The 4th Circuit (Essentially) Gives Durham a Free Pass

[Update, Tuesday, 1.08pm: As requested from a couple of the commenters, there is a link to the opinion. And a reminder: this appeal terminated the process at its inception (before discovery even occurred). That is, the 4th Circuit held that the falsely accused lacrosse players had no federal civil rights claim. The message the three-judge panel sent was clear: in towns and cities in the 4th Circuit, it's possible to frame innocent people without incurring federal civil rights violations, provided that the police are candid in discussions with the prosecutor that no evidence exists against the innocent people (even if, at the same time, at least one police officer misleads the grand jury and violates departmental guidelines and confines a photo array or lineup to suspects); and that the police can claim the prosecutor made the decision to indict. Chilling.]

The 4th Circuit (as previously predicted, based on the tone and substance of the oral arguments) has issued a ruling that for all practical purposes ends the civil suits against Durham and associated parties.

A basic summary of the opinion and concurrences:

(1) The panel dismissed all federal claims. A two-judge majority, Judges Diana Motz and J. Harvie Wilkinson, appeared concerned that doing otherwise could permit frivolous cases to proceed and thus have a chilling effect on legitimate law enforcement activity.

(2) A two-judge majority allowed one state claim, of malicious prosecution against Gottlieb and Himan, to proceed. It’s not clear at this stage how this section of the lawsuit will play out.

(3) The panel sent a clear message to prosecutors or police officers who might be worried that they’re seeking indictments without good reason to do so: if you obtain a grand jury indictment (regardless of whether the officers tell the truth to the grand jury), you should be home free.

(4) All claims raised by the unindicted players were dismissed, and the merging of the three lawsuits simultaneously to the 4^th Circuit probably helped Durham.

(5) The intersection of how the opinions were written and Judge Beaty’s previous decision to stay discovery on claims relating to Tara Levicy makes it possible that the former SANE-nurse-in-training might never have to appear under oath to justify her . . . dubious . . . conduct. But it's also eminently possible (indeed, probably more likely) that discovery against Levicy could proceed, under Count 23 of the Carrington lawsuit (which had a mixture of Duke and city defendants). This will be an issue before Judge Beaty as the unindicted players’ case proceeds. The 4th Circuit's ruling certainly calls into question Beaty’s earlier decision to stay discovery regarding Levicy as the city conducted its appeals.

(6) The falsely indicted players were hurt by the ideological concerns of two of the judges—from the right, Judge Wilkinson’s general distrust of the excessive aggressiveness of trial lawyers; from the left, the breathtaking hypocrisy of Judge Roger Gregory, who gave the impression at oral argument (an impression confirmed in his partial concurrence and partial dissent) that he could have been a card-carrying member of the Group of 88.

Judge Motz’s Decision

Speaking for the panel, Judge Motz did five things:

(1) In the most significant aspect of her ruling, Judge Motz dismissed the § 1983 malicious prosecution claim against Officers Gottlieb and Himan filed by the falsely indicted players. Why? Because Nifong, not the officers, made the decision to indict, and because the officers gave all the information about the case to Nifong.

Given the context of the case, this was a deeply troubling finding, in two respects. First, as of several days into the police investigation, DPD supervisors had placed Nifong in charge of the police investigation. The message the Motz panel sent to 4^th Circuit jurisdictions, then, is that allowing a prosecutor to run a fraudulent police investigation—and then having the city’s officers stand aside as he resumes his prosecutorial role and seeks a fraudulent indictment—is a sure-fire way to avoid a federal civil rights claim. Second, we know that the grand jury that indicted the three lacrosse players (who heard from only these two witnesses) was misled—first, thanks to excellent reporting from ABC’s Law & Justice Unit; and second, thanks to an unwitting revelation from Sgt. Gottlieb in his deposition for Nifong’s ethicstrial. Apparently, then, even helping to bring about a grand jury indictment under false pretenses is enough to gain immunity from federal claims.

(2) Having found that no federal claims against city employees exist, Motz dismissed all claims against supervisory officials and against the City of Durham (except on limited grounds that seem unlikely to survive summary judgment).

(3) Motz dismissed all claims against Durham and Durham employees filed by the unindicted players. Yet her ruling didn’t discuss Judge Beaty’s somewhat unusual decision to stay discovery for former SANE-nurse-in-training Tara Levicy, on grounds that Levicy’s actions were bound up with those of the DPD, and allowing discovery to proceed against her and against Duke Hospital would be inefficient. Now that the claims against the DPD conspirators have been dismissed, will Judge Beaty allow the discovery against Levicy to proceed? Or will he find a way to excuse Levicy from being held accountable for her actions?

(4) Motz, joined only by Wilkinson, allowed state-law claims by the falsely indicted players for malicious prosecution against Gottlieb and Himan. Based on the filing, she held, and “taken together, the officers’ multiple alleged acts certainly present plausible claims of malice.”

(5) All claims against Mike Nifong remain open. But, of course, Nifong has declared bankruptcy.

Judge Wilkinson’s Concurrence

For a jurist who enjoys a sterling reputation and has even been mentioned as a Supreme Court nominee, Wilkinson’s concurrence was disappointing and at times illogical.

Wilkinson seemed less upset at what Nifong and the DPD did to three innocent people than about the temerity of plaintiffs’ attorneys aggressively representing their clients. He issued a lengthy defense of Cpl. David Addison (as he had done in the oral arguments, as well). Wilkinson characterized Addison as merely one of the many public “spokespersons (who are often given limited information by their superiors on a need-to-know basis)” who the plaintiffs’ attorneys wanted to expose “to the threat of monetary damages for expressing a departmental position in the most general of terms.” Imagine, he ruminated, what might happen to the spokesperson for a town’s local school board if Cpl. Addison were held accountable for his actions.

Here’s a sampling of the (fact-free, misleading, and inflammatory) Addison statements that so roused Judge Wilkinson’s need to defend the spokesperson: “You are looking at one victim brutally raped. If that was someone else’s daughter, child, I don’t think 46 (tests) would be a large enough number to figure out exactly who did it.” Or, “Addison said police approached the lacrosse team with the five-page search warrant on March 16, but that all of the members refused to cooperate with the investigation.” Or: “Addison said police can’t force samples from anyone they believe to be implicated in a crime. But he said that, in this situation, there was ‘really, really strong physical evidence.’” Or, “We do know that some of the players inside that house on that evening knew what transpired and we need them to come forward.”

In a case in which innocent college students were falsely charged and saw their reputations trashed by most of the media, by political leaders in the city in which they attended school, by dozens of their own professors, and—yes—by an off-the-reservation Police Department spokesperson, Judge Wilkinson somehow sees Cpl. Addison as a victim in the affair?

The judge also denounced “the glacial pace at which this litigation has proceeded (we are now nearly six years removed from the dismissal of the last charges against the three Duke lacrosse players).” Yet these delays were caused almost exclusively by the City—by dragging out mediation efforts, then by fighting the opening of discovery, then by demanding months to file Iqbal appeals, then by dragging out the case even further by appealing Judge Beaty’s ruling to the 4^th Circuit. The idea that the plaintiffs’ position could be criticized because of their opponents’ seemingly deliberate pattern of delay is shocking.

Finally, after including an unsubstantiated assault on the falsely accused players' character, Wilkinson reached an almost insulting conclusion: “We run the risk here of replicating in civil litigation the very maladies that plaintiffs complain infected the criminal process to which they were subjected. That is to say, individuals would be pulled into the coercive proceedings of courts when they have no business being there.”

To summarize the facts of the case again: a district attorney used the powers of the state—and the cooperation of the local police leadership and at least one police investigator (Gottlieb)—to bring charges for a crime that never occurred against three people against whom no evidence existed. But for a providential, 9-8 decision of the State Bar, the case would have gone to trial, at which it was at least possible these factually innocent people would have been convicted of a crime that never took place. Those were the “maladies” of the “criminal process to which they were subjected.” Judge Wilkinson is comparing that record to the plaintiffs’ attorneys’ filing claims against a DPD spokesperson whose inflammatory remarks fanned the witch-hunt atmosphere and the DPD supervisors who stood aside as Nifong improperly took charge of a police investigation?

