Nifong Ironies in Settlement

Two Nifong-related ironies in the civil suit settlement:

First, the H-S reports the following: Seligmann attorney Richard Emery “said the former prosecutor had agreed to make a $1,000 contribution to the Innocence Inquiry Commission and reaffirm 'his statement of [the players] innocence.'”

If so, of course, Nifong has repudiated the Cohan “something happened” thesis, and has effectively repudiated much of what he told Cohan for the book. If the settlement is as reported, will Cohan now issue a retraction?

Second: the N&O obtained a statement from the head of the state Innocence Inquiry Commission, Kendra Montgomery-Blinn, who commented,“It was an honor and a surprise to be chosen to receive this grant . . . We will put the money in a special fund, and it will be used for the investigation of innocence claims. We are pleased that the important work of the Innocence Inquiry Commission was recognized in this way.”

Does her acceptance of the donation mean that Montgomery-Blinn has now accepted that the case was one of actual innocence, in which the prosecutor violated ethical norms? The former Durham ADA (and member of the politically correct People's Alliance) once believed differently: in one of the most jaw-dropping moments of the Nifong ethics hearing, Montgomery-Blinn testified in defense of Nifong, on both substantive and character grounds. As Joe Cheshire noted at the time, “It is very troubling for anyone’s faith in the innocence commission when its director testified for a man who tried to put demonstrably innocent people in prison. It’s going to take a lot of work to give anyone any comfort that she can properly screen claims of innocence.”

For a taste of the Innocence Inquiry Commission head defending the actions of the state's highest profile rogue prosecutor, see below:



Hopefully Montgomery-Blinn now has a more fair-minded view of the dangers of prosecutors abusing their power for personal gain.

Civil Suit Settlement

Anne Blythe at the N&O brings word of the final resolution of the civil suit filed by the three falsely accused players. The suit was effectively neutered by the 4th Circuit, and the settlement reflects that reality: the city has agreed to make a $50,000 donation to the state Innocence Inquiry Commission, but otherwise make no payments or admit to any wrongdoing.

Updated, 1.07pm: The city of Durham released a statement, indicating the following: “As the City has maintained throughout, it believes that its police officers had an obligation to investigate the allegations made by Crystal Mangum in 2006 and that no police officer nor any other City employee engaged in improper conduct.”

And so Durham has now reaffirmed that it was not improper conduct:

--for a member of its Police Department to give misleading testimony to the grand jury;

--for its Police Department to run a rigged photo array confined only to photos of the suspects;

--for one of two investigators on the case to not keep contemporaneous notes on his exchanges with witnesses, and then months later to produce a straight-from-memory report that seemed designed to fill in holes in the case;

--for its senior police leadership to transfer supervisory control of a major police investigation to a county prosecutor;

--for members of the police department to (at the bare minimum) not speak up when the prosecutor and lab director discussed, in the officers' presence, producing a report that did not include all DNA test results;

--for members of the Police Department to enter Duke dorms and seek to interview suspects that the department knew were represented by counsel;

--for a police department employee to give wildly misleading, and in some cases simply inaccurate, public statements about the case.

According to Durham, none of this constituted improper conduct.

[Updated, 1.46: WRAL has a longer version of the Durham statement. In addition to describing the above conduct as not improper, the city also forcefully rejected the Cohan/Nifong theory of the case: “Today, the city reaffirms that it fully concurs with the attorney general’s decision to dismiss the charges and with his conclusion that Mr. Evans, Mr. Seligmann and Mr. Finnerty were innocent of the charges for which they were indicted.”

Reflections on the Supreme Court Move

As I noted Monday, the Supreme Court has declined to hear the falsely accused players’ appeal of the 4^th circuit’s dismissal of most of their case. On the one hand, the decision wasn’t surprising: (1) the Court doesn’t take many appeals; and (2) the politics of this appeal were particularly difficult, since judicial liberals tend to be more favorably inclined to civil rights claims—but as Judge Gregory demonstrated at the 4thCircuit, it appears that at least some judicial liberals are extremely hostile to this particular group’s civil rights claims.

On the other hand, however, the decision was extremely disappointing and at least a little bit surprising, in two respects. First, it’s not as if the Court is overflowing with critical cases this term—its first week of the session featured two cases (Madigan and Burt) that never should have reached the Court in the first place.

Second, it’s worth reiterating the breathtaking precedent that the Court allowed to stand. From here on out in the 4^th Circuit, there’s no federal cause of action against a town or city when the municipality’s police department: (a) turns over a police investigation to a local prosecutor; and (b) stands aside as that prosecutor and police officers manufacture evidence with which to indict innocent people for a crime that never occurred—provided that (a) the police are perfectly candid with their co-conspirator (the prosecutor) that there’s no evidence on which to base the indictment; and (b) a grand jury returns indictments, even if, as occurred in the lacrosse case, the indictment resulted from misleading or outright false testimony from one of the police officers.

The dismissal means that a host of questions are likely to remain permanently unanswered. That list includes the following:

(1) Who in the police department (or city government) allowed Mike Nifong to assume personal command of the police investigation?

(2) What precise interactions occurred between the Durham and Duke police departments?

(3) What precise interactions occurred between Nifong, the DPD, and former SANE-nurse-in-training Tara Levicy? (Levicy, by the way, is currently working in my home state of Maine, where she notes her particular interest in “women’s health.”)

(4) Who gave Cpl. David Addison the information that he used for his fact-free, race-baiting March 2006 public statements? Why was he not subsequently disciplined for his statement?

(5) Who in the DPD made the decision to involve Sgt. Gottlieb in the investigation?

(6) Why was Sgt. Shelton removed from any involvement in the investigation?

(7) Did any backchannel discussions occur between Durham authorities and the Duke administration?

Supreme Court News

Attorneys for the three falsely accused players have filed their reply to the City of Durham’s brief, the final stage before the Supreme Court will decide whether to hear the appeal.

A brief reminder on how we got here: a three-judge panel of the 4th Circuit essentially sided with Durham, dismissing all but one state claim on the grounds that the police were honest with Mike Nifong (acting, at the time, in his improper capacity as supervisor of the pre-indictment police investigation) about the evidentiary weaknesses in Crystal Mangum’s wild allegations; and a grand jury (acting, in the case of Sgt. Gottlieb’stestimony, on an erroneous recapitulation of the facts) returned indictments, breaking the chain between the police misconduct and the arrests.

The falsely accused players appealed to the Supreme Court, citing three lines of argument. First, their brief noted that several other circuits had held that civil liability ensued for pre-indictment police misconduct, even when a prosecutor secures an indictment; and that the Supreme Court, in oral arguments for a case ultimately settled on other grounds (Pottawamie County), appeared to agree. Second, the petition suggested that the 4^th Circuit had strengthened a circuit split on the question of whether police officers fabricating evidence during an investigation violates the Constitution. Finally, the players’ filing noted that even on its own terms (that an indictment wipes clear the city’s federal liability for everything that occurs before) the 4^th Circuit’s ruling made no sense, given that the improper conduct by city employees (the harassment of Elmostafa, Sgt. Gottlieb’s magical “notes”) came after indictments occurred.

