Thirty-Six Questions

“Equal justice for all in North Carolina begins with justice for Mike Nifong!”

At one level, this statement is undeniable: equal justice for all would be served by Mike Nifong standing trial, an outcome prevented by then-Attorney General Alberto Gonzales. But the line above serves as the motto of the “Justice for Mike Nifong” committee, the organization led by Durham’s resident homophobe, Victoria Peterson. The committee wants to end Nifong’s unemployment by undoing the Bar’s “despicable” actions and restoring Nifong’s law license.

The committee has produced a 10-part, 36-question document—filled with leading yes-or-no questions, seemingly designed to demonstrate the myriad ways in which Nifong was wrongly treated.

In its statement of purpose, the two-person group plays off demagogic beliefs deep-seated within the Durham political and legal atmosphere: the group defends Nifong’s behavior on the grounds that he merely “used the principle of ‘equal justice for all’ in prosecuting three Duke University athletes who came from families of wealth, status, and privilege.”

Perhaps the most striking element of the JMN document comes in what it does not include. Nifong was disbarred in part because of his barrage of false and defamatory public statements about the case and the lacrosse players. The JMN questionnaire makes no mention of the ethically improper statements. Justice for Nifong, it would seem, requires pretending that these statements never were made.

The JMN document likewise neglects to mention of Nifong’s decision to prosecute a case without probable cause, or his ordering the DPD to violate its own procedures and run a third lineup after Crystal Mangum couldn’t make any identifications. Justice for Nifong, it would seem, requires pretending that the rigged lineup never occurred, or that probable cause existed.

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The questionnaire itself consists of ten sections, only one of which deals with Nifong’s actual misconduct. According to JMN, Nifong’s only improper behavior in the lacrosse case was his “withholding non-exculpatory evidence that had no relevance or advantage for the defense.”

That’s the description given to Nifong’s repeatedly lying to the court about the content of his conversations with DNA lab director Brian Meehan, his decision to violate North Carolina state law by not reporting all results from a DNA test obtained through a non-testimonial order, and his decision not to report evidence proving (a) that Mangum lied when she claimed she had no sex a week before the party and (b) that an innocent explanation existed for Tara Levicy’s Hail-Mary effort to suggest that “diffuse edema of the vaginal walls” suggested that a rape occurred.

JMN questions on this issue borrow from the unique legal analysis of Wendy Murphy and imply that Nifong had the right to unilaterally cherrypick which DNA test results to report, and then to lie to the court about his actions. From the JMN questionnaire: “Do you believe it is possible that the reasons Mr. Nifong may have withheld the multiple male DNA evidence from the defense are because it had no relevant value, and he may have wanted to spare [Crystal Mangum] from unnecessary shame and embarrassment?”

Nifong, of course, didn’t simply withhold this evidence from the defense—he withheld it from the court, twice falsely informing judges that nothing existed in the tests beyond what was contained in Dr. Meehan’s incomplete report. As to a possible motive of sparing Mangum “from unnecessary shame and embarrassment”: North Carolina law, alas, doesn’t give prosecutors the unilateral right to withhold evidence for any reason. Perhaps JMN should devote itself to persuading the legislature to include a “shame and embarrassment” clause in the NTO statute.

Having described both the case and North Carolina law in a wildly inaccurate fashion, the JMN questionnaire asks test-takers to compare the (inaccurate) description of Nifong’s misconduct with the misconduct committed by other North Carolina prosecutors. (Three of the ten sections revolve around this theme.) Two more sections contain leading, negative questions about Gov. Mike Easley’s and Attorney General Roy Cooper’s public remarks about Nifong.

The JMN questionnaire makes clear the central villains of the case: the three falsely accused players and DHC chairman Lane Williamson. Two sections of the questionnaire minimize the harm experienced by the falsely accused players (despite the acknowledgement on this point by Nifong’s own apology). A third bizarrely asks whether the outcome of the case would have differed had the accuser gone to Duke and the accused gone to NCCU. Given that Nifong desperately needed the black vote for his primary, it’s hard to imagine what political benefit he would have received from bringing charges without evidence against black students.