He should be ashamed.

Judge Gregory’s Partial Concurrence & Partial Dissent

In contrast to the concurrence from Wilkinson—who at least went through the pretense of having an open mind at oral arguments, and who at least recognized that Nifong and the DPD accused innocent people—little could have been expected from Judge Gregory, based on his performance in oral argument.

Nonetheless—and this can’t be reiterated forcefully enough—Gregory is a judge who has a reputation for standing up for the rights of victims of governmental misconduct. What, I wonder, could have caused this graduate of Virginia State University and protégé of former governor Doug Wilder to pen an opinion that seems to wholly contradict his general approach to criminal justice issues?

According to Gregory, the court shouldn’t have even allowed the state-law claim against Himan and Gottlieb to proceed. In his concurrence, Gregory—again, a judge who normally is deeply suspicious of police misconduct—chose to function as a de facto defense attorney for Himan and Gottlieb, suggesting that in meeting with Dr. Meehan about a misleading DNA report, or putting together a photo array that wildly violated DPD procedures, or (in Gottlieb’s case) giving misleading testimony before the grand jury, they were merely “doing their job and investigating a case assigned to them, in collaboration with the prosecutor.” He did allow that the photo array was “not perfect,” but didn’t see anything particularly problematic with it as a tool “to identify a suspect to further investigate Mangum’s claims, which they did not know were false.”

At times, Gregory went even further than Nifong did in justifying the investigation. For instance, he cited the McFadyen e-mail as a possible justification for the criminal investigation—raising the question, of course, of why McFadyen wasn’t indicted if Gottlieb and Himan could have viewed this e-mail as somehow establishing criminal intent.

And how did Gregory describe the case overall? “In retrospect,” he suggested, “it may be clear to some that Mangum’s accusations were baseless.” He clearly is not among the group to which this obviously “clear” case is, in fact, clear.

Imagine if someone of Judge Gregory’s indifference to fair play and even-handed justice had ever been assigned to the case as trial judge.

Ken Burns' "History" Lesson

[Update, 12 Dec., 2.55pm: Yet more legal commentary from filmmaker Burns, this time on video from an appearance at the 92nd Street Y. The relevant remarks begin at 6:56 on the video.
These comments reveal (in the most charitable possible interpretation of filmmaker Burns) a figure spouting off on a case about which he knows nothing.

First: “We” didn't “fire” Mike Nifong. Nifong was disbarred by the North Carolina State Bar, after a public ethics proceeding that resulted in detailed findings of fact regarding Nifong's ethical misdeeds. If filmmaker Burns has a complaint with the performance of Lane Williamson's panel, he has yet to specify it. It does not appear that, in general, filmmaker Burns believes that unethical prosecutors should go unpunished; why, then, is he apparently so troubled by Nifong's fate?

Second, Burns appears to lament that “we sort of went crazy at how bad we'd been in accusing them.” Again, Burns' use of the royal “we” is puzzling. (To the best of my knowledge, he has never apologized to the lacrosse players.) Many people—the Group of 88, for starters, or entertainers such as Wendy Murphy or Nancy Grace—proudly, even defiantly, refused to apologize for how they mistreated the lacrosse players. Other institutions that rushed to judgment—the New York Times, the Herald-Sun—issued mealy-mouthed apologies trying to shift the blame to other parties, hardly examples of going “crazy” at how “bad” they had been. Still other members of the rush-to-judgment crowd—the likes of Selena Roberts or John Feinstein—tried to avoid apologizing altogether by . . . misremembering . . . what they had said or written in the spring of 2006. Still other commentators—such as the various sportswriters linked here—coupled acknowledgement of the dismissal of charges with continued character assaults against the falsely accused students. The City of Durham, obviously, has never apologized to the falsely accused players. It's true that a handful of people who rushed to judgment—Ruth Sheehan, Jemele Hill—issued what clearly were genuine apologies. But these statements stood out because they were so atypical of the general reaction.

Third, this appearance marks at least the third occasion in which filmmaker Burns described the process of being arrested for a crime that never occurred, suspended from school for two semesters, and seeing a Newsweek cover containing the students' mugshots under the title of “Sex, Lies, and Duke” as being an “inconvenience.” On this occasion, he slightly lengthened the time of the “inconvenience,” from a few weeks to two months.

Finally, note that in the span of 20 seconds, Burns found the time--twice, no less--to identify the falsely accused students' race.]

[Update, 11 Dec., 4.22pm: It turns out that his Phoenix interview wasn’t the first occasion in which Burns had referenced the lacrosse case through the “inconveniencing” lens. Here he was in a November interview with the Collider. Mused the filmmaker,

Do you remember in 2006 the white Duke lacrosse players that somebody had falsely charged?  Remember that?  Do you know what happened?  The prosecutor was fired.  The prosecutor was disbarred.  The prosecutor went to jail for inconveniencing for a few weeks these white kids from Duke.  I rest my case.

It’s not clear to me what “case” Burns was attempting to make. Mike Nifong went to jail (for a day) not for “inconveniencing” anyone. He went to jail, for criminal contempt, because he lied to a judge about material evidence. Does filmmaker Burns believe that prosecutors lying in open court counts merely as an “inconvenience” to a falsely accused suspect, as opposed to an assault on the ideals of justice?

Nor is it clear how filmmaker Burns concluded that Nifong persecuted the lacrosse players “for a few weeks.” Each of the three was indicted. For Reade Seligmann and Collin Finnerty, the period of indictment lasted just under a year; for Dave Evans, just under 11 months. In what universe does 11-12 months constitute “a few weeks?”

At least, I suppose, Burns should be praised for referring to college students as “kids” rather than “boys.”]

Filmmaker Ken Burns is almost a caricature of the politically correct intellectual, but his comments in a recent interview with the Boston Phoenix nonetheless were jarring.

Burns was speaking of his new film project, a study of the Central Park Five, a group of minority teenagers accused of raping a Central Park jogger in one of the highest-profile cases of the era. Several of the suspects confessed to the crime, and each was convicted and sent to prison. (Those who confessed subsequently retracted their confessions.) In 2002, a prisoner named Matias Reyes confessed to raping the jogger; when his DNA matched that from the rape kit, the Manhattan district attorney, Robert Morgenthau, voided the Central Park Five’s convictions.

In the Phoenix interview, Burns was asked about the similarities between Central Park and the case of the West Memphis Three. Instead, wholly unprompted, Burns provided this nugget of contextual insight: “You can also compare the Central Park Five to the Duke University lacrosse players, three rich white boys who were mildly inconvenienced by rape charges that proved to be false. In no time the prosecutor of that case was fired, disbarred, and put in jail, and the three ended up getting a huge settlement.”

Since Burns chose to make the comparison—as he expressed hope that the . . . honesty . . . of his work would prompt the NYPD to admit error in the Central Park jogger case and (“from your lips to God’s ear”) win him an Oscar—his remarks deserve consideration.

“The Duke University lacrosse players, three rich white boys”: Imagine the outrage from people like filmmaker Burns if a prominent filmmaker had publicly referred to three African-American college students as “boys.”

“ . . . were mildly inconvenienced by rape charges that proved to be false.” Presumably, filmmaker Burns has never been arrested for a crime he didn’t commit (much less a crime that didn’t occur). Nor, I suspect, was filmmaker Burns ever suspended two semesters from college for a crime he didn’t commit (much less a crime that didn’t occur). Nor, I suspect, did filmmaker Burns see his mugshot plastered on the cover of a national newsmagazine—or heard himself compared to Hitler, or his parents to child molesters—for a crime he didn’t commit (much less a crime that didn’t occur). Yet to filmmaker Burns, these experiences (and more) constituted a mild inconvenience. I wonder what filmmaker Burns would consider a major inconvenience, much less something more significant than an inconvenience.

