Reflections on the Duke Reply

Duke has filed its reply brief in its longshot demand that the court impose sanctions against attorneys representing the unindicted players and terminate the Duke Lawsuit website. Upon review, Powerline was puzzled by the University’s legal strategy:

Setting up this kind of website, and indeed ones that are much more aggressive, is a common thing for plaintiffs to do these days . . . I confess that it has never occurred to me to ask a court to shut such a site down. Lawyers should zealously represent their clients, but it rarely serves a client’s interest to become a laughingstock.

Duke’s lawyers, among whom are Clinton administration stalwarts Jamie Gorelick and Seth Waxman, apparently have no such qualms. They seek an order declaring, among other things, that the plaintiffs’ website violates local rules against extrajudicial attorney statements. Duke acknowledges that the material on the website either quotes or closely paraphrases the allegations contained in the plaintiffs’ complaint. Duke also concedes that the material thus falls within the safe harbor provided by the local rules for attorney comments that convey information in a public record. However, Duke takes the position that the statements nonetheless violate the local rules because they are “incendiary.”

Duke has no basis for reading into the local rule an exception for incendiary statements (or, in this case, statements it simply doesn’t like). Moreover, such an exception likely would be unconstitutionally vague.

At one time, it might have been surprising for a highly-rated university to push for unconstitutional restrictions on free expression. But not anymore and certainly not in the case of an institution like Duke.

As was the case in its initial filing, the Duke brief is notable for what it does not contain: the Duke filing does concede that “there is little precedent” for the brief’s argument, but in fact the reply provides no citation to any specific cases in which a court had constitutionally imposed sanctions against an attorney for a website or a press conference announcing the filing of a lawsuit. It’s difficult in any instance to get a court to impose sanctions. But it’s next to impossible when the party can’t even come up with one precedent to justify its demand.

The Duke position was a weak one from the start: the University’s claim, again, was that the press conference announcing the lawsuit and the Duke Lawsuit website violates Rule 3.6 of the North Carolina ethics code (which governs pre-trial publicity). That rule explicitly allows attorneys to comment on briefs and other court actions. It also includes a safe-harbor provision, which allows lawyers to address (such as, to take the most recent permutation, former New York Times and current SI columnist Selena Roberts accusing the plaintiffs of “irrefutable evidence of misogyny and race baiting”) unfavorable publicity not initiated by their clients. Finally, the rule’s provisions are not applicable to non-attorneys.

Duke’s demand to shutter the Duke Lawsuit website was particularly odd given that the University has its own website, filled with links to prejudicial statements about the lacrosse players. To take one example, here are a few excerpts from a party to the case, President Richard Brodhead, in his April 5, 2006 remarks:

We can’t be surprised at the outpouring of outrage [The “outrage,” at that point, had included “castrate” signs and “wanted” posters.] . . .

This episode has touched off angers, fears, resentments, and suspicions that range far beyond this immediate cause. It has done so because the episode has brought to glaring visibility underlying issues that have been of concern on this campus and in this town for some time—issues that are not unique to Duke or Durham but that have been brought to the fore in our midst. They include concerns of women about sexual coercion and assault. They include concerns about the culture of certain student groups that regularly abuse alcohol and the attitudes these groups promote. They include concerns about the survival of the legacy of racism, the most hateful feature American history has produced. [A University president linking the plaintiffs to the legacy of racism could be considered a highly inflammatory statement.] . . .

The objection of our East Campus neighbors was a reaction to an attitude of arrogant inconsiderateness that reached its peak in the alleged event but that had long preceded it. [Brodhead never has explained how “an attitude of arrogant inconsiderateness” could be reflected in an alleged event.] . . .

Quite separate from the criminal allegations, there have been reports of persistent problems involving the men’s lacrosse team, including racist language. [Neither Brodhead nor anyone at Duke has ever revealed what these “reports . . . including racist language” entailed. The Coleman Committee found no evidence to substantiate the president’s assertion, which he presented as an unequivocal fact.]

Certainly those remarks—which Brodhead has never retracted, and for which he has never issued an apology—are far more “incendiary” about parties to the case than anything on the Duke Lawsuit website.

The University’s reply, however, deems acceptable the Duke website that links to these remarks, since “the Duke webpage cited by Plaintiffs is an archival site that has not posted any new information since May 2007.” If that argument sounds familiar, it should: it’s essentially the rationalization that Mike Nifong made for his pre-primary publicity spree. Because he hadn’t officially charged anyone, Nifong mused, Rule 3.6 didn’t apply to his public remarks. The DHC panel emphatically rejected his claims. That ruling, of course, isn’t binding on a federal court. But since Duke’s original brief explicitly cited North Carolina precedent, it’s hard to see how the University’s attorneys expect the court to simply ignore the Nifong finding.

The Duke Lawsuit website has links to other sites, including DIW. This setup also drew criticism from the Duke attorneys: because the lawsuit site has “links to community blogs critical of the Duke Defendants,” the lacrosse players’ attorneys have “responsibility for [the blogs’] content.”

The idea that linking to a blog implies responsibility for all of a blog’s contents represents a fundamental misunderstanding of how the blogosphere functions. It’s also worth examining the Duke reply’s claims about “community blog” DIW as “critical of the Duke Defendants.”

There certainly are those whose conduct DIW has consistently criticized—Wahneema Lubiano, for instance; or William Chafe; or Mark Anthony (“thugniggaintellectual”) Neal; or Charlie (“McCarthy-lite”) Piot. None of these figures, however, are defendants in the lawsuit. The “Duke Defendants” are the University, Duke Hospital, Brodhead, Peter Lange, Larry Moneta, Tallman Trask, John Burness, Sue Wasiolek, Matthew Drummond, Robert Dean, Kate Hendricks, Aaron Graves, Theresa Arico, and Tara Levicy.

Of that group, I’ve never said anything critical—indeed, have never said anything much at all—about Drummond, Dean, Hendricks, or Graves. The blog has generally praised the efforts of Peter Lange, and had good things to say about Tallman Trask’s remarks in the March 30, 2006 Academic Council meeting. On several occasions, I thanked John Burness for his assistance in responding to my inquiries; and rarely, if ever, criticized his performance. DIW has, of course, criticized Brodhead, and sometimes sharply so—for among other things his refusal to enforce the terms of the Faculty Handbook, and for his inconsistency in demanding due process for all Duke students, not just those in politically correct cases. But the blog has also praised the president (as in his Law School apology or in his January request that Reade Seligmann and Collin Finnerty return to school). And while DIW has been consistently critical of the performances of Tara Levicy and Larry Moneta, I’m unaware of any publication about the case that has reviewed the record of either figure positively.

The Duke reply’s description of the blog, therefore, is incomplete at best and inaccurate at worst—perhaps explaining why DIW received praise in, among other publications, New York, cnnsi, Slate, Volokh Conspiracy, the Wall Street Journal, the Chicago Sports Review, the New York Sun, New Criterion, and the Worcester Telegram. This issue is a comparatively minor one in the overall filing, but it gives a sense of just how far the Duke attorneys needed to stretch the facts to make their case.

Given the high quality of Duke’s counsel, what motived the filing? A DIW commenter offered this analysis, which seems to me astute:

As a litigator, my reaction to Duke’s motion is somewhat different from many on the blogs. I give the Duke lawyers plenty of credit (I learned long ago that underestimating or dismissing opposing counsel’s apparent “silly” motion strategies is potentially case killing). The Duke lawyers are smart as hell and must have thought very carefully before filing this motion. My intuitive sense of their true objective: to feel out the judge for receptiveness to limiting discovery. The “close the website” motion will provide both sides some insight into whether the assigned judge will be pro-protective order, or pro-open, public access.

A protective order under Rule 26 of the Federal Rules of Civil Procedure allows a party opposing disclosure of documents, information, or testimony to move for an order, after showing “good cause”, that the subject information should not properly be within the public documents realm.

It is normally an onerous burden to carry, but it is also judge-specific. Moreover, a judge has very wide discretion in ruling on discovery motions, and such rulings are rarely overturned on appeal.

The defendants have placed front and center the judge’s inclinations in this regard. Viewed through this lens, the motion is very smart litigation strategy. If the judge summarily rejects the motion, then I wouldn’t be surprised to see the Duke defendants aggressively seeking a settlement. If the motion is granted, the Duke defendants have some hope that they can move forward with a reasonable likelihood of success in obtaining a protective order that would prevent damaging documents and deposition testimony from being made public.

In either case, and if I am correct, it seems to me that Duke has much to fear if discovery proceeds without protective order limitations.

