Monday, August 13, 2012


Updates on five* matters:

[Update, Wed., 7.40pm:

1) The New York Times editorializes that the Supreme Court should affirm (as, indeed, it should) that a prosecutor's primary goal is to seek justice, not to achieve a victory. Coming from an editorial page that was virtually alone among major national newspapers in never criticizing Mike Nifong's misconduct, even as Nifong was one of the highest-profile victory-over-justice prosecutors of the last decade, this argument could at best be qualified as better late than never.

2) A reminder that in the week of 18 September, the 4th circuit will hear Durham's appeal of Judge Beaty's order allowing discovery to proceed in the lawsuit filed by the falsely accused players. This move has an effect on the suit filed by the unindicted players, since Beaty allowed all discovery regarding former SANE-nurse-in-training Tara Levicy to be delayed pending the outcome of the appeal.

To summarize the Durham argument, as spelled out in Beaty's original ruling: "Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause."

3) In a move first reported by the H-S, Duke attorneys have filed a brief demanding the dismissal of the Katie Rouse lawsuit, partly on grounds that Rouse was considering leaving Duke even before the rape, partly on grounds that Rouse wasn't treated any differently than other Duke students who considered transferring.

The filings did reveal two previously unreported items. First--and almost incredibly--Moneta admitted that Rouse had been a student employee in his office. If the record of the Rouse case is how Moneta treats a student who had worked for him (as he told NBC-17, the situation was “part of the reality of collegiate life and of experimentation and some of the consequences of students not necessarily always being in the right place at the right time"), imagine how he'd treat a student he had never encountered but whose presence at Duke caused him bureaucratic problems.

Second, the filings indicated that the house in which Rouse was raped was owned by Duke mega-donor Aubrey McClendon. (Sports fans might know the McClendon name--he's a part owner of the Oklahoma City Thunder, and played a key role in the borderline bad-faith departure of the franchise from Seattle.) Moneta's analysis the McClendon role, as expressed to other administrators: "Unbelievable" and "Shit." Bob Ekstrand has argued that the presence of McClendon gave Duke a motive to try and cashier Rouse out of the university.

Quite apart from the specifics of the Rouse case, there's something more than ironic about a paragon of political correctness such as Moneta worrying about a need to appease an anti-gay fanatic such as McClendon. Strange bedfellows indeed.]

WRAL reports that the State Bar has declined a request from ex-DA Tracey Cline to defer her disciplinary hearing, which currently is scheduled for the first week of October.

Cline wanted the Bar’s proceedings delayed until after she had exhausted her longshot appeals of Judge Hobgood’s order removing her from office.

There thus remains a good chance that Durham’s last two elected district attorneys not only will have been removed from office but removed entirely from the legal profession.

In the H-S, Ray Gronberg reports that Bob Ekstrand has, for the most part, agreed to demands by Duke attorneys for a protective order regarding discovery material in the civil case. In previous filings, Ekstrand had attached the depositions of Duke Police officer Gary Smith and Duke athletics official Chris Kennedy, as well as five e-mails between Pres. Brodhead and his advisors.

Gronberg correctly points out that such a protective order applies to both sides of the discovery, preventing Duke from releasing discovery information about the lacrosse players. But, as the H-S reporter surely is aware, the potential impact of discovery disclosure is so wildly disproportionate that only one side could experience any damage from releasing discovery material at this stage.

Thanks in large part to the combined spring 2006 actions of the media and Duke employees, the lacrosse players’ public reputations were trashed; it’s hard to imagine what Duke could release at this stage that would materially affect the players’ reputations. Moreover, such legal tactics would pose a risk of a public relations backlash against Duke, if the university came to be viewed as engaging in gratuitous character assassination against its former students.

(If there’s discovery material featuring the lacrosse players ruminating about Brodhead as a wise and incisive humanitarian leader, such a revelation would hamper the suit, but it seems extraordinarily unlikely the discovery file contains such material.)

For the plaintiffs’ attorneys, on the other hand, attaching discovery material to legal filings would pose no p.r. problems. More to the point, for Duke, the release of any of this material (whether in pre-trial filings or at trial) runs the risk of exposing damaging information about administrators—such as Brodhead’s implication that a possible frame for the lacrosse case was a movie in which an accused killer convinces his advocates of his innocence, only to be revealed as a killer.

