Wednesday, February 29, 2012

Updated: Cline Removed from Office

Former Durham County DA (and ex-Nifong ADA) Tracey Cline has been permanently removed from office, marking the second time in a half-decade in which a Durham County District Attorney has been removed as chief prosecutor for ethical misconduct.

Live commentary: Judge Hobgood is reading his opinion, which consists of running through Cline's most inflammatory statements from her various wild motions.

The judge concludes that a variety of Cline's statements are false, and brought the office of the DA into disrepute. Hobgood adds that Cline "knew the risk" of her actions.

The "knowingly false statement made with reckless disregard for the truth do not enjoy constitutional protection." Cline's statements were "not truthful." Hobgood adds that Cline's statements "unquestionably" violated Bar standards.

Hobgood says some of Cline's statements might be protected by 1st amendment or qualified immunity, but several of her statements "goes far beyond" any constitutional protections--statements made with "actual malice and reckless disregard for the truth."

Cline "has lost the confidence" necessary to continue as DA. "By recklessly making false allegations against Judge Hudson in the public record," Cline "has crossed the line of protected speech under the 1st amendment."

Rejects Judge Morey's claim that Cline's conduct has not impeded the administration of justice. Cline must be removed from office.

Live-stream is below:

Apart from the hearing, just before the filing deadline, and without informing his boss (interim DA Leon Stanback) Cline backer and ass't district attorney Jim Dornfried has filed to run against Judge Hudson.

A few observations on the hearing. The Cline attorneys argued that her remarks were protected by the 1st amendment. Cline attorney Patrick Mincey even cited Marbury v. Madison !!(1803), which he described, erroneously, as the "first" case "that the Supreme Court made after it was created." (It actually was the 12th decision made by the Court.)

This line of attack strikes me as weak--State Bar organizations in all 50 states have restrictions of various types on what can and cannot be said about judges, criminal cases, etc. Upholding the Cline argument would essentially require Judge Hobgood holding that the State Bar codes in all 50 states are unconstitutional.

One point on which I'd agree with Mincey: in his remarks, he claimed that if the court removed Cline, it would have a "chilling" effect on DA's. Such an action would have a chilling effect: that it, is would "chill" DA's from making unsubstantiated charges and inaccurate claims in court filings. Less persuasively, Mincey claimed that "those who live in Durham Co. who wish to speak out against judicial officials" would be chilled from speaking out by a removal of Cline. I don't see how, unless all the citizens of Durham County are somehow subject to N.C.G.S. § 7A-66.

Even more hilariously, Mincey asserted that Cline's behavior has made the administration of justice in Durham County "stronger." And I'm going to be elected the next Pope.

Boiled down to the essence, the Cline defense made two arguments: (1) discipline of her, if it should occur, should be done by the Bar and not through this procedure; (2) since she really believed what she was saying was always true (even though, of course, it wasn't), she had a right to speak out.

Monday, February 27, 2012

Judge Marcia Morey, Roving Character Witness for Wayward Prosecutors

The Cline hearing has come to a conclusion for the day (see below: final argument will occur Wednesday), but the most striking aspect of the day came in the appearance of Durham Chief District Court Judge Marcia Morey as a pro-Cline witness. As the N&O reported, Morey "testified Monday that administration of justice has not been disrupted since suspended District Attorney Tracey Cline began launching attacks on the chief superior court judge in November." She added that "this may be a distraction to the administration of justice, but it has by no means slowed it down or derailed it."

Morey's record as an evaluator of DA's, however, is a bit on the shaky side. This is the same Judge Morey who appeared as a character witness on behalf of Mike Nifong during his ethics proceedings. At the time--and after months of reports showing that Nifong had issued at best misleading statements and at worst outright lies about the lacrosse case, including to Judge Smith--Judge Morey testified, "I have never doubted his truthfulness."

And then, to close her cross-examination in the ethics hearing, the judge gave this extraordinary response:
Q: Is it your testimony that Mike Nifong currently [as of June 2007] enjoys a reputation for truthfulness?
Morey: I think he does.

Courtesy of WRAL, here's a video of Judge Morey at Nifong's 2007 criminal contempt trial, at which she advanced the extraordinary argument that in evaluating the candor of a prosecutor, it "makes a difference" whether a case is at the trial stage or in pre-trial motions.

Given her own willingness to stand up on behalf of not one but two ethically challenged chief prosecutors, it's a wonder that Judge Morey considers herself qualified to opine about the "administration of justice," at least as the term is commonly understood.

Thursday, February 23, 2012

Cline Hearing

Update, 4.54pm: The hearing has now come to a close. The judge says there will be no meeting tomorrow; Wednesday will have closing arguments; and the case might be decided by Friday.

Update, 4.23pm: Now on the stand, as a pro-Cline character witness, is Judge Marsha Morey. This is the same Judge Morey who served in his ethics hearing as a character witness for Mike Nifong, about whom she said, on 15 June 2007, "I have never doubted his truthfulness."