“In no time the prosecutor of that case . . .” Actually, Mike Nifong was re-nominated and re-elected, in large part because of his handling of the fabricated claims. He didn’t suffer professional difficulties for nearly a year after his misconduct. To filmmaker Burns, perhaps, nine months constitutes “no time.” But I would think that someone who makes his living in part through use of words would be more accurate in his description.

“ . . . the prosecutor of that case was fired, disbarred, and put in jail.” It’s not clear exactly what filmmaker Burns’ complaint on this front is. Does he believe that Nifong should not have been fired or disbarred for his myriad, and massive, ethical violations? Does he believe that if a prosecutor lies outright to judges on materially important matters, the prosecutor shouldn’t be held in contempt of court? Or is he suggesting that the prosecutors in Morgenthau’s office committed prosecutorial misconduct and should have been fired and disbarred? If so, what evidence does he have to substantiate such an inflammatory claim?

“ . . . the three ended up getting a huge settlement.” Currently, the falsely-accused players are awaiting a ruling from the 4^th Circuit; they have received no settlement from Durham or Nifong at all. They have, obviously, received a settlement from Duke, for an undisclosed amount. Does filmmaker Burns have information that the amount was “huge”? If so, from whom did he obtain this information: has Duke violated the settlement’s confidentiality clause?

Apart from the obvious difference—in the Central Park case, a crime occurred; in the Duke lacrosse case, the only crime was the filing of a false police report—there was one intriguing point of comparison between the two cases. In the Central Park case, as events were unfolding, the African-American press, most prominently the Amsterdam News, did not shield the identity of the woman who was raped, Trisha Meili. The News argued—not unreasonably—that since the suspect’s identities were revealed, giving the accuser anonymity tilted the scales against the accused.

In the lacrosse case, of course, the News joined other publications of the black press (and all major newspapers and TV stations) in shielding Crystal Mangum’s identity until the attorney general branded her charges false. (Even then, the Herald-Sun and the New York Times resisted naming Mangum for several months.)

Burns doesn’t appear eager to explore this obvious hypocrisy in his film, however: shining a harsh light on publications like the Amsterdam News wouldn’t fit his agenda.

Murphy, Paul, and Due Process

Two names from the past in the news.

The H-S reports that the State Bar disciplined former Nifong ADA Jan Paul, who left the DA’s office last year. (A one-year suspension of her license to practice law was stayed.) Paul was disciplined for abusing her authority as she prosecuted a case of alleged sexual abuse of a child. When the child’s mother said she didn’t believe the charges, and planned to visit the child that afternoon, Paul—according to the Bar’s order—“instructed a police investigator to take out warrants against [the mother] for aiding and abetting first-degree sex offense of a child, accessory after the fact of first-degree sex offense with a child, and aiding and abetting indecent liberties with a child.” The problem? She had no reason to believe the claims were true.

The mother was nonetheless arrested—but an alert judge freed her on a Friday afternoon, and then dismissed all charges on the following Monday.

In an interview with the H-S, Paul described her decision to seek the arrest of someone without probable cause as a “mistake of law.” 

Former ADA Paul, alas, is no stranger to poor judgment. In 2007, she attended Mike Nifong’s criminal contempt trial, nodding vigorously nodded as Nifong’s attorney hailed his client’s truthfulness, and then weeping after her ex-boss was found guilty.

-----------

I have a post at Minding the Campus detailing the latest activities of Wendy Murphy, who’s demanding an investigation of the University of Virginia after a UVA disciplinary tribunal (almost amazingly) found an accused student not guilty of sexual assault. Explaining her rationale to a local website, Murphy said that colleges are compelled to convict when “[the accuser’s] accusations are deemed credible, and [the accused student’s] denials are not described with the same glowing terminology, she wins.” This is quite an extraordinary standard.

As for the procedure that Murphy deems too easy on the accused student? Here’s a summary:

First, UVA hires investigators (as is perfectly appropriate) to look into all claims of sexual assault. Yet while university procedures identify these figures as “neutral fact-finders,” the investigators actually play a role that virtually anyone outside the university would recognize as non-neutral. Investigators combine the role of the police (interviewing all witnesses, “visit and take photographs” as necessary, work with the local police) and the grand jury (“determine whether or not there is good cause to investigate a hearing”). For good measure, the investigators produce the equivalent of a grand jury presentment (“a detailed written analysis of the events in question”). The accused student can speak to the investigators but has no right to examine evidence or to cross-examine witnesses at this stage. Would faculty members at the UVA Law School consider the police and grand juries to be “neutral fact-finders” in the criminal justice process?

Second, these supposedly “neutral fact-finders” have a right to hold the “accused student’s transcript” before the hearing even adjudicates the case. Yet the policy confers no such right regarding the accuser’s transcript if the investigators conclude that the accuser probably lied.

Third, the accused student has a right to an advisor for the procedure—but this advisor is selected not by the student but by the chairman of the judicial tribunal that will adjudicate his fate. He can also have a secondary advisor, but this secondary advisor “may not be an attorney.” University guidelines offer no explanation as to why UVA considers attorneys to be so dangerous.

Fourth, the accused student must present a list of witnesses before a pre-hearing meeting. Yet the university, functioning in the role of prosecutor, has the right to add witnesses at the hearing itself—after seeing the accused student’s list.

Fifth, the accused student, through his non-attorney advisors, doesn’t even have the right to cross-examine all witnesses—because, the university helpfully explains, “the hearing will not follow a courtroom model, and formal rules of evidence will not be observed.” If witnesses don’t appear, the board can accept their statements as given to the “neutral” investigators—at a stage of the process in which an accused student had no right to cross-examine even in the limited form allowed by the tribunal.

Sixth, the power of the accused student’s non-attorney advisor is limited in another critical way—because the chair of the hearing, not the accused student, has sole power to “determine the order” at which witnesses appear.

Seventh, in the hearing itself, the accused student’s non-attorney advisor can submit cross-examination questions for all witnesses—but cannot ask questions herself, even of supposedly neutral witnesses. There is no guarantee that cross-examination questions the accused student deems critical to his defense will, in fact, be asked by the tribunal.

Finally, and in line with the OCR mandate, the accused student is judged according to a 50.00001 percent preponderance of evidence standard, and if the accused student prevails, the accuser can nonetheless appeal.

It’s nothing short of astonishing that, given her record of fabrications on such a high-profile case as Duke, Murphy is still taken seriously by either the legal community or the media.

Penn State, Duke

Former Penn State president Graham Spanier was indicted last week; I wrote about the move at Minding the Campus.

The move came as little surprise, given the evidence against Spanier uncovered by the Freeh Report. Indeed,  perhaps the most noticeable aspect of the grand jury presentment against Spanier was how closely the document tracked--in terms of evidence and basic argument--the Freeh Report.

As I have noted previously, a variety of campus figures--including, perhaps most troublingly, a group of former leaders of the Penn State faculty senate--criticized as flawed the Freeh Report, even as they steered clear of identifying exactly what the report had gotten wrong. To date, it appears that few (if any) have criticized the line of argument offered by the AG--even as they have also declined to retract their previous criticism of the Freeh Report.

It goes without saying that Duke has never provided an explanation as to why the university elected not to engage in the type of critical self-reflection that a Freeh-style investigation entailed, and instead stood behind the fatally flawed Bowen-Chambers committee report as the sole official investigation of how and why the administration mishandled its response to the lacrosse case.

On another front, and for those interested: Duke's crusade has attracted the attention of the Maine media.

Updates

[Update, Thursday, 4.27pm: In the latest only-in-Durham moment, false accuser Crystal Mangum, in what is described as a jailhouse interview with the H-S, has now denied that she authored the document (which was filed through the PACER system) described below. This denial came after Durham's attorneys filed a motion to--appropriately--urge the court to ignore the request to intervene.]

