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?

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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.

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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.

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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.