To paraphrase former Supreme Court Justice Louis Brandeis, “Sunlight is the best disinfectant.” Given their record over the past two years, it’s easy to understand why some of the Duke Defendants would prefer to remain in the shade.

The Durham Justice System: A "State of Emergency"

A comprehensive late 2007 report on the Durham Police Department's handling of gang-related activity by Deborah Lamm Weisel and Buddy Howell:

Among its conclusions--none of which would surprise anyone who observed the DPD's performance from March 2006 through January 2007:

Durham has a long-standing reputation as a high-crime city with well-entrenched gangs. Further, the economic needs of Durham’s citizens are longterm and complex, and poverty is deeply rooted in an on-going discourse about race – a discourse that may become more divisive as the population continues to diversify . . .

Durham has a highly politicized environment. During this study, we saw extensive micromanagement of government agencies by elected officials – a political style more typical of very large mayoral cities in the U.S. . . .

A major finding in our assessment is the critical need to build public confidence in the justice system and its response to gangs. While our assessment was entirely detached from the Duke lacrosse scandal, we cannot discount its contribution to further deterioration in public confidence.

Given the backlog of prosecutions, Weisel and Howell and write, "The situation in Durham is egregious and tantamount to a state of emergency. We recommend that the City and County of Durham ask the Governor to provide immediate if temporary assistance in terms of judges, prosecutors, and other court personnel to redress the problem - particularly for gang-related offenders."

Selena Roberts: Still Misleading

In the pre-internet world, tracking down a New York Times article from two years ago would have taken some time and effort. An interested reader would have to go to his or her library and scroll through reels of microfilm. Now, however, finding a March 31, 2006 article is as easy as clicking here.

It appears as if ex-Times sports columnist Selena Roberts hasn’t quite adjusted to the internet era. It’s hard to come up with another explanation for her offering wildly misleading remarks about her work in a recent interview with The Big Lead. She described her March 31, 2006 column in the following way: “Basically, I wrote that a crime didn’t have to occur for us to inspect the irrefutable evidence of misogyny and race baiting that went on that night . . . Obviously, some segments of the Duke lacrosse crowd did not enjoy the scrutiny of their world.”

Really? Here are some excerpts from that column:

“The season is over, but the paradox lives on in Duke’s lacrosse team, a group of privileged players of fine pedigree entangled in a night that threatens to belie their social standing as human beings.”

“Whatever the root, there is a common thread: a desire for teammates to exploit the vulnerable without heeding a conscience.”

“Does President Brodhead dare to confront the culture behind the lacrosse team’s code of silence or would he fear being ridiculed as a snitch?”

“Something happened March 13, when a woman, hired to dance at a private party, alleged that three lacrosse players sexually assaulted her in a bathroom for 30 minutes.” (This statement, as the Attorney General’s investigation subsequently discovered, was false—unless, of course, Roberts is now claiming that when she wrote “something happened,” she meant the filing of a false police report.)

“According to reported court documents, she was raped, robbed, strangled and was the victim of a hate crime. She was also reportedly treated at a hospital for vaginal and anal injuries consistent with sexual assault and rape.” (This statement drew a rebuke from even the Times’ milquetoast then-public editor, Byron Calame, who noted that journalists do not consider search warrants to be “court documents.” The Times ran a brief correction a week after Roberts’ column appeared.)

“Players have been forced to give up their DNA, but to the dismay of investigators, none have come forward to reveal an eyewitness account.” (This statement was false, as Roberts would have known had she read either the captains’ March 28, 2006 statement or examined the defense attorneys’ subsequent press conference. Both events, which described the captains’ cooperation with police, occurred before she penned her column. The Times never ran a correction.)

After asking, “Why is it so hard to gather the facts? Why is any whisper of a detail akin to snitching?” Roberts produced an answer from an assistant professor at John Jay College: “The bottom line is, your self-esteem is more valuable to you than someone else’s life.”

Can Roberts seriously claim that an average Times reader would take away from the quotes above a conviction that her column’s argument was based on a premise that “a crime didn’t have to occur”?

In her interview with The Big Lead, Roberts complained that she received criticism from “Duke-player supporters who felt threatened when someone, whether it was me or another columnist, started poking at the culture of affluence and entitlement.”

In fact, the criticism of Roberts’ work extended to the leadership of her former paper. In a summer 2007 interview with American Journalism Review, Times executive editor Bill Keller admitted, “I did think, and I told the columnists, that there was a tendency in a couple of places to moralize before the evidence was all in, and not to give adequate weight to the presumption of innocence... As a generalization, I’m not dismissive of the people who think that what appeared in the sports columns kind of contributed to a sense that the Times declared these guys guilty.”

More recently, Roberts’ direct supervisor at the Times, sports editor Tom Jolly, stated, “I very much regret my failure to recognize that we were dealing with a rogue prosecutor and that the university had compounded his bravado by overreacting to the initial reports about the case . . . The bottom line is that I’d do some things differently, and that knowledge gained by hindsight has informed our approach to other stories since then.”

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Duke is now attempting to have sanctions imposed on the attorneys representing the unindicted players, alleging that lead attorney Charles Cooper violated the pre-trial publicity guidelines of Rule 3.6. Cooper’s response is here; given that Duke’s filing failed to cite even one case in its favor, I’d say the chances of Duke prevailing at this stage are pretty slim.

But beyond the weaknesses of Duke’s motion overall, Rule 3.6 has a safe harbor provision regarding pre-trial publicity: it states that “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client.”

Most people would consider a former Times and current Sports Illustrated columnist accusing the lacrosse players of “misogyny and race baiting” as creating an “undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client.” This safe harbor would apply even when the prejudicial remarks come from a figure who, for anyone who followed the lacrosse case closely, sacrificed her journalistic credibility in an attempt to advance a preconceived ideological agenda.

Bannon at Campbell Law Day

DIW readers in North Carolina might want to set aside time this Saturday morning, for Brad Bannon's appearance as keynote speaker for Campbell Law School's Law Day. The announcement:

Campbell Law School’s 31st Annual Law Day to Feature Distinguished Alumni Brad Bannon and Lt. Col. Stuart Couch
03-11-2008

WHO: Mr. Brad Bannon, a 1997 graduate of Campbell Law School is known for his work in the 2006-07 Duke Lacrosse case, which garnered national headlines. Bannon served as a defense attorney and ultimately changed the course of case events with his DNA discovery. He was also an expert witness during testimony that led to the removal and disbarring of former Durham County District Attorney Mike Nifong. Bannon currently serves as an associate at Cheshire, Parker, Schneider, Bryan & Vitale in Raleigh.

WHAT: The Norman Adrian Wiggins School of Law at Campbell University will host Brad Bannon as the keynote speaker for the morning family portion of its 2008 Law Day.

WHEN: Saturday, March 15, 10:00 a.m.
(Interviews available)

WHERE: D. Rich Hall
Turner Auditorium
Campbell University
Buies Creek, NC 27506

Glossary

This blog began in an attempt to analyze the twin scandals of spring 2006: the transparent signs of Mike Nifong’s prosecutorial misconduct; and the decision of Duke faculty activists—personified by the Group of 88—to set aside the academy’s traditional fidelity to due process and instead advance their personal, pedagogical, of ideological agendas on the backs of their own students.

Gradually, the blog expanded to include coverage of the media, the Duke administration, the intersection between politics and the law, the role of the police, and the dubious record of the SANE nurse.

The blog provided live coverage from North Carolina and analysis of the fall 2006 hearings and all major 2007 events related to the case:

• Nifong criminal contempt trial, coverage and analysis.

• Nifong ethics hearing, coverage and analysis, along with video clips of key events.
  

• Exoneration, coverage and analysis.

• Fall 2006 court proceedings, coverage and analysis.

The blog also summarized and analyzed:

• all major defense motions;

• all depositions in the Nifong ethics proceeding;

• all filings by the Bar and Nifong in the ethics proceeding;

• the October 2007 civil suit filing, and the defendants’ responses;
  

• the reports of the city of Durham and the Attorney General on the case.

The blog provided the most comprehensive analysis of the activities of:

• the lead police officer on the case, Sgt. Mark Gottlieb;

• the original judge assigned to the case, Ron Stephens;

• the SANE nurse-in-training, Tara Levicy (in a three-part series)

• lineup procedures elsewhere in North Carolina.

The blog’s media analysis included the only overviews of coverage by:

• Washington Post

• AP

• sports reporters and columnists

• NPR

• cnnsi.com and espn.com

• cable news commentator Wendy Murphy

• cable news commentator Georgia Goslee

• cable news host Nancy Grace.