For good measure, the JMN authors assert that “for reasons unknown, each of the defendants received $1.5 to $1.7 million from Duke University.” No clue is given as to the basis for this figure (it seems to have as much validity as Nifong’s assertion that he couldn’t pay more than $34.99); the suggestion that Duke just decided to hand over millions of dollars for no apparent reason is almost laughable.

As for Williamson, the JMN questionnaire leads off with five questions insinuating that the DHC chairman had a conflict of interest because he was a law school classmate of Nifong’s who had a daughter who attended Duke. The only problem: Williamson disclosed both items publicly, and Nifong indicated that he saw no reason for Williamson to step aside from the case.

The JMN’ers wind up with a “question” asking readers if they agree with the premise that “the North Carolina State Bar should take responsibility for its mistake in unjustly disbarring Mike Nifong, and it should reinstate his license to practice law immediately and without restrictions.”

Indeed. About the same time that Bigfoot is named North Carolina’s state animal.

Nifong: "$34.99 Is My Final Offer"

The N&O reports that Nifong attorney Jim Craven filed a brief today asserting that the three lacrosse players unethically prosecuted by the disgraced ex-D.A. "will never collect so much as $35 from Mike Nifong." Apparently, then, $34.99 is still on the table.

Attorney Jim Craven also implied that Nifong was being victimized by the system and the lacrosse players, who knew of his inability to pay more than $34.99, "yet still they come." His brief also cited a heretofore unrevealed "Duke University alumnus" of unknown identity (the tooth fairy, perhaps?) who allegedly paid off all the players' legal bills.

Even if Nifong had more than $34.99 to spare, Craven implied, the case against his client would be without merit. Craven dismissed the civil suit filings (which detailed Nifong's decision to press ahead with the case despite having no credible evidence, his decision to instruct the DPD to run a third lineup violating the department's own procedures, his ethically improper and factually inaccurate public statements, his lying to the court--resulting in a criminal contempt conviction, and his decision to withhold exculpatory DNA evidence) as "hyperbolic pleading, unworthy of belief."

The filing did not disclose how much of Nifong's remaining $34.99 went to pay Craven's bills. Based on the quality of the argument, I suspect not too much.

[Update, 11.38pm: The full filing is now online. Craven describes Nifong as "unemployed, with
little else to do" than to "testify" in the various cases resulting from his misconduct. Remarkably, Craven also contends that the findings of disbarment and criminal contempt against Nifong do not rise to the level of "willful and malicious" conduct. Such a claim is difficult to take seriously.]

Airbrushing

When asked for an anecdote of why history is important, I usually cite a story from March 1948, shortly after a coup that installed totalitarian rule in Czechoslovakia, when the Czech Communist Party (KSČ) convened a celebratory gathering in Prague’s Old Town Square. Tens of thousands braved chilling temperatures to hear KSČ leader Klement Gottwald speak. The new communist foreign minister, Vladimír Clementis stood beside Gottwald on the podium, and gave up his fur hat to shield the prime minister’s bare head from the cold.

Four years later, a wave of anti-Semitic show trials occurred throughout the Eastern Bloc; Czechoslovakia experienced the most spectacular purge. In late 1952, the government denounced Clementis, KSČ first secretary Rudolf Slánský, and twelve other prominent Communists as “Trotskyite-Zionist-Titoist-bourgeois-nationalist traitors, spies, and saboteurs.” Eleven of the fourteen arrested leaders were Jews. All were found guilty in show trials; eleven, including Slánský and Clementis, were executed.

The trials’ outcome required creating a new, politically correct, version of the past. Propagandists eliminated the executed party members from communist history books. Clementis, for instance, was airbrushed from the photograph at the Prague demonstration hailing the coup. In the KSČ’s version of history, all that remained of the former foreign minister was the cap that he had placed on Gottwald’s head.

