociology Department.

In other words, the department that produced the pernicious May 1, 2006 letter was actually among the more moderate on campus in spring 2006.

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Friday, July 24, 2009

I Don't Recall . . .

Vanderbilt University professor Houston A. Baker being so concerned with the importance of protesting police misconduct when those whose civil liberties were being violated went to school at his then-institution. Nor do I recall Distinguished Professor Baker being so concerned about the importance of avoiding racial profiling when he elected to comment on the case involving his own institution's students, acting as he did solely on the version of events presented by the police and the prosecutor.

But perhaps the events in Durham opened Distinguished Professor Baker's eyes to the importance of always speaking up on behalf of civil liberties.

For the record, I consider these posts by Marc Ambinder, Wendy Kaminer, and Conor Friedersdorf the most perceptive commentary on the Gates case. President Obama's statement (which, it's worth noting, did not echo Gates defenders' absurd racial profiling allegation) struck me as common sense. As for Drew Faust: can anyone imagine the ultra-politically correct Harvard president issuing the statement that she did, at the time that she did, if a white male Harvard professor had been arrested in his own home for behaving legally, if obnoxiously, to a Cambridge cop?

Monday, July 20, 2009

The Players' Iqbal Briefs

All three sets of attorneys for the lacrosse players have now filed their response briefs on the Iqbal issue. (I discussed the University’s and the city’s briefs here and here.) Here are their main points:

1.) The Defendants Misread Iqbal

Virtually all of the defendants strongly implied that Iqbal made it much harder for the plaintiffs to survive summary judgment. The lacrosse players’ attorneys disagree. Here’s an excerpt from the brief filed by Chuck Cooper and Bill Thomas, who represent 38 unindicted players and some of their parents:

Defendants contend that a claim survives at the pleading stage only if it is more likely than any innocent alternative explanation—that is, only if it is probable. But in both Twombly and Iqbal, the Supreme Court could not have been more emphatic that it was “not impos[ing] a probability requirement at the pleading stage.”

As Cooper and Thomas note, if the Durham/Duke argument were carried to its logical conclusion, the approach would ensure dismissal of any civil suit:

If correct, the Defendants’ conceit that a claim fails if the factual allegations are “consistent with” both the claim and an hypothesized lawful explanation would mean that a claim could survive a motion to dismiss only if there were no possible innocent alternative explanation. Put another way, Defendants’ analysis of the Complaint assumes that a claim survives a motion to dismiss stage only if the allegations show that the claim is factually certain.

2.) The Defendants’ Fail by Their Own Standard

The lacrosse players’ attorneys further contend that even if Judge Beaty rejects the wording of Iqbal and decides to evaluate the summary judgment motion on the basis of which side presented the more convincing explanation, the summary judgment motion nonetheless should fail. This passage is from the brief filed by attorneys for the falsely accused players, Brendan Sullivan, Barry Scheck, and Richard Emery:

On the facts alleged, however, it is the City Defendants’ “alternative explanations,” not Plaintiffs’ claims, that are implausible: the Amended Complaint alleges facts that, taken as true, demonstrate that the City Defendants were aware of overwhelming proof that no crime had occurred, and yet still caused Plaintiffs to be arrested, indicted, and publicly vilified in the absence of any probable cause. Iqbal does not permit courts to choose between competing “alternative explanations” for well-pleaded factual allegations, only to determine if there is more than a “sheer possibility” that Defendants acted unlawfully.

The Cooper/Thomas brief and a reply brief filed by Bob Ekstrand, who represents three other unindicted players, make the similar point: that if Judge Beaty wants to get in the business of deciding which side’s claims are more “plausible,” it’s pretty clear that Durham and Duke, not the lacrosse players, fail the plausibility test.

3.) Iqbal Doesn’t Help Defendants in Cases with Lots of Available Facts

In the opening section of their brief, attorneys for the three falsely accused players make this case bluntly, as they dismissively reject the argument presented by the city, disgraced ex-DA Mike Nifong, and the DSI lab:

In supplemental briefs, the wrongdoers behind the Duke lacrosse case—one of the best-documented episodes of police and prosecutorial civil rights abuses in modern history—contend that their misconduct can never be the subject of a federal action because the pleading requirements of Rule 8(a) present an insurmountable barrier. They declare that the well-known facts of the Duke lacrosse case are “implausible,” and that the Court should simply disbelieve them and dismiss the case before discovery even begins.

