Updates from Durham

[Update: Mangum was found guilty of 2nd-degree murder, and sentenced to a minimum of 170 months (14.2 years) in prison.

The Chronicle reports that Mangum's attorney asserted that his client's disastrous decision to testify in her own defense (see below) came against his advice.

The paper has no comment from any member of the Group of 88, nor have I seen any comments elsewhere on the web from any Group members. Presumably few if any of the Group continue to find Mangum credible, but it's worth reiterating that all except Arlie Petters have not in any way distanced themselves from their 2006 statement.]

Mangum has taken the stand in her own defense, and WRAL has the video. Cross-examination starts at the 46.30 mark.

Mangum's basic argument: she's telling the truth; and various police officers, neighbors, friends were all lying; and videos and photos that don't corroborate her version of events are for inexplicable reasons all inaccurate.

Recall: this is the person to which, in different ways, Mike Nifong and the Group of 88 attached their public reputations. Recall: this is the person whose allegations the Group of 88 deemed credible, to the extent they were willing to publicly affirm that something "happened" to her, based solely on her version of events, as presented by police and Samiha Khanna.

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The oft-delayed murder trial of Crystal Mangum is underway in Durham. (WRAL has been live-streaming the proceedings.) Testimony in the first two days has featured evidence of Mangum trying to mislead police about her name—Marcella Mangum was the preferred choice—and (as she did in the lacrosse case after police were called to Kim Roberts’ car) her going limp when handcuffed by police.

A ruling by the judge presiding over the case that prosecutors could introduce evidence of Mangum’s previous arrest—in which she allegedly tried to get a knife to stab her then-boyfriend, Milton Walker—makes a conviction likely. But, then again, this is Durham.

As expected, the Supreme Court declined to hear the appeal filed by Bob Ekstrand on behalf of his three clients. This decision was all but certain once the Court declined to hear the appeal from the falsely accused players.

Limited claims against ex-officers Gottlieb and Himan (from the falsely accused players) and against Duke (from the three former players represented by Ekstrand) are the only remaining matters of civil litigation arising from members of the 2006 team.

There is, however, one potential civil suit that could expose items related to the case. The Herald-Sun has reported that Ekstrand, who’s representing former DPD Sgt. John Shelton (who’s now working for the Durham Co. sheriff’s office), has threatened a suit against Durham for its mistreatment of Shelton.

Ekstrand alleges that the DPD retaliated against Shelton because Shelton—apparently alone among Durham police officers—from the start doubted the veracity of Mangum’s tall tales in the lacrosse case. In another department, Shelton’s prescience would be grounds for praise. But, then again, this is Durham.

Supreme Court Update

For those expecting an analysis of Durham's reply to the cert petition, which originally was due today, the city has obtained an extension from the Supreme Court. The new deadline is August 23.

Classless

[Update, Tuesday, 2.32: I just received the following comment from Kevin Best, UNC's assistant athletic director for communications:

"We have spoken with Alec and he would like to apologize to Duke and the men’s lacrosse team for his inappropriate tweet. It was in poor taste and should not have been made. He removed it shortly after it was posted.

The University of North Carolina congratulates Duke on winning the NCAA men's lacrosse title."

I am grateful to Mr. Best for his reply.]

The on-campus crusade against the 2006 Duke lacrosse team was something of a perfect storm. The critical element was the race/class/gender-obsessed faculty that made up the bulk of the Group of 88. A president unable or unwilling to confront the faculty mob was a necessary ingredient. But the anti-lacrosse contingent also included professors who sought to exploit the affair as part of a longstanding campaign to downgrade the role of athletics at Duke. Figures such as anti-lacrosse fanatic Orin Starn and Peter Wood, whose CCI recommendations for Duke sports were far too extreme even for the Brodhead administration, typified this faction.

Not all universities, then or now, have presidents as cowardly as Richard Brodhead. Unlike Duke, most other universities would have had at least a few voices willing to speak up against the mob from the start. And, perhaps, “activist” faculty at some other universities might have been savvy enough to once reference the presumption of innocence in their public statements, even if they didn’t really mean it. Otherwise, however, I suspect that if the Duke lacrosse case had occurred at Harvard or Cornell or Georgetown or UNC, we would have seen a similar faculty reaction—race/class/gender professors combining with anti-athletics faculty members to exploit the crisis for their own campus agendas.

Perhaps this recognition that their own school’s faculty mob just as easily could have turned against them prompted a degree of empathy from college athletes and coaches at other schools. Stray comments like this one from Dom Starsia stood out from the crowd in this respect.