Durham countered by reiterating its traditional line of argument, which was previously summarized by Judge Beaty: 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.”

The players’ reply opens with this wonderful line: “In a brief in opposition that is long on invective—and, for that matter, just plain long—[Durham] respondents seek to hold petitioners to an impossible burden.” The Durham argument amounts to a suggestion that because the Supreme Court has never before considered a case precisely like the lacrosse case (was there such a case?), the Court should allow the 4^th Circuit decision to stand. But the Supreme Court often hears cases that involve previously-unseen facts; the issue, as the reply brief correctly notes, is whether this case illustrates a split between the federal circuits on an important issue. And Durham never really argued otherwise.

The reply brief makes three central points:

First, the brief dismisses Durham’s efforts to distinguish its conduct from cases in other circuits where governmental agents were held liable for federal violations. The city had claimed that all of these cases differed from the lacrosse case because in each of them, police had not fully shared information with the prosecutor, but had instead misled or withheld evidence from the prosecutor, which the Durham Police did not do. But the players’ reply brief observes that the circuits whose opinions are in question (the 2^nd and 6^th) did not, in fact, make such a hard and fast distinction, and certainly did not suggest that facts like the lacrosse case—in which police conspired with a prosecutor acting as their de facto supervisor to produce evidence to frame innocent people for a crime that never occurred—should be shielded from constitutional claims. Indeed, the brief notes that one case on which Durham relied (Wray v. City of New York) actually appears to back the players’ position, not Durham’s, on this point.

Second, the brief reasons that the arguments in Durham’s filing “do not pass the smell test” regarding the city’s attempts to differentiate its behavior from earlier cases in which federal courts had found that “the fabrication of evidence at the investigation stage, standing alone, gives rise to a constitutional violation.” For instance, the brief observes, the City had tried to distinguish its behavior from a 1^st Circuit case, Limone v. Condon, on grounds that the plaintiff in Limone was falsely imprisoned using fabricated evidence, while the lacrosse players were only falsely arrested, detained, and would have gone to trial but for a 9-8 decision by the State Bar to bring charges against Nifong. Yet the case that Durham believes helps in cause in fact says that “if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.” Durham thinks that Limone helps its cause?

Finally, the brief cleverly uses its rebuttal of Durham on this point to remind the Court that the behavior of the lacrosse case was, in a way, more egregious than the cases cited by either side. It’s true, the brief notes, that most of the cases involving constitutional claims based on police misconduct involved the police behaving improperly toward the prosecutor. But that’s because, in each of these cases, the prosecutor wasn’t himself involved in a conspiracy with the police to fabricate sufficient evidence to secure indictments. It’s not as if any circuit other than the 4^th Circuit has held that this sort of record should be shielded from constitutional challenge as long as the prosecutor managed to fool a grand jury into returning an indictment. For instance, the brief points to a 5^th Circuit case, Hand v. Gary, to explain that “a prosecutor’s intervening action ‘remain(s) tainted by the malicious actions of the government officials’ either if the officials ‘join in malicious prosecution by prosecutors’ or if the officials’ malice ‘results in an improperly motivated prosecution without probable cause.’”

The Court does not accept many cert grants. But if the justices decline to hear this case, and thereby allow the 4^th Circuit ruling to stand, they’ll be saying that a victim of a police-prosecutor conspiracy to create evidence to indict the victim without merit has no federal constitutional claim in six states. That would be a terrifying precedent.

The Cert Petition

Now that Supreme Court has at least forced Durham to respond, I thought it might be worthwhile to analyze the falsely accused players’ petition, written by Williams & Connolly attorney Kannon Shanmugam. A couple of general points:

(1) The petition doesn’t even bother to respond to JudgeGregory’s race-based opinion in the 4^th Circuit—perhaps presuming, correctly, that any Justice who would find even one word of Gregory’s rant persuasive would never vote to grant cert anyway.

(2) The petition frames the question for the Court in a narrow manner: “Whether police officers who conspire with a prosecutor to fabricate evidence for subsequent use are immune from liability as a matter of law by virtue of the conspiring prosecutor’s decision to use the evidence.” This framing accomplishes two purposes: first, to preemptively meet at least some of the concerns expressed by Judge Wilkinson in the 4^th Circuit; and second, to more clearly distinguish the Evans case from the McFadyen case, which might also still be appealed to the Supreme Court.

The petition opens by pointing to a 2009 case, Pottawamie County, which revolved around the question of whether a prosecutor had absolute immunity if he conspired with police to procure false evidence, and then used that evidence at trial. The case was ultimately settled before the Supreme Court decided it, but the cert petition notes that the Solicitor General and (at oral argument) five justices argued that the police in such a circumstance could be held civilly liable. On this point, of course, the 4^th Circuit disagreed; and since Pottawamie County was settled before resolution, these sentiments didn’t form a clear precedent.

The petition’s description of the lacrosse case facts pulls no punches. Noting that although Mangum “provided wildly inconsistent and patently implausible statements concerning the circumstances of the alleged rape to Durham police officers and to personnel at the Duke Medical Center,” Durham authorities elected to turn the case over to Sgt. Gottlieb, “an officer with a known history of malicious prosecution, false arrest, excessive use of force, fabrication of evidence, and filing of false police reports directed against students at Duke University.” (Keep in mind that news of Gottlieb’s past was initially broken not by defense attorneys but by the N&O and then in greater detail by the Chronicle.) Gottlieb and Himan, in turn, were instructed to take orders from Mike Nifong, who despite acknowledging that the lack of evidence left the trio “fucked” made dozens of inflammatory statements to the media. Those “false statements inflamed the Durham community” to such an extent that on “March 29, Durham police supervisors . . . ordered them to expedite the identifications and arrests of Duke lacrosse players.” Misconduct continued through the rigged photo array to the meeting with Dr. Meehan, and directly led to the indictments of the falsely accused players.

But the misconduct did not end when Nifong achieved his twin goals: indictments, coupled with his successful nomination.

In a clever and important point, the petition notes that Nifong, Gottlieb, and Himan continued their wayward behavior—whether overseeing the arrest of cab driver Moezeldin Elmostafa, or through Gottlieb’s production of an “after-the-fact ‘report’ of his purported activities in the investigation.” Even by the 4^th Circuit’s claim that indictments broke a chain of misconduct, this behavior occurred after indictments. As the petition notes, the 4^th Circuit opinion did not explain how these examples of post-indictment misconduct were shielded by “an independent intervening act—i.e., (p)rosecutor Nifong’s decision to seek the indictments,” between the arrests on false causes and the untoward pre-indictment behavior of Gottlieb and Himan. The 4^th Circuit nonetheless dismissed the federal civil rights claims against the duo, which in turn provided grounds for the dismissal of the suit against the city of Durham.