And she also had this exchange:
Q: Is it your testimony that Mike Nifong currently enjoys a reputation for truthfulness?
A: I think he does.
I'd say that Judge Morey was a particularly appropriate witness on behalf of DA Cline.

Update, 3.22pm: Cline might have just lost any chance to get hired by a Group of 88-dominated department if she's removed from her position: she suggested that people can claim racism when it's not there, and in so doing can disturb efforts to combat real racism.

That answer, alas, came as part of a give & take in which Cline refused to back down on any of the specific words she used in her anti-Hudson motions.

Update, 3.14pm: Cline continues to insist that everything in all of her filings is true, and says that she has no regrets about her decision to file complaints against Hudson.

The hearing continues:

Update, 1.22pm: From the N&O's coverage:
Cline insisted this morning that she was unfairly criticized by the News & Observer, repeating complaints she has lodged for months despite evidence that she is wrong in her assertions.

"I’m not saying I disagree with them. I’m saying they were false," Cline said. The N&O stands by its reports.

Editors at the N&O refuted Cline's assertions that it failed to report the district attorney's office provided rough notes from the SBI in a case that has since been dismissed. Last summer, Cline backed down from that after being shown the exact passage in the article that details that information. Use the controls on the right side of this page to listen to audio of that interview.

This morning, Cline again asserts that the N&O left out that piece of information.

Cline also refused to back down from assertions that N&O reporter J. Andrew Curliss was held in contempt of court in the Allen matter, even though an assistant clerk testified last week that there's no evidence of that anywhere in the court file or in the database of criminal charges.

Cline admitted she never checked the file to look for any contempt filings for Curliss. Still, she insists he was charged.

Update, 1.00pm: Cline is now saying that when she attacked Hudson's rulings for raping the community, she wasn't personally attacking Judge Hudson. She adds that she has "stacks and stacks of e-mails" to corroborate her claims. The proceedings are in recess until 2.30pm.

Update, 12.50pm: Cline seems wholly incapable of giving direct answers to simple questions. By the time she gets to the end of most of her responses, no one in the courtroom seems to remember what question was asked.

Update, 12.30pm: After repeatedly accusing Judge Hudson of improperly holding ex parte communications with defense attorneys, Cline has just admitted that she held an ex parte communication with Judge Hudson about the Allen case. But she says she didn't go to the meeting as a "prosecutor."

Update, 12.12pm: Cline is now doubling down regarding her allegations (ultimately disproved by the N&O, based on a broken time-stamp clock) that Hudson filed an order before all the evidence came in. On Friday, the clerk's office employees testified that the time-stamp clock was broken. Cline says she doesn't know if the clerks were telling the truth.

Update, 11.36am: Cline is currently being called upon her . . . incomplete . . . answers on Friday. Her general approach thus far has been to filibuster rather than offer answers, and to assert that it was "impossible" for her to remember every motion that was filed in the cases under discussion. This is an extraordinary line of defense--she's justified in lying on grounds of her not remembering whether motions have been filed.

Cline also has made a bizarre claim that she didn't go through the relevant court files to prepare for this hearing. In other words: in a hearing to decide whether she should be able to keep her job, Cline couldn't be bothered to actually research the cases under dispute.

The link to today's hearing is: .
Update, 8.59pm: Coverage of the hearing from the N&O and the H-S.

Update, 4.34pm: Cline has concluded her direct testimony; cross-examination will begin Monday morning at 9.30am. She maintains she did nothing wrong other than use some intemperate language about Hudson's behavior in her motion.

Update, 4.21pm: Cline is now complaining that Judge Hudson was pursuing a vendetta against the DA's office by refusing to schedule cases from the office. She's also suggesting that she had no choice in upholding justice but to file her complaint.

Update, 3.23pm: Cline seems unable to give a 1-minute, concise answer when a rambling 15-minute response will do. She did just say, however, that she wished that her "words had been chosen better" in her anti-Hudson motions, although she continued that she was "morally" obligated to act as she did; and that the content of her motions was "absolutely true."

Update, 3.06pm: Cline is now giving a lengthy, borderline-incoherent, response to the N&O series. She said she wanted to "explain the mental processes I was going through."

Update, 2.45: Cline now is arguing that there was no evidence for Hudson's claims that the DA's office didn't turn over all exculpatory evidence. Her basis for this claim? She says so.

Update, 2.22pm: Cline just resurrected the Mike Nifong line of defense on DNA! (She suggested that negative tests don't necessary mean a negative result.) She also is defending her bizarre town hall meeting, and has now returned to railing against the N&O.

Update, 2.20pm: Cline is now complaining about the N&O series. In what seems an almost certain untruth, she just stated that she hadn't anything heard about the various cases discussed in the Twisted Truth series for several weeks before the articles appeared. Yet the N&O reached out to her for comment at the time.