On the media front, the blog also featured regular critiques of the pro-Nifong coverage on the New York Times (ranging from columnists Selena Roberts and Harvey Araton to reporter Duff Wilson and public editor Byron Calame) and the Durham Herald-Sun (including the work of editor Bob Ashley and reporter John Stevenson).

The blog provided extensive coverage and analysis of the Duke faculty’s rush to judgment, including:

• an analysis of the pedagogical interests of the Group of 88;

• the case-related writings of anti-lacrosse extremists Peter Wood and Karla Holloway;

• the shifting rationales of Group member Cathy Davidson;

• the spring 2007 Group rationalizations;

• a profile of the spring 2007 “clarifying” faculty;

• a spring 2007 class that assigned a book claiming the rape occurred.

In a 13-part series, the blog profiled some of the Group of 88 members, explaining the connection between their scholarship and their guilt-presuming approach to the case.

The blog also explored the administration’s:

• late March/early April 2006 conduct;

• tortured rationales for the Group of 88 statement;

• selective support for Duke students’ due process rights;

• failed “Campus Culture Initiative,” an attempt to implement the Group of 88’s agenda through administrative fiat.

The blog highlighted the most outrageous quotes of the case; along with some of the best work.

The blog was the first to report several case-related items, including:

• Mike Nifong loaning his campaign nearly $30,000 at about the same time he took over the lacrosse case, six weeks before the May 2006 primary;
  

• The full details of Collin Finnerty’s alibi;

• The first publication of Crystal Mangum’s March 16, 2006 police photo, which showed that she had no bruises, despite police claims;

• The revelation that Nifong citizens’ committee co-chair Victoria Peterson had advocated burning down the lacrosse captains’ house;

• The refusal of the state NAACP’s case monitor and legal redress committee chair to challenge in any way Nifong’s procedural irregularities;

• The full details of the potbangers’ late March/early April 2006 crusade;

• Group of 88 member Grant Farred publicly asserting that unnamed lacrosse players committed perjury;

• Uncovering that despite the statement’s claims, five academic departments had, in fact, not endorsed the Group of 88’s ad;

• Duke’s suppression of a lacrosse team-led October 2006 voter registration drive.

Blog Statistics

Between August 28, 2006, and December 11, 2007, when the blog went on hiatus, Durham-in-Wonderland had 3,517,151 unique visitors and 6,248,329 hits.

These visitors came from all 50 states and from 134 countries (Fiji, Anguilla, Cuba, Saint Kitts & Nevitts, Grenada, Guatemala, Bolivia, Paraguay, Antigua and Barbuda, Northern Mariana Islands, Lebanon, Yemen, Qatar, Ghana, Benin, Nigeria, Mali, Sri Lanka, Mongolia, Cambodia, Pakistan, Laos, Malawi, Dominican Republic, Luxembourg, Moldova, Bulgaria, Azerbaijan, Kuwait, Ethiopia, Kenya, Senegal, Djibouti, Honduras, Iceland, Malta, Kyrgyzstan, Afghanistan, Iran, Sri Lanka, Nigeria, Slovenia, Zambia, Vanuatu, Cayman Islands, Bermuda, Netherlands Antilles, Ecuador, Argentina, Ireland, Denmark, Sweden, Ukraine, Poland, Latvia, Estonia, Slovakia, Croatia, Montenegro, Uganda, Kenya, Bahrain, Pakistan, Palau, Taiwan, Cambodia, Nepal, Canada, Mexico, Costa Rica, El Salvador, Panama, Jamaica, Bahamas, Brazil, Argentina, Chile, Peru, Colombia, Iceland, Ireland, Britain, Belgium, France, Germany, Switzerland, Austria, Norway, Sweden, Finland, Russia, Ukraine, Czech Republic, Hungary, Romania, Serbia, Greece, Cyprus, Turkey, Italy, Spain, Portugal, Israel, Egypt, Jordan, Iraq, Saudi Arabia, United Arab Emirates, India, Kazakhstan, Thailand, Malaysia, Singapore, Brunei, Indonesia, Australia, New Zealand, the Philippines, Vietnam, China, South Korea, Japan, South Africa, Aruba, Dominica, Venezuela, Morocco, Lithuania, Cote D’Ivoire, Zimbabwe, and Gambia).

[Updated, March 6:] The blog had 1,173 posts, totaling 923,723 words. It attracted just over 100,000 comments.

Gottlieb Is Out

The practitioner of "straight-from-memory" notes and wildly inaccurate grand jury testimony has left the Durham Police Department. The N&O's Stan Chambers reports that Sunday was Mark Gottlieb's last day on the job. He resigned for what the DPD termed personal reasons.

More on Duke's Peculiar Motion

As noted below, yesterday Duke filed a motion requesting that the "Duke Lawsuit" site be shut down, and also suggesting that the unindicted players' lead attorney, Chuck Cooper, violated ethics rules in holding a Washington, DC press conference to announce the suit.

The stated rationale for the request is Duke's alleged concern that the publicity generated from the press conference could poison a jury pool in Greensboro, North Carolina. Leaving aside the fact that the ethics rule in question seems to allow the kind of remarks made by Cooper--which were designed to counter negative publicity "not initiated by the lawyer or the lawyer's client"--there are certainly less drastic ways (voir dire comes to mind) than a gag order or sanctions to deal with publicity from a Washington, DC press conference.

Even stranger, however, is Duke's demand that the website be shut down. Duke has its own website on the case, placing its own positive spin on the actions of the administration that are at issue in the civil suit. For instance, one item cited in the lawsuit is Richard Brodhead's April 5, 2006 decision to cancel the lacrosse season. The Duke website claims that "concerns including the safety of Duke’s players" played a role in Brodhead's decision. Yet there is no contemporaneous evidence--at least available in the public record--to bolster that assertion.

Similarly, the website includes a link to Brodhead's statement announcing the season's cancellation--which doesn't mention the players' (and now plaintiffs') safety--but does state that Brodhead's knowledge of "reports of persistent problems involving the men’s lacrosse team, including racist language." Yet, as the Coleman Committee subsequently discovered, there was no evidence to justify an assertion of "persistent problems . . . including racist language" [emphasis added] on the part of team members. Duke keeping this statement on its website, it would seem, could do far more to bias a potential jury pool against the lacrosse players than anything on the Duke Lawsuit website could do in the other direction.

So, Duke's official position is: it should be allowed to maintain a website that (a) contains a highly damaging false assertion on the players' character by the president; and (b) places a pro-Duke and seemingly unsupported spin on one of the items in the lawsuit that's--but the unindicted players should be forced to take down a website whose most prominent item is a copy of the civil suit itself.

That is, indeed, a most peculiar standard.

Peculiar Duke Motion

In a peculiar move, Duke has filed a motion demanding that the Duke Lawsuit site (which contains copies of the civil suit by the unindicted players, as well as links to press coverage) be shut down. The motion claims that the website violates rules against pretrial publicity.

Six pages into the motion, however, Duke's attorneys concede that the ethics rule in question "does not address whether creating a website or holding a press conference would be violations." (One would think that the University would have some precedent for such an unusual request.) Moreover, the ethics rules specifically allow attorneys to make public statements countering negative publicity "not initiated by the lawyer or the lawyer's client."

Given the copious negative statements by Duke officials and especially by Duke faculty members about the unindicted lacrosse players, it's hard to imagine a clearer example of negative publicity "not initiated by the lawyer or the lawyer's client." It's not hard, however, to imagine why Duke would want to ensure that the lawsuit receives as little publicity as possible.

Lawsuit Q&A

Q: What are the most troubling items in the lawsuits?

A: Legally, Duke seems to be most vulnerable on two items:

1.) The FERPA claim—that someone at Duke gave the Durham Police federally protected student information (student keycard records) and then Duke, at the very least, remained silent as (a) Nifong subpoenaed these records, after-the-fact; and (b) the court ruled that Nifong shouldn't have access to them.

2.) The failure to enforce its anti-harassment policy. Friday's lawsuit recounts in considerable detail the way in which various professors and (in some cases) students violated the policy in their behavior toward the lacrosse players; despite repeated requests from representatives of the team that Duke enforce its policy, the University, it appears, chose not to do so.

In terms of policy, the two most troubling allegations are: (a) the assertion that, in a campus disciplinary proceeding on a wholly unrelated matter, Matt Wilson was asked by Duke representatives about the party; (b) the claim that Duke pressured its own police officers to modify their reports in such a way to make it appear as if a crime could have occurred.