The true story of Clementis and his fur cap comes from the opening of Czech dissident Milan Kundera’s novel, The Book of Laughter and Forgetting. To one of the novel’s characters, the tale showed how “the struggle of man against power is the struggle of memory against forgetting.” For historians, Clementis’ fate illustrates the willingness of totalitarian regimes to alter the past to align with their contemporary political interests; and, from the other side, the need for scholars to resist such efforts.

In the lacrosse case, the Group of 88 most blatantly imitated the Czech propagandists. Beginning in late 2006—as the case to which they had attached their cause began to implode, and the African-American Studies Department had removed the ad from its homepage, where it had been posted for 183 days—we witnessed a furious attempt to create a new, politically convenient, meaning of the ad.

Airbrushed out was Wahneema Lubiano’s e-mail soliciting signatures for the ad. In its stead, Group apologists described the ad as a general commentary on society. Airbrushed out was the overwhelming, guilt-presuming early media coverage. In its stead, Group members deemed the ad a necessary corrective to the anti-black stereotypes and defenders of the lacrosse players that allegedly dominated the early media coverage. Airbrushed out was the way in which the unequivocal statement that something “happened” to Crystal Mangum took a position on the case. In its stead, Group members affirmed that the line was merely a commentary on Mangum’s public “drunkenness.”

Alas, unlike Gottwald and his propagandists, the Group and its apologists can’t remove the many documents and images from the time of the ad. As a result, their attempted airbrushing has only made the Group look worse.

A more subtle type of airbrushing has occurred in the media, and in commentary about the media’s role in the case—as three recent items bring to light.

1.) From the Q&A session of the recent SEALS panel: the media coverage of Mike Nifong’s abuses, and in particular the 60 Minutes broadcast. The basic line: attention to the players’ exoneration proved the media’s class bias, since poor black victims of prosecutorial misconduct don’t usually get interviewed by 60 Minutes.

It’s quite true that poor black victims of prosecutorial misconduct don’t usually get interviewed by 60 Minutes. Prosecutorial misconduct often isn’t revealed until the post-appellate stage; covering it well requires reporters who both understand and can explain procedural developments, and it rarely makes for exciting television. Given this roadblock, why did Nifong’s misbehavior attract attention?

It could be that the players benefited from their class. Far more likely, however, are other explanations that advocates of the new narrative have airbrushed out.

(1) 60 Minutes detected a good story, in that a massive amount of initial coverage not only presumed guilt, but made deep moral judgments from the presumption of guilt, and was stoked by Nifong and his enablers. Most “normal” cases of prosecutorial misconduct attract little or no initial media attention, and certainly not the tens of thousands of articles that occurred in the first two months of this case.

(2) The 60 Minutes team—the late Ed Bradley and producer Michael Radutsky—don’t exactly have reputations as defenders of white privilege.

2.) Courtesy a recent post by Lead and Gold’s Craig Henry:

I’ve posted a lot on the Duke lacrosse fiasco. many of those posts have focused on the News and Observer whose reporting did much to launch and prolong the hoax.

One might expect the paper to learn their mistakes. They have not. The latest proof is this bizarre post on perp walks.*

Dan Barkin writes:

There is a good chance that the perp being walked today will never see the inside of a prison cell when all is said and done.

The feds know this, in the back of their minds, which may be one big reason for the handcuffs and the cameras. Because even if the accused [white collar criminals] win in court, they’ll still have to live down the images of being perp walked being seen on CNN by everyone who went to high school with them.

The N&O still hates the presumption of innocence when it comes to politically correct defendants. Just like the “privileged white athletes” in the hoax frame, rich white businessmen can never be truly innocent to the N&O. That makes it OK to ruin their reputation before the trial and after an acquittal.

* I first wrote about perp walks long before the lacrosse case. See here.

One of the most distasteful examples of media behavior came on the day that Reade Seligmann and Collin Finnerty were arrested—the breathless coverage of their (arranged) “perp walk” followed by journalists all but clawing the Durham County Sheriff for a copy of their mugshots (we have a photo of the latter in UPI.) How can any newspaper that covered that event continue to justify covering “perp walks,” which serve no purpose other than humiliation?