Update, 12.43pm: The hearing is now on mid-day recess. The Cline defense strategy appears to be that Judge Hudson's order in the Allen case was wrong, and the errors in the order explain (excuse?) Cline's subsequent overheated responses. As I said earlier, this is a curious line of defense, but perhaps it's the best that Cline has.

Update, 11.00am: The live-stream of the hearing is below; to date, Cline has failed to get the hearing suspended; and currently her attorneys are going through, in painstaking details, the specifics of Judge Hudson's order in the Allen case, challenging it here and there. This is a most curious line of defense.

In an even more curious development, Judge Hobgood is allowing DA Cline (a figure whose grasp of the truth is a bit of a stretch) to allow what she claims that Judge Hudson told her in various conversations.

Suspended Durham DA Tracey Cline gets to defend her record tomorrow before Judge Hobgood. I'll post a link to the hearing when it becomes available, and will have commentary on the proceedings here.

In the meantime, this blast from the past ("David Saacks and the Unethical Duo"), courtesy of the Mike Nifong 2006 website.

Saturday, February 18, 2012

Legal Updates

Cline hearing: While things haven't gone particularly well for the emotionally unstable suspended DA, Kerry Sutton's interrogation style doesn't exactly set the world on fire, either. (At one point, Judge Hobgood said that Sutton's line of questioning--on the inaccurate timestamp machine--didn't "amount to a hill of beans."):

A few legal updates:

Both the Carrington and McFadyen attorneys had additional recent filings. Though they contained nothing as explosive as Brodhead’s implicit comparison of the falsely accused lacrosse players to a sociopath who murdered a corrupt cleric, they offered more reasons why Duke shouldn’t want this case to go to trial.

The Carrington filing, which blasts “Duke’s hyper-compartmentalized approach to relevance,” offers a glimpse into the unindicted players’ litigation strategy. (Duke is trying to prevent virtually all discovery related to the university’s p.r. strategy.) The attorneys want to “establish what (and when) President Brodhead knew about the credibility of the rape allegations,” expecting “information about Duke’s public relations strategy to reveal a fixation on the institution’s public image that eclipsed any interest the university may otherwise have had in vindicating the reputations of its wrongly accused students.”

In particular, Duke has sought to block all inquiries into whether and when senior administrators were informed about the (lack of) evidence relating to false accuser Crystal Mangum’s claims. Why is this relevant? “If Duke continued to undermine Plaintiffs after learning the negative results of Mangum’s rape kit, that information would suggest that Duke’s efforts to bolster Mangum’s allegations were driven by its desire to salvage its own reputation.”

If I were a Duke attorney, I too would do whatever I could to avoid scrutiny as to who came up with the idea for Brodhead to address the Durham Chamber of Commerce shortly after the Seligmann and Finnerty arrests and deliver his infamous “whatever they did was bad enough” line.

The McFadyen filing, meanwhile, offers interesting nuggets regarding the most vulnerable area for Duke: the university’s almost unfathomable decision to turn over FERPA-protected keycard data to the police, and then the school’s decision not to come clean for months about what it had done.

Duke’s approach to defending this claim, at least to date, appears to have been the see-no-evil, hear-no-evil strategy. From the filing: “With respect to the topics relating to Plaintiffs’ fraud claim, Ms. Wasiolek had no personal knowledge of any of the material facts, reviewed a handful of documents, and spoke with only 4 people. Ms. Wasiolek had no clear recollection of the documents she reviewed, and she did not interview any of the individuals named or identified in connection with Plaintiffs’ fraud claim.” This list of four people, incredibly, did not include the Duke police officer who, in violation of FERPA, handed over the keycard data. “And yet, Ms. Wasiolek swore under oath that no one else was more knowledgeable or better able than she to testify about the noticed topics on behalf of Duke University.”

Has Duke elected to pursue willful ignorance as a defense strategy?


The Tracey Cline hearing remains scheduled for Monday, yet her newly-hired attorney, Jim Van Camp, demanded a delay. This course of action was necessary, wrote he, “because this case is both unique and special, and because of the dramatic, personal tensions inherent to allegations set forth in the Affidavit, an unnecessary and expedient hearing can only risk Ms. Cline being merely prepared to offer a mercurial defense based on emotional rather than a calm, rational defense based on facts."

That her attorneys didn’t have much time to prepare, however, was solely the fault of Cline—her delay in hiring counsel caused the problem. Kerry Sutton opposed the request, terming it “disingenuous,” and yesterday, Judge Hobgood appropriately denied it.

In addition, Sunday's N&O contained a lengthy feature on Cline and her background. Two items jumped out: (1) Cline twice had her law license suspended, because she didn't pay her State Bar fees; (2) An alleged incident in Elizabeth City. Here's how N&O reporter Mandy Locke described it:

In July 1993, she headed to the state's northeast corner to work as a prosecutor in a cluster of counties near Elizabeth City. Her stint there was short-lived, just six months, and unremarkable, according to supervisors.