This point is, perhaps, the most glaring difference between Iqbal and the lacrosse case. In Iqbal, virtually none of the material relating to decisions made by ex-AG Ashcroft and ex-FBI director Mueller was publicly available at the time the suit was filed. In the lacrosse case, on the other hand, copious facts already are in the public domain (while, of course, much more should come to light in discovery). If any case should survive an Iqbal motion, then, it’s the lacrosse case.

4.) Iqbal’s Contextual Requirement Helps the Lacrosse Players

Briefs for both sides pointed to the Supreme Court’s context guidance in Iqbal: the law “oblige[s] a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible . . . [This] context-specific task … requires the reviewing court to draw on its judicial experience and common sense.” As the players’ attorneys point out, however, it’s unclear how either the city or (for the unindicted players) Duke think that the context of 2006-2007 events in Durham could possibly help them. Here’s a passage from the Cooper/Thomas brief:

The context of Plaintiffs’ Complaint should likewise be considered here, just as Defendants urge, but it does not help them because it is radically different from Iqbal. The Duke rape hoax is the most infamous investigation of a non-existent crime in American history. It convulsed the State of North Carolina and dominated the national news media for a year. The misconduct was so pervasive and so toxic that the Attorney General of North Carolina took the case away from the Durham Defendants . . . In this context, it is the Defendants’ mind-numbing repetition that they were all “just doing their jobs” that is totally implausible as an alternative explanation for the wrongs pleaded in the Complaint.

It’s hard to disagree with that conclusion.

5.) Two Post-Iqbal Cases Help the Lacrosse Players

While Iqbal is a very new case, it has already come up in a few lower-court decisions—and two, in particular, seem to help the lacrosse players.

Attorneys for the falsely accused players cite a Maryland (4th circuit) case, Swagler v. Harford County:

Since Iqbal, one district court has already recognized that the Fourth Circuit’s standard of review for civil rights complaints remains the same: “where . . . the defendant seeks to dismiss the plaintiff’s civil rights complaint, this Court must be especially solicitous of the wrongs alleged and must not dismiss the claim unless it appears to a certainty that the plaintiff would not be entitled to relief under any legal theory which might plausibly be suggested by the facts alleged.”. (Maryland)

And all three sets of attorneys cite the recent decision to allow a suit to go forward filed by formerly alleged dirty bomber Jose Padilla against John Yoo. From the falsely accused players’ brief:

The [Durham] Supervisory Defendants are independently liable for civil rights violations because they “‘set[] in motion a series of acts by others which the[y] . . . kn[ew] or reasonably should [have known] would cause others to inflict the constitutional injury.’” Spell v. McDaniel, 591 F. Supp. 1090, 1110 (E.D.N.C. 1984) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). This principle was recently reaffirmed in the Padilla case, discussed above, which was decided after Iqbal and held that accused terrorist Jose Padilla had sufficiently stated claims against former Deputy Attorney General John Yoo.

6.) If the Defendants’ Pleadings Are True, Then the Constitution Doesn’t Exist in Durham

One element of the Duke-Durham response—that the lacrosse case was essentially business as usual in the XX City—provides an almost irresistible counter. Here’s an excerpt from the brief filed by the 38 unidicted players:

Durham insists that malice has not been adequately pleaded because the allegations against its Investigators are merely “routine investigatory activity.” This defense cannot be taken seriously: falsifying evidence, intimidating and tampering with witnesses, suppressing exculpatory evidence, and vilifying suspects in the media and by disseminating “wanted” posters are hardly routine government acts—and they are certainly not legitimate government acts. And of course the allegations should be examined in the context of Attorney General Cooper’s excoriation of Durham’s investigation. That Durham’s misconduct was outrageous does not make it implausible. What is implausible is Durham’s alternative, innocent explanation that its agents were simply doing their jobs in good faith.

Duke’s claim that ex-SANE nurse-in-training Tara Levicy’s repeated “evolutions” of her story represented nothing more than how all Duke employees would seek to cooperate with a legitimate law enforcement investigation is similarly shredded in the responses.