Duke, of course, would have no such risk if either: (a) it had conducted a Freeh Report-like inquiry into how and why the administration so badly handled the lacrosse case, since such a review would have already exposed embarrassing material from administrators’ e-mails or other files; or (b) Brodhead hadn’t offered an after-the-fact claim that a presumption of innocence was one of the two lodestars of how he approached the case, since this highly implausible assertion is so easily undermined by such material as the president’s movie-critic e-mail.

Gronberg’s article notes that John Burness’ deposition has been scheduled, but contains no mention of whether depositions of Duke’s two key decisionmakers—Brodhead and ex-BOT chairman Robert Steel—have occurred.

It’s hard to imagine that Duke would want either of these depositions to see the light of day, which would make Ekstrand’s concession an important victory for the university.


Anonymous said...

Cline needs to hire Haar to represent her. That would be epic.

Anonymous said...

Is Cline a Communist?

Anonymous said...

Keeping the Duke/Players discovery materials sealed for now usually makes for better (more lucrative for the plaintiffs) settlement chances down the road. Duke can preserve the confidentiality of its missteps only via a confidential settlement; trial means it will certainly see the light of day.

PaulV said...

How much would Duke pay to avoid trial and release of documents showing their stupidity and violations of law and students' rights? Another $100M?

Anonymous said...

KC, I must admit, though I have followed the Duke Lacrosse case from the Saturday the story first broke in the N&O (before it went national), I have lost track of the pending lawsuits. Wikipedia lists two--
1. Evans, Finnerty and Seligmann suing City of Durham, Nifong, lab and some Durham cops, and
2. 38 other unindicted Lacrosse players (referred to in the H-S article as the group of 38...hmm...nice ring to that) suing Duke, City of Durham, etc.

I thought Pressler had a lawsuit pending with Duke as well based on breach of the consent decree (Duke trashing talking him).

Am I missing anything, got it about right?

Anonymous said...

Is Cline a Marxist?

Anonymous said...

Brilliant analysis, PaulV.

Anonymous said...

Isn't there a conflict of interest when the same university officials accused of wrongdoing are the ones who determine how much the university can spend on their legal defense?

Shouldn't the AG look into how a tax-exempt entity like Duke, which solicits donations from the public, is spending that money?

Where's the accounting, and where's the oversight?

Anonymous said...

Why did ekstrand do this? Real reason(s)?

Anonymous said...

PaulV's analysis is far from brilliant. If Duke intended to settle these cases, they would have settled them long ago. Instead, Duke is reacting appropriately to the weakness of the case against them. As I warned at the time of the filing of the civil suits, it will take effectively forever before these suits end. They will ecrtainly not end with Duke paying 100MM to settle

kcjohnson9 said...

To the 12.23:

Not sure who has argued Duke will pay $100M to settle (I haven't).

Also not sure about the delay & not settle strategy reflecting "the weakness of the case"--Durham, of course, has pursued the same policy regarding the suit filed by the falsely accused players.

Duke's (and Durham's) legal strategy seems to be to avoid good-faith settlement talks unless and until it's clear that the case would have to go to trial. It would seem that Duke would have few reasons not to pursue such a strategy (provided nothing damaging gets released during the pre-trial process). It strikes me as far riskier with Durham, since there's always a possibility that the discovery process could yield firm evidence of an intent to frame, which would dramatically escalate the city's legal liability.

Anonymous said...

"Am I missing anything, got it about right?"

One suit (Kyle Dowd) for retaliatory grading against Duke (Duke settled.)

Duke settled with the original 3 falsely-accused students.

Duke sued (and/or was sued by) two of its insurance companies over who had to pay for Duke's legal defenses.

Coach Pressler sued for violation of contract and defamation (settled).

The three falsely-accused are suing Durham.

Thirty-eight players are suing Duke, Durham, etc.

Three additional payers are suing the same.

Duke has paid out, in settlements and legal fees, perhaps as much as $50 million (guesstimate); including $2 million to Jamie Gorelick (as a hired attorney).

If there are more delays in the legal proceedings, and more settlements, costs could easily reach $100 million (twice as much as the Kunshan debacle has cost Duke).

But don't expect there to be any accounting or explanations to the donors or stakeholders.

(Perhaps all this would be too embarrassing to the trustees and the Brodhead administration...and might prompt questions as to why these expenditures came to be made...)

PaulV said...

I estimated cost of the indicted players settlementwas $100M including legal fees from IRS attachment. Delay usually favors defendants. I assume lawyers expect big contingency fee. If no direct costs to players the case will continue for years

Anonymous said...

