Friday, April 15, 2011

Duke's Factual, Semi-Factual, & Non-Factual Response

After the failure of the university’s efforts to have the civil rights lawsuit against it dismissed, Duke has filed its lengthy factual response to the unindicted lacrosse players’ complaint. Its general approach: deny anything for which there’s no open record; blame others (Nifong, the Durham Police) by inference regarding areas in which the facts can’t be denied.

Two general points: first, this response wasn’t due until June 14. I’m sure the fact that Pres. Brodhead is currently in China, and therefore unreachable by the local media, had nothing to do with Duke’s decision to file its response a bit early.

Second, it’s important to remember on what issue—thanks to Judge Beaty’s ruling—Duke doesn’t have to deny or shift blame: the university’s failure to enforce its own written policies regarding treatment of the lacrosse players. On this question, the university can breathe a sigh of relief that it’s not located 247 miles to the southwest—since, if it were so located, it would fall within the jurisdiction of the 11th Circuit. And, as this recent filing from FIRE points out, in the 11th Circuit, universities are legally obligated to enforce their own student bulletins and faculty handbooks, rather than treat them as mere scraps of paper.

As if to reiterate the point, Duke’s filing notes (in an oddly-worded passage), “Duke University denies that the language from the Faculty Handbook . . . sets forth Duke University’s policy regarding policy.”

When, if ever, will the university communicate this information to prospective parents?

A summary of the major elements from the University’s 252-page filing:

The Group of 88 Statement

“Duke University denies that the full-page, paid announcement that ran in The Chronicle, and that identified 88 individuals and contained unattributed quotations, made anything ‘clear’ about what its authors or sponsors believed about the evidence of rape. Duke University admits that the cost of running the announcement was paid, in part, with funds from departments within Duke University.”

For the first time, Duke has officially admitted that University funds paid for the Group of 88’s ad. The use of “in part” is intriguing: is Duke suggesting that private individuals partly financed the ad? If so, who were these people?

In any event, consider the significance of this admission. Not all the lacrosse players were on full scholarships. So Duke has now affirmed that some of the players’ own tuition moneys were used to produce an ad that publicly condemned them—an ad placed in violation of Duke rules, moreover. When considering where to send your son to college, what parent could ever even conceive of such behavior from an institution that gladly accepted your tuition check?

Tellingly, the university can’t bring itself to accurately describe the ad. It’s true that the ad did contain “unattributed quotations” that allegedly came from Duke students. But the statement also contained thirteen sentences in the voices of the signatories, not in the form of “unattributed quotations,” as well as an additional sentence falsely claiming that five academic departments at Duke endorsed the ad. What’s the purpose of describing the statement in a misleading fashion? To elide over the fact that those 13 sentences included a clear, unequivocal statement that something “happened”—not “allegedly happened”—to false accuser Crystal Mangum?

In any event, this mis-description continues Duke’s legal strategy of misrepresenting the lacrosse players’ claims to such a wild extent that it would have to undermine the university’s credibility with Judge Beaty.

Former SANE-nurse-in-training Tara Levicy

The university’s response concedes that Levicy had not, in fact, received her “certificate of completion” from her SANE training course until after she conducted her examination of Crystal Mangum—and that, therefore, she was a SANE-in-training when the botched exam occurred. Indeed, on p. 34, the University, for the first time, states it explicitly: “Tara Levicy was a registered nurse who was working as a staff nurse and as a SANE in training in the Emergency Department at Duke University Hospital.” [emphasis added] So why did the hospital allow her, without supervision from a credentialed SANE, to examine Mangum? Imagine how this case might have differed if the hospital had followed established procedures on this matter.

Moreover, the Duke response concedes how woefully inexperienced Levicy actually was at the time she examined Mangum: “DUHS and Nurse Levicy admit that Nurse Levicy began working in the Emergency Department at Duke University Hospital in February 2005. DUHS and Nurse Levicy further admit that this job was Nurse Levicy’s first nursing job following receipt of her nursing degree in December 2004. DUHS and Nurse Levicy also admit that Nurse Levicy began her SANE training in August 2005, and that her certificate of completion was effective on March 2, 2006, although she did not receive the certificate until the late afternoon of March 14, 2006 [which, of course, was after she examined Mangum].” Again, imagine how this case might have differed if Duke Hospital had a competent, professional SANE nurse instead of an inexperienced, ultra-feminist SANE nurse-in-training examine Mangum.

As to other allegations, the university affirms, over and over and over again, that “Nurse Levicy likewise denies that she made any statements to members of the Durham Police Department or to investigators working with then District Attorney Nifong that were inconsistent with the examination of Ms. Mangum.”

