Items from the Ekstrand Filing

A filing by Bob Ekstrand in the McFadyen lawsuit has revealed some interesting material about Duke’s initial response to Crystal Mangum’s false allegations. Ekstrand filed in response to Duke’s . . . miserly . . . approach to discovery—the University has turned over only 27 documents—some of which, according to Ekstrand, were duplicates.

Ekstrand’s brief included examples of material already obtained in discovery—and provides a good sense of why Duke has proven so . . . reluctant . . . to hand over material.

By far the most significant item is a March 17, 2006 e-mail from Dean Sue Wasiolek, sent to an array of top Duke administrators, including John Burness, Larry Moneta, and Tallman Trask:

Here’s the latest update on this situation. Most important is that the students who reside in this house have been fully cooperative and are concerned that their names will be in the press. Since they have not yet been officially charged with anything, they have asked that should the realty company (or anyone else at Duke) be asked for those names, that we not give them out since this is still just an investigation. Scott Selig has called Allenton Realy and alerted them to this.

The Durham police are, in fact, investigating an alleged rape/kidnapping at 610 N. Buchanan. On Monday, March 13, two strippers were hired to perform at 610 N. Buchanan. About 30 men were in attendance, all members of the Duke Lacrosse team. One of the strippers appeared to be on drugs. the men decided to pay the women early, and then asked them to leave. They refused and the men paid them more. The one stripper ended up passing out either on a porch or deck in the back of the house and the men carried her to the other woman’s car. At some point later, the passed out woman interacted with Durham police at the Kroger on Hillsborough Road and made the allegations. I believe she was examined at Duke ED.

Last night the house was searched. The men volunteered to engage in DNA testing and to take lie detector test. I believe the DNA testing was done.

Mike Pressler and Chris Kennedy are well aware of this situation. The men have denied all allegations--they obviously admit to hiring the strippers.

The Wasiolek e-mail confirms that the senior Duke administration knew from the start that the lacrosse players had fully cooperated (even to the extent of the captains volunteering to take lie detector tests) with the police inquiry. Less than two weeks later, when Mike Nifong began his pre-primary publicity crusade, he suggested something else—that, in fact, that players had erected a “wall of silence” to frustrate the investigation.

Duke administrators were under no legal obligation to correct the record. (Whether they had a moral obligation to do so is another story.) But the Wasiolek e-mail confirms that senior Duke administrators knew from the start that not only was the DA violating standard procedure by speaking early and often about the case, but that one key element of his publicity barrage—the lack of cooperation by the players—was demonstrably false.

Yet this knowledge (which, at the time, very few people outside the lacrosse team, their families, and their attorneys possessed) that the DA was publicly lying about Duke students appears to have had no impact in how Duke administrators initially responded to the case. Why was that?

The other intriguing item from the Ekstrand filing is a deposition from Associate AD Chris Kennedy, a consistently first-rate figure throughout the case. (Kennedy was quickly marginalized from discussions about how Duke should respond to Mangum’s allegations.)

Kennedy’s deposition provided an insight into the mindset of senior Duke administrators. For instance, he recalled a March 24 or March 25 conversation with Tallman Trask, in which Trask said “something to the effect of he would be amazed or astounded . . . if there was anything to the allegations.”

Obviously, public statements from Duke administrators near this time—most particularly the Brodhead April 5, 2006 “letter to the Duke community”—appeared to operate from a radically different premise. Why was that?

Kennedy’s deposition also provided useful context on how two particular actions by Duke helped shape public opinion in the case. The first came in the extraordinary decision to cancel the March 25, 2006 Duke-Georgetown game less than two hours before the game was to start. In response to a question from Ekstrand, Kennedy said he couldn’t recall an instance in which Duke had canceled an athletic contest in response to criminal allegations against team members, and added, when questioned again, that “I thought that somebody from the outside—in light of the newspaper article that appeared that morning in the News and Observer,"Dancer Gives Details of Ordeal”—I thought that that would send the message that that was, in fact, an accurate account of what had happened.”

Kennedy was right. Indeed, in their non-apology apology, the New York Times sports editors cited the unprecedented cancellation of the game and then the season as one reason for the paper’s presumption of guilt in its coverage.

The second came in Brodhead’s infamous April 20, 2006 remarks to the Durham Chamber of Commerce, shortly after the arrests of Reade Seligmann and Collin Finnerty, in which the Duke president declared of his students, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.”

Kennedy was asked how the Durham community viewed this statement, and he responded, reasonably, "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.”

Finally, the deposition offers a revealing vignette. Kennedy spearheaded the (successful) NCAA appeal for the members of the team to obtain an extra year of athletic eligibility. He wrote the appeal document, and passed it along to the Duke counsel’s office for approval. The counsel eliminated items dealing with the on-campus threats to the students and the behavior of the Duke faculty toward their own students.

A bit of revisionist history, perhaps.