[Update, 2.07pm, Monday: Zach Tracer has an excellent summary in the Chronicle, with quotes from a Durham spokesperson and Duke Law prof Thomas Metzloff. The analysis of Metzloff (someone who I know a little & respect a lot) on the Durham aspect of the lawsuit, in light of the Beaty rulings: “This is still, even without punitive damages, potentially high-stakes litigation for the city."]
A few comments about last week’s rulings from Judge Beaty. In general, the rulings seemed like very good news for the falsely accused students and a very bad development for the triumvirate of Durham, Nifong, and DNA Security. For Duke and the unindicted lacrosse players, the results were more of a mixed bag. Given that Duke’s pre-March 31 strategy of avoiding good-faith negotiations was based on an apparent confidence in achieving total victory at the motion to dismiss stage, this outcome wasn’t good news for the university. A final broad point: though I disagree strongly with one aspect of Judge Beaty’s ruling (regarding his broadening of the Love precedent), his three memoranda were remarkably thorough and well-reasoned, and suggested he understands the case well.
The basic facts of the criminal case aren’t much in dispute. A woman with a history of criminal behavior and severe mental problems made wild allegations against some Duke students. The Durham police, after improperly turning their investigation over to Mike Nifong, obtained indictments under dubious pretenses (a wildly flawed photo lineup, withholding exculpatory DNA tests from the defense and the court, misleading or outright false testimony to the grand jury). The case eventually collapsed under its own weight, as the false accuser, Crystal Mangum, repeatedly changed her story, and the unethical Nifong desperately tried to alter his timeline and charges to fit whatever story Mangum happened to be offering. The AG’s inquiry eventually concluded that the accused students were innocent, that no objective medical evidence existed to sustain any criminal charges, and that Mangum was an unreliable witness.
Those facts come close to a textbook case of malicious prosecution, and considerable available evidence already confirms this narrative. So Durham’s filings focused on three other arguments: (1) Even if true, these facts can’t sustain a civil suit, because a grand jury indicted the lacrosse players; (2) Even if true, these facts can’t sustain a civil suit, because Nifong ran the investigation, and he’s an employee of the state, not the city, and under the 11th amendment, the state can’t be sued in federal court; (3) Even if true, these facts can’t sustain a civil suit, because someone else (Duke employees, Dr. Meehan) is to blame.
Argument (3), as Judge Beaty pointed out, isn’t relevant for the motion to dismiss stage. Argument (2) he rejected out of hand, pointing out that while he functioned as a de facto police detective, Mike Nifong (and his underling, Linwood Wilson) didn’t enjoy absolute immunity. And Argument (1) prompted the most passionate section of last week’s rulings:
Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause. This Court cannot take such a restrictive view of the protections afforded by the Constitution.
Durham/Nifong/DSI will have another bite at the apple, of course, when Beaty considers motions for summary judgment, but it seems—having lost the constitutional arguments—highly unlikely that they’ll prevail at that stage.
Duke already has settled with the three falsely accused players for, according to Raleigh Metro, an eight-figure amount—not exactly an approach a university that doesn’t fear legal liability takes. That said, there’s no evidence that the institution has made any changes to address the kind of problems that mandated this massive settlement.
In the Carrington rulings, Duke’s most clear-cut victory also represented a tremendous setback to student rights throughout the 4th Circuit. Citing the precedent of Love (which involved a far, far narrower set of allegations), Beaty dismissed a breach of contract claim to hold Duke liable for failing to enforce the terms of its faculty handbook (all students must be treated with respect) and student bulletin (harassment against students won’t be tolerated). He argued that, under Love, documents like the bulletin and handbook aren’t contracts. In other words: universities can use them to enforce judgments against students, but when universities don’t live up to their provisions, students have no legal recourse. And since it would be hard to imagine a more clear-cut case of lack of respect (the Group of 88 statement with false assertions of departmental endorsements, the Houston Baker letter, Tim Tyson protesting outside the captains' house) or harassment (both in-class and on campus) than the lacrosse case, Beaty’s ruling fortifies and expands the Love precedent, and essentially means that students anywhere in the 4th circuit are out of luck on this line of response when activist faculty or favored elements in the student body go after them.