So too—to a much greater extent—does a recent comment from UNC football player Alec Petrocelli. After this year’s Duke lacrosse team captured the 2013 NCAA championship, Petrocelli tweeted the following item (captured by Jeff Quinton):

I e-mailed UNC athletic director Bubba Cunningham to ask if UNC had a social media policy for its athletes and whether Petrocelli’s words reflected the athletic department’s values. Cunningham did not reply at the time of this post (I had e-mailed him more than 100 hours before the post went live), but the athletic department has since issued a statement, which I included above, in its entirety.*          

Given that his e-mail makes sense only if he believed a rape occurred in 2006, Petrocelli is, to put it mildly, classless; he subsequently deleted his Twitter account. But the statement provides only the latest reminder that there will always be a segment of society that believes the version of events offered by Mike Nifong and the Durham Police Department, regardless of evidence.

As things stand now, the DPD will likely never be held accountable. The 4^th Circuit decision, which largely neutered the lawsuit against Durham, has been appealed to the Supreme Court. (The cert petition filing notice is here.) From a practical standpoint, it’s hard to imagine four justices granting cert: Justices Ginsburg and Sotomayor would seem to sympathize with Judge Gregory’s race-based perspective of U.S. law, and Justices Roberts and Alito tend to adopt reflexively pro-government positions on criminal justices issues. Assuming (a big assumption) that Justices Scalia and Thomas would vote to grant cert, the falsely accused players would then need the votes of Justices Kennedy and one Democratic appointee just to get the case before the Court.

*--edited post to reflect UNC athletic department statement

Carrington Lawsuit Settled

The Carrington lawsuit, the most significant of the lawsuits against Duke, was settled today. No settlement terms were released--but given the overt hostility of the 4th Circuit to the lawsuit, and the ruling by Judge Beaty affirming that the student bulletin and faculty handbook aren't legally worth the paper they're written on, the decision can't be seen as much of a surprise.

The McFadyen lawsuit, for the three plaintiffs represented by Bob Ekstrand, remains alive. This news nonetheless means that chances of Duke being held accountable in court for its mistreatment of its students are very slim indeed.

The 4th Circuit Hearing

[Updated below.]

Earlier this week, Durham went to the 4^th Circuit, in an attempt to terminate the civil suit filed by the falsely accused players—before discovery has even commenced. I had previously speculated that this was something of a longshot effort, given Judge Beaty’s summary of Durham’s highly troubling basic contention: 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.”

After the oral arguments, however, it’s clear that there’s a good chance the suits against the city could come to an end. Two of the judges, Harvie Wilkinson III and Diana Motz, seemed undecided but asked difficult questions of the falsely accused players’ attorney, Christopher Manning. If either Wilkinson or Motz vote with Durham, the case will end, since the third member of the three-judge panel, Roger Gregory, gave every indication of having made up his mind well before the hearing began. Indeed, at times Gregory advanced arguments that went well beyond anything that even Durham’s own attorney offered, even to the point of insinuating that the indictments of Dave Evans, Collin Finnerty, and Reade Seligmann were legitimate.

(The court uploaded the full audio of the proceedings yesterday, and I’ve included clips of some of the hearing’s key segments as links within this post. Audio links, which are in red, will take you to my personal website; click the back arrow to then return to this post.)

The two sides had previewed their arguments in the briefs; Durham attorney Michael Vatis stressed that the indictment by the grand jury shielded the city from liability and that Nifong, in his capacity as prosecutor, rather than Durham city employees made the decision to seek indictments. (Vatis didn’t explain how or why the Durham police allowed Nifong, a county prosecutor, to supervise the police investigation after March 27, 2006.) Christopher Manning, representing the falsely accused players, relied largely on Judge Beaty’s framing of the case, adding that the magnitude of wrongdoing to Durham officials justified the case going forward, at least through discovery.

Vatis did make one quite intriguing statement. After suggesting that there were other alternatives to a civil suit—administrative proceedings, perhaps a criminal investigation—to punish inappropriate behavior by the DPD, he noted that no other inquiry had found wrongdoing by the DPD. He implied that even if discovery occurred, the plaintiffs would find nothing.

Judge Motz asked the relevant follow-up question—had such inquiries actually taken place? After dancing around the issue, Vatis conceded that Durham authorities hadn’t pursued any of these alternative methods. Of course, it was worse than that—in 2007, the city leadership shut down the investigation of the DPD after one hearing, citing an insurance company’s concern that the inquiry might uncover information that would damage the city’s civil case. And now the city cites the fact that its short-circuited police investigation found nothing as a reason that the civil suits lack a factual basis.

Both Wilkinson and Motz appeared to struggle with how the magnitude and the type of wrongdoing by law enforcement made it difficult to find appropriate precedents (for either side) to guide the court. Motz was blunt in her belief that the DPD hadn’t behaved appropriately; Wilkinson pressed Vatis on the seriousness of the allegations. Neither was hostile to Vatis, but neither similarly appeared willing to accept Vatis’ suggestions that nothing much serious had occurred in this case, except perhaps for Nifong’s wrongdoing.