7.) Nifong

Finally, there’s the case of the bizarre brief filed by attorney James Craven on behalf of disgraced ex-DA Mike Nifong, a brief that essentially made no legal arguments but instead lashed out primarily at the falsely accused players. Because Nifong didn’t even try to make a good-faith legal argument, his brief is almost painfully easy to rebut. From the Sullivan/Scheck/Emery brief:

In his supplemental brief, Defendant Nifong makes no serious argument that the Amended Complaint fails to plead facts showing more than a “sheer possibility” he acted unlawfully. Nor could he. The North Carolina State Bar (in disbarring Nifong), the North Carolina Attorney General (in declaring Plaintiffs’ actual innocence), and the Superior Court for Durham County (in finding Nifong guilty of criminal contempt) all found more than a “sheer possibility” that Nifong engaged in wrongdoing. Perhaps most telling is Nifong’s suggestion that the Amended Complaint might be too long.

As we know, ex-DA Nifong never did like to read case-related material, so perhaps that complaint is understandable.

Monday, July 13, 2009

Checking in with the Group

A recent issue of Duke Magazine featured three members of the Group of 88 showing that critical self-reflection is not a hallmark of Group scholarship.

The first essay—coupled with a bizarre photograph—came from Karla Holloway, identified as “James B. Duke Professor of English and professor of law.” (Holloway is the very rare member of an elite law school’s faculty who does not possess a J.D.)

Holloway’s essay is a paean to the right to privacy. Writes she,

The right to privacy that allows us to associate our homes with sanctuary and that places the highest value on an "inviolable personhood"—a nineteenth-century notion of "the right to be let alone"—is a right we still understand and desire today. But in twenty-five years, I suspect that we will barely recognize how public—and indeed how violated—our inviolable personhood has become. In fact, we have encouraged some of this slippage. The threat of terrorism has been enough to persuade us to accept warrantless searches. And when these searches became virtual in the form of warrantless wire-tapping, it seemed merely a change of venue rather than a loss of constitutional rights. In the battle between privacy and national security, the nation followed its fears.

Holloway also expresses grave concern about how DNA—even when given up voluntarily—can cause a loss of privacy. “As the science advances, the material you sent in for one purpose may end up being used for something entirely different—from medical research for the public good to tracking down a suspected criminal in your family, using the very genetic markers you made available for discovery.”

Is this the same Karla Holloway who couldn’t be bothered when a local judge demanded that some Duke students who weren’t even in Durham County the night of an alleged crime had to turn over their DNA, under force of compulsion, to local authorities? We all know how Holloway responded to that loss of privacy—she signed onto the Group of 88’s statement, proclaiming that something had “happened” to the accuser and thanking protesters who had (in another seeming violation of privacy) blanketed the campus with “wanted” photos of the lacrosse players.

You’d think that having seen this remarkable transgression of privacy rights, occurring to students at her own institution, might have caused Prof. Holloway to reflect on her part in events of 2006 and 2007. But it appears that for the ”James B. Duke Professor of English and professor of law,” some invasions of privacy aren’t much of a problem.


Duke Magazine also brought to alumni the insights of Group of 88’er Paula McClain. McClain, who offers a variety of courses on race and American politics but seemingly teaches nothing else, cautioned that the election of Barack Obama does not signal “the end of issues of race or racism in the U.S.”

McClain concedes that, yes, the African-American Obama received a higher percentage of the white vote than did the white John Kerry. And she also notes that he carried a majority of the vote from younger whites. But these facts, she cautions, shouldn’t detract from Victimology 101, “because so many areas of structural inequality in the U.S. have existed for so long.”

How should this “structural inequality” be addressed? McClain doesn’t say, although she implies support for a continued racial preferences scheme coupled with government assistance to minorities. And even if Obama did everything she wanted, the Group of 88’er asserted that “much would remain to be done after he leaves office.”

McClain concluded with an off-the-wall comment: “As the nation becomes increasingly multiracial over the next twenty-five years, the imperative to confront these inequities will be even more important if the nation is to continue moving forward.”

Of course, “as the nation becomes increasingly multiracial,” the racial preferences system will almost certainly become harder to sustain. To take the most clear-cut example—higher education admissions—the testing data suggests that African-Americans benefit from “diversity” admissions primarily at the expense not of whites but of Asian-Americans. How would this problem be addressed in the “increasingly multiracial” United States? McClain doesn’t seem interested in exploring the matter.


Duke Magazine readers also got to hear from Cathy Davidson (shown, like Holloway, in a somewhat peculiar photograph). In a passage that could have applied to her fellow Group of 88’ers, Davidson maintained, “Given the ever-increasing rapidity and magnitude of change on a global scale, we all need to master the precious and formidable skill of being able to stop in our tracks, discard the road map that has failed us, and try a different route on the unpredictable journey ahead.”

