Brad Ross

For those who haven't seen it, Brad Ross, one of the heroes of the case, is up for the Lowe's Senior Class Men's Lacrosse Award. You can vote here; people can vote once daily.

Race, Obama, and the North Carolina Primary

I posted the item below some time back, but considered it timely for reposting (with an edit) now, given:

1) The North Carolina primary is a week away.

2) Barack Obama took a similar approach to the Sean Bell case as he did to the lacrosse case, calling for people to respect the rule of law and urging the importance of fair procedures. He said, “We’re a nation of laws, so we respect the verdict that came down. Resorting to violence to express displeasure over a verdict is something that is completely unacceptable and is counterproductive.”

For this position, Al Sharpton has criticized him for taking an “opportunity to grandstand in front of white people.”

It’s worth noting that Hillary Clinton responded to the Bell verdict quite differently in both substance and tone than did Obama. She pointedly declined to uphold the verdict, remarking, “This tragedy has deeply saddened New Yorkers - and all Americans. My thoughts are with Nicole and her children and the rest of Sean’s family during this difficult time. The court has given its verdict, and now we await the conclusion of a Department of Justice civil rights investigation. We must also embrace this opportunity to take steps — in our communities, in our law enforcement agencies, and in our government — to make sure this does not happen again.”

And so: in the lacrosse case, an acknowledged injustice involving one of her own constituents, Clinton was silent about a DOJ inquiry. In the Bell case, where few neutral observers are suggesting anything untoward in the authorities’ conduct, Clinton has implied she’s expecting the DOJ to take a look at what happened.

3) Given the efforts of the Clintons (Hillary cares about “people like you,” the former President informed a heavily white audience recently in North Carolina) and surrogates such as Lanny Davis to exploit the Wright affair to appeal to the candidate’s new base—whites without a college-level education—it’s worth pointing out how, on issues, it should be very difficult to play the race card against Obama.]

Not since 1976, when Ronald Reagan’s victory over Gerald Ford revived his then-floundering campaign, has North Carolina’s primary played a significant role in the nominating process. That will change in 2008. The early May primary provides an opportunity for Barack Obama to rebound from the Clinton victory in Pennsylvania, and in the process gain ground in the Clintons’ latest measuring stick for success, the popular vote total. The state seems to play to Obama’s strengths: it has a sizable black population, as well as a good number of college-educated whites in the Research Triangle and in Charlotte. Moreover, unlike Pennsylvania and Indiana (and Ohio before them), the state’s political leadership is either supporting Obama or is neutral. That said, Obama’s lead in North Carolina dropped precipitously in the latest poll.

Obama made his first campaign swing to the Tarheel State the day after his Philadelphia speech on race relations, and NBC’s First Read noted the irony:

He will speak less than 24 hours before state legislators come together for a special session to vote on the expulsion of a black [state representative] suspected of fraud; the accused lawmaker alleges that the charges are racially motivated. Obama also will walk into a local news cycle spinning around the death of a beloved UNC student at the hands of a troubled black juvenile, who is widely believed to represent the failures of the state's probationary system.

When he lands in Fayetteville, where he will talk about Iraq, he'll be 100 miles south of Durham, the site of the explosive racial confrontation kindled by the Duke lacrosse case. He'll be 100 miles northwest of the North Carolina house district that will be examined by the U.S. Supreme Court this fall to determine the constitutionality of racially gerrymandered "influence" districts. Just southwest of that is Wilmington, which saw a formal apology from the state's Democratic Party last year for the violent race riots perpetrated there by white supremacist Democrats in 1898.

Shortly after Obama’s Philadelphia speech, Fox News ran a story suggesting the candidate’s inconsistency on high-profile racially charged cases, noting that Obama had recommended Don Imus’ dismissal after Imus’ attack on the Rutgers women’s basketball team. The clear implication: Obama had one standard for whites (Imus) and another for blacks (Rev. Wright), and that he pandered to his African-American base.