(By the way, historians aren’t supposed to make predictions, but I’ll offer one here: Duke won’t amend its student bulletin or faculty handbook to make clear to current and prospective parents that the university can violate these documents at will, if enforcing their provisions would require the administration to alienate activist faculty members on campus.)
Two other aspects of Beaty’s ruling reflected current law, but his findings seemed intellectually counterintuitive. First, he dismissed one claim against Duke on grounds that in North Carolina “no basis to support the contention that a sexual assault nurse examiner owes a duty to the general public, or to individuals who are members of the public who may subsequently be targeted during a police investigation,” on grounds that the SANE nurse has a “primary duty to the patient.” Yet in our legal system, the SANE essentially functions as an agent of the state, with a job of collecting and interpreting evidence for possible use in trial. If, in fact, such a figure owes no duty to the general public, then perhaps the general public should assign to SANEs a less significant role in criminal prosecutions.
Second, Beaty dismissed another claim against Duke on grounds that, under relevant case law, students have no expectation of privacy regarding their keycard information. This finding reflects the Supreme Court’s strained interpretation of privacy rights, but my sense is that most students would find it jarring to discover that they have no privacy rights regarding the electronic record of when they come and go from their dorms.
Duke’s defeats outweighed their victories—in what senior administrators must have regarded as a premature April Fool’s joke, Beaty allowed multiple claims of conspiracy and obstruction of justice, fraud, and negligent supervision to proceed against the University and its employees. His ruling also offered a rather . . . negative . . . review of how the Duke faculty approached the case.
On one fraud claim—which comes out of Duke’s having given the DPD access to its students’ keycard information without a warrant, in apparent violation of FERPA; and then lying about it when Nifong subsequently requested a court order for the information, which Judge Titus denied—Duke seems extremely vulnerable. (Duke has never explained why it didn’t notify the lacrosse players that the university had improperly shared their student data with the DPD.) And whether the university being held civilly liable for violating FERPA would prompt some federal accompanying actions remains an open question.
On the medical front, Beaty’s rulings clearly focused attention on former SANE-nurse-in-training Tara Levicy, whose willingness to constantly alter her story to fit Nifong’s needs played such an important role in keeping the case alive. He dismissed claims against Levicy’s supervisors—but they weren’t the figures who obviously committed misconduct in this case. And, perhaps most troublingly for Duke, his ruling invited the plaintiffs to establish a connection between Duke and Levicy’s unusual behavior.
Administratively, Duke itself and President Richard Brodhead as an individual remain potentially liable for fraud and negligent supervision—meaning that depositions and discovery will commence, presumably to include Brodhead’s emails. And Beaty suggested that the negligent supervision claim could provide the avenue he seemingly blocked by dismissing the breach of contract claim to examine why the administration stood aside meekly as activist faculty members chose to exploit their students’ difficulties.
A final point: in dismissing a claim for intrusion upon seclusion against Duke administrators, Beaty offered this appraisal of activist members of the Duke faculty: “The Amended Complaint alleges conduct by faculty members [which was based on information that is entirely in the public record] that is certainly questionable.” Another prediction: Duke won’t be broadcasting this evaluation to prospective parents anytime soon.
What Discovery Should Reveal
The path laid out by Beaty’s rulings strongly suggested that—one way or the other—the discovery process will provide answers to a few lingering questions from the case, namely:
(1) When, precisely, did senior members of the Durham Police Department (and City Manager Patrick Baker) elect to allow Mike Nifong to assume personal command of the police investigation? Why did they do so? And why did they not step back in to establish normal processes when Nifong ordered the DPD to violate its own procedures and run a suspects-only lineup?
(2) When, precisely, did senior members of the Duke administration, including Brodhead and former BOT chairman Bob Steel, learn of former SANE nurse-in-training Tara Levicy’s involvement in the case? And why did they not step in to establish normal processes when Levicy started violating regular SANE procedures by changing her story to fit Nifong’s tale and providing the police with information not contained in her written report?