Her essay mostly consists of complaints that good grades don’t predict future success and that universities don’t have enough “interdisciplinary” offerings (which, freed from even the limited constraints of disciplinary bounds, are particularly appealing for the politically correct). The time has come, writes Davidson, for “radical educational transformation.” Of course.


Davidson, McClain, and Holloway would be well-served by reading an essay published last week by Cass Sunstein, President Obama’s nominee to head the Office of Information and Regulatory Affairs, whose work I have cited on other occasions in the blog. The title could be a description of the Group of 88: “To become an extremist, hang around with people you agree with.”

As Sunstein notes, research shows that “much of the time groups of people end up thinking and doing things that group members would never think or do on their own . . . when people find themselves in groups of like-minded types, they are especially likely to move to extremes. And when such groups include authorities who tell group members what to do, or who put them into certain social roles, very bad things can happen.“

What explains group polarization? According to Sunstein, the key “involves the exchange of new information. Group polarisation often occurs because people are telling one another what they know, and what they know is skewed in a predictable direction. When they listen to each other, they move.” Applied to the Duke case: In the race/class/gender world of the Group of 88, where dissenting opinions are rarely if ever heard, the natural development was a movement to a position that was more extreme than what all but a handful of the Group of 88 (perhaps Wahneema Lubiano, Grant Farred, and Eduardo Bonilla-Silva) would have taken on their own.

Again describing a phenomenon we saw with the Group of 88, Sunstein notes, “People tend to respond to the arguments made by other people — and the pool of arguments, in a group with a predisposition in a particular direction, will inevitably be skewed in the direction of the original predisposition.”

The contrast: “Those who lack confidence and who are unsure what they should think tend to moderate their views. Suppose that you are asked what you think about some question on which you lack information. You are likely to avoid extremes. It is for this reason that cautious people, not knowing what to do, tend to choose some midpoint between the extremes. But if other people seem to share their views, people become more confident that they are correct.”

As we saw with the lemming-like signatures to the “clarifying” letter, in which Group members proudly proclaimed they would never apologize, a certainty of their rightness characterized the Group throughout the case.

Thursday, July 09, 2009

A Troubling Case

A disturbing, and compellingly written, ESPN article that I strongly recommend.

The lacrosse case shone a light on the guilty-until-proven-innocent nature of rape law: the idea that someone can be, theoretically, convicted solely on the basis of an accuser’s testimony and ID—even in the face of evidence of actual innocence—is chilling. Our criminal justice system supposedly is built on the idea that better nine guilty go free than one innocent person be convicted; with sexual assault law, the reverse seems to hold true.

The reason, of course, arises from the (probably correct) belief that sexual assault is underreported. But then feminists and “tough-on-crime” legislators made a fatal leap: that if the law is changed to make a conviction more likely, more real victims will be likely to report the “crime.” That might be true—but it also leads to situations like the one in the ESPN article, where the evidence for conviction appears very, very flimsy.

One other point: this was an allegation of a rape by a black athlete of a woman of uncertain ethnicity*. The case attracted little national media attention—part of a pattern I profiled here, in which the media attention to the lacrosse case was wildly disparate to media attention of allegations of sexual assault by minority athletes. In the Santa Barbara case, media political correctness appears to have helped perpetuate an injustice—if a California version of Joe Neff had been on the case from the start, perhaps a different outcome would have occurred.

Hat tip: E.D., J.Z.


Wednesday, July 08, 2009

More from the Comments Thread

At View-from-Wilimington, Chris Halkides summarizes what I consider unfortunate recent behavior by the blogger John in Carolina--whose work on the lacrosse case I had admired (with the exception of what seems to me his unfair unwillingness to consider the N&O's work after early April 2006 in evaluating the N&O's overall performance in the case).

A couple of factual points on the issues raised in the linked post. I have banned two commenters over the course of the blog--the commenter "polanski," who repeatedly commented under other people's names; and a (true-believer) commenter who repeatedly offered factually inaccurate statements. In both cases, I announced the bans in comment threads. No other commenters have ever been banned at DIW. I should note that I would have gladly shared this information with the blogger John in Carolina had he ever e-mailed me to ask me about it. He never did, and never has, for reasons that remain unclear to me.