A few updates:

False accuser Crystal Mangum, currently awaiting trial on murder charges, has petitioned the court to intervene in the civil suit filed by the falsely accused lacrosse players. (That lawsuit is on hold, pending a decision by the 4th Circuit.) In the petition, a clearly imbalanced Mangum claims to have been a victim of "government controlled sex slavery," and adds that she is currently being "framed for murder by the illuminati and the New World Order."

This, again, is the woman of whose credibility the Group of 88 was so certain that these Duke faculty members asserted, as fact and using Duke funds, that something "happened" to Mangum at the lacrosse party. No apology from the Group for their actions, of course, will ever be forthcoming; it's worth remembering that even the two Group members who privately apologized, Susan Thorne and Alberto Moreiras, subsequently reversed course by signing a public statement saying they'd never apologize.

Another item from Mangum's ranting intervention request will raise eyebrows: she claims that Mike Nifong paid her $50,000 (before, it seems, she even attended the party) to invent the allegations, so as to help him win re-election. Needless to say, she provides no evidence to corroborate this absurd assertion. But Mangum's decision to turn on Nifong might pose problems for her de facto legal team, the committee seeking to restore Nifong's law license.

In an item that might bring chuckles among longtime readers of DIW, a first in the case: several days ago, the H-S quoted my opinion in an article, if in the process reporter Ray Gronberg inaccurately claimed that I "said" rather than "wrote" the item in question. (A note: DIW doesn't do podcasts). Surely the fact that my analysis of the 4th Circuit's likely outcome coincided with the status quo preferences of Editor Bob Ashley played no role in the paper's sudden decision to include a comment from me. (The H-S continued its longtime practice of refusing to identify the name of the blog.)

Needless to say, the article didn't reference any of the criticisms that I made of the Herald-Sun's almost comically-biased coverage of the case.

Finally, as some DIW readers know, Duke successfully petitioned a Maine magistrate judge to compel me to reveal to Duke confidential, non-published communications relating to the book and the blog. I have refrained from commenting on the University's crusade, and will continue that approach, but for those interested, the decision has been appealed to the Maine District Court.

The 4th Circuit Hearing

[Updated below.]

Earlier this week, Durham went to the 4^th Circuit, in an attempt to terminate the civil suit filed by the falsely accused players—before discovery has even commenced. I had previously speculated that this was something of a longshot effort, given Judge Beaty’s summary of Durham’s highly troubling basic contention: 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.”

After the oral arguments, however, it’s clear that there’s a good chance the suits against the city could come to an end. Two of the judges, Harvie Wilkinson III and Diana Motz, seemed undecided but asked difficult questions of the falsely accused players’ attorney, Christopher Manning. If either Wilkinson or Motz vote with Durham, the case will end, since the third member of the three-judge panel, Roger Gregory, gave every indication of having made up his mind well before the hearing began. Indeed, at times Gregory advanced arguments that went well beyond anything that even Durham’s own attorney offered, even to the point of insinuating that the indictments of Dave Evans, Collin Finnerty, and Reade Seligmann were legitimate.

(The court uploaded the full audio of the proceedings yesterday, and I’ve included clips of some of the hearing’s key segments as links within this post. Audio links, which are in red, will take you to my personal website; click the back arrow to then return to this post.)

The two sides had previewed their arguments in the briefs; Durham attorney Michael Vatis stressed that the indictment by the grand jury shielded the city from liability and that Nifong, in his capacity as prosecutor, rather than Durham city employees made the decision to seek indictments. (Vatis didn’t explain how or why the Durham police allowed Nifong, a county prosecutor, to supervise the police investigation after March 27, 2006.) Christopher Manning, representing the falsely accused players, relied largely on Judge Beaty’s framing of the case, adding that the magnitude of wrongdoing to Durham officials justified the case going forward, at least through discovery.

Vatis did make one quite intriguing statement. After suggesting that there were other alternatives to a civil suit—administrative proceedings, perhaps a criminal investigation—to punish inappropriate behavior by the DPD, he noted that no other inquiry had found wrongdoing by the DPD. He implied that even if discovery occurred, the plaintiffs would find nothing.

Judge Motz asked the relevant follow-up question—had such inquiries actually taken place? After dancing around the issue, Vatis conceded that Durham authorities hadn’t pursued any of these alternative methods. Of course, it was worse than that—in 2007, the city leadership shut down the investigation of the DPD after one hearing, citing an insurance company’s concern that the inquiry might uncover information that would damage the city’s civil case. And now the city cites the fact that its short-circuited police investigation found nothing as a reason that the civil suits lack a factual basis.

Both Wilkinson and Motz appeared to struggle with how the magnitude and the type of wrongdoing by law enforcement made it difficult to find appropriate precedents (for either side) to guide the court. Motz was blunt in her belief that the DPD hadn’t behaved appropriately; Wilkinson pressed Vatis on the seriousness of the allegations. Neither was hostile to Vatis, but neither similarly appeared willing to accept Vatis’ suggestions that nothing much serious had occurred in this case, except perhaps for Nifong’s wrongdoing.

When Manning’s turn came, both Wilkinson and Motz worried about the broader ramifications of the plaintiffs’ position. Even if the falsely accused players had been framed, how could the court draw a line that would not open the way for federal lawsuits from any criminal suspect that thought a police officer looked at him the wrong way? (Wilkinson worried that the question here was “whether a hard case makes some really bad law.”) Manning tried to parry these concerns by noting the extraordinary nature of the misconduct in the lacrosse case, but neither Wilkinson nor Motz seemed convinced (though Wilkinson did suggest that the case should be litigated at the state level if the 4^th Circuit blocked a federal suit). If the falsely accused players do prevail, however, Manning’s uniqueness-of-this-case argument probably would provide the basis.

That left the third member of the three-judge panel, Judge Roger Gregory. During the presentation by the city’s attorney, Judge Gregory contributed little. During the presentation by the lacrosse players’ attorney, Gregory participated actively, sometimes with extremely hostile questions, other times with minimizing remarks about the evidence in the case or the nature of the players’ claims.

Gregory began by mischaracterizing Dr. Meehan’s DNA report, arguing that it only said that no matches existed to lacrosse players, whereas (in the section Meehan and Nifong improperly concealed) it also said that DNA from other, unidentified males was discovered, and it implied (inaccurately) that Dave Evans’ DNA might be a match. How a finding of other males’ DNA but not that of any lacrosse players could in any way be considered consistent with Mangum’s story (that she was raped for 30 minutes by three people who didn’t use condoms, and she went almost immediately thereafter to the hospital) Gregory didn’t say. Manning seemed, perhaps unsurprisingly, rather taken aback with this line of argument.

Echoing Vatis’ argument that the case should be dismissed in part because no police officers were prosecuted, Gregory argued that a claim of conspiracy against Durham Police officers was inappropriate, because “you can’t conspire to do something that’s legal,” and that it certainly wasn’t (as he sounded as if he believed Manning was arguing) “unconstitutional to bring a weak case to prosecution.”

And in his most troubling line of questioning, Gregory very strongly implied (though he never quite came out and said so) that the Durham authorities were within their rights to try and bring the case to trial. Only “in hindsight” did any evidence of innocence emerge, he claimed. He further suggested that the fact that false accuser Crystal Mangum never retracted her charges justified the indictment. In any event, how could the police know that Mangum was lying, Gregory asked, in an almost contemptuous tone. “Does she allege they were there that night?” This is an extraordinary standard by which to evaluate allegations of police misconduct.

Gregory added that, if the suit goes forward, it could set a precedent, including in “urban” areas. Durham, of course, is an urban area.

Contrast Gregory’s oft-repeated description of the allegations in the claim—that the authorities merely moved forward with a “weak” case—with Judge Beaty’s summary of the claims (which, at this stage of the process, are supposed to be accepted at face value): that “government officials intentionally fabricate[d] evidence to frame innocent citizens, even if the evidence [wa]s used to indict and arrest those citizens without probable cause.”