The petition invites the Court to determine that the 4^th Circuit erred on any of several different grounds. First,  several courts of appeals have taken much different approaches than did the prosecution-friendly 4^th Circuit panel on what sort of intervening conduct can shield police officers, and the city that employs them, from a federal civil rights suit. The 2^nd and 6^th Circuits, for instance, “have held that police officers may be liable for the ‘natural consequence’ or ‘reasonably foreseeable result’ of their investigative misconduct, despite a prosecutor’s subsequent action that contributes to the injury.” The 9^th Circuit wasn’t quite as broad, but did render an opinion that would seem to allow suits for clear cases of police misconduct leading to indictments. And while, the petition asserts, the 5^th, 7^th, and 11^th Circuits have adopted standards that an intervening indictment “breaks the causal chain absent evidence that the officers misled or pressured the prosecutor,” their specific guidelines would not have shielded Gottlieb and Himan.

The petition also explains that the breadth of the 4^th Circuit’s opinion “implicitly took sides in another Circuit conflict, on an issue that stands as a logical antecedent to the causation issue: . . . whether the fabrication of evidence at the investigation stage, standing alone, gives rise to a constitutional violation.” The 1^st and 8^th Circuits have said it does; the 2^nd Circuit said it does not. Obviously the 4^th Circuit panel agreed with the 2^nd Circuit.

Finally, and in perhaps the document’s most interesting section, the petition forcefully takes on Judge Wilkinson’s absurd arguments that allowing the case to go forward would initiate a floor of lawsuits from other figures, or that somehow we should see Durham police employees as victimized figures in the process. The petition argues that Supreme Court holdings dating back nearly 80 years have established that “prosecutorial action undertaken as part of a conspiracy to fabricate evidence with investigating officers does not absolve the officers of liability for their improper investigative acts in furtherance of the conspiracy.”

And yet, “in reaching a contrary decision, the Fourth Circuit heavily relied on the concern that recognizing liability in the circumstances presented here would open the floodgates to similar claims that officers conspired with prosecutors ‘render(ing) the officers’ qualified immunity from suit effectively lost and mak(ing) discovery the rule, rather than the exception.”

This fear, the petition correctly notes, is absurd. First of all, “one would hope that there are few, if any, cases in the pipeline even remotely similar to this one.” Second, judges already have more than sufficient tools to toss out weak or implausible cases under relevant Supreme Court precedent. Durham, of course, tried and failed at that task—an indication of just how strong the plaintiffs’ case is on a factual basis. Finally, and contrary to Judge Wilkinson’s concerns, the petition observes that the Supreme Court “has consistently declined the invitation to insulate officials entirely from liability in the face of similar ‘floodgates’ arguments.”

As I’ve noted previously, from a factual standpoint, the case made in the petition is extremely strong. Indeed, in light of the 4^th Circuit’s ruling, the standard in Maryland, North and South Carolina, and Virginia and West Virginia is that (to quote Judge Beaty) “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.”

Will four justices be willing to evaluate the case individually, on its own merits—in a manner that Judge Wilkinson in particular did not?           

Supreme Court Update

A minor item from the Supreme Court docket.

Yesterday, the Justices formally requested that Durham provide a response to the falsely accused players' cert. petition. Durham, by contrast, had sought to waive its right to respond, suggesting that it viewed the players' claims as so weak that they should be rejected out of hand. The procedural move is a very minor one, but at the least suggests that some members of the Court did not consider the question an open-and-shut one. But it should not be interpreted as anything more than that.

Durham's reply was originally due next Tuesday, but the new deadline is 11 July.

Updates

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.

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.

Two E-Mail Chains; Or R. Brodhead, Movie Critic

The closing scene of Primal Fear, the movie referenced by Richard Brodhead as, it seems, an avenue through which to interpret the lacrosse case. Brodhead's private comment came a few days after the arrests of Reade Seligmann and Collin Finnerty. Could this chilling portrayal by Ed Norton really be how the Duke president perceived his institution's own students?

--------------------

Courtesy of a Bob Ekstrand filing, two e-mail chains, including five April 2006 e-mails, from senior Duke administrators.

The e-mails are both surprising and unsurprising. The unsurprising elements: Provost Peter Lange comes across as the only humane member of Richard Brodhead's inner circle. Larry Moneta comes across as petulant and self-pitying.

The surprising: Brodhead (based, of course, on this very small sample size) appears even more crassly concerned with Duke's image than I would have expected. This concern also was demonstrated in an excerpt that Ekstrand featured from former AD Joe Alleva, who stated in a deposition that he was "crucified" by senior administrators after he appeared too sympathetic to the lacrosse players at this press conference. That revelation, it would seem, explains Alleva's becoming far colder in his treatment of the lacrosse players thereafter, even though his judgment about the team's character was confirmed by the Coleman Committee report.

The intriguing: None of the administrators (in these confidential, not-for-public exchanges) appeared even to consider that a sexual assault hadn't occurred--even though both e-mail chains came after the revelation that no DNA matches existed to any lacrosse players.

E-mail 1, from Brodhead to Moneta and Alleva, 9 or 10 April 2006:
"They have human needs."

Perhaps this can be Duke's new marketing slogan: "Send your sons to our school, at $50K/year: Our president understands they 'have human needs.'"

"We can't do anything to side with them, or even, if they are exonerated, to imply that they have behaved with honor."

Brodhead must have been stunned when he received the Coleman Committee report, and learned that they students about whom he was appalled had a history of drinking much too much but otherwise were good students and campus citizens.

E-mail 2, Moneta to Brodhead and Alleva, 10 April 2006:

"We . . . have ensured that faculty treat them fairly." I'm sure that Kyle Dowd would have been surprised to have learned this. Or the students in History classes taught by Profs. Deutsch or Thompson.

Why, exactly, did Moneta "hope" that fired coach Mike Pressler was "no longer communicating with the players"? Pressler had been virtually the team's only advocate within the Duke administration.

Moneta seems put out that the players and their parents were upset with Duke, given that "we have been supporting them throughout." If Duke's behavior between 25 March 2006 and 10 April 2006 constituted "support," imagine what opposition would have entailed!

E-mail 3: Brodhead to various administrators, 24 April 2006. By this time Reade Seligmann and Collin Finnerty have been arrested. And in response, the president traveled to the Durham Chamber of Commerce, where he roused applause with his infamous remarks about the duo: "If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough."

This e-mail suggests, again, a cold and calculating man. The same president who condescendingly remarked about how students facing on-campus mobs "have human needs" now mused--one month into the crisis--"maybe they just want someone to meet with them and show a humane face." A "let them eat cake" mentality.

The e-mail's other intriguing item was its first sentence. Two weeks after the revelation of the DNA test results, Brodhead doesn't even seem to have thought that maybe no rape of any type occurred. "Certainly a large number of them are [innocent] of the criminal charge." This assertion implied that Brodhead believed that at least some of the students were guilty. How, exactly, did he believe a crime occurred given the negative DNA tests?

E-mail 4: Lange to senior administrators, later that morning:

This e-mail from Lange, in response to Brodhead's missive, suggested that one "humane" person did exist among Duke's senior administrators. The e-mail suggests that Dean Sue probably fell into this category as well.

Presciently and perceptively, Lange warned that Duke's throw-them-to-the-wolves policy toward the lacrosse players "is probably mistaken."