Q: Why are there two lawsuits?

A: In part because the students in the Ekstrand lawsuit suffered unique, individual harm—Ryan McFadyen through the release of his e-mail, Matt Wilson through what appears to have been disproportionate punishment by Duke and abuse of his campus disciplinary process.

Q: What's the difference between the two suits?

A: For the most part, the suits are directed at the same people. The Ekstrand suit also names DNA Security and Dr. Brian Meehan, but it seems to me unlikely that a suit against either will survive a motion for summary judgment.

The lawsuit filed last week goes into somewhat more detail about Duke's responsibility for the dubious record of Tara Levicy. Both lawsuits touch on, in somewhat different but complementary ways, the haphazard manner in which Duke appears to have dealt with FERPA-related issues.

Q: What is Duke's likely response?

A: I suspect that the response (which is due in around three months) will revolve around three points:

1.) It was all Nifong's fault, and so any civil suit should be directed only at him.

2.) Even if the players suffered harm, they didn't suffer that much harm, and whatever harm that did occur was unintentional.

3.) Perhaps some Duke professors (Reeve Huston, Grant Farred) did behave inappropriately, and perhaps some Duke rules (like prohibiting departmental funds paying for political ads, or requiring that departmental endorsements of ads come from actual votes of the department) were broken, and perhaps some Duke employees (like Tara Levicy) did some improper things. But the administration can't be held responsible for the behavior of individual professors or the wrongdoing of individual employees.

Q: Why didn't Duke settle?

A: That question is very hard to answer. Despite BOT chairman Bob Steel's commendable commitment to transparency in his position as undersecretary of the treasury, in dealing with the aftermath of the lacrosse case, the Brodhead administration has embarked upon a policy widely ridiculed on the Liestoppers forum as "moveon.duke"—i.e., there will be no investigation (or even critical self-reflection) into the conduct of either the administration or especially the faculty.

Judged strictly from the standpoint of the Brodhead administration's self-interest, this approach is unsurprising. The quickest way for a university president to be deposed is to experience a faculty revolt (think Larry Summers). Any inquiry into how the faculty behaved and why so many rushed to judgment would, at the least, ask some hard questions about one-sidedness in Duke's personnel policy and, at the most, recommend punishment for those professors who violated the Faculty Handbook. Either outcome would surely trigger faculty unrest. Better, from Brodhead's perspective, to do nothing.

The drawback with this policy, however, is its expense: a civil suit—complete with discovery and depositions—is the functional equivalent of an inquiry into Duke's conduct in the case. Thus far, then, Duke has settled all civil suits before the discovery phase.

It's unclear why Duke has elected to change its policy now: when it previously settled with the Dowds, the falsely accused players, and former coach Mike Pressler, the University surely knew that a suit from the unindicted players was likely.

Q: What's next?

A: As with the falsely accused players' civil suits against Nifong, the city of Durham, and DNA Security, Duke and Durham have 12 weeks to respond; both sides then get a chance for an additional filing.

At that point, the case would go before a judge to consider a motion to dismiss. Keeping in mind that, at that stage, all facts of the case must be considered in the light most favorable to the plaintiffs, it seems unlikely that Duke and at least Sgt. Gottlieb and Cpl. Addison could prevail in the motion.

Duke then would have to choose between settling and allowing discovery to proceed.

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We're around two months away from the next stage of the civil suit against the city, DNA Security, and Nifong; therefore, the blog will return to hiatus, but when the next filings are made, I'll have some analysis.

The Herald-Sun--Unsurprisingly--Defends the Status Quo

In a development that would surprise only those who have spent the last two years living under a rock, the Bob Ashley-led Herald-Sun editorial board has criticized the lawsuit filed by the unindicted players.

Ashley & Co. condescendingly note that members of the team "went through some pretty tough times"—a development that would puzzle those who only read the Herald-Sun, which has never mentioned any such events before yesterday's editorial. The editorial also bizarrely asserts that the players were "probably criticized and ostracized by some on campus." Probably? Does Ashley doubt the claim?

The H-S legal/editorial team, however, reasons that the lawsuit "almost seems to trivialize the concept of damages."

It's worth evaluating Ashley by his own standards. In a summer 2007 interview, he described the paper's editorial performance in the following manner: "We were opinionated, but we were fair."

That record included the following March 28, 2006 editorial (which Ashley defended in an interview with the Chronicle):

When police officers arrived at the house with a search warrant on March 16, none of the players would cooperate with the investigation [sic] . . . The allegations of rape bring the students’ arrogant frat-boy culture to a whole new, sickening level. ‘Get a conscience, not a lawyer,’ read [potbangers’] signs waved in front of the house on Sunday. We agree that the alleged crime isn’t the only outrage. It’s also outrageous that not a single person who was in the house felt compelled to step forward and tell the truth about what happened [sic].

Ashley, in short, doesn't seem to be someone particularly well-qualified to evaluate fairness.

[Update, 9.30am ET]: As a reminder that the best paper in Durham isn't the H-S, Kristin Butler pens yet another must-read column. Her conclusion on the suit:

Don't expect admins to acknowledge that is was their unique combination of ignorance, arrogance and denial that brought us to this point.

But the inconvenient and unavoidable truth now seems to be that in his haste to avoid the perception "that a well-connected institution was improperly attempting to influence the judicial process" back in March 2006, Brodhead created many more problems than he solved.

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In their apologia for the Group of 88's statement, the "clarifying" faculty decried—without providing any evidence—an atmosphere that allowed "sexual violence to be so prevalent on campus."

In a stunning piece for City Journal, Heather McDonald deconstructs the assumptions behind this claim. Since the late 1980s, ideologues have claimed that between 20 and 25 percent of college women will be victims of sexual assault. That figure, McDonald notes, would imply "a crime wave of unprecedented proportions"—ten times the rate of all violent crimes in violence-ridden Detroit.

The lack of any evidence to corroborate their assertions, McDonald observes, doesn't deter ideologues like the "clarifying" faculty. Instead, it means "that the abuse of coeds is worse than anyone had ever imagined. It means that consultants and counselors need more funding to persuade student rape victims to break the silence of their suffering."

And, of course, more faculty who think like the Group of 88.

News from Brown

Stu Woo reports on Reade Seligmann's first game at Brown; Seligmann had a goal and an assist--and received strong applause from the crowd--as Brown beat Lehigh, 10-4.

New Revelations from the Civil Suits

At this stage of events, it would seem unlikely that any more new items would appear. But, of course, that’s not the case. Both the lawsuit filed last week on behalf of 38 players and Bob Ekstrand’s December lawsuit, filed on behalf of Ryan McFadyen, Matt Wilson, and Breck Archer, brought a host of new information to the table.

Perhaps the two most significant items, one from each lawsuit:

1.) The Day memo

In May 2006, the Bowen/Chambers report—whose chief motivation appeared to be negating the Coleman Committee’s largely positive portrayal of the lacrosse players—inadvertently revealed that Duke Police Officer Christopher Day had penned a report, from the night of the party, stating that a Durham Police officer had told his superiors that Crystal Mangum had claimed that 20 people raped her. The Day report suggested that Mangum was—to put it charitably—a less than reliable complainant.

Day later filed an “amendment” casting doubt on his initial report’s reliability. Yet, as we know now, his first report was correct: as the Nifong ethics trial depositions revealed, Sgt. John Shelton had just the conversation on which Day reported.

Friday’s filing makes the explosive claim: “Once the case exploded into public view on March 24, however, Duke still did not produce Officer Day’s report to the lacrosse players or the public. On the contrary, on information and belief, Duke actively took steps to suppress this report, to silence Officer Day, and later (when the existence of Day’s report became public) to discredit the report.”

2.) The Wilson hearing

The Ekstrand lawsuit discusses the highly questionable Duke judicial inquiry into lacrosse player Matt Wilson. In early summer 2006, Wilson had a DUI—outside of Durham. The Duke judicial code contained no mention of students being brought up on campus charges for alcohol-related offenses committed beyond Durham; and, the lawsuit points out, no evidence exists that Duke has brought up students on such charges in the past.

In Wilson’s case, however, he was brought before Dean Stephen Bryan’s panel, and suspended from school. According to the lawsuit, Wilson’s father was told that the University decided to act because Wilson was a lacrosse player.

Even more problematic were the events of Wilson’s hearing. Richard Brodhead had suggested that any investigation by Duke into events of the party would be tantamount to obstruction of justice. Yet at his hearing, Wilson was asked about the events of the party—even though these events had nothing to do with the charges the tribunal was considering.