[Update, 1.27pm: After an e-mail from an astute reader, a couple of points of clarification.

(1) I didn't mean to imply that the N&O had unfairly covered the lacrosse case perp walks, although my language didn't at all make that clear (the "that event" to which I meant to refer was the arrest of Seligmann and Finnerty). In fact, the troubling "perp walk" coverage in the lacrosse case that remains in my mind was from CNN/Headline News and MSNBC. I apologize for the confusion.

(2) I would have liked to have seen a commitment by Barkin not to use "perp walk" photos, but the post does not mean to suggest that the N&O's record in using such photos is unusual. Indeed, as any regular reader of the Times could attest, the Times' record in this regard is appalling.]

(3) Perhaps the clearest case of media airbrushing, however, came in an AP article that from a couple of days ago. The headline “Race sometimes a problem in eyewitness IDs.” The article discussed a North Carolina case of a white woman who was raped by a black man, Ron Cotton, and then identified the wrong man in the lineup. DNA testing freed the man, but only after he spent a decade in jail. (A rape did occur in this case.) The victim and the man she falsely identified are now writing a book, Picking Cotton.

The article discusses how DNA exoneration of wrongly convicted people often (more than 75% of the time) involves cases where convictions were obtained in part through mistaken eyewitness IDs. From the AP article: “Of those, nearly half, roughly seven dozen, involved a person of one race wrongly identifying someone of a different color.” The article discusses the increased danger of cross-racial IDs, and contains a quote from Barry Scheck about the particular dangers of white IDs of black people.

Then came this item:

This year, North Carolina became the first state to standardize identification procedures. That includes preventing the police officer who is investigating the crime from conducting photo identifications with witnesses and requiring that lineup photographs be shown one after another rather than in groups of six.

What case provided the final impetus for this change? The AP doesn’t say—the lacrosse case gets airbrushed from history. (If anything, the article implies that the Picking Cotton case brought about the change.) This editorial decision was particularly odd given the lacrosse case demonstrated the dangers of cross-racial IDs, most notably when Crystal Mangum twice stated with 100 percent certainty that she saw Brad Ross at the party, even though Ross could provide unimpeachable electronic proof that not only did he not attend the party, he wasn’t even in Durham County that night.

It seems that the lacrosse case doesn’t fit into the article’s framework that one type of cross-racial misidentification is where the media should confine its attention.

What makes the items above particularly depressing is that the AP and the N&O joined the Chronicle as the top performers among the print media in the case. And while, as Craig Henry points out, political correctness appears to be behind the N&O’s approach to perp walks, it’s hard to characterize the AP as a paragon of political correctness. Indeed, the wire service’s coverage of this year’s campaign has been almost laughably tilted in John McCain’s favor, as Talking Points Memo has detailed convincingly.

There is, in this respect, a difference between the media airbrushing—which, it seems, comes more from a subconscious worldview—and that of the Group of 88, which obviously stems from more malevolent intent. But in the end, the result seems to be the same.

Still More: Only in Durham

It appears that NCCU has been improperly awarding degrees for a satellite campus that it set up in, of all places, the state of Georgia.

More Only in Durham

The "Committee on Justice for Mike Nifong"--which consists of two people, one of whom is Durham's resident homophobe, former Nifong citizens' committee chair Victoria Peterson--has been sending out the following item:

The "Committee on Justice for Mike Nifong" is conducting a survey and we would consider your participation to be invaluable. If you are willing to give ten minutes of your time towards this endeavor, reply by e-mail and you will be sent a questionnaire of thirty six (36) yes/no questions, and a return stamped, self-addressed envelope for your convenience.

Please respond as soon as possible, and include a mailing address to assure delivery. Thank you for your consideration in being part of this important and informative survey.

If anyone gets a copy of the questions, please send them to me; I'll post them.

You can't make this stuff up.

The Baker File

[updated] From Ray Gronberg's article in this morning's H-S:

Notes officials took from Mayor Bill Bell's regularly scheduled Wednesday morning meetings with City Manager Patrick Baker, for example, show the two discussed the case every week after reports surfaced that police took DNA samples from team members [3-23-06] to the time grand juries indicted the three players [5-15-06].