Somewhat surprisingly, based on his closing paragraph, even Lange doesn't appear to have considered that a rape might not have occurred. It would have been shocking at this stage if any Duke administrator was certain that the accused players were innocent. (I certainly wasn't certain of it at this stage of the case, following things as I was exclusively in the media.) But it's equally shocking that the Duke leadership doesn't appear to have considered absolute innocence even as an option. That oversight helps explain why Brodhead didn't cover himself with a few throw-away presumption-of-innocence lines in his April 5 and April 20 statements.

The final e-mail, with Brodhead responding to Lange.

Even the clueless president appears to have realized that the lacrosse players and their parents wouldn't welcome a sit-down with the hopelessly-biased Moneta (who was firmly on record, by this point, as saying he didn't believe the players were innocent).

Brodhead's obsession with p.r. came in his comment about the "need to be on script"--which strongly implies that his "whatever they did was bad enough" comments were part of the "script" Duke had elected to follow.

Finally, and most chillingly, was the reference to the Edward Norton movie, Primal Fear. Here's the wikipedia description:

Martin Vail is a prominent defense attorney in Chicago who jumps at the chance to represent Aaron Stampler, a young, stuttering altar boy accused of murdering the Archbishop. At first interested primarily in the publicity that the case will bring, Vail comes to believe that his client is truly innocent, much to the chagrin of the prosecutor (and Vail's former lover), Janet Venable.

Vail discovers that powerful civic leaders, including the District Attorney, have lost millions in real estate investments due to a decision by the Archbishop not to develop certain church lands. The archbishop received numerous death threats as a result. He also learns that the archbishop had been sexually abusing altar boys, including Stampler.

Introducing this evidence, while it would make Stampler more sympathetic to the jury, would also give his client a motive for murder, something the prosecution otherwise has lacked.

The trial does not proceed well for the defense, as there is considerable evidence against Stampler and public opinion holds him almost certainly guilty. When Vail confronts his client and accuses him of having lied, Aaron breaks down and transforms into a new persona, a violent sociopath who calls himself "Roy." He confesses to the murder of the archbishop and throws Vail against the wall, injuring him.

When this incident is over, Aaron appears to have no recollection of it. Molly Arrington, the psychiatrist examining Aaron, is convinced he suffers from multiple personality disorder due to childhood abuse by his own father. However, Vail cannot enter an insanity plea during an ongoing trial.

Vail sets up a confrontation in court. After Venable questions him harshly, Aaron turns into Roy and charges at her, threatening to snap her neck if anyone comes near him. Aaron is subdued by courthouse marshals and is rushed back to his cell. In light of Aaron's apparent insanity, the judge dismisses the jury in favor of a bench trial and then finds Aaron not guilty by reason of mental insanity, and remands him to a mental hospital

Vail visits to tell him this news. Aaron says he recalls nothing of what happened in the courtroom, having again "lost time." However, just as Vail is leaving, Aaron asks him to "tell Ms. Venable I hope her neck is okay," which is not something that Aaron should have been able to remember if he had "lost time." Vail points this out, whereupon Stampler grins slyly and reveals that he has been pretending to be insane the whole time. But he didn't make up the identity of Roy, he made up Aaron.

Stampler now admits to having murdered the archbishop, as well as his girlfriend, Linda, whom the cleric also had molested. Stunned and disillusioned, Vail walks away, with Roy taunting him from the cell.

Did Brodhead see the lacrosse players as sociopaths? This cultural reference suggests an astonishingly negative view of the two students who had just been indicted. Or perhaps the president was merely asking his colleagues about the previous night's schedule on HBO.

Items from the Ekstrand Filing

A filing by Bob Ekstrand in the McFadyen lawsuit has revealed some interesting material about Duke’s initial response to Crystal Mangum’s false allegations. Ekstrand filed in response to Duke’s . . . miserly . . . approach to discovery—the University has turned over only 27 documents—some of which, according to Ekstrand, were duplicates.

Ekstrand’s brief included examples of material already obtained in discovery—and provides a good sense of why Duke has proven so . . . reluctant . . . to hand over material.

By far the most significant item is a March 17, 2006 e-mail from Dean Sue Wasiolek, sent to an array of top Duke administrators, including John Burness, Larry Moneta, and Tallman Trask:

Here’s the latest update on this situation. Most important is that the students who reside in this house have been fully cooperative and are concerned that their names will be in the press. Since they have not yet been officially charged with anything, they have asked that should the realty company (or anyone else at Duke) be asked for those names, that we not give them out since this is still just an investigation. Scott Selig has called Allenton Realy and alerted them to this.

The Durham police are, in fact, investigating an alleged rape/kidnapping at 610 N. Buchanan. On Monday, March 13, two strippers were hired to perform at 610 N. Buchanan. About 30 men were in attendance, all members of the Duke Lacrosse team. One of the strippers appeared to be on drugs. the men decided to pay the women early, and then asked them to leave. They refused and the men paid them more. The one stripper ended up passing out either on a porch or deck in the back of the house and the men carried her to the other woman’s car. At some point later, the passed out woman interacted with Durham police at the Kroger on Hillsborough Road and made the allegations. I believe she was examined at Duke ED.

Last night the house was searched. The men volunteered to engage in DNA testing and to take lie detector test. I believe the DNA testing was done.

Mike Pressler and Chris Kennedy are well aware of this situation. The men have denied all allegations--they obviously admit to hiring the strippers.

The Wasiolek e-mail confirms that the senior Duke administration knew from the start that the lacrosse players had fully cooperated (even to the extent of the captains volunteering to take lie detector tests) with the police inquiry. Less than two weeks later, when Mike Nifong began his pre-primary publicity crusade, he suggested something else—that, in fact, that players had erected a “wall of silence” to frustrate the investigation.

Duke administrators were under no legal obligation to correct the record. (Whether they had a moral obligation to do so is another story.) But the Wasiolek e-mail confirms that senior Duke administrators knew from the start that not only was the DA violating standard procedure by speaking early and often about the case, but that one key element of his publicity barrage—the lack of cooperation by the players—was demonstrably false.

Yet this knowledge (which, at the time, very few people outside the lacrosse team, their families, and their attorneys possessed) that the DA was publicly lying about Duke students appears to have had no impact in how Duke administrators initially responded to the case. Why was that?

The other intriguing item from the Ekstrand filing is a deposition from Associate AD Chris Kennedy, a consistently first-rate figure throughout the case. (Kennedy was quickly marginalized from discussions about how Duke should respond to Mangum’s allegations.)

Kennedy’s deposition provided an insight into the mindset of senior Duke administrators. For instance, he recalled a March 24 or March 25 conversation with Tallman Trask, in which Trask said “something to the effect of he would be amazed or astounded . . . if there was anything to the allegations.”

Obviously, public statements from Duke administrators near this time—most particularly the Brodhead April 5, 2006 “letter to the Duke community”—appeared to operate from a radically different premise. Why was that?