With Gregory—based, at least, on both his tone and his line of questioning—as an all-but-certain vote to end the lawsuit, the only question remaining is whether Wilkinson and Motz will both vote to allow the case to proceed.

[Update, Saturday 12.57pm: Judge Gregory, it should be noted, doesn’t have a reputation for being indifferent to abuses by law enforcement. Indeed, it’s quite the reverse. To take one example: in a high-profile 2011 decision, Henry v. Purnell, he eloquently wrote of the need to allow a § 1983 action filed by an unarmed man who was shot by a police officer to proceed. (The officer unpersuasively claimed he was reaching for his taser, not his gun; the suspect was not killed.) Unlike the lacrosse case, the Henry case was a bit further along—summary judgment, rather than motion to dismiss, and so discovery had already occurred.

In Henry, Gregory made clear that, at the summary judgment stage, the court needed to view the facts “in the light most favorable” to the plaintiff’s claims as true. (His questioning earlier this week, on the other hand, seemed to be construing facts in the light most favorable to the defendants.) In Henry, Gregory accurately noted that courts needed to employ “a test that focuses on the objective legal reasonableness of an official’s acts,” and that no officer could reasonably believe that firing a gun at an unarmed man was constitutional. (His questioning earlier this week, on the other hand, implied that no officer could have realized it was unconstitutional to participate in a conspiracy to frame innocent suspects, as long as in so doing the officer accurately reported the contents of his [manipulated] case file to the prosecutor.) With these tests, Gregory had no doubt that the Henry case needed to go to a jury.

Obviously, a debate can be made about whether a police officer shooting an unarmed man in the heat of the moment or whether police officers, over a period of many months, conspiring to frame innocent men for a crime that never occurred constitutes a greater constitutional violation. But it’s remarkable to see a judge who was so certain that the victim in the first case was entitled to a court hearing seem so certain that the victims in the second did not deserve a day in court.]

Farred, Chafe, and Presumers of Guilt

One of the more intriguing admissions about the Group of 88 came in 2007, from a prominent member of the Group, history professor (and former Duke administrator) William Chafe.  “Most of us,” he told the Chronicle, “never presumed guilt.”

In one respect, the remark was preposterous, given that the statement Chafe and the other 87 signed stated without equivocation that they believed something “happened” to false accuser Crystal Mangum. But the remark was nonetheless revealing, given that it came at a time when some Duke apologists were falsely claiming that the statement had nothing to do with the lacrosse case. (It might have been, Charlie Piot mused, a response to Hurricane Katrina’s(!) aftermath.)

Chafe never said which member of the Group even he was willing to concede “presumed guilt.” A few months after Chafe’s remarks, it became clear that one Group member to whom the history professor possibly referred was Grant Farred, who (falsely) told a Williams College audience that unnamed lacrosse players had committed perjury. Farred soon departed Duke for Cornell, which offered him a position as tenured full professor. The reckless hiring, however, backfired on the school after Farred attracted fierce criticism for referring to two students as “black bitches.”

I recently came across a post from one of the few people to speak up on Farred’s behalf, a Cornell colleague of his named Riché Richardson. Richardson—a Duke Ph.D. who specializes in (of course) race and gender, and whose most recent tweet praised a "brilliant talk" by the Group member and "thugniggaintellectual," Mark Anthony Neal—is perhaps the only professor I ever have encountered to have praised herself for her . . . course syllabi, which she claims “can take a long time to research and days to write” and “and are valued by students on their own terms as research and learning tools.”

In the event, long after the Farred controversy, Richardson posted a tribute to Farred on her blog, in which she expressed concern about “a climate on campus that creates an intimidating or hostile environment for Professor Farred.” She would not, huffed Richardson, “appreciate having my own credentials or attitudes misrepresented in the way that his have been in some instances, which is also unsettling given my concerns about protecting academic freedom, collegiality and all the things that reflect the basic values of academia.”

Richardson’s post is most interesting for her comments about Farred and the lacrosse case. The man who called two African-American students “black bitches,” she argued, shouldn’t be deemed “somehow dismissive of black women.” Why not? Because “in the situation regarding the black woman stripper who alleged rape in 2006 by members of the Duke Lacrosse team, he spoke up in her defense by writing a letter clarifying some of the implications of the situation [link to at http://friendsofdukeuniversity.blogspot.com/2006/03/expired-documents-2.html ]. Many of the faculty who had the courage to speak out about this situation, which made national headlines, were threatened, harassed, criticized publicly and were victimized by a very calculated smear campaign. Some eventually moved on, including Professor Farred. I respect the very principled and courageous statement that Professor Farred chose to make in Durham on this case involving the black woman stripper, and do not take the sacrifices that he made in the wake of it lightly. The truth is that Professor Farred put everything on the line at a very prestigious job that he valued to support and help defend a black woman who he at the time believed had been the victim of rape and racist epithets.”

The most significant item, of course, from Richardson’s statement is her last line—even a defender of Farred has publicly conceded that the Group member presumed guilt: he “believed” Mangum was raped. Richardson’s claim of Group victimization is as unsurprising as it is unsubstantiated. But I was struck by her claim that “Professor Farred put everything on the line at a very prestigious job that he valued.” As far as I know, Farred put nothing “on the line” related to his job (other than, I suppose, his reputation). Richardson’s insinuation that there was some sort of connection between Farred having “moved on” and his having put anything job-related “on the line” prompted me to ask if she had any evidence about Farred and Duke.

Richardson declined a direct reply to my question. Instead, she wrote, “The consequences at Duke did not necessarily relate to jobs, but there were definitely reprisals (i.e. hate mail and other negative reactions) for faculty who spoke out about that case at the time, some of whom I know. And even if I indeed defended his comments, would that be any worse than defending perceived rapists and racists, as your scholarship suggests?”

“Negative reactions” constitute reprisals! By Richardson’s standards, Mitt Romney has experienced more “reprisals” than any American alive in the past week, given the “negative reactions” (whether deserved or not) to his comments about the attack on the embassy in Libya. Somehow, though, I doubt that Richardson would apply her “negative reactions” standard to figures with whom she disagrees.

I admit that I had never previously heard the lacrosse players described as “perceived rapists.” For Professor Richardson, it seems, no amount of evidence can overcome a false initial perception.

But to answer the professor’s question: yes, I would say that defending a professor who made materially false statements (that unnamed students at his own university had committed perjury) and in the process likely violated the terms of his school’s Faculty Handbook is worse that defending people who were falsely accused of a serious crime.

Penn State Followup

A few weeks ago, disgraced former Penn State president Graham Spanier launched something of a media blitz. His attorney held a press conference denouncing the Freeh Report (while conveniently saying that Spanier, who wasn’t present, would answer the tough questions about the report’s factual findings). Spanier did an interview with the New Yorker’s Jeffrey Toobin, who declined to press Spanier on the critical piece of evidence uncovered by Freeh—an e-mail from Spanier admitting that the decision not to report Jerry Sandusky to police might leave the university “vulnerable” in the future. A follow-up Spanier interview with ABC mostly revolved around the unconvincing argument that because he was the victim of physical abuse as a child, it was inconceivable that he wouldn’t have reported the allegations against Sandusky to authorities.

I wrote about Spanier’s unconvincing defense at Minding the Campus; and, as DIW readers know, have been interested in the similarities and differences between how Penn State responded to the Sandusky scandal and how Duke’s administration responded to the lacrosse case. Stuart and I penned a WSJ op-ed looking at how Penn State, for good or ill, authorized a comprehensive inquiry into what went wrong and why—in contrast to Duke’s decision to have two “diversity”-obsessed advocates of the status quo “investigate” and produce a “report” on the administration’s response to the lacrosse case.

It’s hard to imagine that Penn State’s (or any school’s) faculty could do anything comparably embarrassing to the Group of 88 statement (and the Group’s subsequent rationalizations and refusals to apologize). But it’s also hard to imagine what 30 former and current faculty leaders at the school could have been thinking when they produced a recent letter that exhibited a sense of epistemic closure that would rival the Group of 88 in its bunker.