By its own standards, then, Duke obstructed justice by interrogating Wilson.

Other new items:

1.) Gottlieb on the case: March 15, 2006

One mystery of the case is how, exactly, Mangum’s complaint wound up in the lap of Duke-hating Sgt. Mark Gottlieb. Gottlieb had been reassigned away from dealing with Duke students (because of his pattern of abusive behavior towards them), and was involved with the property crimes, not the sex crimes, unit of the DPD.

Friday’s lawsuit provides the most convincing explanation of this conundrum: to Mangum on March 15, this wasn’t a sexual assault case at all. Instead, it was a robbery case, with the sole suspect Kim Roberts. Mangum informed Duke Police Officer B.S. Jones that she wanted to file charges against Roberts. And so, the suit contends, “In response to this phone call from Mangum, Jones referred Mangum’s case to Sergeant Mark Gottlieb, who was in charge of Property Crimes for District 2 of the Durham police.”

Only in Durham.

2.) In-class harassment: March 24, 2006

Until now, the earliest known date of in-class harassment by a Duke professor was on March 27, when History professor Reeve Huston shared the results of his “research” with his class: a sexual assault—complete with “ejaculation”—took place. The six lacrosse players in Huston’s class walked out of the proceedings. (Huston has refused repeated requests for comment on his behavior.)

According to Friday’s lawsuit, however, the first in-class harassment actually occurred on March 24—or the day after the initial press reports about the fraudulent non-testimonial order. The lawsuit notes,

Already on Friday, March 24, at least one lacrosse player, Peter Lamade, was subjected to in-class harassment by his professor before his peers. This would be the first of many such incidents in the ensuing weeks, as the campus atmosphere, exacerbated by the vitriolic harassment of the activist professors and student protestors, became hostile and intolerable to the lacrosse team.

3.) The parents’ meeting: March 25, 2006

Duke never investigated the claims of in-class harassment—even after administrators received reports of improper faculty behavior at an April 6, 2006 meeting with coaches. Friday’s lawsuit makes clear that parents had pressed for Duke to enforce its own procedures—but that the University had refused to do so:

The parents asked Moneta to remind professors of Duke’s policy . . . prohibiting harassment of students, including in-class harassment of students by professors. Moneta refused, even though, as noted above, at least one lacrosse player had been the subject of such in-class harassment the day before.

4.) FERPA: April 5, 2006

One of the most serious allegations in Friday’s lawsuit involves the University’s apparent decision to share student keycode information with the Durham Police. If true, this act would have violated federal law (the so-called FERPA). For those outside the academy: colleges and universities take FERPA very seriously. Universities might ignore media criticism, or even alumni criticism, but they live in (justified) terror of federal inquiries.

Yet, as the Ekstrand lawsuit points out, Duke was aware of its obligations under FERPA in other ways. The University wanted to be able to get the p.r. benefit from its decision to suspend Ryan McFadyen. Yet student disciplinary records cannot be publicly revealed without the student signing a FERPA waiver. On the chaotic day of April 5—when Brodhead canceled the season and fired Coach Pressler—university officials nonetheless tracked down McFadyen to get him to sign a waiver. Though they had time to do so, they didn’t make any effort to ask him about the context of his e-mail.

5.) Duke/Durham Police

A consistent refrain from the Brodhead administration: it couldn’t look into the allegations, because Duke had no authority to conduct a criminal inquiry.

Yet, as the Ekstrand lawsuit pointed out, not only did Duke have the authority, it had primary authority. Duke and Durham had negotiated an arrangement in which the Duke Police Department had primary jurisdiction over off-campus houses owned by Duke. In short, the police inquiry should have been conducted by the Duke Police Department, not the Durham PD.

Duke officials had never revealed the existence of the arrangement.

6.) Board of Trustees chairman Bob Steel

Throughout the case, Steel was nothing short of a p.r. nightmare for Duke. In August 2006, he totally contradicted the official Duke line for canceling the season (punishment for the party, a need to defer to the criminal justice process). Instead, he informed the New Yorker, the season was canceled because “we had to stop those pictures [of the players practicing]. It doesn’t mean that it’s fair, but we had to stop it. It doesn’t necessarily mean I think it was right—it just had to be done.”

Friday’s lawsuit indicated that Steel’s tendency to wander off message wasn’t confined to the New Yorker interview. As the lawsuit notes, the Board chairman “later stated to Sally Fogarty, mother of player Gibbs Fogarty, regarding the firing of Coach Pressler: ‘Life sucks. Bad things happen to good people and you better get used to it.’”

Steel’s deposition doubtless will be an interesting affair.

From the Editorial Page

The Wilmington Star-News was the first North Carolina newspaper to demand that Mike Nifong resign. (It did so in a December 27, 2006 editorial.) Its comment on the recently filed lawsuit was, however, peculiar. The paper conceded that unfair harm had befallen the players:

Reporters found numbers of Duke students and faculty members eager to offer their opinion that many lacrosse players were little better than swaggering sexist louts. The story was shaping up as a morality tale about arrogant rich boys abusing a young black woman working her way through school. Duke cancelled the rest of the team's season. But when the accuser's story turned out to have as many holes as an ancient athletic sock, Durham District Attorney Mike Nifong refused to drop the prosecution. Eventually, it was Nifong, not the lacrosse players, who was put on trial.

But, the editorial nonetheless criticizes the lawsuit, on the grounds that the "the players and their families [do not] seem eligible for food stamps."

It might be, as the Star-News implies, that federal law should be changed to allow only those whose families are eligible for food stamps to file civil suits. Such a change, however, would eliminate one of the key effects of civil litigation--deterring against future misconduct. As Jim Coleman explained in September, in discussing the three falsely accused players' civil suit against Durham, “When the city acts in ways that are so totally outrageous and could have been prevented, I think the damages ought to be sufficient to deter that kind of behavior in the future and also to send a message to other cities and prosecutors across the state."

The same line of critique, of course, could apply to Duke, especially since no indication exists that the University has enacted any reforms suggesting that it learned lessons from the case.

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A more appropriate response came from Bill Ordine in the Baltimore Sun. He wrote,

Cutting through the legalese, what the players -- none of whom were charged in the dismissed sex assault case -- are saying, especially as it applies to Duke, is that instead of supporting them, the university sat back while they were under general harassment . . .

Not named is any news organization. And I realize that there may be no sound legal grounds to include a newspaper or a TV or radio station or an Internet site as a defendant in such a suit, but -- and I'll likely be considered a heretic in the church of the Fourth Estate for saying so -- that's too bad.

If indeed the players and their families suffered emotionally, if a player's reputation remains forever tarnished as "that guy who was on the Duke lacrosse team when," then a fair amount of blame falls on the media.

And not for merely reporting the story. That's what we do. And sometimes, simply reporting on a case fairly and down the middle causes emotional distress to the innocent and creates unflattering impressions that last a long time. Still, it is our obligation to do the reporting.

But this case was different. There was something akin to a Salem-like hysteria going on in the early days of the Duke lacrosse case with newspaper columnists and broadcast and Internet pundits taking bits and pieces, such as some players' early reluctance to talk with investigators, and building a case of obvious guilt. The judgment was as vitriolic as it was premature.

To be fair, those types of observations, when they appeared in print, came largely from opinion writers and not in news stories. But the public sometimes doesn't discern among the types of information with which it's bombarded, and the resentment and tension in Durham and on the Duke campus fed on the in-print and on-air rushes to judgment.

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Finally, on the N&O op-ed page was none other than Group of 88 stalwart Karla Holloway. In a bizarre critique of media coverage of this year's presidential race, Holloway claims, "America reads race as a minority identity, with whiteness being the unstated norm. In the ongoing presidential race, the political pundits chatter easily about the Latino vote, or the black vote, which seems just fine until the illogic of that calculus rears its discomfiting head. If some of us are black or Latino or Asian, then (gasp!) others of us are white . . . Newscasters have suddenly found themselves having to acknowledge that not all the male or female voters are black or Latino or Asian -- identities that have heretofore been easily spoken. There is another side of the equation. But even with analysts like Matthews speaking that identity in acknowledging 'white men,' this concentration on race does a disservice to all voters."

One wonders if Holloway has been following American politics at any point in the last three decades. She appears unaware that political analysts cited the "Reagan Democrats"--white ethnic voters--as critical to the 1980 election. Or "angry white men" as the driving force behind the 1994 Republican Revolution.

Anyone who has watched even a few minutes of election-night TV coverage over the last three decades can doubtless recall exit polls discussing white (as well as black and Hispanic) voters.