Kennedy’s deposition also provided useful context on how two particular actions by Duke helped shape public opinion in the case. The first came in the extraordinary decision to cancel the March 25, 2006 Duke-Georgetown game less than two hours before the game was to start. In response to a question from Ekstrand, Kennedy said he couldn’t recall an instance in which Duke had canceled an athletic contest in response to criminal allegations against team members, and added, when questioned again, that “I thought that somebody from the outside—in light of the newspaper article that appeared that morning in the News and Observer,"Dancer Gives Details of Ordeal”—I thought that that would send the message that that was, in fact, an accurate account of what had happened.”

Kennedy was right. Indeed, in their non-apology apology, the New York Times sports editors cited the unprecedented cancellation of the game and then the season as one reason for the paper’s presumption of guilt in its coverage.

The second came in Brodhead’s infamous April 20, 2006 remarks to the Durham Chamber of Commerce, shortly after the arrests of Reade Seligmann and Collin Finnerty, in which the Duke president declared of his students, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.”

Kennedy was asked how the Durham community viewed this statement, and he responded, reasonably, "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.”

Finally, the deposition offers a revealing vignette. Kennedy spearheaded the (successful) NCAA appeal for the members of the team to obtain an extra year of athletic eligibility. He wrote the appeal document, and passed it along to the Duke counsel’s office for approval. The counsel eliminated items dealing with the on-campus threats to the students and the behavior of the Duke faculty toward their own students.

A bit of revisionist history, perhaps.

Assorted Legal Matters

The City of Durham has filed its final brief in its mid-case appeal to the 4^th Circuit. I have analyzed the previous filings of the city and the falsely accused players; and the city’s appeal adds little to the exchange. The city’s attorneys—who according to the AP have already charged Durham more than $5 million for their services—continued to maintain that, when all was said and done, the city and its employees handled Crystal Mangum’s charges properly.

To reiterate, here is how Judge Beaty has responded to the Durham argument:

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.

Some of the city’s old favorites are back. The brief, for instance, feigns ignorance at Mike Nifong’s former title (which was, since the city's multi-million dollar attorneys appear to be unaware of it, District Attorney of Durham County). Instead, the city’s attorneys repeatedly term him “State Prosecutor” Nifong, as if his office instead was under the supervision of AG Roy Cooper. Durham’s lawyers also ignore Nifong’s role in supervising the police investigation. The brief also repeats the conventional Durham argument about the grand jury indictment all but requiring that the civil suit against the city be thrown out, regardless of the myriad instances of misconduct committed by DPD officers that had nothing to do with two officers' grand jury testimony.

The city attorneys do, however, employ three new arguments, though two don’t help them all that much. Responding to the falsely accused players’ attacks on the procedurally fraudulent “pick-any-three” photo array, the Durham brief maintains that “the only way that the arrays could become misleading at all would be if the prosecutor presented them to the grand jury without ensuring that the members fully understood the inherent limitations of the identification procedure used [emphasis added].”

But there’s absolutely no evidence that Nifong did present the photo array in this manner, and certainly nothing in Gottlieb’s description of his grand jury testimony suggests that Nifong acted to ensure that the grand jury “members fully understood the inherent limitations of the identification procedure used.” What evidence does the city’s brief present in this regard? “The officers ensured that the entire procedure was videotaped so that its inculpatory and exculpatory aspects could receive a full and fair vetting after the fact.” The brief makes no claim that the tape was presented to the grand jury, or that Nifong, Gottlieb, or Himan explained the ID process violated Durham’s lineup procedures. Therefore, by the city’s own argument, agents of the city (Gottlieb and/or Himan) deliberately presented “misleading” testimony to the grand jury. Why the city would have bothered to make such an admission is unclear.

Second, the Durham attorneys aggressively attempt to vindicate the performance of then-Cpl. David Addison, who functioned (according to press reports) as police spokesperson when the case first broke. According to the brief, the plaintiffs’ “allegations plausibly suggest only that Addison described the case to the public consistently with the way it was described to him by other officers.” In other words: Addison shouldn’t be legally vulnerable for having made false, malicious statements, because he was relying on false, malicious material provided to him by other police officers.

This argument, which reflects the case’s more general “Blame-Another-Defendant” strategy, at the very least would imply that discovery should continue forward, to determine which Durham employees fed the spokesperson this false and malicious material, which he then unthinkingly parroted to the local, state, and national media. Yet the Durham attorneys cite this version of events as an argument for why the case should be immediately terminated before any discovery occurs.

Finally, the city attorneys take direct aim at Beaty, by dismissing the claim that Americans possess a constitutional right not to be framed for a crime by government agents. Such an “argument carries no water,” according to the Durham attorneys, because it is excessively broad. Or, in Judge Beaty’s words, according to Durham, the Constitution does not give the average American a right against “government officials intentionally fabricat[ing] evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.”

A procedural reminder: this appeal, which Judge Beaty granted despite the only on-point precedent coming from the Middle District of Alabama, involves the City’s attempt to have the case dismissed before any discovery occurs.

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One reason, perhaps, for Durham’s aggressive attempt to overturn Judge Beaty’s decision came last week, when the Supreme Court considered a grand jury immunity case, Rehberg v. Paulk. The question posed by the Georgia case: “Whether a government official who acts as a complaining witness by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.” The case had quite a few similarities with events in Durham—the allegation was that a prosecutor’s investigator conspired with the prosecutor to frame an innocent defendant—though it had one critical distinction from the lacrosse case: the prosecutor in Rehberg did not appear to have formally served as the supervisor of the police investigation, as Nifong did.

Based on their general records (and the first two’s performance in the oral arguments), it seems extraordinarily unlikely that Justices Roberts, Alito, and Thomas would rule against the Georgia authorities. But the other six justices engaged in a wide-ranging and quite interesting discussion—asking challenging questions of both sides—of whether the immunity for grand jury testimony is proper. It’s dangerous to make any predictions based on oral arguments, but the Court’s four more liberal members, along with Justice Scalia, didn’t reject the plaintiff’s arguments out of hand.

In questioning the investigator’s attorney, Scalia, for instance, maintained that as the current structure (immunity for any behavior that’s testified about before the grand jury) perversely seems to invite a police officer to “get himself off the hook” is to “testify,” since “his testimony bathes him clean.” Justices Kagan and Ginsburg seemed particularly skeptical about the concept of letting an appearance before the grand jury provide a catch-all shield to guard against a civil lawsuit.

At Scotusblog, Timothy Coates concluded the following: “The Court’s questions indicate that this case may turn less on the niceties of the common law than the realities of common practice in the criminal courts. If the reality is that grand jury witnesses invariably engage in non-testimonial conduct prior to the proceeding itself –meeting with prosecutors, gathering evidence – that might spawn a malicious prosecution suit in which the subsequent testimony is admitted as evidence of malice, there seems to be little point in granting absolute immunity for such testimony, since erosion of grand jury secrecy and entanglement in litigation would occur in any event. On the other hand, if the Court concludes that potential liability for grand jury testimony may impair the day-to-day functioning of grand juries, and that there are practical differences between grand juries and warrant proceedings, then it could extend Briscoe’s rule of absolute immunity.”

