Litigation Matters

[Update, Friday, 1.34pm: According to WTVD-11, the latest Mangum lawyer has withdrawn from her case, citing a conflict of interest. Note, by the way, the radically different (and more accurate) way WTVD summarizes the case than that offered by the comically biased Herald-Sun. Two mentions that the Mangum allegations were false, and no bizarre insinuation that charges were dismissed because of national media coverage.]

[Update, Tues., 4.04pm: Mark Anthony "thugniggaintellectual" Neal brings news that Group of 88 leader Wahneema Lubiano--or, in his words, the "brilliant" Wahneema Lubiano--now has a twitter account.]

A few updates on litigation matters.

The City of Durham has filed its response with the Supreme Court, urging the Court not to hear the appeal filed by attorneys for the falsely accused players. The basic argument was the same that the city adopted (successfully) before the 4^th Circuit—that as long as Durham police officers didn’t withhold information from Mike Nifong, and as long as a grand jury came back with an indictment, even if that indictment was based on (in the case of Sgt. Gottlieb) inaccurate testimony about Crystal Mangum’s myriad stories, it doesn’t violate the Constitution for a city to: (1) allow an elected prosecutor to supervise an ongoing, pre-indictment police investigation; (2) then have its police officers work with that elected prosecutor to manufacture evidence implicating innocent people in a crime that never occurred. As long as the police didn’t lie and the grand jury indicted, according to Durham, there was nothing actionable in how the city behaved.

The City of Durham: civil liberties capital of America.

On matters related to civil liberties, I have a piece up at Minding the Campus on the remarkable (and deeply disturbing) reaction of UNC administrators to the recently-passed law boosting accused students' legal rights. (Jane Stancill also obtained some jaw-dropping quotes at the N&O.) As often is the case, defenders of the academic status quo essentially prove the critics' case.

The false accuser, meanwhile, was back in the news—the Herald-Sun reports that her latest attorney, Scott Holmes, is seeking to recuse himself from the case, citing a conflict of interest. The precise nature of that conflict was left very murky by Holmes; he pointed to a colleague whose client was in an “adverse position” to Mangum.

Perhaps the most interesting aspect of the H-S article came in its description of Mangum’s role in the lacrosse case: “Mangum is the woman who accused Duke lacrosse players of raping her after they hired her to strip at their party. After national media coverage about the case, the charges against the lacrosse players were dismissed.”

A casual reader wouldn’t know: (a) that the lacrosse players were declared innocent, and Mangum’s allegations were false; and (b) that the declaration resulted not from “national media coverage” but from an attorney general’s investigation.

At least the distinguishing of the “national media,” while ignoring the excellent work of the N&O and the Chronicle, makes clear that the Herald-Sun‘s coverage played no role in bringing about the exoneration.

Speaking of Mangum, John Tucker from the Independent did a long article on the false accuser’s stoutest defender, Justice for Nifong Committee chairperson (and, at this point, sole member?) Sidney Harr. (The cover art, oddly, portrays Harr as a superman carrying Lady Justice.) While Harr is one of the strangest people to appear in the case, I doubt that before this article appeared anyone realized just how strange Harr actually is. To quote from Tucker’s piece, which brought to the fore a host of previously unknown items about Harr, at least in the Triangle:

Despite Harr’s reputation as a public gadfly and Nifong’s biggest supporter, most people know little about the man and his motivations. It is not well-known that after going broke in California, he bounced around with his wife, leaving a trail of sensational lawsuits marked by paranoia. Between 1985 and 1997, Harr was a party to at least 27 lawsuits in California, Arizona and Ohio. He sought hundreds of millions of dollars in compensation for civil rights violations, employment discrimination and fraud.

“He confidently moved from city to city wrecking people’s lives and careers,” said Dwight James, a physician who runs a practice in Porterville, Calif.

It might be suggested that a man who spent years “wrecking people’s lives and careers” is exactly the sort of character Mike Nifong deserves as chairperson of his exoneration committee.

