Durham & NYC

[Update, Tuesday, 3.45pm: On the Atlantic site, Andrew Cohen praises Vance's decision. His conclusion: "No one ever said the criminal justice system is pretty, or perfect, or capable of always delivering a narrative that has a clear beginning, middle, and end. There is no legal right to a happy ending -- or even a dispositive one. The leavening truth here is that the Constitution worked pretty much the way it is supposed to work in these circumstances. Under the Supreme Court's precedent in Brady v. Maryland, prosecutors have a duty to share with defense attorneys any exculpatory evidence they find. This the prosecutors did, to their eternal credit. Moreover, a district attorney has an ethical obligation not to try a case he or she doesn't believe can be won. This, too, the district attorney considered."

Cohen had a far different take, however, on the lacrosse case, writing in June 2006 that discussion about Mike Nifong's procedural misconduct meant that, in the media, “there is no balanced coverage in the Duke case. There is just one defense-themed story after another.” The lacrosse players, he claimed in apparent ignorance of the first month of the case, benefited from “race and money and access to the media.” And when the victims of a rush to judgment were college students rather than the former IMF head, Cohen's interpretation of legal ethics went as follows: “We haven’t seen all of the evidence, haven’t examined all of the testimony; haven’t had the privilege of seeing the case unfold at trial the way it is supposed to.”]

As I’ve noted previously, there were significant differences between the lacrosse case and the allegations against French politician Dominique Straus-Kahn: in the DSK case some type of sexual contact occurred; and even his version of events reflected poorly on the former IMF head's character.

It turned out, however, that the most significant difference between the two cases involved the office of district attorney. With the exception of an ill-timed public statement early in the case, Manhattan DA Cyrus Vance, Jr., followed both ethical guidelines and normal investigative procedures. Mike Nifong, of course, did not. A few items from the dismissal motion filed by Vance’s office:

Prosecutor’s Duty

Vance's office spelled it out in the dismissal motion:

Nifong, by contrast, spoke of false accuser Crystal Mangum as “my victim,” and as late as Dec. 2006 ignored basic ethics and described his role as purely a gatekeeper: “If she says, yes, it’s them, or one or two of them, I have an obligation to put that to a jury.” These comments came several weeks after what was perhaps his most chilling remark of the entire case, when he claimed that not the evidence nor even his beliefs but instead divisions within the community sufficed as a cause to bring the case to trial.

Continuing the Investigation

Consider these passages from the motion, describing the Manhattan DA office’s continuing investigation:

This investigation included a critical analysis of the medical evidence:

Nifong, by contrast, preferred willful ignorance; he claimed that, until his case imploded with the Dec. 2006 Meehan hearing, neither he nor anyone from his office asked Mangum anything about the case. And neither he nor his office appear to have challenged the ever-changing testimony of former SANE-in-training Tara Levicy.

If Vance and Nifong differed, some elements of the political and intellectual community evident in Durham carried over into New York.

Sunday's New York Times reported that "Bill Perkins, a state senator from Harlem, who like Mr. Vance, is a Democrat, stood alongside black and female leaders and urged Mr. Vance to press forward with the case . . . Mr. Perkins and others framed the case as a possible instance of a powerful white man getting off for something he did to a poor immigrant woman. . . . Councilwoman [Letitia] James said that if the case was dismissed over credibility issues,'it would have a chilling effect on all rape victims, and it would send a message to all rape victims that unless you are a perfect rape victim, you should not even bother to come forward.'"

There’s little reason to believe that James or Perkins will suffer any political repercussions for their indifference to due process; but if they do, they could discuss survival strategies with one of the most vociferous apologists for the DPD’s procedural shenanigans, City Councilor Diane Catotti, who remains in office, and seems likely to win re-election this fall.

Alas, the Durham Democrats have removed from their website the 2006 photograph of a beaming Catotti standing by her endorsed candidate for her city’s minister of justice, Mike Nifong. But even without the photo, based on her record in the lacrosse case, those who presume guilt in sexual assault cases and are indifferent to procedural misconduct by authorities have no better friend than Catotti.

Durham "Justice"

An explosive story in today's N&O, suggesting that the familiar patterns--concealment of evidence, lax ethics in the police and prosecutor's office--remain firmly in place in Durham. In this case, the behavior had a deeply unfortunate consequence: for the second time in nine months, a murder charge was dismissed on procedural grounds. Judge Orlando Hudson found "that the state and/or its agents have destroyed the evidence," violating the terms of the Brady decision.