(3) When, precisely, and for what reason did Duke establish its students’ presumption of innocence as one of the two pillars of the university’s policy, as Brodhead subsequently, and misleadingly, claimed? We know that one senior administrator, Larry Moneta, told Samantha Ekstrand on tape that he did not believe the players were innocent; and we know that in his April 5, 2006 open letter, Brodhead made no mention of a presumption of innocence. By June, he would do so: had university counsel grown concerned with the possibility of civil suits?
Proving yet again the aphorism that a man who represents himself has a fool for a client, Counselor Linwood Wilson’s filings failed to persuade: between the three lawsuits, Wilson is still facing nine separate claims.
Perhaps the most revealing—and, unintentionally, critical of Duke’s position—reaction to Judge Beaty’s rulings came from Duke’s official spokesperson and a Duke apologist.
Duke spokesperson Michael Schoenfeld commented, "The few claims remaining are substantially narrowed, as we had hoped." [emphasis added] It’s quite true that Beaty “narrowed” claims against Duke. But the “narrowing” consisted of his eliminating mid-level (or in one case all) administrators, while leaving the university itself still potentially liable and the overall claim entirely unaffected; or his eliminating Durham but not Duke from one fraud claim.
Duke, as we learned from the AIG lawsuit, has already spent millions of dollars on attorneys. If a ruling that kept the university potentially liable for multiple claims of conspiracy and obstruction of justice, fraud, and negligent supervision is the outcome for which the university leadership “hoped,” what kind of outcome had these high-priced lawyers predicted to Brodhead and the Duke Trustees?
Duke alumnus and apologist Beau Dure, meanwhile, produced a post establishing “fair and balanced” bonafides that would make Glenn Beck proud. After a token expression of sympathy with the falsely accused players, Dure asserted that “the people you’d typically meet as an undergraduate have little left to face in court other than Count 11”—an odd formulation, since virtually none of the claims involved people “you’d typically meet as an undergraduate.” The post incorrectly implied (but didn’t state outright) that my initial area of interest was in exposing the media’s rush to judgment on the criminal case—whereas, obviously, my initial focus in the case was exclusively in exploring the motivations for what Judge Beaty termed the “questionable” behavior of the Duke faculty. The post also minimized the Group of 88 statement with this almost hilarious line of argument: “I did show the ad once to a neutral party, who wondered what the fuss was all about.” (Adopting this approach, allow me to pass along the following: I showed Brodhead’s April 5, 2006 statement to a fellow rider on the G-train, who wondered what the fuss was all about.) Some might think that a former Duke student would be troubled by his university affirming that Duke should have no legal obligation to ensure that faculty treat all Duke students with “respect” and that all Duke students shouldn’t be harassed, even though the faculty handbook and the student bulletin appear to promise such a standard. But Dure—as, I suppose, a good Duke apologist must—seemed almost giddy about this development.
Dure focused, however, on a peculiar claim: after implying but not quite stating explicitly that Duke’s activist faculty suffer from the effects of groupthink, Dure offered the unsurprising observation that the DIW commentariat (which he darkly described as a “mob”) exhibits symptoms of groupthink. (Dure also, oddly, claimed to have commented at DIW “back in the day” only to have been “shouted down” by DIW commenters, though a blogger.com DIW search, and a Google search for “'Beau Dure’ Durham Wonderland” revealed no comments by Dure on DIW.) In any event, as anyone even remotely familiar with the blogosphere knows, blogs do a lot of good things, but providing comments sections that feature all points of view in significant numbers generally isn’t one of them. University faculties, on the other hand, purport to have higher standards than blog commentariats, especially in ensuring diverse viewpoints among the professoriate.
So is this what it’s come to in this case? The university’s spokesperson says Duke “hoped” for an outcome in which multiple claims of conspiracy and obstruction of justice, fraud, and negligent supervision would go forward; and a Duke apologist compares the intellectual diversity of his former university’s activist faculty to that of a blog’s commentariat.
An outstanding synopsis, KC. Thanks once again.
Duke alumnus and apologist Beau Dure, meanwhile, produced a post establishing “fair and balanced” bonafides that would make Glenn Beck proud.