Over the course of the blog, I have closed down around two dozen comment threads, when it seemed to me the comments had gotten so far off the topic of the original post that the thread was no longer productive. It hadn't occurred to me when I did so that anyone could interpret my closing down a comment thread as banning the commenters in that thread, but I would like to say that this was never my intention.

Second, a commenter offered the following item in an earlier thread: "For example. one might not expect on a Blog that champions free thinking and the free exchange of have one's post held for hours while others are cleared." It is not now, nor has it ever been, my practice to hold comments while clearing others. I clear all comments in the queue when I sign into the blog. That depends, of course, how frequently I sign in--sometimes, it might be 20 minutes, sometimes it might be a lot longer. I apologize to any commenter who thought that my non-timely clearing of his or her comment indicated that I was holding the comment "hours while others are cleared."

I'd like to say that I will do better on that score in the future, but admit that I probably won't: this is a one-person blog; I moderate the comments when I can; and there are (rare) occasions when the comments might go 24 hours without moderation. Such delay (which will be more frequent over the next two weeks, when I will be in Israel for an American Studies Seminar) should be interpreted solely as tardiness on my part, and has nothing to do with how I view the merits of the individual comment.

Monday, July 06, 2009

Nifong & Gottlieb

Two additional items worth noting from the recent civil suit filings.

First, the changing views of disgraced ex-DA Mike Nifong on the merits of the case that cost him his career:

April 12, 2007:

To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused. I also understand that whenever someone has been wrongly accused, the harm caused by the accusations might not be immediately undone merely by dismissing them. It is my sincere desire that the actions of Attorney General Cooper [which, it’s worth remembering, included a public declaration of actual innocence] will serve to remedy any remaining injury that has resulted from these cases.

June 15, 2007:

I think something happened in that bathroom, but it was not a sexual assault. It could have been a non-sexual assault or intimidation. Something happened to make everybody leave that scene very quickly.

July 26, 2007:

I have read the report released by the attorney general, including his recitation of evidence that I did not have, obtained from his own investigation. I agree with the attorney general’s statement that there is no credible evidence that Mr. Seligmann, Mr. Finnerty and Mr. Evans committed any of the crimes for which they were indicted or any other crimes during the party that occurred on March 13 and 14 of 2006 at 610 N. Buchanan Blvd.

Mr. Seligmann, Mr. Finnerty and Mr. Evans were entitled to the presumption of innocence when they were under indictment. Surely, they are entitled to more than that now as they go forward with the rest of their lives. And that is what the attorney general tried to give them in his declaration that they are innocent.

June 29, 2009 (with footnote text inserted):

It is alleged that Nifong and others, aware of occurrences they may or may not have been aware of, willfully ignored and/or were deliberately indifferent to this evidence demonstrating Plaintiffs’ innocence [Does it?] in their rush to charge the three innocent [Were they?] Duke lacrosse players.

These are the words of a person who would not know the truth if it hit him in the face.


The civil suit filings also contained some . . . innovative . . . arguments, such as Brian Meehan’s insinuation that there’s no evidence he knew what occurred at a meeting that he chaired to present DNA evidence that he himself had analyzed.

But Meehan’s line of argument almost looks elegant compared to what he could be termed the “stupidity defense” offered in the brief defending the actions of Sgt. Mark Gottlieb.

Attorney Reginald Gillespie apparently guessed that the “ignore-the-record defense” wouldn't work. (He had made the preposterous assertion that “given the secret nature of grand jury proceedings, Plaintiffs could not know what was said during those proceedings, [emphasis added] so they cannot make specific factual allegations about Gottlieb’s and Himan’s testimony at all,” even though Gottlieb—under oath in a deposition to the State Bar—went on record that he falsely told the grand jury that Crystal Mangum's stories were consistent from the time she met with former SANE nurse-in-training Tara Levicy.)

And so Gillespie offered an even stranger claim in his brief. No evidence exists, reasoned he, “that either of the City investigators [Gottlieb or Ben Himan] knew anything at all about DNA testing, let alone the customs and industry standards regarding the proper reporting format of such results.”

Gottlieb, of course, spent almost two decades in law enforcement. And yet, his attorney almost proudly proclaims, there’s no reason to believe he “knew anything at all about DNA testing.”

So, the Durham argument now appears to be that the average viewer of CSI was more familiar with a key investigative technique than a recently promoted officer who had served more than a decade on the DPD.