But years later, when she filled out a questionnaire in 2008 when running for district attorney, Cline said that at work in Elizabeth City, she was "confronted with what I felt was a disparity in justice based solely on race. I refused to be a part of that injustice." She said in an interview last summer that she didn't recall the exact issue.

Both her bosses, former district attorney H.P. Williams and current district attorney Frank Parrish, say they have no idea what Cline is recalling. Both are mystified by her feelings about her time in Elizabeth City, saying it seemed cordial.

"I hated to see her leave," Williams said. "I'm surprised to hear she remembered that time as difficult. I would have given her a good recommendation."

Detecting racial grievances for imagined or non-existent slights? If she is removed from office, perhaps Cline can join the Duke faculty. The Group of 88 doubtless would welcome such an ideological soulmate.


Friday’s H-S referenced a long-forgotten figure, “Spoiler Steve” Monks, In an article about a petition candidate for county commissioner, reporter Ray Gronberg recalled the last time the petition tactic was used in a high-profile Durham County race—the Lewis Cheek (Recall Nifong) effort.

In that campaign, Gronberg remembered, “Write-in candidate Steve Monks in that race bypassed both the primary and petition routes and wound up getting 11 percent of the vote. That earned him a reputation as a spoiler whose involvement wound up swinging the election to the since-disbarred Nifong.

Given how the case ended—with Nifong forced by ethics charges to turn matters over to the AG for a fair investigation—it’s easy to assume that this ending was inevitable. Yet the State Bar committee’s vote for immediate ethics charges was 9-8; without that vote, Nifong could have plowed ahead on his unethical course.

If that vote hadn’t occurred, the impact of “Spoiler Steve” would have been considerable indeed.


Finally, Sunday's ESPN Outside the Lines had an excellent feature on former FIU baseball player Garrett Wittels, who almost certainly was the target of a false rape accusation (the charges were ultimately dropped; video evidence contradicted the unidentified accusers' tales; the father of one of the accusers was sued by NASCAR for allegedly trying to construct a rape frame against a NASCAR employee). The allegations alone, however, were enough to prevent him from being selected in the MLB draft.

Unlike Duke's handling of the falsely accused lacrosse players, FIU didn't suspend Wittels (nor, obviously, did it cancel the baseball team's season), even though Wittels admitted all along that "something" (sex with one of the accusers) happened. There was no FIU equivalent of the Group of 88. It's worth wondering, however, whether the FIU administration would have been so respectful of due process if Wittels' accusers hadn't been rural Arkansans.

You can see the report here.

Friday, February 10, 2012

Cline Requests (And Receives) Delay

[Update, Monday, 3.23pm: The N&O reports that the beginning of the Cline removal hearing has been moved to next Monday, Feb. 20th; Cline herself will begin her defense a week from Friday. Clarifying the mystifying language from her previous filing, the suspended DA informed the court that she has not hired an attorney, though she hopes to do so.

In today's only-in-Durham moment, Cline was 7 minutes late for the start of the hearing. Here's my favorite N&O photo of the event, subtitled, "Attendees of the Tracey Cline hearing await the arrival of Durham District Attorney Tracey Cline after the hearing was called into order Monday morning."]

[Update, 10.19pm: For those interested, here's a copy of Cline's filing. She claims the complaint against her was filed by "Kerry Sutton" and "Kerrie Sutton." She writes about how "This Honorable Court determined form [sic] the review of court files . . . that there was probable cause." She reminisces about how she claimed that "Judge Orlando F. Hudson Jr. was bias [sic] against Cline." She asserts that as of 30 January, "the respondent / defendant has continued to diligently to [sic] seek counsel for this hearing when physically able to do so and as of this date has not been able to retain counsel for this hearing." (Two lines later, she states that she did find a lawyer. One line after that, she seems to backtrack on whether or not she has a lawyer.) She laments the "time restrains [sic] of the hearing."

And, as Andy Curliss points out, she claims that Judge Hobgood found probable cause regarding one element of Sutton's complaint on which, in fact, he did not find probable cause.

Again, this is a filing in a case that could bring about Cline's removal. And, as is her usual pattern, she couldn't be bothered to run a spell-check, and ensure that her facts were accurate?]

[Updated, 5.43pm: In a typical only-in-Durham moment, the N&O's Andy Curliss reports that Cline (for reasons that are unclear) decided not to file her motion requesting a delay with the court clerk. (Instead, she e-mailed her request directly to the judge.) Curliss also reports that Cline had been indicating she'd be ready for the hearing, at least to some extent, earlier in the week.]

Citing illness and a seeming difficulty in finding an attorney to represent her, Cline has requested a delay in the hearing regarding her permanent ouster as district attorney. In an e-mail to court officials quoted by the N&O, the grammatically-challenged Cline tossed in this run-on sentence: "I need to move to continue the hearing from Monday because I do not have any attorney and I have been physically sick for over a week and presently I am not physically at my best." This item sounds a bit like a late-term excuse I might receive from an underperforming student demanding an extension for submitting his or her course paper.