Tucker also managed to obtain a rare comment from the long-silent Wahneema Lubiano, architect of the Group of 88 proclamation—which falsely claimed official endorsement from five academic departments—that something “happened” to Crystal Mangum. To the best of my knowledge, Lubiano’s last interview with a mainstream journalist about anything related to the case was a highly sympathetic one from ESPN, after which reporter John Pessah nonetheless concluded, with extraordinarily vivid imagery, that his subject, Lubiano, “knew some would see the [Group of 88] ad as a stake through the collective heart of the lacrosse team”—but drove the stake anyway.

Tucker chatted with Lubiano about “issues such as race, class and privilege—ideas never fully reckoned with during the lacrosse chaos.” Not really: it’s hard to argue that these issues—addressed non-stop by the Duke faculty—were never fully reckoned with in the lacrosse case, unless the argument is that those who so badly misjudged the case were never held accountable.

In any event, according to Tucker, here’s the new Lubiano take on the person whose version of events she once uncritically accepted:

Mangum symbolizes a host of uncomfortable ideas, like mental illness and social order, according to Wahneema Lubiano, the associate chairwoman of Duke University’s Department of African & African American Studies. “And frankly we should be uncomfortable,” she said, “but the discomfort should take a different form than collectively rolling our eyes.”

I’d agree with Lubiano that we should be uncomfortable—uncomfortable about Duke faculty members who disregarded their obligations under the Faculty Handbook and then refused to take responsibility for their actions. (By the way: during the case itself, neither Lubiano nor any other member of the Group of 88 ever publicly suggested, or even hinted at, the fact that Mangum was mentally ill.)

Finally, an odd item from the article:

As is his longstanding media policy, Nifong declined to comment for this story. He and Harr have met only a handful of times, but there are parallels between them. Both men tried to take on Duke University, and lost. Both were rebuked by the State Bar. Both declared bankruptcy. Both staked their identities on fighting injustice.

As portrayed by Tucker, Harr comes across as delusional, an almost sad character: it’s entirely possible that he sees himself as a champion of justice, and that he actually believes that Richard Brodhead’s Duke was actually part of a conspiracy to victimize, rather than lionize, Crystal Mangum.

But Nifong—a man who broke myriad ethics rules and tried to manufacture evidence to imprison innocent people, all in an effort to advance his political career—cannot possibly be portrayed as someone who staked his identity on “fighting injustice.” Moreover, Nifong never took on “Duke University.” He took on Duke students, a big difference. Duke University, by contrast, was one of his biggest allies. It employed his star witness (former SANE-nurse-in-training Tara Levicy). Its president repeatedly took actions that communicated to the world a belief in the players’ likely guilt (such as cancelling the Georgetown game while the players were on the field, or publicly remarking that whatever Seligmann and Finnerty did was “bad enough). And, of course, for the critical first weeks of the case, the public voice of Duke’s faculty was the rush-to-judgment sentiment of Wahneema Lubiano and her 87 pedagogical allies.

I nonetheless hope people read the Tucker piece. In a case filled with bizarre characters, Harr might well be the most bizarre—which is saying something.

An Update from St. Joe's

Over at Minding the Campus, I’ve analyzed two federal lawsuits filed by male students found culpable of sexual assault after college procedures (at St. Joe’s and Vassar) that failed to provide much, if any, due process. Today is the deadline for the defendants in the first suit, filed by Brian Harris against St. Joe’s and his accuser, Lindsay Horst. Horst’s attorney, Daniel Rucket, filed a reply yesterday urging dismissal of all claims in Harris’ lawsuit. (You can read the filing here; I’ll be analyzing the St. Joe’s reply when it comes in, at Minding the Campus.)