But save for that bare acknowledgment, they don't document the substance of those conversations.

Former City Manager and current City Attorney Baker must have received his information about the case from someone in the Police Department. Who kept him informed each and every week? What did they tell him? What did he say in response? What orders, if any, did he give to cover up evidence of misconduct?

Some other questions, based on the timeline above:

When did Baker learn that the Police Department had allowed Mike Nifong to take over supervision of the investigation (3-24-06)? How did he react?

When did Baker learn that Supervisor Nifong had ordered police to run a third lineup (3-31-06), only this time violating their own procedures and confining the lineup to suspects? How did he react?

When did Baker learn that even though Crystal Mangum had "identified" people in this lineup (4-4-06), the police didn't even consider her "identification" serious enough to seek a search warrant for the rooms of the "suspects" before police went to the grand jury (4-17-06)? How did he react?

When did Baker learn of Supervisor Nifong's decision to hire an outside DNA firm (4-5-06)? How did he react?

Was Baker informed of the 4-10-06 meeting in which the DNA lab director passed on news of unidentified male DNA in Crystal Mangum's rape kit? If so, how did he react? If not, what was he told about this meeting?

Did Baker's DPD liaison inform him of the evidence Ron Hodge claimed to possess when he told MSNBC on 4-11-06 that the DPD had strong evidence against the players?

When was Baker informed that the DPD had waited three weeks before taking a statement from Crystal Mangum (4-6-06)? How did he react?

When was Baker informed that Kim Roberts' statement (3-22-06) had contradicted Mangum's in every respect? How did he react?

When was Baker informed that despite the requirement that a NTO be obtained only against those who authorities had a reasonable belief could have committed the crime, the police had actually obtained an NTO against Brad Ross, who provided police with evidence (4-12-06) that he wasn't even in Durham on the night of the party? How did he react?

When was Baker informed that Cpl. David Addison had been forced to issue multiple "clarifications" to his inflammatory CrimeStoppers poster? How did he react?

This item, in short, opens up a whole range of questions as the civil case proceeds.

Brodhead, Brown, & the Seligmanns

There has been some attention in the blogosphere caused by a recent statement from Jim Cooney about a possible letter from Duke president Richard Brodhead and Reade Seligmann’s application to Brown. The Seligmann family issued a statement on the matter to the Herald-Sun, which quoted excerpts in today’s paper:

Seligmann “knows of no support that Brodhead gave him at Brown,” lawyer Richard Emery said Wednesday after his office e-mailed a statement from his client to The Herald-Sun. “Whether that happened behind his back, he can’t be sure. It may have happened, but he doesn’t know about it.”

The statement also noted that Brodhead had contacted the Seligmann family only twice in the entire case. The first contact by Brodhead after Seligmann’s indictment and suspension from Duke came after a delay of around eight months, in December 2006, when he e-mailed them to wish them a happy holidays(!). The second contact came in January 2007, to inform them that the school had overridden Group of 88’er Karla Holloway’s objections and lifted the suspension of Seligmann and Collin Finnerty.

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I can add a few contextual items to this story.

(1) The assertion that Brodhead played a particular role in Seligmann’s admission to Brown seems to contradict the publicly known timeline. The Brown Daily Herald, for instance, reported on February 21, 2007 (nearly two months before the exoneration) that Brown was aggressively recruiting Seligmann—not the reverse. The process of Seligmann going to Brown, in short, was well underway before any alleged help from Brodhead could have occurred, and Seligmann’s grades were impressive in their own right, well within the range of Brown’s caliber.

(2) I had a few off-the-record conversations with people at Brown in spring 2007. Based on those, it’s not my sense that Brodhead had any particular role in Brown’s decision to recruit Seligmann. It’s also not my sense that Brodhead has any particular influence at Brown. There are institutions (Yale, for instance) in which Brodhead remains a figure of some standing—but in most of the other Ivy League schools, it’s my sense that Brodhead is looked upon in rather unfavorable terms, as an administrator who performed poorly under crisis. Moreover, Brown president Ruth Simmons has spoken out against the kind of ideological imbalance typified by the Group of 88’s dominance of Duke discourse: she is not really the kind of administrator likely to be swayed by Brodhead.