In her court filing, Cline claims to have been out of state when the announcement of her suspension occurred; she remained at this undisclosed, out-of-state location for three days, for reasons that she does not disclose. But then she "became physically ill and returned to North Carolina."

Beyond her illness, Cline's filing cites difficulties in securing legal representation. (At least she's not going the Linwood Wilson route and representing herself.) In yet another run-on clause, the suspended DA claims to have "consulted numerous attorneys in this area and did find one attorney who could do the hearing but he will be out of town." The implication is that several lawyers turned Cline down--though, as is the case with so much of her writing, her meaning isn't entirely clear.

It seems likely that Cline's request will be granted. But the motion itself doesn't inspire confidence in the likelihood of her ultimate success.

Tuesday, February 07, 2012

Poynter & The Serial Fabricator

I recently did a post at Minding the Campus examining how the media responded to the Times’ Patrick Witt article—a piece of “journalism” that’s looking worse by the day, and which the Times public editor has now repudiated.

The most extraordinary (and counterintuitive) critique came from Poynter’s Kelly McBride—who faulted the Times, which had bent over backwards to frame the case against Witt as negatively as possible, for not doing enough to ensure that Witt’s accuser’s story was represented. To bolster her line of argument, McBride turned to adjunct law professor Wendy Murphy, who had distinguished herself in the lacrosse case for her willingness to fabricate, fabricate again, and fabricate some more.

Poynter describes its mission as promoting “excellence and integrity in the practice of craft.” The organization claims that “we teach . . . ethical decision-making,” with teaching “focused on the highest standards of journalistic value.” How could this type of organization turn to a serial fabricator such as Murphy?

In an e-mail, I provided McBride with a list of many (but not all) of Murphy’s public, factual inaccuracies (as well as her various unsubstantiated opinions and denigrations of due process). McBride replied that she saw no problem at all in her use of Murphy as either a source or a seminar instructor. She even seemed willing to rationalize Murphy’s difficulties with the truth, describing the list in the following manner: “Some of those statements are her opinions. Some of them are statements she made based on her expertise in the subject area. Some of them are taken out of context.” I invited McBride to identify any of the factual errors as items “taken out of context”; she did not reply.

No one would expect McBride to be an expert on Murphy’s record in the lacrosse case (although the media’s failures, and Murphy’s role in them, was explored at great length in the American Journalism Review, which presumably is on every Poynter faculty member’s regular reading list). But it seems as if Murphy’s serial fabrications mattered not to McBride, who affirmed that even after hearing of them, she’d eagerly invite Murphy back to teach at Poynter.

McBride’s response confirms observations from Alex Pareene, who described Murphy’s career as showing that “there are, in the mass media, absolutely no consequences for blatant, constant lying,” and Radley Balko, who came away from his own experience of Murphy inventing facts to ask, “At some point you have to wonder, is it even possible to be too shameless for cable news?” It seems that as long as Murphy still gets quoted by the media and retains the backing of like-minded figures within the “victims’ rights” movement, two alleged Murphy qualifications mentioned by McBride, she’ll receive Poynter’s seal of approval—factual inaccuracies and wildly intemperate, unsubstantiated opinions be damned. Would Poynter be as cavalier if women or minority groups had been the targets of Murphy’s bile?


Between April 5, 2006 and December 31, 2006, Murphy made no fewer than 18 factually inaccurate statements in her TV commentary about the lacrosse case. She made at least eight more factually inaccurate statements about the case in December 21, 2006 and January 9, 2007 “talking points” forwarded by “victims’ rights” groups, plus at least one factual error in a late 2006 USA Today op-ed. Twenty-seven outright errors of fact on a single case is quite a tally. And that list, of course, doesn’t include Murphy’s misleading statements that were phrased in the form of questions or speculation, or her use of unsubstantiated rumors.

Facts are facts, and McBride’s insinuation that “context” could somehow transform Murphy’s factual errors into “facts” is absurd. But context does matter in interpreting factual errors. That Murphy’s factual errors weren’t random but almost always tilted against the lacrosse players suggests she wasn’t simply amazingly sloppy (a problem that in and of itself would seem to disqualify someone as a Poynter source or seminar instructor). Instead, Murphy’s fabrications bolstered her preconceived views, suggesting deliberateness to her fabrications.

In this respect, and despite McBride’s implication, the broader context of Murphy’s remarks was even more damning than the myriad factual inaccuracies taken alone. Beyond factually inaccurate descriptions of North Carolina legal procedures or some defense motions, each time in such a way to reinforce the ultimately-disbarred Mike Nifong’s position, Murphy’s serial fabrications tended to fall into one of three general categories:

(1) The April 4, 2006 photo array, which provided the only specific evidence used to indict the three falsely accused players and which Nifong had ordered the DPD to confine to members of the lacrosse team, did not violate DPD procedures, because many lacrosse players didn’t attend the party, and therefore these non-attendees could be deemed fillers. Confirmation for this “fact” came from a neutral source on the criminal case, Duke president Richard Brodhead.