"If Duke intended to settle these cases, they would have settled them long ago." -- Anonymous

Bull. You apparently have never been involved in complex litigation on the defense side. The defense lawyer tells the client, "We've got a great chance at a Motion to Dismiss, so don't even think about settling." All the time, the defense lawyer's billing by the hour for tons of work and telling his client, "Settle, Shmettle, we'll get this case dismissed!"

When the Motion to Dismiss is denied, the defense lawyer tells the client, "We've got a fantastic chance at Summary Judgment." More hourly billing, payable by Duke.

When Summary Judgment is denied, the defense attorney starts hinting to the client, "Perhaps it's time to think about settlement," or, "The Plaintiffs have forwarded this settlement offer that you should look at," all the while, billing Duke by the hour.

Then, on the eve of trial, the defense attorney tells the client, "OMG, you've got to accept that settlement offer."

I've seen that rodeo literally more than one hundred times. Duke will pay a hefty price to hide what Brodhead, Steel, the Gang of 88 and others at Duke did during this embarrassment. The only question left is the price, and that's being dickered right now with how the motions fare and how much of the case can go to the jury. MOO! Gregory

Anonymous said...

To Anon 8/15/12 6:15 PM. --

Thanks for the summary. This is more exciting than Duke basketball!

Anonymous said...

Brilliant analysis, PaulV.

Anonymous said...

Gregory: Your analysis of "complex" litigation would make more sense if it had any relationship to the cases that were or could have been brought against Duke. The obviously most "complex" from a defense standpoint would have been a case brought by the three indicted players. But, as we know, Duke settled (bought off) that case without doing any of the things you state are standard in "complex" litigation. The other cases settled by Duke are the same-- settled early with none of the trial by attrition tactics you claim are standard.I would argue that the reason that Duke has not settled the case involving the unindicted players has nothing to do with your "complex" litigation defense strategies but rather everything to do with the fact that the case brought by the unindicted players is incredibly weak. That's why PaulV is so wrong about Duke settling for a big number. If Duke settles, it will be for a small number and will be the result of plaintiff's counsel running out of the desire to keep funding a weak case. I mean, seriously, what are the damages sustained by the unindicted players?

Anonymous said...

"I mean, seriously, what are the damages sustained by the unindicted players".

Thoughtless words spoken by one who did not live through the experience. Most likely from another dimbulb member of the Duke PR department.

And so tell me, where do I go to get my reputation back? Oh right... no (physical) harm, no foul.

Anonymous said...

Anonymous @ 8/19:

You keep piling up the damages. The more google hits, the bigger the verdict. And that's thanks to you!

The other Duke cases were settled under the bright glare of the national spotlight. Don't you think that's a little different? I've been through the defense litigation process over a hundred times, but never in the white hot glare of national headlines.

Look at the BP Oil Spill. BP emptied their pockets almost immediately. Try suing BP now. When they were in the news on a daily basis, breast implant manufacturers and doctors paid right up -- and quickly. After the news dried up, and before saline implants were mandatory, the payouts also dried up.

My scenario happens hundreds of times every day in courts around the country. Your scenario happens how often, with the Newsweek covers, the NY Times headlines, the national news?

Hate for, and lies about, those innocent students continue to show up -- thanks to people like you, and that's why they'll be able to hit Duke hard. Oh, and the violation of their Privacy Rights. Also, "[f]raud, abuse and breach of duty" are still actionable in courts. MOO! Gregory

Anonymous said...

Additionally, the younger students probably needed to stay at Duke and had to wait to sue the university until they had graduated or were much closer to graduation. Retaliatory actions on the part of Duke administration and especially Duke professors were likely a huge concern. Those fraudsters at Duke were screwing with passkeys to the kids dorm rooms and even their grades!

The other plaintiffs were leaving the university (The Duke Three) or had already left (Pressler). MOO! Gregory

Anonymous said...

"Moneta's analysis the McClendon role, as expressed to other administrators: "Unbelievable" and "Shit.""

Didn't understand this sentence. Were some words omitted? What's it all about?

kcjohnson9 said...

To the 2.22:

No, he passed along the news (to two different administrators) in the one-word sentences referenced in the post.

guiowen said...

KC re the 2.22: I think you left out the word "of"

Anonymous said...

Moneta has his Dukakis moment and somehow goes much further. Very sleazy.

Anonymous said...