After what comes across as a token expression of outrage and sadness on behalf of Sandusky’s victims, the PSU profs quickly get onto the real victims—people who work at Penn State, victims of the “current hyperbolic media environment.” (The professors couldn’t find space to identify a single example of this “hyperbolic media environment.”)

Of the Freeh Report, the letter concedes its “investigation appears to have been reasonably thorough, given that it could not subpoena testimony.” (Ironically, a document released by Spanier’s attorney criticized Freeh for relying on subpoenaed testimony from ex-assistant coach Mike McQueary, rather than defying prosecutors’ requests and interviewing McQueary himself.)

But . . . “as a document in which evidence, facts, and logical argument are marshaled to support conclusions and recommendations, the Freeh Report fails badly. On a foundation of scant evidence, the report adds layers of conjecture and supposition to create a portrait of fault, complicity, and malfeasance that could well be at odds with the truth.”

In what ways is the Freeh Report’s evidence scant? Who knows? Is the document truthful or not? Who knows? Far be it from Penn State faculty members to examine the evidence presented in the report and demonstrate items in the report that are factually inaccurate.

Such work, it seems , isn’t necessary—because “as scientists and scholars, we can say with conviction that the Freeh Report fails on its own merits as the indictment of the University that some [who?] have taken it to be. Evidence that would compel such an indictment is simply not there.” The evidence for this sweeping assertion? The “scientists and scholars” present none. Perhaps they ran out of ink.

The “scientists and scholars” seem particularly perturbed with the Freeh Report’s (and the NCAA’s) remarks about Penn State culture. “Not only are these assertions about the Penn State culture unproven,” they thunder, “but we declare them to be false.”

The evidence for this sweeping assertion? Their own personal experience. “As faculty members with a cumulative tenure at Penn State in the hundreds of years, and as former Faculty Senate chairs with intimate knowledge of the University stretching back for decades, these assertions do not describe the culture with which we are so very familiar. None of us has ever been pressured or even asked to change a grade for an athlete, nor have we heard of any cases where that has occurred . . . Some of us have privately witnessed swift and unyielding administrative actions against small transgressions, actions taken expressly to preserve academic and institutional integrity.”

The “scientists and scholars” apparently didn’t notice the interference by the former football coach in the disciplinary process—in instances far more significant than “small transgressions”—that were revealed in the Chronicle of Higher Education. Do the professors “declare” those “to be false,” as well?

The professors’ letter is an embarrassment to their institution. As “scientists and scholars,” they should know better.

A Comment on the Herald-Sun

Careful (or even not-so-careful) readers of the Herald-Sun cannot help but notice its recent pattern of inserting unexplained editorial judgments into “news” articles that reference either Durham-in-Wonderland or Until Proven Innocent. (Curiously, the articles in question do not mention the title of either the book or the blog.) In a way, this development represents a welcome change from the paper’s approach during 2006, when its “news” articles concealed an almost comical pro-Nifong spin behind a pretense of faux objectivity.

The most recent instance came in a Ray Gronberg article that described Bob Ekstrand’s resisting Duke’s efforts to compel testimony from him regarding exchanges he had with non-lacrosse players, including President Brodhead, Tallman Trask, Stuart Taylor, and me. (Ekstrand represents three of the former players suing the university.) In his article, Gronberg—without citing even one piece of evidence—describes Until Proven Innocent (again, without referencing its title) as “a 2007 book sympathetic to the players.” It’s quite true that both the book and the blog exposed ways in which Duke, Nifong, the Durham PD, and certain media sources (including the Herald-Sun, in behavior for which the paper’s editor very belatedly issued a half-hearted apology) mishandled the case, but Gronberg’s article doesn’t suggest that any relevant statement made in the book or blog about the lacrosse case that was incorrect. As even the H-S is fully aware, critical commentary about one side’s behavior does not necessarily constitute a “sympathetic” portrayal of the other side.

Gronberg then insinuates—but carefully does not specifically allege—collusion. In writing about how the book and blog portrayed Sgt. Mark Gottlieb, the H-S reporter notes that “Ekstrand’s most prominent contribution to the case is a theory—embraced by Johnson, Taylor, and all three of the legal teams now pursuing lawsuits against Duke and the city—that the police sergeant [Gottlieb, whom Gronberg doesn’t name] who supervised the investigation of Mangum’s claims was a rogue cop pursuing a vendetta against Duke students.” [Emphasis added]

Leaving aside the dubious claim that this “theory” constituted “Ekstrand’s most prominent contribution to the case,” I gladly would have told Gronberg had he asked me (for the record, he did not do so, nor did he contact Stuart) that I found all the evidence I needed to conclude that Gottlieb was a rogue cop in summer 2006, solely by reading the Gottlieb “notes”—the straight-from-memory report typed months after the fact by the ex-DPD officer. The document, which Gronberg doesn’t mention in his “news” article, conveniently plugged many of the holes then existing in Nifong’s case, often by contradicting contemporaneous written notes from other police officers.

And I reached the conclusion that Gottlieb was targeting Duke students by reading of his behavior in the newspaper. In September 2006, the N&O exposed the existence of and the Chronicle fleshed out the effects of the separate-but-equal arrangement in which the Duke administration and the DPD agreed that Duke students would be treated more severely than any other Durham residents for similar allegations of alcohol-related crimes. Gronberg doesn’t mention the N&O’s or the Chronicle’s reporting as my sources, even though I cited both; doing so, of course, might have reminded H-S readers of how late the paper came to this major story from its own backyard, or even of Gronberg’s own ineffective efforts to discredit the reporting of his rivals.

Both the book and the blog devoted considerable space to exposing the Herald-Sun’s shoddy reporting on the lacrosse case. As UPI noted, “When the police and Nifong demonized the lacrosse players and canonized the ‘victim,’ the media were happy to provide unskeptical coverage, as the Herald-Sun did in its March 25 front-pager quoting Cpl. Addison. And when an opportunity presented itself for journalists to do their own demonizing and canonizing, they seized it with relish. Among local papers, the Herald-Sun, the only Durham-based newspaper of significant circulation (about 45,000 in spring 2006, but falling fast) was incomparably biased in the more than 300 articles and 20 unsigned editorials it churned out in 2006, savaging the lacrosse players and downplaying or omitting altogether the ever-growing evidence of innocence.” The blog provided specific occasions of this behavior, while singling out for criticism the consistent bias of the Herald-Sun’s editor, Bob Ashley.

Ashley, by the way, returned to the H-S as editor a few months ago, after he had left the paper in January 2011.

A cynical person might suggest a relationship between the Herald-Sun’s lacing its “news” articles with unsubstantiated editorial judgments and the criticism both the book and the blog made of its (and its editor’s) substandard performance during the lacrosse case. Alas, the H-S’s new editorializing style doesn’t extend to referencing this criticism, which might give readers the context necessary to understand the publication’s current approach.

To reflect on the merits of the Herald-Sun’s record regarding the lacrosse case, it might be worth quoting from the Chronicle’s post-exoneration analysis. After struggling to find media observers who had even bothered to read the paper, Chronicle reporter Adam Eaglin interviewed with Bill Green, a former Washington Post ombudsman who then lived in Durham. Green’s analysis: “The Herald-Sun has consistently failed to presume the innocence of these three people. They leapt to judgment early and stayed with that thinking.”

Two final notes: (1) The Gronberg article did contain one potentially intriguing nugget. After falsely insinuating that Stuart and I might have concluded from exchanges with then-defense attorneys that Gottlieb was a rogue cop with a vendetta for Duke students, Gronberg reported, “Police commanders have disputed that.”