Here was the Poynter source/seminar instructor on May 2, 2006: “According to Durham president, the president of the university, he said March 22 in a press release, many players weren’t there that night. Well, what does that tell us? It tells us the defense motion [on the lineup] is a bunch of nonsense, because if many players weren’t there, it’s a darned good chance if this was a hoax that she could have gotten it wrong.” Murphy returned to the theme in a December 21 e-mail: “The line-ups were not unlawful. According to the president of Duke, ‘many’ players were not at the party—and many NON-players WERE.” [Emphasis added in both instances; capitalization in original.]

Murphy’s description of Durham’s lineup procedures was wrong: Nifong had publicly identified as suspects all 46 white lacrosse players, the only people included in the April 4 photo array, and the Durham Police Department procedures required photos of five non-suspects for each photo of a suspect. Wouldn’t a lawyer understand the definition of a non-suspect?

In the event, the most extraordinary element of these two statements came in Murphy’s invention of a Brodhead statement regarding the party’s composition. John Burness, Duke’s then-P.R. head, confirmed that Brodhead made no statement, of any kind, about the case on March 22, 2006; and that Brodhead never claimed, one way or the other, to possess knowledge on who did or did not attend the party. Murphy simply made up a statement to corroborate her preconceived viewpoint.

(2) Considerable evidence actually bolstered the prosecution’s version of events, although defense attorneys or the media concealed some of this evidence.

Murphy looked to bolster false accuser Crystal Mangum’s credibility to pointing out that “Brett and Matt happen to be the real names of two of the captains who lived in that home.” (At least in some of her myriad stories, Mangum had claimed that her attackers were named Adam, Matt, and Brett.) But Murphy’s statement was factually inaccurate: the first names of the captains who lived at the house were Matt, Dave, and Dan, and their names had been widely reported.

In a May 2, 2006 interview, Murphy pointed to hidden evidence (that, in fact, didn’t exist and that the police and Nifong had never claimed existed). Dismissing test results that indicated no DNA matches to any of the lacrosse players, Murphy asserted that “the broomstick DNA has not yet been revealed.” The only problem: there was no “broomstick DNA,” since even the mentally imbalanced Mangum had never claimed an assault by broomstick.

Turning her concealment argument to the lawyers, Murphy suggested that the defense attorneys had “withheld” 1000 pages of documents (sometimes she said the figure was 1200). In fact, Judge Osborn Smith had ordered the pages to be sealed, because they contained Mangum’s psychological records. That ruling had been made in open court, and was widely reported; defense attorneys releasing the records would have placed them in contempt.

When all else failed, Murphy accused the lacrosse players and their attorneys of criminal obstruction, as in her assertion that “all the photographs showing how really fine [Mangum] was when she left scene [photos frequently cited in various defense motions] were doctored, where the date stamp was actually fraudulent.” [Emphasis added in both instances.] Even the utterly corrupt Mike Nifong never challenged the photos’ veracity, and the subsequent AG’s investigation confirmed the photos’ accuracy by cross-checking various other forms of electronic data.

(3) The lacrosse players behaved as if they were guilty; or had profiles that would lead a fair-minded observer to believe they might be guilty.

In one of her first appearances on the case, on April 19, 2006, Murphy reported some basic, and seemingly troublesome, “facts”: “All of them [the lacrosse players] took the Fifth. All of them refused to cooperate. All of them refused to give a DNA sample, until the court produced an order compelling them to do so.”

Each of these three statements was a lie. No player ever invoked the Fifth Amendment, at any point in the case. The three captains who lived in the house where the party occurred cooperated (foolishly, in retrospect) wholly with police, including voluntarily giving DNA samples and offering to take lie-detector tests. A few days before this parade of falsehoods, the Poynter source/seminar instructor had invented a statement by an unidentified neighbor asserting that members of the 2006 lacrosse team had committed “other sexual offenses.” No such statement existed, and no members of the team had committed “other sexual offenses.”

The pattern of Murphy making up “facts” to portray the lacrosse players as behaving suspiciously continued throughout the case. One of the people picked by Mangum, Reade Seligmann, had an unimpeachable electronic alibi (he had called a cab with his cell phone, and then was shown on a time-stamped ATM video more than a mile away from the captains’ house) for the time of the alleged attack. This was a major problem for Nifong, but not for Murphy; in a December 21, 2006 e-mail, she simply altered “facts” to make Seligmann look guilty. She wrote, “In fact, the guy Seligman [sic] who claims his cell phone calls ‘prove’ his innocence actually lends support to the theory that he was the first guy to assault her—which is what she claims—and that it was oral—because he could have assaulted her for the first few minutes—then thought to himself ‘I’ve got to get out of here’—which explains why he frantically and repeatedly called a cab. who frantically calls a cab to see if they’re coming—in a space of five minutes—especially considering that the guy went to an ATM and a pizza place when he left—no real emergency there. Isn’t it convenient that he just happens to be one of the guys she accused?”