The Fox story didn’t mention Obama’s stance on the lacrosse case (perhaps because it undercut the story’s premise). Obama was, of course, the only presidential candidate of either party to support a DOJ investigation of Mike Nifong. (He did so in early 2007, joining only two other Democratic officeholders—New Jersey senator Bob Menendez and Long Island congresswoman Carolyn McCarthy. Eleven Republican members of the House, led by Walter Jones, urged a DOJ inquiry, though neither of North Carolina's two Republican senators did so.) Hillary Clinton remained silent on the issue, even though one of her constituents was among the falsely accused. And the third major Democratic candidate, John Edwards, hired as his official campaign blogger a guilt-presuming ideologue who maintained as late as January 2007 that an attack had occurred. Given that the state NAACP had championed Nifong’s cause, it’s hard to argue that Obama’s position on the lacrosse case represented political pandering on a racially charged question.

Shortly after Obama left North Carolina, the state House of Representatives resolved another of the racially charged matters mentioned by First Read: by a vote of 109-5, the body expelled Wilmington Democrat Thomas Wright. The allegations involved campaign finance improprieties; Wright has been criminally charged with shifting as much as $350,000 from his campaign account to his personal savings. The attorney who claimed that the House vote denied Wright due process was none other than Irving Joyner—one of Nifong’s most aggressive defenders in the lacrosse case. Joyner didn’t explain how he had suddenly discovered the value of due process.

The vote marked only the thirteenth time in history and the first occasion since 1880 that the state House had expelled one of its members. Most of these previous cases had involved some form of financial fraud, though state Representative Josiah Turner met his fate in 1880 for a quite different reason. The House expelled Turner, as the N&O dryly notes, “for calling other legislators names.” Turner, it turns out, had labeled the Speaker, John Moring, a “gander head.”

If this rationale for expulsion from a legislative body still existed, Congress would have no members.

A Lubiano "Publication"

Wahneema Lubiano, whose last scholarly publication was entitled “Interview with Wahneema Lubiano,” recently took a break from her two “forthcoming” manuscripts, Like Being Mugged by a Metaphor and Messing with the Machine. Both of these manuscripts, it’s worth remembering, have now been “forthcoming”—a designation that normally means completed and under contract—for eleven years.

Lubiano joined fellow Group member Michael Hardt and “clarifying” professor Robyn Weigman to co-author a scholarly article (published in a Duke University Press journal called Social Text) designed to . . . defend the Group of 88. This piece joined Charlie Piot’s effort as at least the second “scholarly” Group apologia—providing an unintentional commentary on what passes for scholarship among the Group of 88.

Lubiano, Weigman, and Hardt had little difficulty in identifying the true victims of 2006-2007 events in Durham—themselves, and their fellow members of the Group of 88.

The victimizers? Not Mike Nifong, or Sgt. Gottlieb, or Duke administrators who failed to enforce the Faculty Handbook. Not the Duke professors who rushed to judgment or abused their classroom authority. No, the victimizers, according to the Lubiano Trio, were “the blogs.”

According to the Lubiano Trio, “the most extreme marginalization was reserved for the faculty whose professional expertise made them most competent to engage the discourses on race and gender unleashed by the inaugurating incident — scholars of African American and women’s studies. Instead, administrators, like the bloggers themselves, operated under the assumption that everyone was an expert on matters of race and gender, while actually existing academic expertise was recast as either bias or a commitment to preconceived notions about the legal case. Some faculty thus found themselves in the unenviable position of being the targets of public discourse (and disparaged for their expertise on race and gender) without being legitimate participants in it.”

If the Group’s expertise made its members “most competent to engage the discourses on race and gender unleashed by the inaugurating incident,” there was nothing, to my knowledge, to prevent them from doing so. Instead, of course, Group members by and large pursued an opposite approach. They rushed to judgment in issuing their statement when most people presumed the lacrosse players guilty—and then, when the case started to collapse, they either refused to explain their earlier position or offered almost comical rationalizations for their spring 2006 statements and actions.

The Lubiano Trio’s new narrative requires some . . . creative . . . re-interpretations of the past. To take some examples:

The Group of 88’s Ad

Here’s how the Lubiano Trio’s article described the Group of 88’s ad: It “sought to grapple with issues of campus life and the cultures of privilege sustained by elite institutions such as Duke University.”