Since Gronberg doesn’t cite the police commanders to whom he’s referring, it’s not clear if he based that sentence on his analysis of Durham’s legal filings (which were never quite that definitive) or from background conversations with unnamed police commanders. If the latter, this revelation would be important indeed, since it would constitute Durham’s admission that a police officer who: (a) blindly followed orders to set up a photo array in violation of DPD policies; (b) produced a highly suspicious typewritten report months after the fact that wasn’t based on his contemporaneous written notes; and (c) behaved (at best) dubiously toward non-lacrosse students wasn’t, in fact, “going rogue” (the explanation most favorable to Durham) but instead was behaving as Durham thought a DPD officer should under these circumstances. Will Durham embrace this admission in court?

(2) Stuart passes along this comment:

I agree completely with everything in KC’s post. I would add that the only sense in which we were “sympathetic” to the lacrosse players is that we were very glad to cite the overwhelming evidence that they were completely innocent of the monstrous crimes of which they were so widely presumed guilty; that they were a very decent group of young men; and that their accusers—including many in the media and at Duke as well as Durham law enforcement officials—behaved disgracefully. We also included in our book all relevant evidence of which we knew that reflected unfavorably on any of the lacrosse players.

Updates

Updates on five* matters:

[Update, Wed., 7.40pm:

1) The New York Times editorializes that the Supreme Court should affirm (as, indeed, it should) that a prosecutor's primary goal is to seek justice, not to achieve a victory. Coming from an editorial page that was virtually alone among major national newspapers in never criticizing Mike Nifong's misconduct, even as Nifong was one of the highest-profile victory-over-justice prosecutors of the last decade, this argument could at best be qualified as better late than never.

2) A reminder that in the week of 18 September, the 4th circuit will hear Durham's appeal of Judge Beaty's order allowing discovery to proceed in the lawsuit filed by the falsely accused players. This move has an effect on the suit filed by the unindicted players, since Beaty allowed all discovery regarding former SANE-nurse-in-training Tara Levicy to be delayed pending the outcome of the appeal.

To summarize the Durham argument, as spelled out in Beaty's original ruling: "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."

3) In a move first reported by the H-S, Duke attorneys have filed a brief demanding the dismissal of the Katie Rouse lawsuit, partly on grounds that Rouse was considering leaving Duke even before the rape, partly on grounds that Rouse wasn't treated any differently than other Duke students who considered transferring.

The filings did reveal two previously unreported items. First--and almost incredibly--Moneta admitted that Rouse had been a student employee in his office. If the record of the Rouse case is how Moneta treats a student who had worked for him (as he told NBC-17, 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"), imagine how he'd treat a student he had never encountered but whose presence at Duke caused him bureaucratic problems.

Second, the filings indicated that the house in which Rouse was raped was owned by Duke mega-donor Aubrey McClendon. (Sports fans might know the McClendon name--he's a part owner of the Oklahoma City Thunder, and played a key role in the borderline bad-faith departure of the franchise from Seattle.) Moneta's analysis the McClendon role, as expressed to other administrators: "Unbelievable" and "Shit." Bob Ekstrand has argued that the presence of McClendon gave Duke a motive to try and cashier Rouse out of the university.

Quite apart from the specifics of the Rouse case, there's something more than ironic about a paragon of political correctness such as Moneta worrying about a need to appease an anti-gay fanatic such as McClendon. Strange bedfellows indeed.]

WRAL reports that the State Bar has declined a request from ex-DA Tracey Cline to defer her disciplinary hearing, which currently is scheduled for the first week of October.

Cline wanted the Bar’s proceedings delayed until after she had exhausted her longshot appeals of Judge Hobgood’s order removing her from office.

There thus remains a good chance that Durham’s last two elected district attorneys not only will have been removed from office but removed entirely from the legal profession.

In the H-S, Ray Gronberg reports that Bob Ekstrand has, for the most part, agreed to demands by Duke attorneys for a protective order regarding discovery material in the civil case. In previous filings, Ekstrand had attached the depositions of Duke Police officer Gary Smith and Duke athletics official Chris Kennedy, as well as five e-mails between Pres. Brodhead and his advisors.

Gronberg correctly points out that such a protective order applies to both sides of the discovery, preventing Duke from releasing discovery information about the lacrosse players. But, as the H-S reporter surely is aware, the potential impact of discovery disclosure is so wildly disproportionate that only one side could experience any damage from releasing discovery material at this stage.

Thanks in large part to the combined spring 2006 actions of the media and Duke employees, the lacrosse players’ public reputations were trashed; it’s hard to imagine what Duke could release at this stage that would materially affect the players’ reputations. Moreover, such legal tactics would pose a risk of a public relations backlash against Duke, if the university came to be viewed as engaging in gratuitous character assassination against its former students.

(If there’s discovery material featuring the lacrosse players ruminating about Brodhead as a wise and incisive humanitarian leader, such a revelation would hamper the suit, but it seems extraordinarily unlikely the discovery file contains such material.)

For the plaintiffs’ attorneys, on the other hand, attaching discovery material to legal filings would pose no p.r. problems. More to the point, for Duke, the release of any of this material (whether in pre-trial filings or at trial) runs the risk of exposing damaging information about administrators—such as Brodhead’s implication that a possible frame for the lacrosse case was a movie in which an accused killer convinces his advocates of his innocence, only to be revealed as a killer.

Duke, of course, would have no such risk if either: (a) it had conducted a Freeh Report-like inquiry into how and why the administration so badly handled the lacrosse case, since such a review would have already exposed embarrassing material from administrators’ e-mails or other files; or (b) Brodhead hadn’t offered an after-the-fact claim that a presumption of innocence was one of the two lodestars of how he approached the case, since this highly implausible assertion is so easily undermined by such material as the president’s movie-critic e-mail.

Gronberg’s article notes that John Burness’ deposition has been scheduled, but contains no mention of whether depositions of Duke’s two key decisionmakers—Brodhead and ex-BOT chairman Robert Steel—have occurred.

It’s hard to imagine that Duke would want either of these depositions to see the light of day, which would make Ekstrand’s concession an important victory for the university.

Bitter-Enders

[Update, Sunday, 6.32pm: After an overwhelming number of trustees expressed support for the Penn State president, renegade Trustee McCombie, at a meeting of the Penn State board, announced that he will no longer pursue his appeal of the consent degree. Neither he nor the other most outspoken renegade trustee, Anthony Lubrano, revealed any of the factual errors that they claim exist in the Freeh Report.]

[Update, Wednesday, 1.45pm: Two additional items for the bitter-ender file. ESPN reports that a handful of former Penn State football players will appeal the sanctions, in part on grounds (you guessed it!) that elements of the Freeh Report were “clearly erroneous.” The letter offers no guidance on how, or in what manner, the findings were “clearly erroneous.”

In addition to his communication with the NCAA, renegade trustee McCombie, meanwhile, has also penned a letter to his fellow trustees, asking them (“for the glory,” as he ended his missive) to join his anti-accountability crusade. “I do not do this,” wrote he, “seeking a predetermined result nor do I claim to know what the final answers will be.”

That would be the same Trustee McCombie who told the NCAA that he did know what the final answers would be--namely, that the Freeh Report “contains findings and conclusions that are contrary to the evidence and/or unsupported by credible evidence.” Whether his fellow trustees will respond to a colleague who plays so fast and loose with the truth remains to be seen.]

In our WSJ op-ed, Stuart and I noted that—thanks largely to the Freeh Report—Penn State had responded to administrative failure far more effectively than had Duke handled its response to the lacrosse case. Yet, we argued, a potential problem remained, in which “Penn State may be doomed to follow Duke's unfortunate example. Duke's appeasing of its faculty extremists symbolized its failed response to the lacrosse case. Penn State, similarly, has shown little willingness to deal with its bitter-enders—those among the campus community who prefer to hide their eyes and ears from the evidence and cling to the belief that the late Coach Joe Paterno was somehow mistreated. Such views exist even among the board of trustees, two of whose recently elected members, Anthony Lubrano and Ryan McCombie, campaigned on a platform demanding that the board apologize to the Paterno family.”