Having deemed as novel a situation that is, in fact, not new, Holloway urges people to avoid "easily sliding into racial rhetoric," to "admit their discomfort with racial designations," to adopt a "diminished interest in producing race as the singular difference that matters." Coming from a person whose approach to the lacrosse case appeared almost entirely race-based, and who said that she would again sign the Group of 88 statement in a "heartbeat," this advice reeks of hypocrisy.

But how, according to Holloway, should America adopt a "diminished interest in producing race as the singular difference that matters"? Through "diversity" hiring in the media: "It would be a good result if, at the very least, our nightly news would include a diverse field of commentators past this moment when a potential first black president is the subject of the season."

Of course.

Lawsuit Summary

“The simple truth is that Brodhead and Duke were indifferent to the truth.” That’s perhaps the most powerful line in a lawsuit filed yesterday behalf of 38 of the unindicted lacrosse players and their families. The suit was filed against President Richard Brodhead, a host of Duke administrators, and the city of Durham. The chief targets, however, were Brodhead and Duke.

The suit’s basic argument: Duke’s actions exhibited a troubling pattern of (a) refusing to enforce its own procedures—whether regarding supervision of SANE nurse-in-training Tara Levicy or upholding the provisions of the University’s anti-harassment code—when doing so would have helped its students who were members of the lacrosse team; and (2) withholding from the public information in its possession that would have cast doubt on Nifong’s theories; and (3) issuing highly misleading statements and perhaps even (in the suit’s most explosive allegation) seeking to manufacture evidence to suggest the players’ guilt.

The suit alleges intentional infliction of emotional distress; fraud and conspiracy to defraud; breach of duty to protect students from known dangers and harassment; breach of contract; and negligent supervision of duke professors and employees. The following passage lays out the suit’s basic claim against Duke:

Throughout the rape hoax crisis, as Nifong, Durham police and city officials, activist Duke professors and student protestors, the media, and others repeatedly publicly declared the players guilty of a savage gang rape and a “wall of silence” designed to conceal the truth, Duke took no action to disclose the exculpatory evidence in Duke’s exclusive possession, or to confirm the players’ full cooperation with the investigation. Rather, Duke took active steps to suppress exculpatory evidence in its possession and to silence its employees who knew of it. Duke also implicitly condoned and approved of, and thereby encouraged, the efforts of Duke faculty members, academic departments, and students to harass and condemn the lacrosse players, even conferring its official imprimatur upon the most inflammatory of faculty statements against the lacrosse team—the so-called “Group of 88” ad . . . At the same time, the Brodhead administration executed a series of carefully timed reprimands and other disciplinary actions against the lacrosse team that were based on Mangum’s rape allegations and that generated a public impression of the players’ guilt.

Nor, the suit notes, can the University claim that the President and Board of Trustees should not be held responsible:

After Mangum’s rape allegations had been publicly exposed as a malicious and tragic hoax, Brodhead admitted that we “had responsibility for the statements the university made and the actions the university took” throughout the rape hoax crisis. Chairman Steel, who had taken an active role in collaborating with President Brodhead throughout the crisis, likewise later acknowledged that throughout the rape hoax crisis, Brodhead “had consulted regularly with the Trustees” and that “the board agreed with the . . . actions he took.” Steel affirmed that “anyone critical of President Brodhead should be similarly critical of the entire board.” Under Brodhead’s and Steel’s direction, Duke capitulated to the various demands and pressures from the media, activist faculty members, and student protestors with a calculated, skillfully executed strategy of statements, actions, and omissions designed to protect Duke’s and their own interests by publicly maligning and punishing the players and distancing Duke from them.

Some of the suit’s key points:

1.) Tara Levicy

Her actions, the suit contends, were malicious, willful and wanton”; her conduct “was intended to and did cause mental anguish and severe emotional distress to the plaintiffs or was committed with reckless disregard for its foreseeable impact on the plaintiffs’ emotional states.”

Levicy is not only a defendant but, as an employee of Duke, is a critical component of the suit. Since Levicy’s actions “were performed in the scope of employment . . . managers, trustees, and/or officers of Defendants Duke University, DUHS, and Duke Hospital participated in, condoned, and ratified Levicy’s actions. Levicy’s conduct is at the heart of the suit’s claims of emotional distress, negligent supervision of employees, and breach of duty of care in conducting and reporting of forensic medical examination.

The filing traces Levicy’s dismal record throughout the case. Her March 16, 2006 assertion—“with an intentional, or at least reckless, disregard for the truth”—that “there were signs consistent with sexual assault,” even though her exam (as the Attorney General’s investigation would make clear) had actually produced no such evidence. Her “crucially false and misleading statements” to Gottlieb on March 21, 2006 that the SANE exam suggested that Crystal Mangum had experienced “blunt force trauma.” Her undocumented contacts with Nifong later in the case.

As the filing makes clear, Levicy’s conduct had an enormous impact: given the inherent unreliability of Mangum’s stories, “the prestige and credibility of Duke University Hospital thus provided the core support for the investigation (and later, the prosecution) against the lacrosse players.” Even more problematic, “Levicy’s statement to the Durham police was later corroborated, falsely, in public statements by Levicy’s supervisor, Theresa Arico, who was the director of Duke Hospital’s SANE program.” The suit notes that Levicy’s false and misleading testimony provided the basis for (1) the March 23, 2006 NTO that launched the case into the media; and (2) Nifong’s publicity barrage over the next ten days.

In short, if Duke Hospital had provided a competent and qualified SANE nurse, rather than Tara Levicy, “the false rape charges would never have become public.”

2.) Duke didn’t enforce its own policies prohibiting the harassment of students.

Lest anyone forget, the suit lays out the atmosphere in which the lacrosse players existed in the spring of 2006.

The combination of faculty animosity, faculty and student protests, community outrage, and a massive invasion of the Duke campus by local and national media, transformed Duke into what CBS News described as a “Campus Under Siege.” The atmosphere was intensely hostile, even dangerous, for the lacrosse players. They were accosted and intimidated at their homes and on campus by large groups of angry, pot-banging student protestors carrying “castrate” signs and yelling threats. Their faces appeared on “Wanted”-style posters that flooded the campus and Durham. Some players were publicly singled out in class by their professors for harassment and condemnation. They were besieged by news reporters and camera crews. They lived in fear of physical attacks, under threats of drive-by shootings and racial violence. Increased police patrols were required in the neighborhood where many of them lived. They were forced to flee from town during their final exams when a menacing radical hate group called the New Black Panthers descended on the campus. And in the midst of this intense community outrage and national media attention, 88 Duke professors took out a full-page ad in the student newspaper publicly thanking student protestors for “not waiting and for making yourselves heard.”

As the suit notes, “Nowhere in his April 5 public statement, nor in any other public utterance throughout the rape hoax crisis, did Brodhead criticize the activist faculty members and student protestors or call upon them to stop their outrageous harassment and threatening behavior and their vitriolic, hate-filled comments toward the lacrosse players.” (Indeed, on April 20, 2006, he actually shared the platform with the one student who had publicly confessed to distributing the vigilante posters, and with Mark Anthony—“thugniggaintellectual”—Neal.) Argue the plaintiffs, “Brodhead thus tacitly condoned and encouraged the activist faculty members and student protestors in their conduct against the lacrosse players. “

At the very least, the suit argues, Duke didn’t enforce its “formal, written policy strictly forbidding harassment of any student ‘for any reason.’” What were the acts that violated this policy? “Myriad public and private statements by Richard Brodhead, Robert Steel, John Burness, the activist faculty members and student protestors, and others condemning the plaintiffs, impugning their integrity, and implying and/or explicitly stating that they were guilty of criminal activity; the ad placed in the Duke Chronicle and subsequent group and individual statements by the Group of 88; harassing student protests on campus and in front of the lacrosse players’ residences, which were conducted and/or organized in part by Duke faculty members and other employees; the ‘Wanted’ and other posters distributed and posted throughout campus because of the acts and/or omissions of Duke and its agents; and in-class condemnations by Duke professors.”

The anti-harassment policy “also specifically prohibits harassment of any student “on any demographic basis,” including among other things race, color, ethnic origin, gender, and class. Throughout the rape hoax crisis, however, Duke made no effort whatever to enforce its anti-harassment policy against the open and flagrant violations of the policy by certain activist faculty members and student protestors . . . [Indeed] numerous statements made by Duke faculty members evinced discrimination and bias against the lacrosse players on the basis of their race, gender, and class.” This behavior, the suit contends, included “in-class harassment on the basis of race and/or gender,” and “Duke took no action to investigate, punish, or otherwise enforce its anti-harassment policies against these clear violations.”