Yet here’s how Lubiano herself described the ad in early April 2006, when she invited people to sign: “African & African-American Studies is placing an ad in The Chronicle about the lacrosse team incident [emphasis added] . . . We will not be listing the names on the ad itself (only the supporting departments and program units).”

The Lubiano Trio’s article makes no mention of this inviting e-mail, nor the ad’s unequivocal assertion that something “happened” to Crystal Mangum, nor the ad’s thanking—“for not waiting and for making yourselves heard”—the protesters who had presumed guilt, nor the ad’s claim that five departments officially endorsed its contents even though none of the departments actually voted on the matter. It remains unclear how any of the above items relate to “issues of campus life and the cultures of privilege sustained by elite institutions such as Duke University.”

The Blogs

Intoned the Lubiano Trio, “The latter framing [focusing on the accuracy of the allegations] was embodied most prominently by Friends of Duke University, an organization formed to raise money for the defendants.”

What are they talking about? FODU, a grassroots organization of Duke alumni and supporters, was created in summer 2006 not to raise money for the defendants but to urge the Duke administration to publicly demand that Durham authorities accord to Duke students the same due process rights granted to all other Durham residents.

The Lubiano Trio appears to have confused FODU (which wasn’t a fundraising organization) with the Association for Truth and Fairness, the organization that did raise money to help defray the defendants’ legal bills.

The only problem: the ATF wasn’t a blog—which makes its existence irrelevant to the Lubiano Trio’s commentary on the blogosphere.

The Media’s Role

The Lubiano Trio informed their readers that “the television newsweekly 60 Minutes aired five segments on the topic, and stories appeared in the New Yorker, Newsweek, Rolling Stone, and Sports Illustrated, on the editorial pages of every major newspaper in the country, and on local and national evening newscasts.”

Actually, 60 Minutes ran three, not five, segments on the topic. And the New York Times, which most people (especially, I suspect, members of the Group of 88) would consider a “major newspaper in the country,” did not publish an editorial on the case.

The Defense Attorneys and the Group of 88

After scouring the defense attorneys’ change-of-venue motion, the Lubiano Trio concluded, “Since its publication, the ad has figured prominently in both campus and media debate and was cited as evidence in a defense motion for change of venue, on the assertion that the accused players could not receive a fair trial in a town in which prominent community members, including faculty, had failed publicly to defend their innocence.”

In fact, the December 2006 defense motion contained no such assertion. (The Lubiano Trio’s article contains a footnote citing the defense motion, but the authors, perhaps unsurprisingly, elected not to specify a page number in which this assertion allegedly was made.) To my knowledge, no defense lawyer, at any stage of the case, stated that “prominent community members, including faculty, had failed publicly to defend [the players’] innocence.” Defense attorneys spoke about the presumption of innocence—a far different thing than an outright declaration of innocence. And many critics of the Group of 88, including me, spoke of the need for academics, of all groups in American society, to speak up for due process—which is also a far different thing than an outright declaration of innocence.

That the Lubiano Trio equated calls for professors to defend due process and the presumption of innocence with demands that academics actually affirm the players’ innocence gives a sense of how skewed were Group members’ conception of the justice system.

The Nature of the Internet

Asserted the Lubiano Trio, “The faculty who had signed the ad and were outspoken about long-standing problems in student culture became targets of hate mail and even death threats, especially those with affiliations in African American studies and women’s studies. Many found their e-mail and home addresses published on blog sites, facilitating an incessant flood of anonymous e-mails that were often personally vicious in nature.”

Even in North Carolina, death threats are against the law. It remains unclear why authorities elected not to prosecute those who made such threats against Group members.

Anonymous, vile e-mails are contemptible. They’re also, sadly, a way of life in the internet era. The Group members, however, prefer to imagine a reality in which they and only they were subject to such attacks. As usual, the facts contradict their preferred version of events.

Resolution of the Case

The Lubiano Trio still can’t bring themselves to admit that the whole case was a fraud. “By April 2007,” they write, “all charges against the players were dropped. In June 2007, Nifong was disbarred, and the report from the North Carolina Attorney General’s office found that “there was no credible evidence to support the allegation that a crime had occurred.’”

In fact, Attorney General Roy Cooper issued an all-but-unprecedented declaration of absolute innocence.