Based on the record of the case, Levicy’s stories undoubtedly shifted, always in ways convenient to Nifong and contrary to the written record of her exam. This passage would seem to represent an effort by Duke to shift the blame, setting up a claim that Levicy told the truth to Sgt. Mark Gottlieb and ex-Nifong investigator Linwood Wilson, but that they, in turn, lied (blunt force trauma, Mangum wasn’t sure about whether her attackers used condoms) about what she told them. Given that the Gottlieb/Wilson version of what Levicy told them was completely consistent with what Levicy told the defense attorneys in their interview with her, this strikes me as a difficult argument to make.

One other point: the university’s filing confirms for the first time the long-rumored extent of Levicy’s cooperation with the investigation. “Nurse Levicy admits that she met with or conversed with members of the Durham Police Department on a limited number of occasions and responded to questions from investigators . . . Nurse Levicy further admits that she met with former District Attorney Nifong in June 2006 and responded to his questions about the sexual assault examination.” The university’s filing contains no details about what transpired at this mysterious meeting, during which Nifong (it seems) took no notes. Nor does the university’s filing reveal how many the “limited number of occasions” were in which Levicy chatted with DPD officers—chats that do not appear to have been recorded in the official case discovery file.

Beyond these blanket, and almost comical, denials, Duke appears to be using an element of Beaty’s ruling (that Levicy owed a duty only to Mangum, and not to the public) to shield Levicy’s examination from any meaningful inquiry: “It is a violation of the Health Insurance Portability and Accountability Act for the Duke SANE Defendants to disclose any of Ms. Mangum’s protected health information. Absent a court order authorizing such disclosure, the Duke SANE Defendants are unable to respond. Therefore, the allegations seeking information relating to Ms. Mangum’s protected health information are denied.”

Under this conception of the law, a SANE nurse could lie at will about an exam, and there would be no way to challenge her in a civil suit.

Levicy was Right, and the AG’s Investigation Was Wrong

Perhaps the most bracing element of Duke’s filing comes in repeated claims that the Attorney General’s investigation—upon which the declaration of innocence was based—improperly characterized the medical evidence, and that, as a result, objective medical evidence did exist that Mangum was raped. These assertions are nothing short of astonishing.

Two examples:

The Attorney General’s report stated, “No medical evidence confirmed [Mangum’s] stories. The SANE based her opinion that the exam was consistent with what the accusing witness was reporting largely on the accusing witness’s demeanor and complaints of pain rather than on objective evidence.” [emphasis added] But Duke now claims that “Nurse Levicy specifically admits that she remains both objective and neutral during such examinations.” [emphasis added]

“Nurse Levicy further admits that she told Investigator Himan that there were signs during the sexual assault examination that were consistent with sexual assault. Nurse Levicy specifically denies that she made any statements to members of the Durham Police Department that were inconsistent with the examination of Ms. Mangum.” Once again, the AG’s report stated, “The SANE based her opinion that the exam was consistent with what the accusing witness was reporting largely on the accusing witness’s demeanor and complaints of pain rather than on objective evidence.” Duke claims that Levicy was right, and the AG was wrong.

The FERPA Claim

The filing represents the first time that Duke offered any explanation as to the area of the lawsuit where it seems extremely vulnerable—that it provided keycard information, in violation of FERPA, to the DPD; and then it stood idly by as Nifong tried and failed to get (retroactive) court approval for that information.

“Duke University specifically denies that DukeCard reports were ‘illegally’ supplied by Duke University.” Why? Because “Duke University, Deputy Counsel Hendricks and former Director Drummond specifically deny that they had any knowledge that DukeCard information had been provided to members of the Durham Police Department.” As I understand FERPA law, willful ignorance doesn’t count as a defense.

Who at Duke improperly supplied the information? “Duke University admits that on or about March 31, Gary Smith provided DukeCard information to Sergeant Gottlieb for some of the members of the 2005-2006 Duke University men’s lacrosse team for the period of time from March 13, 2006 until March 14, 2006.” And “Duke University admits that it did not notify the lacrosse players, their families, or their lawyers of the disclosure.” Nor did Duke notify the Court, as it considered (and rejected) Nifong’s subpoena for the information. Why not? The University’s filing doesn’t say.

Odd Denials & Legal Niceties

“The Duke University Defendants and the Duke SANE Defendants further deny that President Brodhead or anyone else at Duke University suppressed or concealed any exculpatory information.”

The emphasis here would be on the word “any.” Of course Duke “concealed” some exculpatory information—to take an obvious example: the knowledge that, as Nifong and the DPD were waging their p.r. campaign accusing Duke students of having constructed a “wall of silence,” Duke knew that the captains (including one of the Carrington plaintiffs, Dan Flannery) had voluntarily given statements and DNA evidence to Durham. Yet the university remained silent. It might very well be that Duke considers this concealment legally irrelevant (and the university might be right). But to deny that the university “concealed any exculpatory information” is absurd.

“President Brodhead denies that he took no steps to enforce Duke’s anti-harassment policy and further denies that he condoned harassment of the players.”