This statement had no relationship with the truth. Though Mangum never told the same story twice, she never claimed that one of her attackers left during the attack, nor that any of her attackers had used a telephone, nor did she ever make any clear claim that Seligmann could be identified as “the first guy to assault her.” Seligmann, whose cell-phone records were posted on the web for Murphy to see, didn’t “frantically and repeatedly call[] a cab”; he called the cab once, and the cab came a few minutes later. And before Murphy’s statement, no one had ever claimed that Seligmann went to “a pizza place when he left.”


Perhaps the most outrageous thing that Murphy said during the lacrosse case was not, because of the way she framed her remark, a demonstrably untrue statement. On May 3, 2006, in an appearance on “CNN Live,” the Poynter source/seminar instructor mused, “I bet one or more of the players was, you know, molested or something as a child.”

An unsubstantiated insinuation, on national TV, that a college student was sexually molested? That’s a disgusting statement—indicative of a coarse mind and a bullying temperament, not “dynamic and thought-provoking,” which is how McBride describes Murphy. Yet McBride, by her own admission, wasn’t surprised to see the Poynter source/seminar instructor make such an assertion. If insinuating child abuse against people* about whom she knew nothing isn’t enough for disqualify Murphy in McBride’s eyes, what would constitute going too far? And how, possibly, could a figure who made such a remark provide instruction “focused on the highest standards of journalistic value” that would promote “excellence and integrity in the practice of craft”?

In recent months, the departure of Jim Romenesko somewhat tarnished Poynter’s reputation, as has the organization’s uneven (or worse, as SI’s Richard Deitsch might suggest) performance as ESPN ombudsman. But I always had believed that Poynter was committed to journalistic integrity, and never considered that it might be an organization that would use a serial fabricator as both a source and a seminar instructor for guiding journalists’ behavior.

It appears that I was wrong in these beliefs. And unlike Wendy Murphy, I’m willing to admit when I make a mistake.

*--modified for clarity

Saturday, February 04, 2012

Two E-Mail Chains; Or R. Brodhead, Movie Critic

The closing scene of Primal Fear, the movie referenced by Richard Brodhead as, it seems, an avenue through which to interpret the lacrosse case. Brodhead's private comment came a few days after the arrests of Reade Seligmann and Collin Finnerty. Could this chilling portrayal by Ed Norton really be how the Duke president perceived his institution's own students?


Courtesy of a Bob Ekstrand filing, two e-mail chains, including five April 2006 e-mails, from senior Duke administrators.

The e-mails are both surprising and unsurprising. The unsurprising elements: Provost Peter Lange comes across as the only humane member of Richard Brodhead's inner circle. Larry Moneta comes across as petulant and self-pitying.

The surprising: Brodhead (based, of course, on this very small sample size) appears even more crassly concerned with Duke's image than I would have expected. This concern also was demonstrated in an excerpt that Ekstrand featured from former AD Joe Alleva, who stated in a deposition that he was "crucified" by senior administrators after he appeared too sympathetic to the lacrosse players at this press conference. That revelation, it would seem, explains Alleva's becoming far colder in his treatment of the lacrosse players thereafter, even though his judgment about the team's character was confirmed by the Coleman Committee report.

The intriguing: None of the administrators (in these confidential, not-for-public exchanges) appeared even to consider that a sexual assault hadn't occurred--even though both e-mail chains came after the revelation that no DNA matches existed to any lacrosse players.

E-mail 1, from Brodhead to Moneta and Alleva, 9 or 10 April 2006:
"They have human needs."

Perhaps this can be Duke's new marketing slogan: "Send your sons to our school, at $50K/year: Our president understands they 'have human needs.'"

"We can't do anything to side with them, or even, if they are exonerated, to imply that they have behaved with honor."

Brodhead must have been stunned when he received the Coleman Committee report, and learned that they students about whom he was appalled had a history of drinking much too much but otherwise were good students and campus citizens.

E-mail 2, Moneta to Brodhead and Alleva, 10 April 2006:

"We . . . have ensured that faculty treat them fairly." I'm sure that Kyle Dowd would have been surprised to have learned this. Or the students in History classes taught by Profs. Deutsch or Thompson.

Why, exactly, did Moneta "hope" that fired coach Mike Pressler was "no longer communicating with the players"? Pressler had been virtually the team's only advocate within the Duke administration.

Moneta seems put out that the players and their parents were upset with Duke, given that "we have been supporting them throughout." If Duke's behavior between 25 March 2006 and 10 April 2006 constituted "support," imagine what opposition would have entailed!