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One prosecutor who must thank her lucky stars about the concept of prosecutorial immunity is Nifong’s successor in position and ethics, Tracey Cline. The N&O reports that the attorney for David Yearwood, one of the defendants profiled in the paper’s “Twisted Truth” series, filed an appeal claiming that Cline withheld considerable exculpatory evidence in Yearwood’s case: "At worst, District Attorney Cline's conduct was deliberate and intentional. At best, District Attorney Cline's conduct was negligent and incompetent. Either way, it is her misconduct that brings us to the situation we face today." The attorney, Heather Rattelade, made clear toward which option she leaned, charging that Cline "engaged in deliberate and deceitful tactics to obtain a conviction at all costs."

As has been her wont, Cline responded to the filing not on the substance but by making wild charges—in this instance, by insinuating that either Rattelade or Durham judge Orlando Hudson(!) have committed a breach of legal ethics by leaking material to the N&O. She offered, of course, no evidence to corroborate her claim.

In the last three contested races for DA in Durham (2006 primary, 2006 general election, 2008 primary), a significant plurality of Durham voters demonstrated at best indifference to and at worst outright support for unethical behavior in the county’s chief prosecutor. So it seems unlikely that Cline will be removed at the ballot box. Will the State Bar act again?

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The Herald-Sun brought news of a Durham resident who has, seemingly for the first time, alleged mistreatment from the Durham DA’s office. And who is the figure? Durham Committee for the Affairs of Black People-endorsed Solomon Burnette—the man who spent time in jail for robbing two Duke students, before distinguishing himself for penning an editorial that seemed to advocate vigilante justice against innocent white members of the Durham community.

In an interview with the H-S, Burnette claimed that he was innocent of a crime to which he pled no contest. The H-S didn’t provide a quote from either the DA’s office or from Burnette’s victims about his after-the-fact change of heart. The paper did, however, reveal that the endorsee had a criminal record that extended beyond robbery: “He also has been convicted of possession of marijuana, possession of stolen goods, operating a vehicle without a license, and common law forgery."

Defending his vigilante column—for which even the NCCU paper chose to apologize—Burnette wildly claimed, “Somebody had to say something . . . I think the article forced people to think in terms that we’re not used to thinking in.” This substance-free defense of indefensible statements recalls the non-defense defenses of their statement that came from the Group of 88.

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Speaking of the Group of 88, one of their lower-profile figures made an appearance last week, in a high-profile case. Laura Edwards was one of 23 historians to sign an amicus brief in Gill v. OPM, a court case challenging Section 3 of DOMA. (Section 3 requires the federal government to treat all married same-sex couples as legal strangers under federal law.) To my knowledge, this filing was the first joint document on a legal matter that Edwards had signed since the Group statement in 2006, in which she and her fellow signatories asserted that something “happened” to false accuser Crystal Mangum; and the clarifying statement of 2007, in which she and her fellow signatories announced that they “appreciate[d] the efforts of those who used the attention the incident generated to raise issues of discrimination and violence,” the stated purpose of the potbangers’ “castrate” protest.

As a major civil rights challenge, Gill is the sort of case in which historians could make a contribution, partly because claims made by advocates of the law are historically shaky, partly because DOMA was all but historically unprecedented (the Supreme Court has sometimes taken a more skeptical view of laws that target minority groups and lack historical precedent). But it was remarkable to see a Group of 88 member—someone who proudly thumbed her nose at basic principles of due process in 2006 and 2007—boldly embracing due process in 2011. It would be a little like a longtime ACLU activist signing onto a brief defending Guantánamo Bay.

A charitable person might suggest that Prof. Edwards, having so massively misjudged the lacrosse case, has become unusually sensitive in its aftermath to violations of due process. A more cynical observer might conclude that Prof. Edwards’ concern with due process depends solely on the race, gender, or sexual orientation of the affected parties.

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Finally, for the latest high-profile case involving college athletics—the arrest of a former Penn State defensive coordinator for widespread sexual abuse of young boys, and the arrest of the university’s AD for allegedly lying to the grand jury investigating the affair—Dan Wetzel’s column expresses my sentiments about the university's conduct more effectively than I could.

But one comment on media coverage of the case. In Sunday’s New York Times, Mark Viera (whose sports reporting I enjoy) wrote the following, regarding the record of Penn State football coach Joe Paterno: “A grand jury said that when Mr. Paterno learned of one allegation of abuse in 2002, he immediately reported it to Mr. Curley. The grand jury did not implicate Mr. Paterno in any wrongdoing, though it was unclear if he ever followed up on his initial conversation with Mr. Curley or tried to alert the authorities himself.

In fact, the grand jury report said something quite different. Here’s the relevant excerpt:

“Immediately,” it would seem to me, means immediately—not the next day. And given that the grand jury report—a report that lays out exactly who reported what, and when, to authorities—makes no mention of Paterno ever reporting the charges to authorities, saying that it’s “unclear” whether Paterno “tried to alert the authorities himself” strikes me as an unusually charitable interpretation of events.

In the lacrosse case, the Times failed because of bias—its editors and chief case reporter, Duff Wilson, embraced a narrative that implied it was the paper’s job to bend over backwards to prop up Nifong’s case. But the paper also failed because sports reporters too often are not sufficiently up to speed about basic legal procedure.

[Update, Monday, 11.23am: In today's Times, Viera has a follow-up story, containing a damning quote from the law school dean emeritus of Duquesne on Paterno's failed moral obligations in the case. The article no longer claims that Paterno immediately reported the allegations to his superiors. There also is no indication that PSU president Graham Spanier plans to resign as a result of the scandal. It seems hard to imagine he could stay on--but, then again, Richard Brodhead is still president of Duke.]

Point/Counterpoint

The civil suits are largely on hold—thanks to a legally-debatable decision by Judge Beaty to delay discovery while Durham’s attorneys (who have, to date, billed the city for nearly $5 million, according to the AP) appeal to the 4^th Circuit. Attorneys for the falsely accused players have now filed their response to the city’s legal theories.

Summarizing the Case

The Durham brief (filed in late July) summarizes events of the case in an almost comical form, as if what occurred was little more than a routine police investigation beset by no procedural improprieties: “Stripper[] Crystal Mangum alleged that she had been raped at that party. Durham police investigated her allegations—meeting with witnesses and working through the district attorney’s office to obtain DNA evidence. After ten days of investigation, State Prosecutor [sic: District Attorney] Michael Nifong became involved in the case. He was fully briefed by City investigators as to the available evidence. Nifong later sought, and obtained, indictments against Plaintiffs. Plaintiffs were briefly arrested following indictment, and then immediately released while the investigation continued. The charges and indictments were later dismissed.” Indeed, according to the Durham attorneys, the “factual allegations [in the case] do not give rise to a plausible inference of malice.”

And here’s how the Durham brief describes the no-fillers-allowed photo array: “On April 4, 2006, Sergeant Gottlieb showed Crystal Mangum additional photograph arrays of Duke lacrosse players,” who had, by this point, been publicly identified by Nifong and the DPD as suspects.

The falsely accused players’ response frames the context more appropriately: “The Complaint describes one of the most notorious episodes of police, prosecutorial, and scientific misconduct in modern American history. It details the sustained, coordinated actions of police and City officials to fabricate evidence, conceal evidence of Plaintiffs’ innocence, inflame the community with false public statements, and mislead the grand juries, resulting in the unlawful arrests of Plaintiffs without probable cause.”