I know it's required in the Faculty Lounge to snipe at Fox and Glen Beck (neither of which I care for if it somehow makes a difference), but doing so here devalues an otherwise valuable post.
I read through all three decisions, and while the judge was clearly irritated at teh over the top length and rhetoric of the parties, it was also clear that the day of reckoning for Durham, Duke and their senior officials is at hand.
As a double Duke alum household, we are ashamed that the senior leadership in the Allen Building (including a trustee) are associated with words like obstruction of justice; conspiracy; fraud; tampering with evidence; etc., etc., etc. There is nothing in any of those decisions for any defendant to be proud of.
Even where Duke did prevail on cetain counts, they hardly advance honorable arguments: Defeating one count because it successfully argued that the handbook grants rights to Duke but nothing to students, and it has a legal right to mislead and obfuscate; defeating other counts because it successfully argued that it owed no legal duties to white students under the civil rights laws. Winning these arguments is nothing to be proud of, and I highly doubt that they will broadcast just how they evaded accountability under those laws.
Duke's strategy has Jamie Gorelick written all over it: legally unsound, ridiculously expensive, politically ruthless, and highly unsuccessful. Gorelick's career is marked by getting dirt on other peopl eand then forcing (blackmailing?) tham into settling in unfavorable terms. Unfortunately, that will not work here. What these decisions show is that no one is going to care very much if a lacrosse player did something dumb when they were in high school.
We have no idea how Brodhead has survived this debacle. What we do know is that to this day, neither Duke nor its leadership and faculty, understand what they did wrong and still view the lacrosse players as the sole responsible party. In other words, Duke still sees itself as the victim in all this, rather than the perpetratos the court found it to be.
Three minor comments on a very cogent analysis of the rulings and their meaning.
First, I believe you sell yourself short in hesitating to make a prediction. You are not predicting in your capacity as an historian: obviously you cannot describe the future wie es eigentlich gewesen. You are making your prediction on the basis of your experience in academia and your observations of Duke's behavior. Perfectly sound bases for making predictions.
I suspect, however, that you are understating the logical effect of Beaty's conclusion about SANEs. If they have responsibility neither to potential defendants nor to the integrity of the judicial process, their testimony should not be allowed at all, any more than the district attorney is allowed to give testimony. At the very least, they should be treated as hostile witnesses.
Third, I suspect that you are just wrong about Duke's feelings about the rulings. Obviously, they hoped for more, a lot more. But they probably did hope for AT LEAST this much. It is one thing to pretend that legal persons are truly persons who hope and fear, but outside the fictions of the law, only natural persons do such things. The elimination of personal liability for a number of natural persons in the administration at Duke and Duke Medical is undoubtedly something that was devoutly hoped for by the persons involved. Moreover, it probably benefits Duke, which almost certainly has obligations to indemnify some or all of its agents.
Moreover, as has already become apparent, the elimination of even one claim gives Duke a colorable justification for its undoubtedly staggering legal bills. Any claims that the Duke trustees violated their fiduciary duty in approving such expenditures are now unsustainable. "Gee we succeeded in eliminating a whole bunch of claims, and we protected some of our people."
Of course you are entirely correct that many at Duke wished and wishes that the whole thing would just go away, and those wishes are now exploded. But they were never realistic to begin with. There may be some adult members of Duke's administration and board who can now get about settling these cases. For any such adults (if indeed there be any), this ruling probably is what they hoped for in their more realistic moments.
Historians dont make predictions... Ok got it. Would you care to make a potential prediction on the eventual cost in $ to Duke of this whole sordid affair? Many variables to consider, but you must have mused about it some.
I would urge readers to look once again at Brodhead's April 5 letter. In it, he utterly condemns the players, all but assumes they are guilty of rape and worse, and makes it clear that the lacrosse team was responsible for most of the ills besetting Duke University, at least in regards to community relations.
The absolute hatred that colors that letter tells us Brodhead's mindset, and it tells us that he really was united with those who were saying the worst things. No, he did not call for "castration," but he was a spiritual brother to the potbangers.