E-mail 3: Brodhead to various administrators, 24 April 2006. By this time Reade Seligmann and Collin Finnerty have been arrested. And in response, the president traveled to the Durham Chamber of Commerce, where he roused applause with his infamous remarks about the duo: "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."

This e-mail suggests, again, a cold and calculating man. The same president who condescendingly remarked about how students facing on-campus mobs "have human needs" now mused--one month into the crisis--"maybe they just want someone to meet with them and show a humane face." A "let them eat cake" mentality.

The e-mail's other intriguing item was its first sentence. Two weeks after the revelation of the DNA test results, Brodhead doesn't even seem to have thought that maybe no rape of any type occurred. "Certainly a large number of them are [innocent] of the criminal charge." This assertion implied that Brodhead believed that at least some of the students were guilty. How, exactly, did he believe a crime occurred given the negative DNA tests?

E-mail 4: Lange to senior administrators, later that morning:

This e-mail from Lange, in response to Brodhead's missive, suggested that one "humane" person did exist among Duke's senior administrators. The e-mail suggests that Dean Sue probably fell into this category as well.

Presciently and perceptively, Lange warned that Duke's throw-them-to-the-wolves policy toward the lacrosse players "is probably mistaken."

Somewhat surprisingly, based on his closing paragraph, even Lange doesn't appear to have considered that a rape might not have occurred. It would have been shocking at this stage if any Duke administrator was certain that the accused players were innocent. (I certainly wasn't certain of it at this stage of the case, following things as I was exclusively in the media.) But it's equally shocking that the Duke leadership doesn't appear to have considered absolute innocence even as an option. That oversight helps explain why Brodhead didn't cover himself with a few throw-away presumption-of-innocence lines in his April 5 and April 20 statements.

The final e-mail, with Brodhead responding to Lange.
Even the clueless president appears to have realized that the lacrosse players and their parents wouldn't welcome a sit-down with the hopelessly-biased Moneta (who was firmly on record, by this point, as saying he didn't believe the players were innocent).

Brodhead's obsession with p.r. came in his comment about the "need to be on script"--which strongly implies that his "whatever they did was bad enough" comments were part of the "script" Duke had elected to follow.

Finally, and most chillingly, was the reference to the Edward Norton movie, Primal Fear. Here's the wikipedia description:
Martin Vail is a prominent defense attorney in Chicago who jumps at the chance to represent Aaron Stampler, a young, stuttering altar boy accused of murdering the Archbishop. At first interested primarily in the publicity that the case will bring, Vail comes to believe that his client is truly innocent, much to the chagrin of the prosecutor (and Vail's former lover), Janet Venable.

Vail discovers that powerful civic leaders, including the District Attorney, have lost millions in real estate investments due to a decision by the Archbishop not to develop certain church lands. The archbishop received numerous death threats as a result. He also learns that the archbishop had been sexually abusing altar boys, including Stampler.

Introducing this evidence, while it would make Stampler more sympathetic to the jury, would also give his client a motive for murder, something the prosecution otherwise has lacked.

The trial does not proceed well for the defense, as there is considerable evidence against Stampler and public opinion holds him almost certainly guilty. When Vail confronts his client and accuses him of having lied, Aaron breaks down and transforms into a new persona, a violent sociopath who calls himself "Roy." He confesses to the murder of the archbishop and throws Vail against the wall, injuring him.

When this incident is over, Aaron appears to have no recollection of it. Molly Arrington, the psychiatrist examining Aaron, is convinced he suffers from multiple personality disorder due to childhood abuse by his own father. However, Vail cannot enter an insanity plea during an ongoing trial.

Vail sets up a confrontation in court. After Venable questions him harshly, Aaron turns into Roy and charges at her, threatening to snap her neck if anyone comes near him. Aaron is subdued by courthouse marshals and is rushed back to his cell. In light of Aaron's apparent insanity, the judge dismisses the jury in favor of a bench trial and then finds Aaron not guilty by reason of mental insanity, and remands him to a mental hospital

Vail visits to tell him this news. Aaron says he recalls nothing of what happened in the courtroom, having again "lost time." However, just as Vail is leaving, Aaron asks him to "tell Ms. Venable I hope her neck is okay," which is not something that Aaron should have been able to remember if he had "lost time." Vail points this out, whereupon Stampler grins slyly and reveals that he has been pretending to be insane the whole time. But he didn't make up the identity of Roy, he made up Aaron.

Stampler now admits to having murdered the archbishop, as well as his girlfriend, Linda, whom the cleric also had molested. Stunned and disillusioned, Vail walks away, with Roy taunting him from the cell.

Did Brodhead see the lacrosse players as sociopaths? This cultural reference suggests an astonishingly negative view of the two students who had just been indicted. Or perhaps the president was merely asking his colleagues about the previous night's schedule on HBO.