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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