Blog Criticism of the Group

Blogs, according to the Lubiano Trio, used “powerful tactics of harassment” against members of the Group. “Typically we [Group members] should . . . work as maids for the players’ families [or] return to the slave quarters.” Group members “have also been found guilty of numerous crimes, including treason, sedition, and tax evasion(!).”

Although the Lubiano Trio’s article does contain footnotes, the Group members elected to supply not even one citation for any of these outlandish claims. It doesn’t take a Ph.D. to figure out why.

What does the inclusion of these unsourced ramblings say about the editorial policies of the Duke University Press journal Social Text?

Blog Ideology

In a wonderfully worded passage, the Lubiano Trio situates the lacrosse case “right-leaning blogs” as part of “right-wing attacks on the university,” which were “deliberate orchestrations of a battle with earlier Left projects to define who and what will constitute the public that universities simultaneously serve and engage.”

In fact, in terms of readership, the two most significant blogs were DIW (published by, as I have noted before, an early supporter of Barack Obama who also backs gay marriage and abortion rights) and Liestoppers (a blog originally founded as part of the effort to elect the line of the Lewis Cheek—a Democrat—as Durham County D.A.).

How many people would consider either of those viewpoints to represent the right wing? That the Group of 88 does consider these viewpoints right-wing gives a sense of just how skewed the Group’s ideological perspective is.

---------

The Lubiano Trio fumed that the case resulted in “the denigration of faculty labor, especially the intellectual labor of faculty in fields inaugurated by twentieth-century social movements (African American studies, women’s studies, sexuality studies, ethnic studies).”

In light of that lament, it’s worth reiterating that the Lubiano/Weigman/Hardt article is what the Lubiano Trio considers an example of scholarship (or, in the words of the Trio, “intellectual labor of faculty”) in their fields.

hat tips: E.F., B.A.

Butler's Last Column

For those who haven't yet seen it, the extraordinary Kristin Butler signs off.

More from "One of the Most Wide-Ranging Intellectuals in America"

In 1993, Terry Teachout penned a brutal review of Houston Baker’s then-most recent book. “The argument of Black Studies, Rap, and the Academy,” noted Teachout, “can be summed up briefly: (1) Black studies is an indispensable part of American higher education. (2) Rap is a creative and authentic expression of the urban black experience and should thus be taken seriously by academics, particularly those working in the field of black studies. (3) Anyone who disagrees with (1) or (2) is a racist.”

Baker’s views on rap? “They are, controlling for polysyllables, mostly indistinguishable from those of the average thirteen-year-old, and are in any case asserted rather than demonstrated.” The book itself, according to Teachout, was “a veritable omnium gatherum of latter-day academic clichés”—characterized by rampant errors (Baker misspelled the names of S. I. Hayakawa, Carol Iannone, Catharine MacKinnon, and Salman Rushdie) and preening (Baker: “I recently (February 1990) had the experience of crossing the Atlantic by night, followed by a metropolitan ride from Heathrow Airport to North Westminster Community School in order to teach Shakespeare’s Henry V to a class of GCSE (General Certificate of Secondary Education) students. … To make an exciting pedagogical story brief, we took off—as a group. I showed them how Henry V was a rapper—a cold dissing, def con man, tougher-than-leather and smoother-than-ice, an artisan of words. … eight or nine of the students surrounded me after class seeking, as they put it, ‘scholarships’ to go back with me to America— ‘now, Sir!’”)

Scott McLemee has reviewed Baker’s most recent publication, Betrayal: How Black Intellectuals Have Abandoned the Ideals of the Civil Rights Era, which takes on a host of black intellectuals “through a mixture of critical analysis and personal insult — blended in portions of roughly one part to three, respectively.” That style wouldn’t surprise anyone who encountered Baker through the lacrosse case.

According to McLemee,

Baker assures readers that he, at least, is using the best tools available to the true black public intellectual. “I am,” Baker assures us, “a confident, certified, and practiced reader of textual argument, implicit textual values and implications, and the ever-varying significations of written words in their multiple contexts of reception.... I forgo ad hominem sensationalism, generalized condemnation, and scintillating innuendo where black neoconservatives and centrists are concerned. The following pages represent a rigorous, scholarly reading practice seasoned with wit.”