Read the entire story, by J. Andrew Curliss, here.

A few noteworthy items:

--Durham County's "minister of justice," the ethically-challenged Tracey Cline, declined to comment, or offer any explanation to the public as to how her office has repeatedly run afoul of basic procedural guidelines.

--Hudson has promised "a very interesting order" outlining his findings.

--Cline couldn't even manage to get the small lies correct, as seen in this vignette regarding the victim's sister, Latifah White. From Curliss' article:

White had been testifying while wearing sunglasses, an accommodation allowed because Cline said she was legally blind. But in the midst of her testimony, the sister told the judge she was removing her glasses.

"Dorman is looking at me," [the supposedly blind White] said. She removed the glasses and stared at Dorman from the witness box.

Can anyone really be surprised that DA Cline isn't overseeing an ethically pristine office?

Moneta & Holloway

The contemporary academic majority worships the trinity of race, class, and gender. Class is clearly the third wheel—unsurprisingly given that most tenured professors are well-off financially and secure in employment, and therefore don’t have a personal connection to the preferred ideological viewpoints on the issue.

The competition for primacy between race and gender, however, is less clear-cut. In a matter like the lacrosse case, where the preferred viewpoint on class, race, and gender all dictated a rush to embrace false accuser Crystal Mangum’s wild claims, the result—as we all saw with the Group of 88’s activities—can be vicious. But the rape of Katie Rouse, a white Duke student, by a local black man was met with utter silence from the Group. As I noted at the time, they seemed desperate to avoid making a politically difficult choice.

One Duke administrator, on the other hand, seemed positively eager to demonstrate that when push comes to shove, race trumps even gender. Larry Moneta responded to the attack on Rouse by issuing a statement casting blame on the victim. As he informed a local TV station, according to Liestoppers,"The situation was “part of the reality of collegiate life and of experimentation and some of the consequences of students not necessarily always being in the right place at the right time. This happens around the country. Duke is no different in that respect.”* 

Rouse has filed a federal lawsuit against Duke, claiming that the administration’s actions created for her a hostile educational environment. She took a leave from Duke shortly after the attack, and eventually left the university altogether, though under disputed circumstances. The initial complaint, filed by Bob Ekstrand, and Duke’s response go over the events of the case, but the two documents feature several notable items:

(1) Ekstrand claims that Duke administration never sanctioned the (African-American) fraternity at whose event Rouse was sexually assaulted.

(2) Both sides concede that Duke’s Stephen Bryan e-mailed senior administrators after Rouse was attacked—and highlighted the race of her attacker. In its response, Duke declines to explain what motivated Bryan.

(3) Ekstrand’s complaint alleges—and Duke’s response doesn’t seem to dispute—that Duke maneuvered (a cynical person might say manipulated) its internal procedures in fall 2007 to get Rouse out of the university. Then-dean Diane McKay (who’s now at Princeton) met with Rouse at the time to discuss Rouse’s desire to take some time off, and encouraged Rouse to write an e-mail stating a desire to transfer. Duke then took this e-mail as an indication that Rouse had voluntarily withdrawn from the university, rather than (as Rouse seems to have intended) a desire for additional voluntary leave as she recovered from the rape.

(4) Ekstrand tries to claim that university administrators had a legal obligation to follow the student handbook—a losing argument in light of Judge Beaty’s unfortunate decision in Carrington. Duke makes clear the documents have no legal weight at all, instead asserting “that Duke University published and made available its Undergraduate Student Bulletin and its Community Standards publications.” The bulletin, in short, isn’t worth the paper upon which it’s printed.

(5) Duke claims that deciding in Rouse’s favor would constitute a “denial of due process”(!) to defendants such as Moneta.

(6) One item in Duke’s response raised eyebrows: “Defendants admit that Crystal Mangum is an African-American Durham woman who falsely accused Duke lacrosse team members of rape.” [emphasis added] This admission appears to contradict a key element from the filings of former Duke attorney Jamie Gorelick, whose departure as the university’s lead counsel in the civil suits continues to lack credible explanation. Gorelick’s filings, it’s worth remembering, strongly implied that the judgment of former SANE nurse-in-training Tara Levicy was correct, and the findings of the AG’s report were wrong.

Duke, therefore, is simultaneously claiming that Mangum’s claims were false and that Levicy’s “medical” findings that corroborated Mangum’s rape claim were true.