The key words in this sentence are “no” and “condoned.” Duke’s statements could be legally true if (hypothetically) Brodhead placed an e-mail in his draft file, but never sent it, urging faculty and students not to harass the players—he would have taken a “step” to enforce the anti-harassment policy, but the “step” would have been a useless one. It’s pretty obvious that Brodhead didn’t actually do anything to stop either the in-class or on-campus harassment of the players, and it’s quite striking that even Duke doesn’t claim that its president acted in any meaningful way to stop the harassment of dozens of the university’s own students.

The remainder of the passage depends on how duke defines “condoned.” Take an obvious example—the Group of 88’s statement, through which dozens of Duke faculty members, basing their opinion solely on what Mike Nifong provided them, publicly affirmed in what they considered the highest-profile venue on campus that something “happened” to Crystal Mangum. That statement falsely claimed, in violation of Duke policy, that five academic departments had officially endorsed it. Yet Brodhead never compelled a retraction, nor did he order the African-American Studies Department to take the statement off its official webpage. Duke appears to be claiming that Brodhead’s in the clear as long as he didn’t himself sign the statement, thereby “condoning” its contents, and that his administration’s failure to do its job didn’t constitute “condoning.”

“President Brodhead denies that any statements from him were designed to ‘impute guilt’ to the players or to ‘inflame’ public opinion against them.”

The key word in this sentence is “designed.” Brodhead’s April 5, 2006 statement—which didn’t even contain a token mention of the presumption of innocence—clearly “imputed guilt,” since it urged people to withhold judgment only until arrests occurred. The presumption, therefore, was that the arrested parties were guilty.

As to the claim that the statement wasn’t designed to “inflame” public opinion against the players: is the University really going to claim that its president, an English professor, didn’t understand how this statement would play in public opinion?

Obvious, but Damning, Admissions

“President Richard Brodhead admits that he played an active role in Duke University’s response to the rape allegations against members of the lacrosse team, and that he consulted with former Chairman Steel and members of the Duke University Board of Trustees in connection with the controversy. “

This admission was all but mandated by former BOT chairman Bob Steel’s ill-considered April 2007 e-mail, which affirmed, “Throughout the past year President Richard Brodhead consulted regularly with the trustees and has had our continuing support. He made considered and thoughtful decisions in a volatile and uncertain situation. Each step of the way, the board agreed with the principles that he established and the actions he took. As we look back and with the benefit of what we now know there is no question that there are some things that might have been done differently. However, anyone critical of President Brodhead should be similarly critical of the entire board.”

“Duke University admits that officers of the Durham Police Department informed officers of the Duke University Police Department that Ms. Roberts made a 911 call.”

This statement is damning for what it doesn’t say. One of Mike Nifong’s most dastardly deeds came in his late March 2006 (false) assertion that the DPD didn’t know Roberts made the 911 call. That left the impression that the lacrosse players were virulent racists, since two innocent black women, walking past the house, had been subjected to racial slurs. By the time the truth came out about Roberts, the damage was done. For the first time, this filing states that Duke knew that Roberts made the call. Tellingly, the filing does not reveal when Duke knew about Roberts. Did the university know before March 29, 2006, when Nifong made his false statement to the press? And if so, why did the knowledge that the DA was lying both about the players not cooperating with the police investigation and about the source of the 911 call not influence how the university approached the issue?

“Dean Wasiolek further admits that she had reason to believe that the accuser was not credible.”

No neutral party observing the Duke administration’s actions between March 25, 2006 and April 18, 2006 would ever believe that a key figure in formulating the administration’s response “had reason to believe that the accuser was not credible.”

“Duke University admits that the quote [‘We had to stop those pictures. It doesn’t mean that it’s fair, but we had to stop it. It doesn’t necessarily mean I think it was right—it just had to be done’] attributed to former Chairman Steel appeared in the New Yorker. Duke University denies that the quote accurately conveys former Chairman Steel’s statement.“

Why, then, didn’t Steel, at the time, write a letter to the editor, or issue a press release to make this point? Or could it be that former BOT chairman Steel only came to the conclusion that he was misquoted after Nifong’s case imploded? It strains credulity to believe that the New Yorker misquoted Steel and he did nothing to correct the record.

“Dean Wasiolek admits that she gave the name of Wes Covington to then Senior Associate Director of Athletics Kennedy as a name of a local attorney that players could contact. Dean Wasiolek further admits that she was complimentary of Mr. Covington and referred to his experience as a former Assistant District Attorney.”

Covington, of course, was the “fixer” whose intent appeared to be to end the case quickly and quietly, by giving Gottlieb access to any and all the players. The university’s filing repeatedly denies that any connection existed between Covington (who has since died) and Duke.

“Duke University, President Brodhead, and Deputy Counsel Hendricks admit that on March 28, 2006, the four lacrosse co-captains met with President Brodhead. Duke University, President Brodhead, and Deputy Counsel Hendricks further admit that other representatives of Duke University, including Deputy Counsel Hendricks, were present, as well as the co-captains’ own attorney. Duke University still further admits that some representatives of Duke University were interviewed by members of the Durham Police Department as part of the Durham Police Department’s investigation into the rape allegations, and they answered questions posed by the members of the Durham Police Department.”