Baker, alas, seems to have been no more careful with facts in 2008 than he was in 1993. Writes McLemee,

Baker points out that in the 1940s, Irving Kristol, the founding father of that neoconservatism, abandoned the constricted world of left-wing politics “in search of a more expansive field of intellectual and associational commerce (one in which he would be ‘permitted’ to read Max Faber)....”

That parenthetical reference stopped me cold. I have a certain familiarity with the history of Kristol and his cohort, but somehow the role of Max Faber in their bildung had escaped my notice. Indeed, the name itself was totally unfamiliar. And having been informed that this book was “the product of “a rigorous, scholarly reading practice” — one “seasoned with wit,” mind you, and published by Columbia University Press — I felt quite embarrassed by this gap in my knowledge.

Off to the library, then, to unearth the works of Max Faber! But before I could get out the door, a little light bulb went off. Baker (who assures us that he is a capable judge of social-scientific discussions of African-American life) was actually referring to Max Weber.

It’s a good thing the author of this book is “a confident, certified, and practiced reader of textual argument, implicit textual values and implications, and the ever-varying significations of written words in their multiple contexts of reception.” Otherwise one would have to feel embarrassed for him, and for the press that published it. And not just for its copy editors, by any means.

So argued the man described by Vanderbilt University as “one of the most wide-ranging intellectuals in America.”

See It To Believe It

Vanderbilt University has 2876 full-time faculty members. Of this number, which one has the University chosen to highlight on its website? A hint: three days after the first article on the case appeared, he demanded that Duke summarily expel at least 46 members of the lacrosse team.

This man, described by the Vanderbilt website as "one of the most wide-ranging intellectuals in America," penned the following item to a correspondent who suggested that he had rushed to judgment about the charges.

Who is really concerned about whether a woman was actually raped or not? Are you a perfect idiot? I mean the fact is that a team of 46 white (and ONE) black men were underaged drinkers, racial epithet hurlers, urinators in public, beat up people who were gay before they were admitted to the lacrosse team, and were reported as bad actors in 2004. i never said anyone was raped, but the record is clear that Duke men's lacrosse players write emails about killing and stripping "bitches" and they are a herd of bad actors. Are you white? If you would really want your son or daughter or brother or sister to act in this fashion and join the team, I pity you. Maybe you should go to Badjocks.com. Do some research and get the BIGGER picture before you fire off idiotic emails like this one, ok? ALL of "official" American history is a lie, Pal!!

Where did YOu go to school??? Read Howard Zinn, for goodness sake. Good lorad [sic], all you people think you an go "ah hah," and the polar caps will not melt, or the levees will hold. You live in a white supremacist fantasy land, and sometimes even get paid for doing so. Whew! Have you read recently? Anything?

At GOGGLE [sic], punch in "Men's Lacrosse at Duke" and see what a perfectly horrible leader in egregious behavior Duke and its 46 white men have been.

And, get over yourself, buddy. Get smart before you write to a professor, OK. Read SOMETHING.

And here was "one of the most wide-ranging intellectuals in America" responding to a lacrosse player's mother, who asked if he would consider apologizing for his actions after the case collapsed. He penned the below from his vanderbilt.edu e-mail account.

LIES! You are just a provacateur [sic] on a happy New Years Eve trying to get credit for a scummy bunch of white males! You know you are in search of sympaathy [sic] for young white guys who beat up a gay man [sic] in Georgetown, get drunk in Durham, and lived like “a bunch of farm animals” near campus.

I really hope whoever sent this stupid farce of an email rots in .... umhappy [sic] new year to you ... and forgive me if your [sic] really are, quite sadly, mother of a “farm animal.”

Here is the website screenshot.

Duke Motion Denied

In what will surely rate as the least surprising development of the civil case, Judge James Beatty has rejected the Duke demand to sanction the unindicted lacrosse players' attorneys and close the Duke Lawsuit website.

As Powerline's Paul Mirengoff had previously noted, "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."