Ignorance Is Bliss

In what attorneys for the falsely accused players correctly deem “the City Defendants’ ‘blame Nifong’ approach,” the Durham brief goes to considerable length to suggest that ex-DPD officers Mark Gottlieb and Ben Himan can’t be held liable for their improper behavior—and that any misconduct that occurred resulted from the decision of “State Prosecutor” Mike Nifong.

[An aside: With this wording, which appears throughout the brief, the Durham attorneys invent a new position in Durham County, whose voters apparently elect not a district attorney but something called a “State Prosecutor.” The reason for the sleight-of-hand is obvious—to downplay the actions of Nifong as head of the police investigation, actions for which he (and the police officers with whom he collaborated) are unequivocally liable; and instead to repeatedly label him an employee of the state, which has immunity under the 11^th amendment.]

For instance, Durham wishes away the Gottlieb/Himan role in the meeting with Nifong and ex-lab director Brian Meehan, since neither “of the City investigators knew anything at all about DNA testing, let alone the industry customs and standards regarding the proper reporting format of such results. Indeed, Plaintiffs’ allegations make clear that State Prosecutor [sic: District Attorney, or at this stage of the case, lead police investigator] Nifong—not the City investigators—decided not only who would test the DNA, but how those results would be explained to the public, shared with the defense, brought before the grand jury, and presented to the Court.”

The falsely accused players’ attorneys dismiss this argument out of hand, given that “the detectives did not need to be experts in DNA testing to understand the simple conclusion that Plaintiffs’ DNA did not match that found on the rape kit items and, thus, that Plaintiffs could not have raped Mangum in the manner she claimed—a conclusion they already had reached in their investigation.”

Similarly, Durham cites Himan’s admission to Gottlieb and Nifong that no evidence existed to indict Reade Seligmann (“with what?”) to suggest that their officer corps acted without malice. Yet, as the players’ attorneys point out, this isn’t the message the DPD communicated with the grand jury, and so “the fact that the detectives and Nifong were candid with one another about the lack of inculpatory evidence and abundant evidence of innocence does not negate the allegations of malice when each of them took actions to conceal this fact from others.”

And in a line that would draw laughs from anyone remotely associated with the case, Durham concludes that Gottlieb’s myriad instances of misconduct resulted not from his (documented) malice toward Duke students, but instead was “explained by the seriousness of Mangum’s claim.” (This is about the only time at any point in the case that I have encountered an implication of ex-Sgt. Gottlieb as overly conscientious.) Countered the players’ brief, “Even if . . . Gottlieb thought that Mangum was credible and actually believed that she was raped, that still would not justify his actions in ignoring evidence of Plaintiffs’ innocence and trying to frame them for the alleged crime.”

In fact, it seemed at times as if the Durham attorneys shared with their star client a tendency to mislead by omission. The players’ brief caustically observed that “nowhere in their entire brief do the City Defendants mention Gottlieb’s ‘supplemental case notes,’ which Gottlieb fabricated months after the indictments in an attempt to cover up inconsistencies and contradictions in Mangum’s actual statements regarding the incident. Such actions are hardly consistent with the claim that the detectives were simply making a ‘good-faith effort to investigate an allegation of a serious crime,’” as the Durham deems Gottlieb’s (mis)conduct.

According to the Durham standard, it seems, as long as the police deal with a “serious” claim of wrongdoing, they can behave according to virtually any standard. This line of argument is bizarre.

The city’s defense of Cpl. Addison for his parade of false, yet wildly inflammatory, statements against the lacrosse players is even stranger. The Durham brief suggests that as Addison did not participate in the actual investigation, the players can’t show that he knew his statements were false. And if he didn’t know his statements were false, he can’t be held to have acted with malice. This claim, alas, seems to prove the falsely accused players’ case, for if Addison knew nothing about the case, then he “had absolutely no basis for his false media statements that Mangum was ‘brutally raped’ at the party, that the players living at the house (one of whom was [David] Evans) had refused to cooperate with the search warrant, that there was ‘really, really strong physical evidence’ of a crime, and that some or all of the players knew about the attack and were obstructing the investigation, let alone for his ‘Wanted’ poster stating that Mangum was ‘sodomized, raped, assaulted and robbed’ in a ‘horrific crime’ during the team’s party.”

Contradictory Claims

The Durham brief manages to term exculpatory evidence as somehow supportive of a crime. For instance, the brief notes that “the following day, complaining of pain, Mangum told medical personnel at UNC Hospital that she had been attacked the prior day.” The brief doesn’t indicate where this “pain” allegedly was (Mangum’s back), nor that she hadn’t indicated any pain in the back the previous evening, nor that her goal appeared to be to get access to more prescription pain medication, nor that this follow-up trip to a different hospital (where she told yet another different story) would have seemed to a reasonable observer more evidence of Mangum’s mental instability. (The false accuser, by the way, is now facing a mental competency hearing in her murder trial, and the H-S implies that she’s been transferred to a state mental institution.)

And here’s how the Durham brief describes Mangum’s initial interaction with Gottlieb & Himan: “Repeating her earlier allegations, [emphasis added] Mangum told the officers that three men had raped her, and provided physical descriptions.” Mangum, of course, didn’t repeat her “earlier allegations,” since before (or after) March 16, 2006, she never offered a consistent version of events. And the Durham brief doesn’t mention that at least one of her “physical descriptions” from the March 16 meeting didn’t match any player on the lacrosse team, while those descriptions also didn’t even remotely resemble at least two of the people ultimately charged.

Durham’s Alleged Invulnerability

The Durham brief repeats the same argument already rejected by Judge Beaty—namely, that the city has no legal liability because the grand jury indictment “broke any causative link between the City Defendants’ investigative actions and Plaintiffs’ post-indictment arrests.” Indeed, Durham fumed, “the district court never considered” the issue. The players’ attorneys coolly replied that Beaty’s “opinion below devoted five pages to this issue and rejected the City Defendants’ argument because they are alleged to have misled the grand juries.” For nearly half-a-million dollars, you’d think Durham could get more thorough litigators.

In a troubling concession for Durham justice, the city’s attorneys also maintain that it doesn’t matter if Gottlieb and/or Himan lied to the grand jury (as Gottlieb, by his own admission, did): neither they nor the city can be held liable for their behavior.

In their reply, lawyers for the falsely accused players gently observe (quoting from multiple cases) that “case law establishes . . . that the chain of causation is not broken, and a police officer is not relieved of liability, where—as here—the officer is alleged to have ‘misrepresented, withheld, or falsified evidence’ that influenced the grand jury’s, or another independent decision-maker’s, decision to indict or bring charges. In such a case, a ‘prosecutor’s decision to charge, a grand jury’s decision to indict, a prosecutor’s decision not to drop charges but to proceed to trial—none of these decisions will shield a police officer who deliberately supplied misleading information that influenced the decision.’”