In June, the blog used the CCI’s own archives to present a three-part narrative of the initiative dominated by the Group of 88 and its allies. The series also brought to light some of the contemporaneous extremist voices; and featured two posts that contained documents from the archive itself.

The other major development in the case were the defendants’ filings regarding Iqbal’s relevance to the lacrosse case, profiled in posts analyzing the filings in the case of the unindicted players and that of the falsely accused players.

And I summarized Selena Roberts’ national mendacity tour here.

[A reminder: My clearing a comment implies neither that I agree nor that I disagree with the comment, either in tone or in substance. My opinion is expressed in the 1354 posts on the blog alone. The comments policy is explained in greater detail on the sidebar.]

Wednesday, July 01, 2009

The Iqbal Briefs: The Falsely Accused Players

As I noted Monday, several new filings in the lacrosse case have come in, all dealing with the Supreme Court’s recent decision in Ashcroft v. Iqbal, described by one commentator as “an unexpected gift for the business community.”

Today’s post summarizes the filings in the three falsely accused players’ lawsuit. Some of the briefs are repetitive, and, as I noted Monday, the Iqbal finding probably will benefit the DPD supervisors against whom no direct evidence exists. But there were four items worth noting in the batch of new briefs.

1.) The Most Craven Defendant

It appears as if disgraced ex-DA Mike Nifong has taken time away from writing poetry and singing in the church choir to write legal memoranda. Though the nine-paragraph brief filed on his behalf was signed by James Craven, its tone and content suggests that much of the drafting came from the disbarred Nifong himself.

The brief features the combination of poor lawyering, ill-concealed rage, and treacly self-pity for which Nifong became infamous during the case itself. The nine paragraphs include almost nothing in terms of plausible legal analysis. Instead, Nifong uses his filing to lash out at the three innocent people he tried to send to jail, and at their parents—even though his doing so runs the risk of alienating Judge Beaty.

“It is alleged,” writes the Craven Nifong, “that Nifong and others, aware of occurrences they may or may not have been aware of, ‘willfully ignored and/or were deliberately indifferent to this evidence demonstrating Plaintiffs’ innocence1 in their rush to charge the three innocent2 Duke lacrosse players.’”

Footnotes in legal briefs normally reference additional case law, or explicate a minor point not significant enough for inclusion in the body of the text. Not so, however, for the Craven Nifong. Footnote 1 merely says, “Does it?” Even more stunningly, footnote two—which follows the word “innocent”—reads, en toto, “Were they?”

Like Gollum with his Precious, Nifong is determined to cling to his “something happened” theory—even if, as occurred with Gollum, he loses all vestiges of his humanity in doing so.

The Craven Nifong also uses his experience as a formerly regular participant in local, state, and national media to reinvent himself as a media critic. “It must be remembered,” he sniffs, “that the complaint in this case, though utilized to begin the lawsuit, was hardly written for the Court alone. Rather it was clearly written for the New York Times, the Washington Post, Court TV, and of course the parents of the three plaintiffs.”

“Of course” there is “clearly” no evidence for Nifong’s assertion that the plaintiffs’ attorneys used their filing to influence the media rather than for a legitimate legal purpose. (Nifong appears to assume that all other lawyers are as unethical as he was.) Beyond that, the claim is an almost laughable one. Court TV no longer exists—the network disbanded on December 31, 2007, with its legal coverage taken over by CNN and its programming fare becoming “TruTV.” And perhaps the disgraced ex-DA has forgotten that throughout the case, the New York Times served as his de facto stenographer, even to the point of producing major articles riddled with factual errors that slanted the portrayal on his behalf. Why the “parents of the three plaintiffs” would expect fair, much less sympathetic, coverage from the Times the Craven Nifong never says.

In any event, the filing proves that despite having lost his power with his forced resignation, Nifong still has no class.

2.) The Return of Mr. Obfuscation

In the Nifong ethics trial, Lane Williamson labeled former DNA Security lab director Brian Meehan “Mr. Obfuscation,” and the label continues to apply. Attorneys for Meehan filed a three-paragraph memo, claiming the following: “At the time of the events alleged in the Complaint, Meehan was the Laboratory Director for DNA Security, Inc. (‘DSI’), the DNA testing laboratory retained by the State of North Carolina. Accordingly, the legal arguments set forth in DSI’s Supplemental Brief in Support of Motion to Dismiss which refer to ‘the DSI Defendants’ apply with equal force to Meehan.”