He all but blamed the lacrosse players for the policy of not admitting blacks to Duke, even though that policy was in effect when the parents of the lacrosse players themselves were children. There is nothing -- NOTHING -- in that letter that even hints of the rights of the accused. They are guilty, and Brodhead is ready to pronounce sentence.
Excellent overview of this case, KC. It looks like things are moving again. Keep up the good work.
-- Gus W.
Haven't read you blog in a long time. Thank you for your exceptionally clear thinking...
Too bad Crystal Mangum wasn't arrested long ago, then maybe these other victims could have been spared.
I see Timothy Tyson is still busy in Durham and wouldn't you know that it has something to do with eating fattening food. Only in Durham.
This is an outstanding synopsis.
And to my mind, Beaty's rulings are incredibly significant.
Can anyone with a closer relation to the facts of this case than I have validate the notion the University should be terrifically apprehensive about discovery about now?
I can only imagine what kind of documents exist in Duke's files.
KC, I posted anonymously back in the day, as did many of your readers. At the time, I was employed by a large newspaper that was covering the case (though my involvement consisted mostly of telling traveling reporters good places to park on campus), and I was less free to speak.
The assumptions you make about me in your post prove my point. Thanks for the reassurance.
But you should bear in mind that I also went out of my way to be fair to you in that post. You did a lot of good, especially early on. Then you fell victim to groupspeak.
To state once again -- I do respect the work of all people who worked to turn back Nifong and Mangum's horrid lies.
But somewhere along the way, KC, you went from seeing the difficulties Duke faced (I'd be curious to know what you think would've happened had this case been at N.C. State, Maryland or maybe Vanderbilt) to chortling at every piece of negative publicity Duke could possibly encounter.
And then anyone who sees any problem with that outlook is merely labeled "Duke apologist." Not worth listening to. (One of your followers insisted on my blog that I'm "liberal" because I used the word "vitriol." Fairly typical of people using labels as excuses to avoid hearing what someone has to say.)
Really, I don't expect many people to care what I think. I'm a blogger with a tiny audience. I don't make my living writing about this case.
But I think I speak for a silent majority of people within the Duke community who will be content to let the wheels of justice run their course. If anyone from a nurse to a president did something negligent, then let's kick that person out. In the meantime, let's lay off the lazy, casual smears against people who don't think their school is a bastion of evil.
And I'm glad -- sincerely, seriously -- that you took the time to read a dissenting view. I hope it's something you'll bear in mind down the road.
To the 6.26:
My apologies: when you wrote, "I tried to make these points on KC’s blog back in the day and was shouted down," I didn't realize that you meant, "I tried to make these points anonymously on KC’s blog back in the day and was shouted down." The personal pronoun of "I" threw me off your scent: that was very clever! Of course, this approach also makes it all but impossible to determine the validity of your claim that you were "shouted down."
I'd be curious if you could point me specifically to the "assumptions" I made about you in the post, given that my comments repeatedly quoted your piece. (I admit that I did "assume" that you wrote it.)
Allow me to express my gratitude that I "did a lot of good, especially early on," but am a bit baffled as to exactly when I "fell victim to groupspeak" (of what "group" remains unclear), given that my basic critique of the Duke faculty--that activist faculty tried to exploit the lacrosse case to advance their race/class/gender pedagogy--remained more or less the same from "early on" to now.
For those whom could not understand why Brodhead and others are still on the payroll, this answers that. Duke needs to be on friendly terms with those who must submit to the legal colonoscopy at the hands of plaintiff's attorneys. Ouch!
What a mess at Duke.
I feel the need to take a shower.
Especially after reading Brodhead's '06 letter to the community.
Clearly senior leadership at Duke have much more highly developed appetites for imperial powers than sense of smell.
Is Linwood Wilson a Communist?
From the beginning of this even, the little SANE job was way overblown. At last, the Judge puts it in proper prospective. Dr Manley and Nurse Levicy signed in the wrong place and clearly just a mistake. The Truth does set us free.
All in, at this point, we move to discovery and, maybe, trial! Duke and Durham (et al) do NOT want to pull their knickers down, believe me. Let the games begin, boys!