Intriguing Claims

(1) The Durham brief maintains that the city has immunity, “because its insurance policies [which, if they exist, would mean that the city waived immunity] do not cover the conduct alleged here.” Yet, the lacrosse players’ attorneys “have identified numerous contradictory statements by the City regarding its insurance coverage, which demonstrate not only that the City does appear to have such coverage, but that summary judgment cannot be granted on this issue prior to discovery.”

(2) The Durham brief also claims that Gottlieb and Himan can’t be held liable for conspiring to produce a false DNA report, since “the DNA report was compiled after Plaintiffs Seligmann and Finnerty had already been indicted—so it could have had no effect on those indictments.” Of course, the duo’s initial meeting with Nifong and Dr. Meehan—in which, by the accounts of Gottlieb, Meehan, and Nifong, they discussed the DNA evidence that would appear in the report—occurred before any indictments, on April 10, 2006.

(3) The Durham brief includes this curious clause: “Corporal Addison is alleged to have made certain statements between March 24 and March 28 as the ‘Durham police spokesperson.’” Are the Durham attorneys suggesting that Addison didn’t, in fact, make the statements? That he lied when he identified himself to reporters as the acting department spokesperson? That he made some statements but not others? Who knows—the brief never says.

In any event, Durham concludes that “a reasonable officer [would] believe, at the time of Addison’s statements . . . , that [he was] not violating any constitutional right.” (Durham’s new motto: Durham, Where Police Officers’ Slander Doesn’t Violate Any Constitutional Right.”) Judge Beaty’s ruling disagreed, noting that “a reasonable official would have known that it violated clearly established constitutional rights to deliberately make false public statements regarding a citizen in connection with an unlawful arrest of that citizen.”

(4) The Durham brief admits that the April 4 photo array was “suggestive,” but contends there was nothing wrong legally with Gottlieb and Nifong conspiring to run a photo ID outside Durham’s procedures, without any fillers, and after Mangum had already failed to identify two of the people ultimately charged. Indeed, the brief breezily continues, “No reasonable police officer would know that . . . arranging a suggestive photo array violated a constitutional right if the resulting identification was not entered into evidence at trial.” In other words: in Durham, it’s OK to arrest people on rigged ID’s, and then simply not produce the evidence of the riggings at trial. And even more chillingly, Durham maintains that “Plaintiffs’ right [and, by inference, the right of all Durham citizens] to be free from ‘malicious prosecution’ is thus hardly ‘beyond debate.’”

This assertion drew a stinging reply from the players’ attorneys. Quoting Beaty’s ruling , they noted that “’there is no question’ that the right not to have ‘government officials deliberately fabricate evidence and use that evidence against a citizen’ was ‘clearly established’ in 2006. For good measure, the players’ brief quotes a 1^st Circuit case, Limone v. Condon, which observed, “Although constitutional interpretation occasionally can prove recondite, some truths are self-evident. This is one such: if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit.” That Durham appears to believe otherwise is remarkable.

(5) And finally, in an attempt to get police supervisors and former City Manager Patrick Baker off the hook, the Durham brief offers the following howler, regarding a late March 2006 meeting between Baker, ex-Police Chief Steven Chalmers, and the police investigators: “even if Baker and Chalmers ‘ordered’ the investigators to ‘expedite’ the case, the much more likely ‘obvious alternative explanation’ is that they were attempting to bring the case to closure, rather than to convict innocent people.” So that’s what was going on—it’s more likely than not that Baker and Chalmers were pressuring Gottlieb and Himan to close the case and ensure that no criminal charges were filed.

Nothing in the exchange between attorneys for Durham and the falsely accused players changes the basic conclusion from Beaty’s March 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. This Court cannot take such a restrictive view of the protections afforded by the Constitution."

Legal Filings

In perhaps the least surprising legal development of the case, a unanimous three-judge panel from the North Carolina Court of Appeals affirmed a lower court's judgment that DNA Security had cause to fire former lab director Brian Meehan.

The court's description of Meehan's activity was blunt. Though his lab's tests indicated not one but two vital findings: "(1) there was no match between any of the specimens provided by the lacrosse players and the alleged victim; and (2) the alleged victim had recent sexual contact with multiple men who were not among the specimens provided," Meehan's "report obscured findings that exculpated the charged players." By using "opaque" language "instead of explicitly stating both conclusions," Meehan produced a report that "obscured the actual test results"--not even mentioning the critical second finding, and mixing in the first finding with additional irrelevant details.

The appeals court found that Meehan had no grounds to dispute his dismissal for just cause, given that he had, under oath, "explicitly stated that he knowingly violated his company's protocol and procedures." Meehan's dubious conduct, in turn, directly harmed his company's bottom line, since "DSI's business model depended on the reliability of the scientific research and its reports used by courts or law enforcement personnel for determining the probable guilt or likely innocence of those being tested." The contract between DSI and Meehan stated that the lab director could be fired for misconduct, and Meehan's behavior fit the bill: "Plaintiff's misconduct involves intentionally obscuring evidence and submitting an incomplete report in a court of law when clear explanation of the test results would have exculpated individuals wrongly charged."

The opinion also quotes at length from Brad Bannon's brutal examination of Meehan at the Dec. 15, 2006 hearing, and includes the following classic Meehan rationalization of his report: "I don't have a legal justification for it or a reason, okay."

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In a partial setback to the three falsely accused players, Judge Beaty declined to certify their appeal of one aspect of his March ruling, namely his finding that as the City could not have delegated its policymaking authority to Nifong, the claims against Nifong in his “official capacity” are claims against the State (forbidden by the 11th amendment), not the City, and therefore "the City cannot be liable under § 1983 for 'official capacity' claims against Defendant Nifong or for alleged conduct by Nifong as a 'policymaker.’" In other words, Beaty found in a bit of torturous reasoning, Nifong had no lawful authority to take over personal command of the police investigation, and even though the city allowed him to do so, no legal claims can be filed against the city for its improper behavior.

Yet Beaty's ruling was something of a mixed bag on this point. He noted that: (1) the players would have an opportunity to appeal this aspect of his decision after the trial; (2) civil rights claims against the city continue to go forward on other grounds; and (3) perhaps most importantly, repeating an item from his March ruling, "the City is still responsible for its own policies that result in Constitutional violations by City employees, even if the City employees were acting in coordination with or at the direction of Nifong." In other words: unless the city can establish that its police officers refused to follow Nifong's unconstitutional orders (which, at least in the case of Sgt. Gottlieb, clearly was not the case), Durham is still on the hook.

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Beaty's ruling also took note of a lengthy filing by Durham to the 4th Circuit, in which the "defendants have attempted to raise additional issues on appeal, beyond the limited denial of qualified immunity." (In a debatable ruling in June, Beaty delayed discovery for the city defendants while this appeal goes forward.) That filing, as reported in the H-S, featured little more than the city's fantastical interpretation of the case, in which city officials did nothing much wrong and the case was handled pretty well.

Also, in the only-in-Durham world: the head of Durham's Department of Social Services director was fired, in part--according to the H-S--because she did not vigorously contest a judge's decision to award temporary custody of two of false accuser/accused murderer Crystal Mangum's children to their biological father.

Remarkable.