Rucket does not deny that Harris’ complaint accurately described the (wildly tilted) judicial “process” that St. Joe’s employs, which is “based on guidance from the United States Department of Education, Office for Civil Rights (‘OCR’).” (This guidance, of course, came from the 2011 “Dear Colleague” letter, which asserted that federal law requires universities to change their procedures in various ways to make it easier to find students culpable of committing sexual assault.) Rucket concedes that St. Joe’s policies prohibited Harris, like all accused students, from having an attorney represent him at the disciplinary hearing, or attend the hearing in any way. And Rucket observes that, as Harris’ complaint noted, St. Joe’s has structured a procedure in which“[c]ivil or criminal rules of procedure and evidence do not apply,” while allowing the school to consider hearsay.

But according to Rucket’s filing, these are all unobjectionable things, beyond the scope of the federal courts to review. It’s quite remarkable to see a private lawyer—much less a “Pennsylvania Super Lawyer,” as Rucket’s website notes he has been every year since 2010—celebrating the fairness of a process in which the accused is denied the right to counsel.

Intriguingly, seeking to protect Horst against a claim of defamation, Rucket subsequently claims that in Pennsylvania “quasi-judicial proceedings . . . include school administrative hearings and statements made that lead to such hearings.” In other words: the St. Joe’s disciplinary tribunal should be viewed as “quasi-judicial,” even though it denies accused students the right to counsel, doesn’t guarantee them the right to cross-examine their accuser, doesn’t follow civil or criminal rules or procedure, and allows hearsay.

Rucket argues that Harris has no legal claim to challenge the judgments made by St. Joe’s, no matter how unfair the university’s procedures. “Harris is attempting improperly to relitigate the finding of the [St. Joe’s tribunal] that Harris sexually assaulted Jane Doe, in Federal Court, which is not allowed.” Why? In part, because “there is a presumption of fairness in administrative proceedings which favors administrators.” Moreover, according to Rucket, federal courts should respect an assertion in the St. Joe’s handbook that “[s]ubsequent reviewers shall not determine anew whether there was a Community Standards violation.” How convenient as a way to shield any university from challenges to potentially unconstitutional behavior.

This line of argument, if upheld by the court, would render beyond judicial review the assault on due process for all college students accused of sexual assault, and Rucket asserts as much. At least with regard to students at private colleges, he claims that as “Harris’ guilt for the sexual assault has therefore been conclusively and finally decided by SJU at the [disciplinary] hearing,” a federal jury “cannot reconsider or alter that decision.” The power this line of interpretation gives to college disciplinary processes is extraordinary: once a private college brands a student a rapist, no matter how unfair the process the college utilizes, the student can never challenge the finding, as long as the college followed whatever unfair procedures it utilizes in sexual assault cases.

Absurdly, Rucket claims that the power he gives to the St. Joe’s process to avoid court challenge is equal opportunity: If, he notes, St. Joe’s had found that Horst hadn’t been sexually assaulted, and she had then filed a “lawsuit against Harris and SJU, Harris certainly would be making this exact same argument, that the findings of the [disciplinary tribunal] cannot be relitigated.” First: this claim will certainly come as news to the anti-due process “activists” glowingly profiled in the New York Times and Inside Higher Ed’s Allie Grasgreen, who have urged federal intervention to effectively relitigate a variety of campus decisions they opposed. Second: as Rucket well knows, even if Harris had been cleared by St. Joe’s, Horst still could have filed a criminal complaint with the police. Harris then could have been tried and, if convicted, sued.

In any event, the filing notes, even without the specific wording in the St. Joe’s handbook, Harris would have no case. Before choosing to attend St. Joe’s, Harris knew (or should have known) the university’s procedures for handling sexual assaults. Courts, Rucket suggests, can’t now intervene. (Oddly, the only two cases that Rucket cites to bolster his point come from Pennsylvania state courts; he doesn’t explain why these decisions should be treated as precedential in a federal lawsuit.) If Harris didn’t want to subject himself to the anti-due process approach used in his case, he shouldn’t have matriculated at St. Joe’s. But given that the “Dear Colleague” letter applies to virtually every university in the country, under Rucket’s viewpoint, the only realistic choice for a male student who wants to ensure that he has due process if accused of sexual assault would be not to attend college at all.