This is Duke’s description of the meeting at which Brodhead blandly—and, obviously, falsely—assured the captains that anything they told him would stay within the walls of the room.

“Nurse Levicy, the Duke University Defendants, and the remaining Duke SANE Defendants further deny that they had any authority or obligation to rebut or correct any assertions in any NTO application regardless of the truth of the allegations.” [emphasis added]


When There’s No Written Record (Yet), Duke Denies

“Dean Wasiolek denies that she advised the members of the team that they should not consult with an attorney. Dean Wasiolek further denies that she advised the members of the team that they should not tell their parents about the rape allegations.”

“Duke University and Executive Vice President Trask deny that they ever claimed the existence of a ‘student-administrator privilege’ and further deny that they misled the plaintiffs into providing statements that were contrary to their attorney’s advice.”

To my knowledge, no tape recordings exist of any of the discussions that Duke denies above. But the problem with these denials is obvious: contemporaneous witnesses with whom the lacrosse players spoke verify the players’ version of events. (If the lacrosse players had first mentioned any of these conversations not right after they occurred but instead in, say, March 2007, that would be a very different matter.) So Duke will have to ask the court to believe that in March 2006, the lacrosse players made up—for no apparent reason—versions of conversations that would prove damning to Duke once the case imploded.

Odd Clauses

“President Brodhead admits that he did not meet with the lacrosse players’ lawyers to review ‘evidence.’”

The use of “scare quotes” in this sentence is bizarre. Is Duke really intending to suggest that the lacrosse players’ attorneys—some of the most highly-regarded attorneys in the state—were offering to share tainted “evidence” with Duke? If not, why use the quotation marks?

“Duke University and Richard Brodhead admit that Richard Brodhead has served as President of Duke University, including during the period from March 13, 2006 (the date of Plaintiffs’ party) to the present.”

This description of March 13, 2006—which the university’s attorneys repeat over and over again in their filing—appears to be a not-so-subtle dig to suggest that the lacrosse players were to blame for what happened to them for attending the party in the first place. Yet by not qualifying the remark with “some of,” the statement is legally inaccurate and therefore inflammatory. Several plaintiffs, most notably Brad Ross, did not attend the party. In what way could the event be described as Ross’ party?

“Duke University denies that it has no rules or policies ‘with respect to the hiring of exotic dancers to perform at student parties.’”

This statement is particularly odd—first, because no such rule appears to have existed in the Duke Student Bulletin of 2005-6 (a document, of course, which Duke maintains it didn’t have to follow anyway); and second, because having made the claim, the university’s filing doesn’t even attempt to identify the previously unknown rule and/or policy it claims existed.

Here’s how the Duke filing describes the DNA evidence improperly withheld in Brian Meehan’s report: “The Duke University Defendants and the Duke SANE Defendants further admit that evidence has also been presented at those legal proceedings that would tend to show that Ms. Mangum had engaged in sexual activity with multiple males.” [emphasis added] “Tend to show”? Does the University have another explanation for the DNA findings?

“Duke University further admits that on March 25, President Brodhead decided to forfeit the next two lacrosse games, in part as punishment for the wrongdoing [‘which at a minimum included unlawful underage drinking and the provision of alcohol to minors’] which the players admitted, and in part because of concerns for the safety of the players.” He did? If so, why didn’t he mention the latter point in his cancellation statement? And with regard to the former, why did he begin his statement not with the (now-alleged) reason for the cancellation but instead with the following: “Physical coercion and sexual assault are unacceptable in any setting and have no place at Duke. The criminal allegations against three members of our men’s lacrosse team, if verified, will warrant very serious penalties.

(A note for the record: Brodhead’s March 25, 2006 statement was his most due-process friendly one until the late fall of 2006.)

Regarding the potbangers’ rally: “The Duke University Defendants admit that some individuals who were employed by Duke University engaged in their constitutional right of free speech by participating in gatherings such as the one that occurred on Sunday, March 26, 2006.” Regarding the “wanted” poster: “Duke University admits on information and belief that a poster with the photographs of the Duke University men’s lacrosse team was created and distributed by Sam Hummel, who is a former employee of Duke University.” And regarding the more general anti-lacrosse players’ attitude on campus: “Duke University admits that it follows a practice of academic freedom and that faculty and students are free to exercise their individual First Amendment right to free speech.”

Duke’s affirmation of “constitutional right of free speech” would ring a little less hollow if such a clause were contained in the university’s anti-harassment code. But no such qualifier exists. Imagine if, for instance, “some individuals who were employed by Duke University” chanted the N-word outside a house rented by black Duke students. Does anyone really believe the University would suggest that such behavior didn’t fall under its anti-harassment code, and instead was an example of the “constitutional right of free speech”?