(3) Even though Bob Steel told other Trustees in summer 2006 that the Duke administration had stayed in regular contact with the families of the accused players, I don’t think anyone (including Steel) any longer retains that fiction. Indeed, Brodhead apologized for his decision not to stay in close contact with the families in his September 2007 remarks at Duke Law School. The Seligmanns’ statement that Brodhead only approached them twice—and very late in the game, and in odd ways—seems correct. I can say that at no point in the case was I aware of any more than these two (token) contacts between Brodhead and the Seligmann family, nor am I aware of anyone else who knows of additional contacts between Brodhead and the Seligmann family.

(4) The only unresolved matter, therefore, is a possible Brodhead letter on Seligmann’s behalf, which Cooney mentioned to the H-S. From the Seligmann family statement: “Nobody ever communicated to [Seligmann] anything specific about any letter. There was some general knowledge that Brodhead was writing a letter to assertively help him. But [that knowledge] was very general and very vague.”

What would such a letter have entailed? To have actually been of assistance to Seligmann, any such letter would have needed, at the very least, to address Brodhead’s (false) April 5, 2006 statement that Seligmann was part of a group that had been subject of reports of racist behavior; and his (seemingly defamatory) April 20, 2006 statement that even if Seligmann and Finnerty were innocent, “whatever they did was bad enough.”

Seligmann attorney Richard Emery said that Duke should “set the record straight” and release relevant records. The response of a Duke spokesperson: “Student privacy laws constrain us from discussing such matters.”

But in this case, the student—Seligmann—has waived his privacy rights. So, Duke’s official position is that it can’t release the alleged Brodhead letter because of privacy rights that the student himself has waived?

Such a position would suggest that either: (a) no letter exists; or (b) Duke doesn’t want the contents of the letter to see the light of day.

FODU on Brodhead, the Giuliani Case

Jason Trumpbour's latest post.

Delaying Discovery

The legal skirmishing in the civil suits by both the falsely accused and the unindicted players has featured two unusual items of contention.

The first was Duke’s motion to close down the Duke Lawsuit website—even as the University hosted a website containing (among other items) President Brodhead’s April 5, 2006 letter to the community. (That document severely denigrated the personal character of the very people now suing the University.) The judge correctly decided that both websites were proper under legal ethics guidelines.

The second unusual item has been a refusal first by Duke (in the suits by the unindicted players) and then by Durham (in all the cases) to formally confer with the plaintiffs’ attorneys about discovery matters. The Duke/Durham argument in a nutshell: all the motions to dismiss will be granted, and therefore our clients shouldn’t have to submit to the burdensome requirements associated with the discovery process.

Intellectually, the Duke/Durham argument is a perfectly reasonable one: why should defendants, in a lawsuit they consider frivolous, have to deal with discovery matters before a judge has even decided whether the lawsuit can go forward?

Legally, however, the argument is bizarre, as revealed in a motion filed yesterday by attorneys for the falsely accused players. As the motion notes, Rule 26(f) requires attorneys in a civil suit to confer “as soon as practicable” about establishing a schedule for discovery issues, and the rule doesn’t give defendants the unilateral power to override its terms.

As the motion notes, some of Durham’s arguments strain credulity: the city, claims Durham attorneys, shouldn’t have to deal with discovery matters involving the falsely accused players until the court decides motions to dismiss involving the unindicted players. Or the city, claims Durham attorneys, has no relevant information to turn over, because the criminal-case attorneys conducted their own investigation and brought all relevant facts to light.

These assertions make no sense.

Other aspects of Durham’s justification for refusing to begin the discovery process are sheer demagoguery, part of the continuing effort to suggest that the “wealthy” lacrosse players should have no right to sue the “poor” citizens of Durham. In the words of yesterday’s motion,

The City Defendants’ claims that starting discovery now would waste “taxpayer money” ring hollow, given that the City has announced that it already spent its insurance deductible and that its defense, and those of its defendant employees, are now being funded exclusively by the City’s insurance carrier, not Durham taxpayers.