The highest profile example of this pattern, of course, was the Group of 88’s ad. As the suit notes, even some of the ad’s signatories have conceded the deep harm it caused:

Months later, after Mangum’s rape charge, and the ensuing investigation into it, had been exposed as a malicious and tragic hoax, Susan Thorne, an associate professor and associate chair of the Department of History who signed the Group of 88 ad, said of the ad: ‘I deeply regret, deeply regret contributing to tremendous harm that was done to [the plaintiffs]. I can understand any hostility they feel for me.’”

The basic conclusion:

On its face, and when considered in light of all the circumstances surrounding its publication, the ad made unmistakably clear that its faculty signatories and departmental sponsors believed that Mangum’s rape allegations were true, and it wrongfully, knowingly, and willfully subjected the players to notoriety, opprobrium, derision, humiliation, and well-founded fear for their own safety. Due to its defamatory and inflammatory message, its express exhortation to the “protestors making collective noise” to “turn up the volume” and “make yourselves heard,” and its high profile on the Duke campus (and throughout the country), the ad interfered significantly with the players’ work and education, adversely affected their living conditions, and caused the players serious harm—emotional, reputational, and otherwise.

Through its silence, Duke confirmed that the ad represented the official position not only of 15 Duke academic departments and programs, but of Duke University itself. Months later, after Mangum’s rape allegations and Nifong’s investigation had been publicly exposed as a malicious and tragic hoax, Brodhead acknowledged that activist faculty members and student protestors “were quick to speak as if the [rape] charges were true . . . , and some faculty made statements that were ill-judged and divisive.” Brodhead also admitted that “the public as well as the accused students and their families could have thought that those were expressions of the university as a whole.”

3.) Duke administrators not only remained silent in the face of statements by authorities, the media, and Duke professors that the administrators knew were untrue—but administrators took actions that aided the investigation.

This pattern, the suit contends, began at the start of the case, with the March 23 NTO. According to the suit, the “statements in the NTO application, publicly available and widely reported, were false. Moreover, Duke knew or should have known that they were demonstrably false, on the basis of medical evidence in Duke’s exclusive possession. Duke took no action to rebut or correct these public charges.” The pattern of Duke’s withholding exculpatory information in its possession continued through Brodhead’s March 25 statement canceling the Georgetown game, his March 28 statement suspending the season, and especially his April 5 statement canceling the season. That latter statement, it’s worth remembering, effectively presumed guilt.

According to the suit, Duke administrators knew or should have known that: (1) Levicy had provided false or misleading testimony; and (2) the players had cooperated with the investigation, rather than creating a “wall of silence.” Even so, they “watched silently as Nifong characterized the evidence and otherwise commented on the case and the lacrosse players in a way that Duke knew or should have known to be false. To the contrary, Duke improperly provided Nifong’s investigators with critical credibility and cooperation in a number of ways: Duke illegally disclosed the key card reports; Duke took official actions and made official and unofficial statements to the media that were calculated to malign the lacrosse players and to distance Duke from them; Duke took no significant action to ensure that its activist faculty members and student protestors, who were presuming the players’ guilt and inflaming public outrage against the lacrosse team, were adhering to University standards of behavior, including its anti-harassment policy. And Duke would continue, in the ensuing weeks, to fuel these attacks on its own students.”

4.) Duke violated federal law.

The plaintiffs also claim that Duke violated federal law (FERPA) that protects student rights. The suit contends,

At some time on March 31, Investigators Smith and Stotsenberg of the Duke Police handed over to Gottlieb several reports. Among the reports, according to Gottlieb’s later testimony, was “one key card report for the Duke team members from March 13 and March 14.” This report was prepared by the Duke Card Office of Duke University.

The key card reports provided information on when and where the members of the lacrosse team had swiped their Duke ID cards in slots on locations at Duke’s campus during March 13 and March 14. Many of the doors, dining facilities, vending machines, photocopy machines, and so forth on Duke’s campus are operated by these key card slots. For example, to access virtually any exterior door of Duke’s dormitories and academic buildings requires the swiping of a Duke key card. The key card reports thus allowed the Durham Investigators to roughly track the movements of lacrosse players on Duke’s campus on March 13 and 14. These reports therefore aided the Durham Investigators in their effort to determine which lacrosse players had been in Durham on the night of the alleged rape and had likely attended the party.

No subpoena had been issued for these reports. In the absence of a subpoena (and the opportunity for the interested parties to quash the subpoena), the disclosure of information in these reports -- most notably, but not necessarily limited to, the key card report -- was a clear violation of the Family Educational Records and Privacy Act (FERPA), as well as Duke’s own privacy policies.

The University then, the suit argued, conspired with Durham investigators to fraudulently conceal Duke’s FERPA violations.”

And, finally, the most explosive allegation, regarding the report of Duke Police officer Christopher Day, who (accurately) reported that he overheard a DPD officer (John Shelton) state that Mangum claim to have been raped by 20 people.

Duke, the suit contends, “took two actions directed toward bolstering the credibility of Mangum’s rape allegations. First, Officer Day of the Duke Police added a “continuation page” as an addendum to his police report prepared at Duke Hospital on March 14, in which he had noted the manifest inconsistencies in Mangum’s allegations. Day’s ‘continuation page’ purported to cast doubt on the reliability of his own contemporaneous report, which Duke had not yet disclosed to the lacrosse players or the public, by indicating that it was based on hearsay and imperfectly overheard conversations. Upon information and belief, Day was coerced to write this continuation page by Duke administration officials, who had previously prevented his exculpatory version of events from becoming public.

“On information and belief, in addition to suppressing the Day report, Duke police officials, at Nifong’s request, also directed Duke police officers who had been present at Duke Hospital on March 14 to write deliberately misleading accounts of what they witnessed that night. The Duke police officers were directed to prepare statements that suppressed exculpatory facts about Mangum’s lack of credibility, selectively asserted facts suggesting the guilt of the players, and mischaracterized their own conduct that night by casting the Duke police as mere bystanders. In particular, on information and belief, one Duke officer who prepared such a statement later admitted that, based on his observation at the time, Mangum was ‘faking’ the whole thing; and another Duke officer was directed to suppress the fact that she had overheard a Durham Police sergeant, upon emerging from Mangum’s hospital room, say loudly, ‘I think she is lying!’”

Duke’s response: “If these plaintiffs have a complaint, it is with Mr. Nifong.” This is, to put it mildly, a peculiar argument: it’s not clear to me how Nifong was responsible for Duke’s decision to allow its faculty and students to violate the University’s anti-harassment policy; or for Officer Day to rewrite his report; or for Duke’s failure to supervise Tara Levicy; or for Duke’s decision to supply federally protected student records to the police.

News from Loyola

The Greyhounds opened their season with a 7-6 loss to #5-ranked Notre Dame; but, on a bright note, the team's first goal of the season was scored by Collin Finnerty. Clare Lochary has the details.

Times Sports Editor: "Regret" Coverage

From a recent Times Q&A session with sports editor Tom Jolly (scroll down to the 22nd entry):

Q. When the Duke Lacrosse "rape" case first erupted, the New York Times sports section was one of the leading cheerleaders for the conviction and slandering of the Duke team as a whole and the three charged players. When the charges imploded, the players exonerated, and Michael Nifong disbarred, the sports section and "pundits" remained steadfastly silent. Since you are the chief editor, one must assume that you led and approved of all the reporting (and non-reporting) and the commentary (however incorrect and one-sided). Question: As the editor of the sports section how do you justify your behavior in toto?

— Rex Avery

A. Dear Mr. Avery: First, let me clarify that our reporters remained involved in the coverage of the Duke case throughout. [Indeed they did: Duff Wilson remained involved throughout, and the central conclusion of his major article in the news section was deemed false by no less than the AG's report.] The placement of the articles moved into the national section of the paper once it became a court case, as is generally the case with such stories, including the rape cases against Kobe Bryant and Mike Tyson. We've written stories about the team since it was reinstated and covered its run to the title game last season.

As far as our coverage of the case itself, if the essence of your question is whether I feel good about it, the answer is that I very much regret my failure to recognize that we were dealing with a rogue prosecutor and that the university had compounded his bravado by overreacting to the initial reports about the case. I don't recall another instance of a university canceling the season of a team that was a contender for a national championship. Nor do I recall a similar example of a prosecutor launching such an aggressively wrongheaded investigation.

But the bottom line is that I'd do some things differently, and that knowledge gained by hindsight has informed our approach to other stories since then.