Duke’s response essentially makes no explanation to the allegations that higher-ups pressured Duke officer Christopher Day to modify his March 14, 2006 report, which correctly stressed the evidence of Mangum’s unreliability. Duke concedes that at least three administrators, however, knew of Day’s report by March 15, 2006.


So we have learned that: University funds paid for the Group of 88’s ad; Duke believes the AG’s conclusions about the medical evidence were wrong; senior administrators knew of Officer Day’s report almost instantaneously but did nothing to disseminate it either publicly or to the lacrosse players’ attorneys; and Duke as an institution, along with its senior administrators, believe they have no obligation to act when they know of factually erroneous legal filings regarding their students. And all of this has come before any discovery has occurred.

No wonder Duke was so desperate to have this case dismissed.


skwilli said...

I had to stop reading this post when I got to the part where Duke Univ. insists that something definitely happened to the "victim" that night. (Objective medical evidence of rape exists!! Levicy was right and the AG was wrong!!) I'll have to cool down to read the rest.

I can only hope that the legal minds aligned against Duke are half as clear-thinking and relentless as KC. Duke won't stand a chance. Maybe the 3 lacrosse players could rename the University once they own it!

Anonymous said...


Reade, Collin and Dave are not suing Duke, as they've already settled with the university. So, they will not own it. On the other hand, I'm sure their lawyers are poring over Duke's response to see if it violated their settlement agreement. If that happens, then they can file suit against Duke for breach. (I hope they have just cause to do so, and they might in the Levicy section alone).

Like you, I also stopped reading Professor K.C. Johnson's post after the Levicy bit. The Professor reports that Duke and Levicy responded:

"Nurse Levicy specifically admits that she remains both objective and neutral during such examinations.”

The "objective" and "neutral" claims are very interesting given what Professor Johnson has previously written about Levicy:

"Levicy later told a defense attorney that she had never encountered a woman who lied about rape."

Every time I look at that statement, I think it must come from an "idealogue." Anyone other than an idealogue would say something along the lines of, "I've never YET encountered a woman who lied about rape."

Which defense attorney took that statement from Levicy? I seem to remember it might have been Kirk Osborn, God rest his soul. If that's the case, then will Levicy lie in her deposition about making that statement?

Time to read the rest of Professor Johnson's post!

MJJM said...

Oh man....this is gonna be good. Maybe some who "escaped" will finally be held accountable. As to Sam Hummell, is he a former employee of Duke? I thought he still worked for them.

Anonymous said...

Is Levicy a Communist?

Are Ms. Levicy and Mrs. Linwood Wilson "one and the same?"

The least Ms. Levicy should do is to help support Linwood. Except for her he and Nifong would now be gainfully employed.

Does she exhibit any remorse?

William L. Anderson said...

Tara Levicy was and is a pathological liar. That is the only explanation that fits her behavior over that sorry year.

By the way, DUMC wrote her a glowing report when she was accepted as part of the SANE team at a hospital in New Hampshire. However, the other SANEs let it be known that they would not work with Levicy, so her SANE career was cut short -- before she got that place into the same trouble she helped make for DUMC.

As for Sam Hummell, the guy used a Duke copy machine to do his poster copies. He and his mommy were among the sign-carrying potbangers. (Hummell carried a sign that declared, "Get a conscience, not a lawyer." Funny how those leftists at Duke suddenly do not believe that one is entitled to legal representation if accused of a politically-incorrect crime.)

Hummell really has become a caricature of the Self-Loathing Lefty Male at Duke.

Anonymous said...

Please excuse my total ignorance on the subject, but : could we see this lawsuit/case wind up in a courtroom with testimony and all..?

Anonymous said...

“Duke University denies that the full-page, paid announcement that ran in The Chronicle, and that identified 88 individuals and contained unattributed quotations, made anything ‘clear’ about what its authors or sponsors believed about the evidence of rape."

Haha! What does that say about Lubiano's writing skills? What the drafters of the Duke Answer don't realize is that the "Listening Statement" was Lubiano at the height of her clarity!

But, seriously, Lubiano couldn't have been more clear about what the "Listening Ad" meant and how she and all those Duke Departments felt. In the words she wrote herself:

"These students are shouting and whispering about what happened to this young woman and to themselves."

Note how Lubiano used the phrase "what happened" when she should have been using the phrase, "What happened?" At the time of the "Listening Statement," public knowledge of the allegations could still be measured in hours. Also, note that Lubiano made sure to use words like "terror" and "disaster" in her "Listening Ad."

(What terrorizes me and is aptly described as a disaster is Duke paying to have a troupe of strippers perform in their auditorium by sticking flags up their butts and calling it art.).

A "quote," which is unattributed in the "Listening Ad," tells you all that you need to know:

"I can't help but think about the different attention given to WHAT HAS HAPPENED from what it would have been if the guys had been not just black but participating in a different sport, like football, something that's not SO UPSCALE." (emphasis added).