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During the lacrosse case, English professor (and a Duke. law faculty member who lacks a J.D.) Karla Holloway demonstrated an . . . unusual . . . conception of ethics in the legal arena. Abandoning the academy’s traditional fealty to presumption of innocence, she signed a statement affirming that something “happened” to false accuser Mangum. She then publicly criticized the Duke women’s lacrosse players who did stand up for presumption of innocence. And, after Mike Nifong’s case imploded, she penned a mass e-mail passing along wild sixth-hand gossip designed to make the falsely accused players look bad.

And yet the NIH has invited this same Karla Holloway to participate in a forum on . . . ethics.

Was Larry Moneta unavailable?

*--This section quoted from a Bob Ekstrand filing that he subsequently withdrew; I have modified the post for accuracy.

Rob Taylor Cracks the Case

This summary is not available. Please click here to view the post.

Legal Filings

In perhaps the least surprising legal development of the case, a unanimous three-judge panel from the North Carolina Court of Appeals affirmed a lower court's judgment that DNA Security had cause to fire former lab director Brian Meehan.

The court's description of Meehan's activity was blunt. Though his lab's tests indicated not one but two vital findings: "(1) there was no match between any of the specimens provided by the lacrosse players and the alleged victim; and (2) the alleged victim had recent sexual contact with multiple men who were not among the specimens provided," Meehan's "report obscured findings that exculpated the charged players." By using "opaque" language "instead of explicitly stating both conclusions," Meehan produced a report that "obscured the actual test results"--not even mentioning the critical second finding, and mixing in the first finding with additional irrelevant details.

The appeals court found that Meehan had no grounds to dispute his dismissal for just cause, given that he had, under oath, "explicitly stated that he knowingly violated his company's protocol and procedures." Meehan's dubious conduct, in turn, directly harmed his company's bottom line, since "DSI's business model depended on the reliability of the scientific research and its reports used by courts or law enforcement personnel for determining the probable guilt or likely innocence of those being tested." The contract between DSI and Meehan stated that the lab director could be fired for misconduct, and Meehan's behavior fit the bill: "Plaintiff's misconduct involves intentionally obscuring evidence and submitting an incomplete report in a court of law when clear explanation of the test results would have exculpated individuals wrongly charged."

The opinion also quotes at length from Brad Bannon's brutal examination of Meehan at the Dec. 15, 2006 hearing, and includes the following classic Meehan rationalization of his report: "I don't have a legal justification for it or a reason, okay."

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In a partial setback to the three falsely accused players, Judge Beaty declined to certify their appeal of one aspect of his March ruling, namely his finding that as the City could not have delegated its policymaking authority to Nifong, the claims against Nifong in his “official capacity” are claims against the State (forbidden by the 11th amendment), not the City, and therefore "the City cannot be liable under § 1983 for 'official capacity' claims against Defendant Nifong or for alleged conduct by Nifong as a 'policymaker.’" In other words, Beaty found in a bit of torturous reasoning, Nifong had no lawful authority to take over personal command of the police investigation, and even though the city allowed him to do so, no legal claims can be filed against the city for its improper behavior.

Yet Beaty's ruling was something of a mixed bag on this point. He noted that: (1) the players would have an opportunity to appeal this aspect of his decision after the trial; (2) civil rights claims against the city continue to go forward on other grounds; and (3) perhaps most importantly, repeating an item from his March ruling, "the City is still responsible for its own policies that result in Constitutional violations by City employees, even if the City employees were acting in coordination with or at the direction of Nifong." In other words: unless the city can establish that its police officers refused to follow Nifong's unconstitutional orders (which, at least in the case of Sgt. Gottlieb, clearly was not the case), Durham is still on the hook.

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Beaty's ruling also took note of a lengthy filing by Durham to the 4th Circuit, in which the "defendants have attempted to raise additional issues on appeal, beyond the limited denial of qualified immunity." (In a debatable ruling in June, Beaty delayed discovery for the city defendants while this appeal goes forward.) That filing, as reported in the H-S, featured little more than the city's fantastical interpretation of the case, in which city officials did nothing much wrong and the case was handled pretty well.

Also, in the only-in-Durham world: the head of Durham's Department of Social Services director was fired, in part--according to the H-S--because she did not vigorously contest a judge's decision to award temporary custody of two of false accuser/accused murderer Crystal Mangum's children to their biological father.

Remarkable.