Moreover, as yesterday’s response makes clear, the Durham/Linwood Wilson briefs didn’t even challenge all points in the lawsuit—meaning that portions of the civil suit would still go forward even in the (wildly unlikely) event that the defendants scored a 100% victory in their motions to dismiss.

The real reason why Durham has appeared to reluctant to begin the discovery process, despite the seemingly clear requirement under federal law to do so? It’s not hard to determine. From yesterday’s motion:

Far from obviating the need to commence discovery, the parties’ prior communications regarding electronically stored information (“ESI”) demonstrate the need to commence such discovery as soon as possible. Eight months after Plaintiffs had asked Defendants to preserve potentially relevant ESI, the City of Durham’s counsel not only had failed to secure the computers used by the City Defendants—they had not even determined which of them used a City-issued computer . . . Even more remarkably, the City’s counsel revealed to Plaintiffs that the City had made no effort to locate or secure the computers used by its two lead investigators, Defendants Gottlieb and Himan, for purposes of this litigation . . . The City also claims that it has no server-based emails[??!!] for a significant portion of the relevant time period.

The explanations for such a delay don’t inspire confidence: utter incompetence, malevolence, or both.

Given that their position defies both established federal procedure and basic common sense, what really motivates the Durham attorneys’ delaying tactics? The answer, it would seem, is risk-avoidance. Despite the fact that the city has scant chance of prevailing at trial against the falsely accused players, Durham did not seriously consider a settlement offer. The move was based largely on the (perhaps correct) assumption that demagogic appeals to a civil-suit jury might hold down the amount of the ultimate judgment.

This strategy, however, carries with it one enormous risk: that the discovery process in the civil suit would uncover evidence of misconduct so blatant (such as direct intent to frame) that even demagogic appeals won’t prevent a massive judgment against the city. So why not minimize the chances of such an outcome by delaying discovery as long as possible, and then claiming that significant items (such as Gottlieb’s and Himan’s computers) somehow got lost in the shuffle?

July Events in the Case

I realize that as the case has moved into the civil suit process, many DIW readers drop by only periodically to check in on developments. For these readers, here’s a review of case-related events in July:

• The major parties filed their motions to dismiss the Ekstrand lawsuit. Duke attorneys—having earlier labeled Crystal Mangum the “victim” and challenged the Attorney General’s report regarding the validity of former SANE nurse-in-training Tara Levicy’s testimony—now offered a new defense, suggesting that Levicy effectively had a license to lie. In his response, ex-Sgt. Mark Gottlieb blamed Duke and Levicy for the case getting off the ground in the first place.

• North Carolina NAACP head William Barber—having been elected to the national board of the NAACP—suddenly discovered the value of lie detector tests and negative DNA results in determining innocence from criminal charges.

• Beleaguered Wachovia Bank hired Board of Trustees chairman Bob Steel as its new CEO, with the remarkable assertion that “he is an ideal choice for this time of turmoil.” Wachovia shares promptly plunged.

• The disgraced Mike Nifong resurfaced—to urge North Carolina voters to support Barack Obama. And if Nifong’s endorsement led most voters to recoil from Obama, the only presidential candidate to urge a DOJ criminal investigation of Nifong . . .

And, a while back, a commenter criticized me for suggesting that the Lubiano Trio’s apologia for the Group of 88 could be considered “scholarship,” since Wahneema Lubiano listed the article not on her CV but only in her “recent publications” section. Well, now the article is on her CV, too.

SEALS Panel

I’m back in the United States, and yesterday participated in a lacrosse-case roundtable at the SEALS conference. My views on the case are, obviously, well-known to any reader of the blog. But here’s a summary of some points presented by the other panelists.

Jim Coleman

Nifong’s behavior took the case off the rails from the start. He probably believed (or allowed himself to believe) that Crystal Mangum was raped, but did nothing right.