Finally, Rucket challenges Harris’ claim that he lacked an opportunity to cross-examine Horst, but, in any case, deems the matter irrelevant—in part because St. Joe’s doesn’t promise such a right and in part because the “Dear Colleague” letter “strongly” discourages granting such a right. To the best of my knowledge, this is the first time perhaps the most objectionable aspect of the “Dear Colleague” letter—its urging schools to set up procedures that deny an accused student the right to confront his accuser—has been cited, positively, in a legal filing.

Beyond legal arguments, the filing also provides Horst’s version of the evening in question, in which she alleges that she was assaulted while incapacitated. Rucket’s writings, however, corroborate several points from Harris’ filing, chiefly that:

• Horst asked Harris to come to her dorm room and spend the night;
• After the alleged assault (which Harris maintains was consensual intercourse), Horst left her room to go to the bathroom, but then returned to her room voluntarily, where she and Harris then spent the night;
• Horst did not seek a medical examination after the incident;
• Horst did not report the incident to police.

The filing describes Horst as “obviously intoxicated” on the evening in question. But since she didn’t go to the police or seek a medical exam, there’s no way to verify this claim.

Rucket does challenge the version of events presented in Harris’ complaint in one significant way. While he concedes that Horst invited Harris to come to her room for “cuddling” and to spend the night, according to the filing, this invitation had no sexual connotation.

Two final notes: (1) This is not the lacrosse case, in which overwhelming and unimpeachable evidence of actual innocence existed. Instead, the Harris case is an excellent demonstration of how due process-unfriendly college procedures—coupled with the newly-mandated preponderance-of-evidence (50.01%) standard—all but ensure that college structures can’t discover the truth in close or even somewhat close cases. And in a campus environment that’s overwhelmingly favorable ideologically to accusers, this is a dangerous thing.

(2) In his brief, Rucket asserts that Harris “was found guilty of (1) sexual assault.” [emphasis in original] Technically, colleges and universities can’t find anyone “guilty of sexual assault”: only the criminal justice process can do so. But in the real world, that’s a distinction that’s easily elided, since the stigma of being branded a rapist comes just as easily from a college process as from a jury verdict. That Horst’s own attorney—in a legal filing, no less—conflates the result of the St. Joe’s disciplinary process with that of a criminal trial illustrates why universities, when they consider issues that also qualify as criminal matters, need to provide due process to accused students. And if federal courts are the only mechanism for forcing universities to do so, then so be it.

Brodhead, Colbert, and Questions

Richard Brodhead will be appearing Thursday night on Comedy Central’s Colbert Report. Let’s set aside the obvious: why would a group that wants to promote increased public support for the humanities select as its spokesperson a figure best known outside the academy for this disastrous appearance on 60 Minutes?

Instead, since Brodhead himself has said that he sees the interview as “a good chance to show off Duke,” perhaps Colbert could find the time to ask him why, in his first public appearance after their arrest, he said that even if Reade Seligmann and Collin Finnerty were innocent, whatever they did was “bad enough.” Does he continue to believe what he told the Durham Chamber of Commerce in April 2006, and if not, why did he never retract or apologize for his remarks?

Some other items that remain unanswered:

(1) Why specifically did Brodhead and the Duke Board of Trustees demand Mike Pressler’s resignation in early April 2006? What did they expect the public reaction to their move to be? Did they recognize at the time that the forced resignation would likely be interpreted as a sign of the players’ likely guilt?

(2) When did Brodhead and the trustees first learn of the conduct of former SANE-nurse-in-training Tara Levicy? After so learning, what steps did the Duke leadership take to ensure that Levicy would not affect any additional sexual assault cases?

(3) What steps, if any, did the Duke administration take against either Wahneema Lubiano or the African-American Studies Department for their decision to improperly use Duke funds to pay for an ad denouncing the school’s students, and for their falsely claiming that numerous Duke departments officially endorsed the ad? If, as is widely believed, the university took no disciplinary steps on the matter, should Duke professors interpret this inaction as an implicit statement that Lubiano and her department really didn’t do anything wrong?