Gregory: Your notion that Duke settled because of the glare of national publicity is a nice rationalization that tries to rebut my point that your analysis os defendants settling was completely wrong as far as Duke's actions were concerned.I don't buy it. They settled because they were in an incredibly weak position in all of the cases (or potential cases) that they settled.But, to give you the benefit of the doubt because you keep boasting that you have been through this hundreds of times, please let all of the rest of us who are obviously not as well versed in the law as you know precisely how Duke damaged the unindicted players and how those damages would be calculated. You mention "reputation" but, in point of fact, most of the unindicted players were not identified by name in any serious way as having been involved in any criminal activity. Oh sure, there was the "wanted poster" but I don't think that will get pinned on Duke. And sure, there was the card key issue, but most theorists don't think there's a private right of action by the students against Duke for that and, even if there were, the damages would be minor. I am a lawyer and there is a concept in the law of injury without compensable damages (in real life, "shit happens")which I think is the logical and ultimate result here.

Anonymous said...

To the 8/21 at 7:52: So instead of mocking the question, answer it. What were their compensable, read it again, compensable, damages? You cite former Secretary of Labor Donovan's quote about reputation but, seriously, he was indicted and tried for something he was found not guilty of. What did Duke do to the unindicted players that caused them compensable damages that Duke is responsible for? Getting a screwing in life does not necessarily entitle one to compensable damages. As for your rather stupid notion that I am a Duke PR person, I live in Durham, I am a lawyer unaffiliated with Duke and I certainly lived through the episode. Just because I think the unindicted players law suit against Duke is a non starter with respect to damages has nothing to do with what I think of the incident itself. My point was originally only that PaulV is living in a fantasy world if he thinks Duke is going to settle this case for any meaningful number.

Anonymous said...

KC, You might find this one interesting.

Anonymous said...

Is Moneta c Communist?

Anonymous said...

Why has there not been a call for a "Freeh Report-like inquiry" into UVA and Dom Starsia? Where's all the outrage over the failure to hold university employees accountable for their behavior?

kcjohnson9 said...

To the 11.17:

I'm not sure I understand the question. I just did a google news search for Starsia & didn't see anything recently--have there been allegations leveled against him and the UVA administration? (I don't follow events at UVA closely, so perhaps missed something.)

Anonymous said...

Try "dom starsia lawsuit"

kcjohnson9 said...

To the 8.48:

I took a look at the lawsuit, which is here:

It would seem (obviously) that the Love family has an airtight lawsuit against the murderer. But as I recall, no one at UVA--because of a flaw in university policies, which both the state and the university subsequently changed--knew of Huguely's DUI arrest in rural Virginia (p. 10-12). (The lawsuit doesn't claim otherwise.) If that in fact was the case, I'm not sure how Starsia could be held liable, or why the claim that Starsia punished another player (about whose DUI arrest he knew) is in any way relevant. (If, on the other hand, Starsia knew of the arrest and lied to investigators, university administrators, etc., then obviously he should be fired.)

The lawsuit, then, boils down to whether Starsia mishandled one incident (p. 12-17), which appears to be the only instance of misconduct by Huguely about which he was aware, to such an extent that he could be held liable for $29.45m in compensatory damages, plus interest.

Generally, the idea of holding coaches liable for $29.45m for subsequent criminal behavior by their players would seem to break new ground. (Though the specific claim is negligence, the underlying argument of the lawsuit seems to be if Starsia had suspended Huguely for a game or two for the May 2009 incident, Huguely wouldn't have been in a position to have killed Love.) I'm not aware of any precedent for such a claim, but this is not an area of the law I know well, so perhaps other suits based on such a theory have succeeded.

(I am aware of instances in which coaches have been removed from their positions after allegations of criminal behavior by their players--Mike Pressler, of course; and more recently the coach of the Montana football team.)

That said, I'm at a loss to see a Freeh Report connection here. The report investigated administrative misconduct at Penn State. I have urged a similar inquiry at Duke, to determine why and how the administration so badly botched its response to the lacrosse case.

In this instance, the lawsuit doesn't claim that anyone from the UVA administration knew anything about Huguely. Indeed, the only reference to any administrator is to the AD, whose inclusion in the lawsuit appears to be solely that he was Starsia's supervisor. (The lawsuit doesn't indicate that before the murder the AD even knew who Huguely was.) Given that, and given that the university has already corrected the procedural flaw that resulted in UVA administrators not knowing of Huguely's DUI arrest, what would a Freeh-like investigation even explore?