Good News on Elmostafa

From the Readers' Digest hero of the year, Moez Elmostafa:

The good news is, yesterday, the Department of Homeland Security called me in for an interview, and I was finally awarded my citizenship. I am very happy as it has been a very long wait . . . I called my family back home and they too are very happy for this news.

He thanked the Liestoppers posters "once again for all of your kindness and support."

Kevin Finnerty Letter

A powerful letter by Kevin Finnerty, in the most recent Metro:

Finnerty Family Remembers Article on Duke Lacrosse Case

To writer Sharon Swanson:

I hope this note finds you and your family doing well. We sure are. Easter has just passed, and I must say, we enjoyed a very warm family holiday, completely different from just a year ago.

As we approach the first year anniversary of Roy Cooper’s “Innocent” speech on April 11, my mind just cannot steer clear of the events of that day. I subsequently have realized it was rather courageous of Attorney General Roy Cooper to announce the three young men as “innocent” of all charges within the politically sensitive environment in which we live. Courageous, even though it was totally truthful.

I would like to reiterate for all interested parties that might have any doubt that “the truth does set you free!” I have also just re-read your article for Metro magazine (January 2007) after spending one short day with us, and I have to tell you, I believe you captured the spirit of the moment within our family at that time. Doing so while on such a relatively short visit to our home, speaks volumes of your perceptiveness, as well as to your abilities as an author. - I really just wanted to let you know how much I truly appreciated your taking the time to travel and meet with us at that day, and how important your heartfelt article was for all of the Finnertys at that time. (Especially my wife Mary Ellen!)

It was not only sensitive, but it too was courageous in that it ran directly in the face of the “media madness” that was running amuck with District Attorney Nifong’s bogus, election-driven assertions.

One year later, as I re-read it, I enjoy it all the more, and it actually made me cry, once again.

Thought you’d like to know,

Kevin Finnerty

New York

Remarkable

Even now, there are case-related events that leave me stunned. The below is an actual press release.

LEXINGTON, Ky. (April 7, 2008) – The University of Kentucky Libraries Wendell H. Ford Public Policy Research Center will present a talk on the now infamous rape case lodged against members of a Duke University athletic team. Bob Ashley, editor of the Durham Herald-Sun, will present "The Kaleidoscopic Narratives of the Duke Lacrosse Case" at 4 p.m. Wednesday, April 9, in the William T. Young Library Auditorium. The talk is free and open to the public.

In March 2006, three Duke lacrosse players were charged with rape by district attorney Mike Nifong. Over the next 18 months, as tumultuous events in the case unfolded, the issues of race, gender, class, and the sometimes negative “town gown” relationship that existed in Durham, were exposed in ways that received national media attention. In the middle of the affair was the local newspaper, the Durham Herald-Sun, which reported and editorialized on the matter, earning widespread praise [from whom: the Group of 88? Anti-lacrosse extremist Orin Starn?] and criticism from many corners.

On April 9, the editor of the Herald-Sun comes to UK to present “The Kaleidoscopic Narratives of the Duke Lacrosse Case.” Although charges were dropped against the defendants and Nifong was disbarred for his prosecution of the case, the case left an indelible mark on the school and the community. Ashley will discuss his own controversial role in the case, as well as how the case has affected many different constituencies at Duke University and in Durham . . .

For more information on the Ashley presentation, contact Esther Edwards at (859) 257-1742 or by e-mail.

Reply to the Motions to Dismiss

Attorneys for Dave Evans, Collin Finnerty, and Reade Seligmann have filed a robust, 122-page reply to the parties’ motion to dismiss the civil suit against the city of Durham, various Durham officials and police officers, and employees of DNA Security. The reply cites 183 federal cases and 46 North Carolina cases to bolster its claim that the civil suit should proceed.

The civil suit itself rests on the overarching claim that

The “Duke lacrosse case” involved a coordinated campaign of politically- and racially-charged misconduct that was authorized and ratified by officials at the highest levels of the City of Durham; it involved longstanding policies, customs, and practices of the Durham Police Department that have not been changed and will continue to result in further misconduct; and it involved a DNA laboratory whose owner and Laboratory Director participated in a conspiracy to fabricate and conceal evidence.