Events of recent days confirmed our pessimism. First, the Paterno family announced a desire to appeal the various NCAA sanctions against Penn State. (No member of the Paterno family is currently employed by Penn State, and the university continues to honor the terms of the sweetheart 2011 contract negotiated between the late football coach and ousted Penn State president Graham Spanier.) Beyond expressing rage at the condemnation of a “great educator, philanthropist and coach,” the family targeted the Freeh Report:

As will become evident in a thorough and impartial review, the NCAA acted hastily and without any regard for due process. Furthermore, the NCAA and Penn State’s Board Chair and President entirely ignored the fact that the Freeh Report, on which these extraordinary penalties are based, is deeply flawed because it is incomplete [in unidentified ways], rife with [unidentified, it seems] unsupported opinions and unquestionably [at least, it seems, according to the Paternos] one-sided.  [emphasis added]

The NCAA immediately rejected the appeal on grounds that a consent decree can’t be appealed. And even if such an agreement could be appealed, it hardly seems likely that a family of someone who no longer works for Penn State would have grounds for action.

Then, yesterday, ESPN reported that a renegade group of trustees, headed by the apology-demanding Ryan McCombie, had informed the NCAA that they intended to appeal the sanctions. The McCombie group complains that Penn State president Rodney Erickson kept them in the dark about his negotiations with the NCAA, and lacked authority to enter into an agreement with the NCAA—which, if true, would be grounds for the board to dismiss Erickson.

But after raising what could very well be a legitimate governance issue, the renegade trustees’ letter veered into the absurd. Here’s an excerpt:

The NCAA decree is fundamentally unfair in that the Freeh Report, on which it is predicated, contains findings and conclusions that are contrary to the evidence and/or unsupported by credible evidence [in ways that, it seems, must remain unidentified]. The Report failed to consider evidence or afford certain [unidentified, it seems] individuals an opportunity to be heard, failed to acknowledge the absence of [unidentified, it seems] important and material evidence, and reached [unidentified, it seems] conclusions based on assumption, conjecture, and misplaced characterizations that are contrary to the [unidentified, it seems] available facts and evidence.

ESPN added that if—as is expected—the NCAA rules either the consent decree can’t be appealed or that a renegade band of trustees lacks standing to appeal, the McCombie group will file a federal lawsuit.

The two documents’ descriptions of the Freeh Report were nothing short of wishful thinking. The Paternos’ letter asserted that the report is—not “likely is,” not “could be,” but “is”—incomplete and “rife with unsupported opinions.” Yet, in what could only be deemed a highly peculiar public relations strategy, the letter (just like all of the family’s other public statements about the Freeh Report) neglected to pass along even one of these “unsupported opinions” of which the Freeh Report supposedly is “rife.” Why, do you suppose, that is?

Likewise with the McCombie letter, which maintained that the report contained findings and conclusions that are—not “probably are,” not “could be,” but “are”—“contrary to the evidence and/or unsupported by credible evidence.” Yet the renegade trustees’ letter couldn’t find space to identify even one conclusion of the Freeh Report that was “contrary to the evidence,” or even one finding that was “unsupported by credible evidence.” Why, do you suppose, that is?

We’ve seen, of course, this type of thinking in the Duke case, with the bitter-enders among the Group of 88 and their supporters. The Group statement, apologist Charlie Piot claimed, wasn’t about the lacrosse case at all—even though the e-mail soliciting signatures described the ad as “about the lacrosse team incident.” Or, Group member William Chafe wildly asserted, “Bloggers who have targeted the ‘Group of 88’” were guilty of “sending us e-mails and making phone calls wishing our deaths and calling us ‘Jew b-’ and ‘n-b-’.” Yet when pressed, Chafe couldn’t identify which of the dozen or so “bloggers critical of the Group of 88” had engaged in such behavior.

Like the Paterno family and the renegade trustees on the Freeh Report, for bitter-enders like Chafe and Piot, the “facts” simply had to fit their preconceived notions.

As demonstrated most recently in the promotion of Paula McClain, Duke effectively surrendered to the Group of 88. Will Penn State likewise be drawn low by its bitter-enders?

Duke's Deposition Strategy

The H-S brings news this morning that Duke’s attorneys have succeeded in obtaining a protective order to prevent discovery items from being revealed before trial. Such an approach would come as little surprise: a university, after all, for which the Bowen/Chambers report remains its sole official word on how theadministration botched its handling of the lacrosse case would hardly be eager to have material emerge publicly that would contradict the party line.

The order does, however, contain an unusual line: “Although Plaintiffs initially disagreed as to the contents of the order, the parties have now submitted a Stipulated Protective Order for consideration.” The line is unusual because Bob Ekstrand, as Duke’s attorneys apologetically conceded, never agreed to such a submission. It seems likely that, nonetheless, the order will remain in place (one already exists for the Carrington lawsuit).

In various court filings since January, Ekstrand has attached three discovery items: a deposition from associate AD Chris Kennedy; a deposition from Duke PD officer Gary Smith; and two e-mail chains of Brodhead and his advisors. Given Duke’s determination to keep the discovery secret, it’s worth reviewing the scant material that has become public.

Smith Deposition

The Smith deposition was characterized by the officer’s memory problems—he said he couldn’t recall at least 30 items, including (preposterously) whether there was any conversation about the lacrosse case among Duke police officers in the early weeks of the affair. When not recalling, Smith was stonewalling: he purported to have no opinion on the integrity of the Nifong-Gottlieb investigation. (That would be the investigation of course, that set the stage for Nifong’s disbarment.)

Perhaps the most damaging admission in the Smith deposition, however, came in an apparent contradiction. Smith asserted that—on his own volition, and without a subpoena—he gave to Sgt. Gottlieb the FERPA-protected keycard information. And, he added, he didn’t tell his superiors he had done so, because he didn’t want them to know he had done wrong.

Yet when Smith e-mailed Gottlieb to tell the Durham officer he’d need to subpoena the information Smith had improperly supplied him, Smith blind-cc’d the director of the Duke Police Department, Robert Dean. Naturally, Smith couldn’t remember who told him to bcc Robert Dean. But if he had concealed his mistake from his superiors, why would he have bcc’d anyone at the Duke PD?

Kennedy Deposition

The Kennedy deposition contained no comparable blockbusters, but did feature some telling insights. Perhaps the most disturbing regarded the (successful) NCAA appeal to grant the non-seniors on the 2006 team an extra year of eligibility. In his draft of the request, Kennedy referenced the (undeniable) on-campus threats to the lacrosse players, as well as the dubious behavior of some Duke professors. The Duke counsel’s office—committed, it seems, to the Bowen/Chambers line—removed these items from the document sent to the NCAA.

Kennedy also provided what seems to be obvious analysis, regarding Pres. Brodhead’s infamous “whatever they did was bad enough” remark. He said, "I think that someone without any knowledge of any of the facts, someone on the outside would again draw the conclusion that some kind of crime had been committed and that Brodhead believed they were guilty. And furthermore, I think it was incredibly indiscreet to say ‘whatever they did was bad enough.'"

Administrators’ E-mails

To date, only five contemporaneous e-mails from the time have been made public. The whitewash Bowen/Chambers committee cited a handful of others, but didn’t reproduce any of them—and, perhaps most damningly, cited none of the e-mails uncovered in the current lawsuit, raising questions of exactly what the racial preferences duo saw.

The e-mails shed some light on one of the unanswered (and, perhaps, unanswerable) questions of the case: what motivated Brodhead?

Did fear—of being labeled a racist, of facing a faculty revolt from the Group of 88—form the principal guide of his actions? Or did he, in fact, privately sympathize with the Group’s response to the case, and issue documents such as his April 5, 2006 open letter because he shared the Group’s worldview?

The e-mails provided some ammunition for advocates of the second viewpoint—as Brodhead implied that the appropriate frame for the case might be the movie Primal Fear, in which a criminal defendant fools his lawyer into believing his innocence, only to end the film by admitting that he had committed murder.

It shouldn’t come as much surprise that Duke doesn’t want more of Brodhead’s movie criticism to see the public light.