It’s worth remembering that the brief for DNA Security president Richard Clark had cited Iqbal to suggest that no evidence exists that Clark knew of what transpired at the key meeting between Meehan and Nifong—that Clark himself attended. (This was the “Our President Is Clueless” defense.)

But Meehan has testified, under oath and in great detail, about what occurred at his meeting with Nifong. He so testified (albeit inconsistently) not once, not twice, but three times, in three different courtrooms. So now Meehan is claiming that the court should simply ignore all that testimony, and accept his new claim that, because of his title as “lab director,” no evidence exists that he knew what occurred at a meeting that he himself chaired, to present findings from DNA tests that he himself conducted.

In a case that has seen more than its share of breathtaking legal claims, this might be the single most outrageous assertion.

3.) Arguing the Plaintiffs’ Case?

In her somewhat peculiar brief, Durham attorney Patricia Kerner tries to argue that ex-DPD officers Mark Gottlieb and Ben Himan did nothing wrong (or if they did, it was all Nifong’s fault) and that the behavior of Gottlieb and Himan conformed to departmental norms in a city that has no pattern of practice of allowing poor police behavior. On at least two occasions, she falls off this tightrope.

The first time comes when Kerner describes the performance of the DPD as “police doing the best they could to faithfully execute their investigatory duties under trying circumstances.” Keep in mind that, in the case of former Sgt. Mark Gottlieb alone, the DPD:

  • claimed to have taken no notes at the key initial meeting with the complaining witness;
  • conducted a lineup that flagrantly violated city procedures;
  • inexplicably declined to take any notes at a key meeting with the man selected by the department to conduct DNA tests;
  • produced a months-after-the-fact typed “memorandum” transparently designed to paper over holes in the case

That behavior, according to the City of Durham, represents the conduct of an officer trying to “faithfully execute [his] investigatory duties under trying circumstances”? If we take that claim at face value, it would seem to directly undercut Kerner’s subsequent assertion in her brief that the normal patterns and practices of the DPD aren’t designed to violate citizens’ constitutional rights.

Kerner makes another odd statement, one directly contradicted by the evidence in the case. Dismissing claims that Gottlieb lied to the grand jury, she maintains, “Indeed, given the secret nature of grand jury proceedings, Plaintiffs could not know what was said during those proceedings, [emphasis added] so they cannot make specific factual allegations about Gottlieb’s and Himan’s testimony at all.”

Yet Gottlieb—under oath in a deposition to the State Bar—went on record about what he told the grand jury. And what he told the grand jury—that Crystal Mangum’s story was consistent from the time she met with former SANE nurse-in-training Tara Levicy to the time of the arrests—was a lie. Mangum’s story wasn’t consistent. In fact, she never told the same story twice.

The version of events the false accuser presented to Levicy on March 14, 2006 differed markedly from the version of events she presented to Gottlieb and Himan on March 16, 2006, which in turn differed markedly from the version of events she presented to Samiha Khanna in her March 24, 2006 N&O interview—each of which, in turn, differed markedly from the version of events she presented in the rigged lineup on April 4, 2006.

Was Kerner unaware of Gottlieb’s deposition to the State Bar? Or is she now suggesting that Gottlieb lied in his deposition, and in fact gave truthful testimony to the grand jury?

4.) Linwood Is Back

The always entertaining Attorney pro-se Linwood Wilson, proving again the aphorism that a man who represents himself has a fool for a client, filed a three-paragraph memo on the matter, asserting the following: “In order not to be repetitive and overbearing on the court, Defendant Linwood Wilson joins Defendants Mark Gottlieb, Benjamin Himan, and the City of Durham, North Carolina, Durham Supervisors, in their Supplemental Briefs In [sic, cap.] Support of their [sic, cap.] Motions to Dismiss.”

Yet the whole thrust of Attorney Wilson’s previous arguments has been that his client, fired ex-Nifong investigator Wilson, should not be considered in any way a Durham employee, and that his legal status as an employee of Nifong gave him absolute immunity for any of his misdeeds. So why, now, are Wilson’s interests and those of former DPD members Himan and Gottlieb aligned? The Wilson brief doesn’t say.

Perhaps Attorney Wilson can consult with Client Wilson and file a supplemental brief in the future.

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