The defendants based their various motions to dismiss on three major points: (1) that, as government employees or entities, they were entitled to either absolute or qualified immunity for their acts, even if those acts involved civil rights violations; (2) that the grand jury indictment, as a matter of law, proved that no malicious prosecution occurred; and (3) even if there were civil rights violations, and even if the grand jury indictment did not provide a sufficient shield for the defendants, everything bad that happened was Mike Nifong’s fault, and the disgraced former D.A. is solely and entirely liable.

Keeping in mind that, when evaluating a motion to dismiss, courts must accept the plaintiffs’ factual claims as true, the players’ reply aggressively rebuts each of these claims—with unintentional, if humorous, assistance from some of the defendants.

For instance, in his brief, Linwood Wilson demanded dismissal of the suit against him, claiming that he possessed absolute immunity as a former employee of Nifong. But Wilson elected to act as his own counsel—which perhaps was not the former investigator’s wisest decision. As the players’ reply points out,

Many of Wilson’s other cases [cited in his brief] actually reject his argument. See Gobel v. Maricopa County, 867 F.2d 1201, 1204-05 (9th Cir. 1989) (denying absolute immunity for role in false arrest, false statements to media, and illegal detention); Auriemma v. Montgomery, 860 F.2d 273, 279 (7th Cir. 1988) (denying absolute immunity for “unlawful investigative activities”); Joseph v. Patterson, 795 F.2d 549, 556-57 (6th Cir. 1986) (denying absolute immunity for participation in unlawful search and investigation of obstruction allegation). As the Sixth Circuit explained in Joseph: “when the nonjudicial official undertakes action on his own initiative or when he carries out administrative or investigatory functions of the prosecutor, he can only claim the affirmative defense of qualified immunity.”

Wilson, alas, was no more competent a legal researcher than he was a D.A.’s investigator.

The reply similarly cites myriad cases to reject claims by former Sgt. Mark Gottlieb and former DNA Security lab director Brian Meehan that they deserve absolute immunity for their acts.

The fall 2007 election season—and virtually every column on the case penned by the N&O’s Barry Saunders—featured heated remarks suggesting that the players deserved no damages because the charges were dismissed before trial. However effective such demagogic claims are in Durham’s poisonous political environment, the reply brief makes clear they have no legal standing. It observes,

Other Defendants . . . attempt to downplay Plaintiffs’ seizures as “temporary” to suggest that they are not actionable. See Addison Br. at 13. But the duration of custody is irrelevant to the fact that a constitutional harm occurs when one is arrested without probable cause. See United States v. McCoy, 513 F.3d 405, 412 (4th Cir. 2008) . . . As to Plaintiffs’ claims for reputational damages, it is well settled that because § 1983 incorporates “the common law of torts,” it permits a plaintiff to recover all damages that flow from a constitutional deprivation, including any damages for “impairment of reputation . . . , personal humiliation, and mental anguish and suffering.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) . . .

The case law establishes that a plaintiff need not have been convicted in order to bring a § 1983 claim under the Fourth Amendment for unlawful seizure without probable cause . . . The only prerequisite for such a claim is that the criminal proceedings have been terminated in the plaintiff’s favor . . . A “conviction” requirement would make no sense in the context of a malicious prosecution/unlawful seizure claim under § 1983: where, as here, defendants inflict constitutional harm by fabricating probable cause to cause a seizure, it would be folly to preclude liability simply because the charges were ultimately dismissed prior to conviction.

The brief cited four cases beyond the ones quoted in the above excerpt to make the point.

The city and its employees based much of their motions to dismiss on the assertion that the grand juries’ indictments shielded everyone except possibly Nifong from suits for civil rights violations. Their argument: “As a matter of law, a prosecutor’s decision to proceed or a grand jury’s decision to indict insulates all pre-indictment misconduct by others; second, . . . because Nifong had all of the relevant information relating to Defendants’ misconduct and decided to seek indictment anyway, Nifong’s decision was an independent and intervening cause of the constitutional deprivation.”

