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.

Updates

A couple of updates:

Stuart Taylor and I had an op-ed in yesterday’s Wall Street Journal, examining the . . . considerable gap between how Penn State responded to the scandal of the Spanier/Paterno cover-up and how Duke’s trustees and administration responded to their lacrosse case failures.

The op-ed focuses on the (almost comical, in retrospect) conclusions of the Bowen/Chambers report—for background, you can see here and here.

The H-S reports that next week, the State Bar will send a letter admonishing pro-Nifong crank Sydney Harr to cease practicing law in his attempt to represent false accuser and accused murderer Crystal Mangum.

The article’s most interesting comment, however, came from Woody Vann, Mangum’s attorney. During the lacrosse case, Vann distinguished himself as one of the fiercest of Nifong enablers. Even as Nifong moved toward disbarment, Vann told the AP, "Nobody knows anything about the previous 28 years. The cases he's tried and won, and the cases he's tried well and won."

Now, however, Vann has changed his tune: “I’m the first one to say I don’t think it’s good for my client to have her name in the same paragraph with … anyone who is a member of the Committee for Justice for Nifong. All that does is tie their names together and dredge up memories of 2006 and 2007 and that’s not what we’re dealing with.”

Duke's Version of Freeh (Updated)

[Update, 18 July, 8.38am: The Chronicle of Higher Education interviews, among others, John Burness about the Freeh Report. In his remarks, Burness essentially praises Penn State for doing what Duke did not do:

"They wouldn't have been able to put this behind them for the next several years if they hadn't gone about doing this the way they've done it—getting someone like Judge Freeh, whose character is pretty unassailable and who was given carte blanche to see what he found and report it without fear or favor," said John F. Burness, a visiting professor of public policy at Duke University and the university's spokesman during the 2007 lacrosse scandal. 

"There is some very bad news in here for Penn State and Coach Paterno and a lot of the leadership of Penn State," he said. "But this is a really critical inflection point for the institution because it is one of the thresholds they had to get through. As difficult as it will be, it was necessary to restore confidence in the integrity of the institution."]

I have a post over at Minding the Campus examining the Freeh Report—and what the document says about the continuing need for oversight by trustees. In short, at Penn State, the trustees failed in their fiduciary duties, and the university will now pay the price. The report describes a top-to-bottom failure in the Penn State administration—from the former president, to the former AD, to the former football coach, and back up again to current and former trustees.

At the very least, however, Penn State deserves credit for critically examining where and how the administration went wrong, and for trying to change a culture that both enabled and contributed to these administrative failures. And it’s hard to criticize the research behind the Freeh Report, which pored through e-mails, other university documents, transcripts of interviews, and publicly-available information from the criminal investigations. Any university that is attempting to move beyond errors would do well to look at the Freeh Report as a model.

For anyone who closely, or even not-so-closely, followed the lacrosse case, the flip-side of the Freeh Report is obvious. Though Duke steadfastly refused to publish a White Paper or even establish a Coleman Committee-like investigation of why and how the administration and “activist” faculty got the lacrosse case so wrong, there was—technically, at least—a Duke version of the Freeh Committee.

In his guilt-presuming April 5, 2006 letter (the document in which he dropped all reference to a presumption of innocence, and merely asked the Duke community to “wait until the authorities act before reaching any judgment in the criminal case”), President Brodhead announced an “Investigation of [the] Duke Administration Response.” He hoped, in part, “to address the concern that my administration did not respond as quickly as we should have and to learn any lessons this episode can teach.” The rush-to-judgment crowd that needed appeasing were unnamed “faculty, students, community members, and others.” While the identity of the “others” is unclear, it seems the remaining figures were either members of the Group of 88 or their student supporters.

To fulfill the role of Louis Freeh in the Penn State case, Brodhead chose former Princeton president and prominent affirmative action-defender William Bowen and former NCCU chancellor Julius Chambers; the duo added a third member, Danielle Carr Ramdath, who they helpfully  identified as an “African-American woman.” While the three admitted they didn’t have enough time to actually conduct a full-fledged inquiry, they nonetheless claimed that they “gained an understanding of the principal issues.”

Departing from the Freeh investigative approach, the Bowen/Chambers report gave no indication of examining internal Duke e-mails to get a sense of how and why the administration responded as it did. (Bowen and Chambers—Carr Ramdath, for reasons that are not clear, did not sign the report—never explained how they could investigate the “Duke administration response” without examining what would be the most relevant evidence to determine that response.) And the report gave no sign of the massive legal liability that Duke ultimately would face—the reported eight-figure settlement with the falsely-accused players, the legal bills piled up in defending the lawsuit from the unindicted players, the settlement with former coach Mike Pressler. Indeed, a reader of the Bowen/Chambers report—which faulted Duke largely for an insufficient commitment to diversity in its hiring process—would have been utterly mystified to ultimately learn that this “administration response” that the duo supposedly investigated had exposed the university to legal liability.

The Freeh Report is a long and difficult read. But for those with the time, compare it to the Bowen/Chambers report, to which I’ve linked in its totality. Which of the two constitutes an investigation, and which constitutes a whitewash?