When Manning’s turn came, both Wilkinson and Motz worried about the broader ramifications of the plaintiffs’ position. Even if the falsely accused players had been framed, how could the court draw a line that would not open the way for federal lawsuits from any criminal suspect that thought a police officer looked at him the wrong way? (Wilkinson worried that the question here was “whether a hard case makes some really bad law.”) Manning tried to parry these concerns by noting the extraordinary nature of the misconduct in the lacrosse case, but neither Wilkinson nor Motz seemed convinced (though Wilkinson did suggest that the case should be litigated at the state level if the 4^th Circuit blocked a federal suit). If the falsely accused players do prevail, however, Manning’s uniqueness-of-this-case argument probably would provide the basis.

That left the third member of the three-judge panel, Judge Roger Gregory. During the presentation by the city’s attorney, Judge Gregory contributed little. During the presentation by the lacrosse players’ attorney, Gregory participated actively, sometimes with extremely hostile questions, other times with minimizing remarks about the evidence in the case or the nature of the players’ claims.

Gregory began by mischaracterizing Dr. Meehan’s DNA report, arguing that it only said that no matches existed to lacrosse players, whereas (in the section Meehan and Nifong improperly concealed) it also said that DNA from other, unidentified males was discovered, and it implied (inaccurately) that Dave Evans’ DNA might be a match. How a finding of other males’ DNA but not that of any lacrosse players could in any way be considered consistent with Mangum’s story (that she was raped for 30 minutes by three people who didn’t use condoms, and she went almost immediately thereafter to the hospital) Gregory didn’t say. Manning seemed, perhaps unsurprisingly, rather taken aback with this line of argument.

Echoing Vatis’ argument that the case should be dismissed in part because no police officers were prosecuted, Gregory argued that a claim of conspiracy against Durham Police officers was inappropriate, because “you can’t conspire to do something that’s legal,” and that it certainly wasn’t (as he sounded as if he believed Manning was arguing) “unconstitutional to bring a weak case to prosecution.”

And in his most troubling line of questioning, Gregory very strongly implied (though he never quite came out and said so) that the Durham authorities were within their rights to try and bring the case to trial. Only “in hindsight” did any evidence of innocence emerge, he claimed. He further suggested that the fact that false accuser Crystal Mangum never retracted her charges justified the indictment. In any event, how could the police know that Mangum was lying, Gregory asked, in an almost contemptuous tone. “Does she allege they were there that night?” This is an extraordinary standard by which to evaluate allegations of police misconduct.

Gregory added that, if the suit goes forward, it could set a precedent, including in “urban” areas. Durham, of course, is an urban area.

Contrast Gregory’s oft-repeated description of the allegations in the claim—that the authorities merely moved forward with a “weak” case—with Judge Beaty’s summary of the claims (which, at this stage of the process, are supposed to be accepted at face value): that “government officials intentionally fabricate[d] evidence to frame innocent citizens, even if the evidence [wa]s used to indict and arrest those citizens without probable cause.”

With Gregory—based, at least, on both his tone and his line of questioning—as an all-but-certain vote to end the lawsuit, the only question remaining is whether Wilkinson and Motz will both vote to allow the case to proceed.

[Update, Saturday 12.57pm: Judge Gregory, it should be noted, doesn’t have a reputation for being indifferent to abuses by law enforcement. Indeed, it’s quite the reverse. To take one example: in a high-profile 2011 decision, Henry v. Purnell, he eloquently wrote of the need to allow a § 1983 action filed by an unarmed man who was shot by a police officer to proceed. (The officer unpersuasively claimed he was reaching for his taser, not his gun; the suspect was not killed.) Unlike the lacrosse case, the Henry case was a bit further along—summary judgment, rather than motion to dismiss, and so discovery had already occurred.

In Henry, Gregory made clear that, at the summary judgment stage, the court needed to view the facts “in the light most favorable” to the plaintiff’s claims as true. (His questioning earlier this week, on the other hand, seemed to be construing facts in the light most favorable to the defendants.) In Henry, Gregory accurately noted that courts needed to employ “a test that focuses on the objective legal reasonableness of an official’s acts,” and that no officer could reasonably believe that firing a gun at an unarmed man was constitutional. (His questioning earlier this week, on the other hand, implied that no officer could have realized it was unconstitutional to participate in a conspiracy to frame innocent suspects, as long as in so doing the officer accurately reported the contents of his [manipulated] case file to the prosecutor.) With these tests, Gregory had no doubt that the Henry case needed to go to a jury.

Obviously, a debate can be made about whether a police officer shooting an unarmed man in the heat of the moment or whether police officers, over a period of many months, conspiring to frame innocent men for a crime that never occurred constitutes a greater constitutional violation. But it’s remarkable to see a judge who was so certain that the victim in the first case was entitled to a court hearing seem so certain that the victims in the second did not deserve a day in court.]