These contentions, appropriately, generated a strong response from the players’ attorneys: “The first argument is wrong on the law. The second would turn the law on its head,” by essentially saying that if police and prosecutors could conspire to obtain a fraudulent grand jury indictment, they never could be sued for civil rights violations. Indeed, as the brief observes, in this instance, “Defendants, knowing there was no probable cause to indict Plaintiffs, decided to fabricate inculpatory evidence, conceal evidence of actual innocence, and make false statements in bad faith in order to mislead the grand juries and effect seizures of Plaintiffs. Since the indictments and seizures were not only reasonably foreseeable, but the intended result of this misconduct, Defendants cannot now point to the indictments as ‘intervening causes’ of Plaintiffs’ seizures.”

For precedent, the reply brief cites White v. Frank:

The intervening acts of a grand jury have never been enough to defeat an otherwise viable [§ 1983] malicious prosecution claim. . . . And though an indictment by a grand jury is generally considered prima facie evidence of probable cause in a subsequent civil action for malicious prosecution, this presumption may be rebutted by proof that the defendant misrepresented, withheld, or falsified evidence.

* * *

As with the grand jury, . . . the public prosecutor’s role in a criminal prosecution will not necessarily shield a complaining witness from subsequent civil liability where the witness’s testimony is knowingly and maliciously false.

The players’ attorneys also note that the “blame-Nifong” defense doesn’t let Durham, its employees, or DNA Security off the hook:

Defendants are essentially arguing that even though Nifong joined with them in the unlawful scheme to indict Plaintiffs in the absence of probable cause, they cannot be liable because Nifong, as their co-conspirator, knew that they had also fabricated inculpatory evidence, concealed evidence of actual innocence, and made false and inflammatory statements in furtherance of the scheme.

This argument does not suffer for lack of creativity or nerve. In essence, Defendants take the settled law described in the previous Section—that a deceived prosecutor cannot shield a wrongdoer from liability—and flip it on its head, arguing that since Nifong was not deceived, his actions must have been independent.”

Moreover, the attorneys argue, Durham has misrepresented a key citation: “The City and Gottlieb rely on Rhodes v. Smithers, but as that case makes clear, the actions of a prosecutor serve as an intervening cause only where he or she acts in good faith.”

The players’ attorneys have little difficulty with one of the city’s less credible claims: that because Nifong was a county/state employee, neither the city nor its employees should be held liable for his actions—even though the DPD delegated to Nifong control of the police investigation. Carried to its logical conclusion, the city’s stance would emasculate a 1988 case called City of St. Louis v. Praprotnik, which maintained, “If . . . a city’s lawful policymakers could insulate the government from liability simply by delegating their policymaking authority to others, § 1983 could not serve its intended purpose.”

The reply brief also scoffs at the city’s claim that the DPD allowed Nifong to run the police investigation as part of “the normal coordination between municipal police officers and State prosecutors” that could not have “transformed him into a City official.” As the players’ attorneys point out,

Plaintiffs are not asserting that a municipality in North Carolina can ordinarily be held liable under § 1983 for the actions of a District Attorney in his or her traditional advocacy role. Rather, Plaintiffs assert that the City is liable for Nifong’s actions because its policymakers delegated authority over the Durham Police investigation to Nifong and because the civil rights violations arose from Nifong’s misconduct in that investigative role. [emphasis in original]

Finally, the players’ attorneys bluntly point to recent events to justify the continuing need for an injunction over criminal investigations involving both the DPD and the DSI:

The requested Injunction and Court monitoring are necessary because there is no indication that the City and DSI ever intend to take responsibility for their misconduct and implement reforms that would protect Plaintiffs and others. The City announced, to much fanfare, a blue ribbon commission to investigate the Durham Police Department’s misconduct in this case, and then promptly canceled it before it could hear a single witness from the City or Durham Police. The City then announced that Defendant Patrick Baker would be stepping down as City Manager, but only so that he would become the City Attorney, notwithstanding his role in ordering arrests without probable cause and approving the unconstitutional April Photo Array. Addison received a promotion. And while Meehan is no longer employed by DSI, upon information and belief Clark continues to run the company.

Given the overwhelming number of on-point cases cited by the players’ attorneys, it’s very hard to see any of the key figures in the case—Gottlieb, Wilson, Baker, Addison, Meehan, the City of Durham—prevailing in their motion to dismiss.

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.”

---------

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.

---------

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.