(4) Why didn’t Duke administrators reveal to the Coleman Committee the university’s then-secret arrangement with the city for Duke students—and only Duke students—to be prosecuted to the maximum for alcohol-related offenses?

(5) Does the university continue to stand by the Bowen/Chambers report as the best analysis for how the administration should have handled the case? If so, how can the university explain the millions of dollars in settlements and legal fees for administrators’ conduct that Bowen and Chambers ignored? If not, why did the university never elect to commission a Freeh Report-style white paper for Duke?

Somehow, I doubt any of these questions will get asked. And in the unlikely event they were asked, I can all but guarantee they would generate a non-responsive reply.

Litigation Issues

As a reader of TheShadow University shortly after it was published, I understood well the due process difficulties in campus judicial systems. But until the lacrosse case, I simply assumed that because sexual assault is a crime, such matters were handled by police, not by a campus judiciary. In any event, how campuses handled sexual assault complaints couldn’t be more troubling than the manner in which they handled other allegations.

That, obviously, isn’t the case. One of the most troubling counterfactuals of the lacrosse case is to wonder what might have occurred if Crystal Mangum had simultaneously filed a complaint through the Duke campus judicial process. If—and it’s not entirely clear—she had standing to have done so, there’s little doubt that a finding of guilty would have occurred. Procedurally, the accused students would have lacked the right to attorneys, been unable to access the critical DNA evidence, and would have faced severe evidentiary and time restrictions in presenting their case. Ideologically, the accused students would have been operating in an environment heavily influenced by the Group of 88 and their race/class/gender agenda. For a less explosive example, consider the case of Caleb Warner, a former University of North Dakota student whose school found him guilty of sexual assault—even as the local police filed charges against his accuser for filing a false police report.

(As an aside, note that the police saying the accuser was lying wasn’t enough for the AP to identify the accuser, since “AP’s policy is not to identify alleged sexual assault victims,” even those the police have formally concluded made a false allegation.)

The basic unfairness of campus sexual assault procedures was intensified by the 2011 “Dear Colleague” letter, about which I’ve written extensively at Minding the Campus, which dramatically lowered the burden of proof in campus sexual assault cases.

In the last two months, however, two students convicted under their school’s wildly biased procedures filed suits in federal court. One lawsuit targeted Vassar College, which handles sexual assault claims through an “Interpersonal Violence Panel” whose procedures the college refuses to make publicly available. The second suit targeted St. Joseph’s University, after a process that appeared to ignore exculpatory text messages sent from the accuser to the student she accused. You can read my Vassar post here, and my St. Joe’s post here.

In the aftermath of the “Dear Colleague” letter, and with administrators responsive to their school’s version of the Group of 88, it’s all but inconceivable to imagine many, or any, residential colleges restoring due process on their own. In the end, only intervention by federal courts—as occurred a generation ago with speech codes—will bring a measure of due process to how campuses handle allegations of sexual assaults.

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Former NCCU chancellor Julius Chambers recently passed away. The most comprehensive obituary came in the Charlotte Observer, which recounted his myriad contributions to the causes of civil rights and due process over the course of his career.

Obituaries, obviously, tend to stress the positive in a career, and it’s hard to find any positive in Chambers’ conduct in the lacrosse case, where he teamed with William Bowen to pen a whitewash report that supposedly represented a critical analysis of how the administration responded to the case. Yet the report didn’t even address the issues that ultimately would cost Duke millions of dollars in legal fees and settlements, largely because Bowen and Chambers operated under an ill-concealed assumptions that the rape allegations were likely true. The Observer didn’t reference Chambers’ conduct in the lacrosse case, which contradicted his career-long support for civil rights and due process.

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The Supreme Court has requested a formal response from Durham to the longshot appeal in the McFadyen case. While this move means the appeal hasn’t been  rejected out of hand, the question doesn’t seem to be the type that’s likely to generate interest from the Court.