Tuesday, July 31, 2012
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.
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?
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.'"
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.