As you can see, Lubiano probably wrote this herself, otherwise it would have been crystal clear, and she would have attributed the quote to someone else. More importantly, though, Lubiano manages to be judge, jury and executioner of the rape ("WHAT HAS HAPPENED") while at the same time piling on the socio-economic and racial prejudice ("SO UPSCALE").

In my opinion, this was Lubiano's attempt at racial profiteering, and I can't wait to read her deposition. MOO! Gregory

Anonymous said...

P.S., Professor Johnson: Outstanding job in assimilating this mountain of data and putting out a cogent analysis in record time. MOO! Gregory

Anonymous said...

An excellent summary, infuriating, but revealing.

I can not help but smirk when considering that all of this litigation against Duke, Durham and others is (probably) being financed by Duke's settlement money.

And one minor nit pick:

'When, if ever, will the university communicate this to prospective parents?'

They are already parents, rather they are parents of prospective students.

Anonymous said...

Duke's pleadings make clear that, to this day, it believes "something happened" in that house, and that it is the vicitm. Beyond having no evidence to suggest that is true, they are reduced to questioning the AG's Report and concocting stories about their nurse, etc.

And Duke has chutzpah in trumpeting that it owes no legal duty to honor its own Faculty Handbook and written policies (but may hold students accountable under it), nor does it have a duty to comply with civil rights laws because the players were not in a protected class. That is something the school should not be boasting about even if it won the fine legal point.

This has Jamie Gorelick written all over it -- legally and factually deficient but mean as heck with no apparent point. If past is prologue to future, Gorelick's modus operandi will put Duke in a world of hurt.

One item we should look forward to in deposition is determining whether Brodhead is a shifty and cruel sneak, or a coward.


Anonymous said...

"... could we see this lawsuit/case wind up in a courtroom with testimony and all..?"

I would love it. Durham needs it. NC needs it. Academia needs it. Our PC culture needs it.

Will we get it?

In Durham?


Anonymous said...

Even though we are long past the day when clear headed, honorable people should have been able to reach a consensus regarding the facts of this case, Duke continues to stun with its brazen refusal to acknowledge the well established and irrefutable evidence. Duke's startling position regarding Ms. Levicy and the supposed evidence of sexual assault does not reflect well on Duke or on Ms. Gorelick. I cannot imagine how Duke's argument--that Ms. Levicy's exam actually revealed evidence of an assault--could play very well in court. What an appalling lesson this is for the young people Duke is supposed to educate. It seems the moral failings of this institution--at least with respect to this case--continue utterly unabated and largely in the public eye.

From reading the news stories it looks like the evidence regarding the stabbing will be solid.

So, it's high time that I admit I was wrong to defend the AG's decision not to hold Ms. Mangum accountable for her false accusation. Condolences to this poor man's family. Another lesson learned.

Thank you, KC, for this outstanding summary!


Anonymous said...

The commentator who claimed that Judge Beaty had pared the Complaint down to virtually nothing should return and explain why Duke University needed 252 pages to respond to virtually nothing. I look forward to that explanation.

Anonymous said...

Now is the right time for the "distinguished" President Brodhead to announce that his work at Duke is completed and that he has accepted an appointment as the new President of an esoteric, philanthropic organization dedicated to the perpetuation of meely-mouthed obfuscation. Duke's BOT has a couple of rational Law Professors from whom an Interim President can be chosen, and we can all breathe a sigh of relief as the "healing" begins.

Thankfully, Robert Steele has left the building ass have a number of the "righteous 88", and, if we are lucky and Karma exists, the BOT will find a new leader with the fortitude to actually manage the University.

Keep hope alive!

Anonymous said...

Just some random thoughts:

1. In a sane world, Jamie Gorelick would be in jail either for robbing the taxpayers by falsifying records at Fannie Mae or for unlawfully prohibiting cooperation among the federal government agencies which were charged with preventing 9/11.

2. Someone above asked if this case will ever go to trial. I have said before, about the original lawsuit, and repeat: Duke will pay almost any amount of money to avoid having the public spectacle of the testimony of the moral degenerates on its faculty.

3. Think of the tens of millions of dollars that Duke could be spending on improving its educational functions instead of paying professional prevaricators if only it had had a President like my fellow South Texan, John Silber. (About one hour after the publication of the infamous newspaper ad, the Gang of 88 would have felt like they had just gone through Hell while wearing napalm bodysuits.)

4. The virulent, identity-based hatred propagated by the race-sex-class college faculty continues unabated. My daughter is a University of Florida freshman who took a class called "Human Sexuality" last semester. The faculty member (I cannot call such persons "professors") in charge, in noting that Houston had recently become the first major U.S. city to elect an openly lesbian mayor, could not -- of course not! -- refrain from informing the students that Texans are generally despicable Neanderthals. I told my daughter that she should make a formal complaint and that I would do so if she did not; she begged me not to "get her in trouble"(!!!) and said that she would instead use her anonymous student end-of-class review to raise the issue.