Jolly, unfortunately, did not say what he would have done differently, and the effect of his statement was somewhat minimized by his response to a previous question in the thread, about the departure of the worst of the guilt-presuming sports columnists, Selena Roberts: "Selena's voice is unique and finding a suitable replacement won't be easy, but we will."

Nonetheless, Jolly's statement is by far the clearest acknowledgment of regret for the paper's poor performance from anyone affiliated with the Times.

Taylor on "Sex Workers'" Show

As a private university, Duke can set any standard of behavior for its student body that it desires. If it wishes to follow the advice of Group of 88 stalwart William Chafe and imitate BYU and Liberty by becoming a dry university, it has every right to do so.

What it does not have the right to do, however, is apply one standard of behavior to politically correct students and another standard of behavior to all other students. In the aftermath of the lacrosse case, Duke adopted a new rule, which stated, "Strippers may not be invited or paid to perform at events sponsored by individual students, residential living groups, or cohesive units." Note that the rule was an absolute prohibition: it did not exempt strippers invited for politically correct purposes or by politically correct groups.

My colleague Stuart Taylor explored the issue in his column this week for National Journal, and Kristin Butler critiques the regulatory doublethink behind Duke's actions.

Another Mosteller Article

In a question-and-answer session last month, I was asked what lessons other states could draw from the lacrosse case. I suggested that the case showed the benefits of open-file discovery (without which Mike Nifong clearly would have concealed all exculpatory evidence) and the need for all states to enact due process-friendly identification procedures.

In his second major article on the case (his previous article appeared in Fordham Law Review; this one was published by George Mason Law Review), Duke Law professor Robert Mosteller tackles the first of these issues. He convincingly argues that North Carolina’s open file discovery law made possible the discovery of Nifong’s transgressions, which in turn set up the Bar’s decision to prosecute him. In this respect, Mosteller suggests, it’s best to view the Nifong affair as one step in a continuum of prosecutorial misconduct, beginning with the Gell case and including the Honeycutt case.

Broad ethics guidelines about a prosecutor’s responsibility, according to Mosteller, are extremely difficult to enforce: “These cases, including Nifong’s disbarment, demonstrate the difficulties inherent in professional discipline of prosecutors, even in clear cases of ethical misconduct. The ethical duty to ‘do justice’ is hardly a real source of discipline.” Instead, he contends, the three cases “show the importance of concrete standards of conduct, such as an obligation of full disclosure, which apply to the mundane details of the investigation as well as the exculpatory. Such requirements have the definite advantage that they can be enforced in the first instance without relying on a prosecutor to recognize, or a trial court to find, the exculpatory potential in material in the investigative file.”

Mosteller spells out the case against open file discovery more clearly than those North Carolina prosecutors who last year attempted, unsuccessfully, to weaken the state’s law. There are three arguments, he writes, against the concept: “First, broader discovery permits criminal defendants to develop effective perjured testimony to meet the revealed details the prosecution will offer; second, broad disclosures will reveal identifying information regarding prosecution witnesses and will permit witness intimidation; and third, because the defendant is protected by the Fifth Amendment, reciprocal disclosures required of the defense will inevitably be more limited. Further summarized, the traditional argument against further discovery is that broader discovery tilts the balance of advantage, which already favors the defendant because of various procedural protections such as the requirement of proof beyond a reasonable doubt, too far or unfairly to the benefit of the defendant.”

The interests of justice, nonetheless, trump these concerns. The Gell, Honeycutt, and Nifong affairs demonstrate “the paramount importance of a broad and sure disclosure requirement in criminal cases that, in the first instance, helps prevent failures of ethical standards from ever occurring because little opportunity is allowed for misjudging what is potentially exculpatory evidence. Where an initial failure occurs, such pro-visions also assist the court and opposing counsel in learning of the failure at a relatively early stage in the proceeding”—which is exactly what occurred in the lacrosse case.

Mosteller’s argues details the Bar’s difficulties in obtaining stern discipline against the prosecutors in the Gell case (who he strongly implies deserved a harsher punishment than they received) and former D.A. Honeycutt. He spends most of his lacrosse case section analyzing Nifong’s failure to turn over the exculpatory DNA evidence. Mosteller notes the stark differences between the key sections of Dr. Brian Meehan’s two reports, the first of which was issued on May 12, 2006, the second in January 2007. The sections read as follows, with Mosteller’s emphasis added:

Individual DNA profiles for non-probative evidence specimens and suspect reference specimens are being retained at DSI pending notification of the client. Three of the reference specimens are consistent with DNA profiles obtained from some evidence items and the analysis of these specimens is below.

Individual DNA profiles for evidence specimens (item numbers 15772, 15776, 15785, 15816-15818) consistent with male profiles that did not match DNA profiles from any reference specimens and DNA profiles for reference specimens . . . were being retained at DSI pending notification from the client . . . .

“The difference in the italicized language,” Mosteller observes, “is striking” (and is a critical reason why Dr. Meehan and DNA Security are facing a civil suit). “Elsewhere in the report these specimen numbers are identified as obtained from the panties, the rectal swabs, and the combing of the pubic area. The language of the first report suggests inconsequential results; the revised report’s language speaks of significant and exculpatory conclusions.”

The State Bar’s grievance committee brought charges against Nifong for two reasons (the DNA withholding and the improper public statements), but Mosteller contends that “the lion’s share of the work [in exposing Nifong] was done by the discovery statute. Its routine application produced the basis for further requests, and its standard requirement of full disclosure established an expectation of compliance that the trial judge treated as routine. The persistent work of excellent counsel moved the process of further disclosure forward step by step and established, in the process, a record of Nifong’s deceptive statements in court that was at the center of his undoing.”

Mosteller praises the defense attorneys for repeatedly pressing the issue with Nifong in court hearings—giving the DA an opportunity to come clean or seal his own fate by repeatedly lying. He astutely suggests that Nifong’s weeklong delay in handing over the underlying DNA test results (which were due on October 20, 2006, but which weren’t delivered until October 27, 2006) probably had a political motivation—the DA worried his failure to turn over exculpatory evidence would be revealed before the election.

Even once Nifong turned over Meehan’s files, Mosteller notes, “few defense attorneys, most of whom like [Brad] Bannon have minimal scientific training, would have had the ability to do what he did even if they had the perseverance and could commit that amount of time to the task, which he believed was only gaining a better understanding of incriminating but ambiguous scientific results.” The lesson: “for indigent defendants, trial courts should freely grant requests for expert services to help the defense understand the significance of the evidence. Disclosure of data under Brady means little if it cannot be understood. Moreover, if as this case demonstrates, prosecutors may not flag the significance of the data, ready access to expertise is the only meaningful alternative.”

What’s the overall legacy of not only the lacrosse case but also the Gell and Honeycutt affairs?

“Full disclosure solves, or at least helps solve, Brady issues. With regard to all these cases, there is no clear indication that any evidence was given to the defense because the prosecutor chose to provide exculpatory evidence or any court ordered the production of Brady evidence. As best I can determine, even in the Duke Lacrosse case, I can find no discretionary ruling that the trial court made in terms of discovery that was tilted in favor of the defense. Rather, the judges accepted the representations of the prosecutor and denied the innovative or unusual requests of the defense.” [Recall the rejected requests by Judge Stephens to require Meehan to memorialize his conversations, or by Judge Smith to require Nifong to specify when, exactly, he believed the “crime” occurred.] “The judges only granted what the discovery law required and did so in step by step fashion as the defense demonstrated the existence of the evidence and the law’s application to it.”

In Mosteller’s opinion, quite beyond Nifong’s complete lack of ethics, a structural problem exists: “Ethical principles, Brady, and our adversary system require a prosecutor to operate with a type of split personality.” On the one hand, the prosecutor is supposed to do justice and hand over exculpatory material. But “for a prosecutor who has reached the conclusion that the accused is guilty, which obviously should be updated as new evidence is received, there can be no true exculpatory evidence.”

The solution: full open-file discovery, which “is obvious as a remedy for the difficulty of subjective choice in a competitive adversarial environment.”

Mosteller’s conclusion is well-taken:

The disbarment of Nifong will likely help. The sanction imposed sends a strong message, and surely it will encourage future disclosures of potentially exculpatory evidence. However, the message to be taken from North Carolina’s experience, including both its failures and triumphs in prosecutorial discipline, is that broad disclosure laws make the real difference.

I will keep this post up for a few days before folding it behind the glossary; the next major posts will come in around nine weeks, unless something significant in the case occurs before then.