KC, I've been with you since the beginning, and appreciate how much time and effort it must take you to keep on top of every nuance of this case. We can only hope that although the wheels of justice turn slowly, they will render fair judgement to all and sundry (despite what case they may be tried for?!) in the end.
Since the revelations regarding Ms. Levicy, I have consistently stated and now still maintain that she is the key to all claims made on behalf of the wrongly accused.
Recall that all medical documents are in fact legal documents. There is no dispute as to this assertion.
Further, Ms. Levicy's testimony was at odds with the written record of her exam and that of the resident OB/GYN who attended to the false accuser.
KC's question here as to the Beaty ruling is perhaps far more cogent and long-reaching that one might first understand.
If Ms. Levicy, as a SANE nurse is not responsible for her written or oral testimony as it relates to the accused, then what role could the SANE nurse have in their role as medical examiner and custodian of evidence?
Is Judge Beaty saying that medical staff are now released from any consequence of their lying with regard to medical encounters?
This part of the ruling will be reviewed and overruled.
And yes, the ruling is flawed here as Judge Beaty does correctly identify the failing of DUMC (and therefore, Duke) for negligence in supervising Ms. Levicy (and her superiors) as would be the case in any medical malpractice claim.
In other words, Judge Beaty rules the hospital is responsible for negligence - failure to supervise - but at the same time is not responsible (as it should be) for negligence - failure to accurately document and report salient findings.
I guess lying about your work is OK in court, per Judge Beaty - but doing a crappy job isn't.
Without Tara Levicy there was never a case against the lacrosse players - never.
Despite the medical record showing that "nothing happened" her testimony allowed for the narrative that "something happened" and that was all that was needed for the false accusation to go forward and be maintained - until that is, it fell under its own weight.
But not a moment too soon.
I don't know Ms. Levicy - but I do know and have worked with many nurses who have the most difficult job of evaluation, treatment, as well as the gathering and securing evidence on behalf of victims of rape.
What Ms. Levicy did was reprehensible - despicable.
Hopefully, she herself is neither of those.
As many of you may have noticed, Crystal Mangum is not a defendant -- or even third-party defendant -- in the federal lawsuits. I had previously wondered why that is, but I think I know the answer now. Still, I would appreciate any feedback, positive or negative, that you can provide. (I just want to know the "right" answer to that question!).
This is my understanding of joint and several liability law in North Carolina: "In North Carolina, the courts follow the common law doctrine of joint and several liability, where each defendant is jointly and severally liable for the entire amount of the financial judgment. Any defendant named in the judgment is liable to the plaintiff for the entire amount, regardless of his or her share of the fault."
Thus, it would be no financial benefit to bring Mangum into the lawsuit for any party. She's doubtlessly judgmentproof. Moreover, there is no benefit to assigning any blame to her if you are Durham or Duke. (In some jurisdictions, only defendants who are judged to be 50% or more liable have to pay; in others, only if the defendant is more responsible than the plaintiff; etc.). In other words, they can't point the finger at Mangum and avoid paying -- or even lessening -- any judgment against them.
That leaves the political reasons for Duke and Durham not to join Mangum as a necessary party. For Durham, she is the voice of a new generation, so the political hacks probably want to keep her out of the suit -- at least as much as possible. As for Duke, she is pretty unnecessary to the Fraud, Obstruction of Justice and even the Negligent Supervision Counts against the university. She will only be needed as a witness in those matters. What do ya'll think? MOO! Gregory
Ah, c'mon KC. You've read enough student papers to realize that you're considered "dictatorial" if you expect students to provide evidence for their assertions.
We frown on such "fascistic" tactics here at Duke. And apparently, Dure learned his lessons well.
I might comment that, while the ruling concluded that the portions of the handbook you mention were unenforceable, the ruling DID conclude that the university could be held to the due process promises they made to students faced with suspension, etc. Certain types of statements he concluded did not obligate Duke, others did.
You may wish to comment on Sidney Harr's lawsuit against Duke. He claims that Duke violated his first amendment rights.
What does it mean to be "shouted down" on a blog?
It would help if you gave an example of where you were shouted down on DIW. Specifics would be useful.
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