4. Regarding "Observer's" comment that it was wrong for the AG not to hold Mangum accountable for her false accusation: Yes, a man has now been murdered as a result of that decision. Three years ago I was among the few clamoring for Gorelick (and Franklin Raines and other Fannie Mae banker crooks) to be publicly handcuffed and frog-walked out of her office. Think of the hundreds of billions (or trillions?) of dollars that America might have saved by making such an example of financial fraudsters! It is very important that these people be brought to the same justice they would face if they were conservatives.

5. Lastly, and mostly for the attorneys, regarding the court's finding that Levicy did not owe a duty of diligence to anyone beyond Mangum, due to "privity": I have been dismayed in recent years as the "privity requirement" has been stretched so beyond reason as to swallow justice. Obviously, in the Levicy matter, a negligent sexual assault examination would harm "reasonably foreseeable third parties" like the accused Lacrosse Team members. Where one's negligence will undoubtedly harm reasonably foreseeable third parties, privity should not be a barrier to a cause of action.

R.R. Hamilton

P.S. Good job of analysis, KC.

Barbara Seville said...

“The Duke University Defendants admit that some individuals who were employed by Duke University engaged in their constitutional right of free speech by participating in gatherings such as the one that occurred on Sunday, March 26, 2006.”

“Duke University admits that it follows a practice of academic freedom and that faculty and students are free to exercise their individual First Amendment right to free speech.”


Suppose that the targeted group of students had been, say, Jewish (rather than miscellaneous white males,) and that Duke employees had demonstrated against them under a large purple banner urging "Gas them!!" (rather than the notorious "Castrate!!!" banner.) Or that the students had been African-American, and Duke employees had "engaged in their constitutional right of free speech" by assembling under a banner reading "Lynch them!!"

Then further suppose that a significant group of faculty members, plus several whole departments, had exercised their "rights to academic freedom and free speech" by purchasing and signing an ad which expressly thanked those demonstrators for unleashing their anger and "not waiting," and urged the community to "turn up the volume" against the targeted (Jewish or African-American) students.

Can anyone really believe that the university wouldn't have fired those employees? Told them that, while they might have the right to engage in free speech, however vile, without government interference, Duke nonetheless had the right to dispense with their services as employees?

And can anyone believe that the university would have taken no action in response to such a faculty ad -- not even issued a statement dissociating the university from it -- on the grounds that "academic freedom" allows Duke professors to applaud mobs calling for violence (whether gassing, lynching or castration) against Duke students?

Jim In San Diego said...


You are relentless.

I am so glad I am not on the opposite side of any issue with you.

Jim Peterson

(p.s., thank you)

Anonymous said...

To the 6:16PM: That's why Afirmative Action has to end; that's why the EEOC has to be dissolved. A single group has now been targeted and, in the persecution of that group, un-American activities have been committed and condoned because of the ever increasing expansion of the 'law'. As each worker's group, i.e., college professors, union workers, environmentalists, etc., walk more and more in lockstep to dismantle this Republic by focusing on the targeted group, the hollow ring of jackboots can be heard.

Big Al

Anonymous said...

R.R. Hamilton: Good argument about the "privity requirement" vis-a-vis SANEs. It makes a lot of sense. I would add that a negligent -- and certainly a malicious SANE -- also will harm justice and any effort to bring it about.

Barbara Seville: Nice job with your comparisons! There is no doubt about it.

Anonymous said...

I believe by alleging there was evidence of rape, they are opening the door to all the evidence that there was no rape.

Anonymous said...

Is this anywhere near going to trial?

David In TN

Greg Toombs said...

The alarm bells still ring today: see the recent non-prosecution of the Philadelphia Black Panthers by Eric Holder's Federal Dept. of Justice.

- a member of the only remaining non-protected thus targeted class.

Anonymous said...

@ 12:46, Correct you are! And won't it be fun to watch.

Anonymous said...

I read on the "just4ni" site that the author believes somebody shot Daye full of air through an IV and murdered him. Of course, that makes sense! somebody snuck into the ICU, and killed Daye so that the death could be pinned on Mangum. What in the world is this guy smokin'?? Perhaps, according to this kook, Duke itself is behind the "murder" of Daye as some kind of tactic to divert attention to itself during this period.
Broadhead needs to hire this fellow. What a PR genius!
Keep at it, K.C., your analysis is my daily bread.

Anonymous said...

Superb analysis and evaluation, KC!

This issue will surely fade from public view -- sometime after all the briefs and evidence have been presented, a verdict has been reached, appeals have run out, and the commentators have moved on. That is, sometime in the twenty-second century.

Meanwhile, it has raised issues that absolutely must be deal with -- even if it continues to feed the firestorm.

Gus W.

af said...

And now, poor pitiful Crystal is in jail on first degree murder charges. NOW her "handlers" want to talk about her mental illness. Doesn't do a lot for the LAX boys.
Maybe Mikie can get special permission so he can "defend" her again!!

Anonymous said...

Without Levicy, Nifong would likely not have proceeded. Here we appear to have an attention-starved, histrionic person with a virulent agenda, driving an investigation in order to meet some deep and dark psychological need.

One wonders how Levicy has avoided criminal charges, and one also wonders if she's going to show up one day like CGM, charged with a crime that she cannot run away from.

Levicy, like CGM, should have been charged with a criminal offense. Perhaps it is too late, with the usual limitations being used as an excuse?

Better late than never. She should be charged, at least with making a false report - among other things.

Anonymous said...

One schmuck (a lefty/progressive investment banker) told me that "the boys could have prevented the problem; they could have paid her (CGM.)"

That pretty much sums up the attitude of the professional left.

Anonymous said...

Thanks for the thorough recap. One other nitpick: "Under this conception of the law, a SANE nurse could lie at will about an exam, and there would be no way to challenge her in a civil suit." I don't think that's accurate. A court could still order health records or testimony in a civil suit. Basically, the HIPAA Privacy Rule says no disclosure generally. But then there are lots of ways to get disclosure, such as via court orders in either a criminal or civil case.

Anonymous said...

Question about the difference in standards between Federal Circuits - are there any indications this could be appealed to SCOTUS? it seems like (mind you, not a lawyer myself) that clear discrepancy in standards between Federal Districts would be prime material for SCOTUS to rule on.

Anonymous said...

Nifong is the monster here and did persue this case in spite of all evidence to the contrary.
Dr Manly did the exam, not the nurse so it did not matter what ever her credintals were except for RN. RNs assist the Doctors. The Judge was very clear that the nurse owed NO duty to the public or folk targeted by the Police and only has a duty to the patient. Clearly, the SANE person is not Sherlock Holmes in white stocking nor are they anything but FACT witness. "Yes, I bagged her clothes". "No, the SBI Lab interprets the finding, not me".

hetherfly said...

An excellent summation, as always, KC. I must admit that I found the entire Duke response to be chuckle-inducing, if not laugh-out-loud ridiculous in parts.

Anonymous said...

Is the university's factual response available online? Would be interested to see the document.

(sorry if I overlooked a link above -- didn't see any)

kcjohnson9 said...

To the 3.14:

I obtained the response through my pacer account, but it's subsequently been downloaded & posted at the Liestoppers discussion board.

To the 1.08:

It's the policy of Duke Hospital (along with most other major hospitals around the country) to have sexual assault accusers examined by a SANE, not an RN or a SANE-nurse-in-training. That's why Levicy's lack of credential mattered. (Why Duke Hospital violated its own policy & didn't have Mangum examined by a credentialed SANE is not explained by the Duke response.) In turn, in sexual assault trials, the testimony of SANEs carries considerable weight, since they are presumed to have had special training in how to examine sexual assault "victims." (Dr. Manly was not a SANE, and had no particular background in sexual assault treatment.)

Of course, in the end, Levicy would have been a "fact" witness. That's what makes her constant shifting of the "facts"--always in ways that propped up the case of Nifong & the DPD--so chilling.

Anonymous said...

Duke Univeristy claims they allowed the pot bangers and their threatening harrasment. Remember th signs CASTRATE THEM. Well why did they not use that same peotocol when Nifong was runnning for office. Students were just trying to get other students to regiater to vote. Duke Umiversity and the campus police shut them down right away. Where was Freedom of speech then.

Anonymous said...

Anon @ 4/19 7:25 AM - "the boys could have prevented the problem; they could have paid her (CGM.)"

There is some truth to that, unfortunately.

Anonymous said...

So delicious! So it was "Dean Sue" that offered "walk the plank" Covington! Brodhead was deeply involved. Other SANE nurses had the professional pride to refuse to work with Levicy.

Stories fall off the front page that everyone wants to follow. This one just keeps on giving, even as the New York and Los Angeles Times have "moved on" from their slanted and inept coverage.

Please--another book! This may be more absorbing than the last one.

Anonymous said...

They were both paid $800, may have left the amount at 610, but were paid!

Anonymous said...

In discussing Levicy you state: "...what the accusing witness was reporting largely on the accusing witness’s demeanor and complaints of pain rather than on objective evidence.” [emphasis added] But Duke now claims that “Nurse Levicy specifically admits that she remains both objective and neutral during such examinations.” [emphasis added]"

I believe you are confusing objective medical findings with "objective" meaning unbiased.

Objective medical findings are those that can be seen, felt, or tested for without relying on the patient's statement. A bruise you see upon examination is objective; saying your are in pain is subjective. A patient's history is subjective, unless the examiner has seen the event.

So when the nurse says she was reporting on the basis of the patient's appearance (demeanor) and complaints she is admitting that there was no observable, independently verifiable evidence of a physical condition causing the pain.

Her second statement is that she was personally unbiased regarding the result of the examination.

An examiner is supposed to be objective (without bias) while reporting a patient's complaints even if the complaints are not accompanied by objective (independently verifiable) findings.