Coleman explained the fraudulent lineup for those in the audience who hadn’t heard of it.

He (correctly) termed Nifong “unsophisticated” in dealing with the media, and chastised the national press for turning the case into a Tom Wolfe novel.

Nifong, he noted, wasn’t incompetent—he fully understood what he was doing, at every stage of the process. The only difference: he didn’t get away with it this time. Coleman observed that the unusual aspect of the case came in the State Bar/AG intervention, and predicted that such a scenario would be very unlikely to occur again.

A lesson of the case, in his opinion: the press needs to care more generally about what prosecutors are doing. There’s no accountability for rogue prosecutors.

Angela Davis

An inherent tension exists between a prosecutor as accountable to local voters and the need for a prosecutor to be an independent decisionmaker.

Nifong’s early actions might have been justified because sexual assault complaints by black women rarely are taken seriously. Davis excoriated Nifong for withholding the DNA evidence, but suggested the original indictment might have been justified*. (I don’t think that viewpoint can be reconciled with the AG’s finding of actual innocence.)

Davis argued that prosecutorial misconduct is rampant in the United States—she noted that in cases with plea bargains (95 percent of the total), people don’t get any sense of the prosecutor’s handling of events. She urged state bar associations to be more aggressive in going after prosecutors who violate ethical standards, and called on judges to be more aggressive in referring prosecutors who misbehave to Bar grievance committees.

Davis praised Brad Bannon’s work in the case and pointed out that his experience shows why public defenders need far more resources to do their jobs adequately.

She also chastised the press for paying more attention to the falsely accused lacrosse players than minority victims of prosecutorial misconduct. It’s worth remembering, however, that the press also paid more attention to the initial charges against the lacrosse players. Without that initial burst of publicity, it’s hard to imagine that the press would have picked up the story midstream and simply focused on Nifong.

I also pointed out that the North Carolina NAACP—which might have made the connection between the Nifong behavior and the normal victims of prosecutorial misconduct—instead aggressively sided with Nifong. But Davis suggested that the state NAACP had little power, and seemed not to see their performance in the lacrosse case as worthy of criticism.

UNC Law professor Michael Gerhardt

The case demonstrates our dysfunctional media system in covering legal events. The Duke lacrosse case perfectly played into the 24/7 news cycle, providing a good show for the media.

Nifong’s behavior also demonstrated the profound wrongs of trying a case in the public eye. Gerhardt pointed out that Nifong’s conduct caused the defense attorneys to appropriately recognize that they needed to get facts out to counter the false narrative the D.A. had created.

Gerhardt termed it a mistake to expect that the media will perform an educational role in covering criminal justice issues. Journalists, he reasoned, have too much trouble focusing on simple facts. The solution to the problem is to ensure that prosecutors have the right kind of ethics, since public accountability through elections is rarely a check for prosecutors. Davis agreed with this point.

University of Florida Law professor Lyrissa Lidsky

As Nifong gave 50+ interviews in the initial days of his involvement, it would have been hard for the media not to have taken account of what he said. But most journalists—at least early on—didn’t stop to consider the tremendous power of a prosecutor’s statement, especially in a national media firestorm.

The lacrosse case provided an “irresistible story” for many in the media, because of its dualities (differing races, classes, genders, etc.).

What should the media keep in mind in covering such cases? Journalists, Lidsky argued, needed to be particularly careful in reporting pre-indictment matters—and she believes the falsely accused players might very well have had grounds for a lawsuit against some journalists’ coverage of the case, especially since the lacrosse players in no way could be considered public figures or even involuntary public figures. She cited the Richard Jewell and Stephen Hatfill cases as illustrating the danger of the media’s rush-to-judgment culture.

Lidsky singled out the Times for criticism, noting that the mainstream media is too often like “sheep,” following the Times’ lead.

*Prof. Davis clarifies below: "I can't imagine that I used the word 'justified.' If I did, I certainly did not mean that I agreed with Nifong's decision to indict. What I said was that there was nothing illegal or improper about him bringing the indictments. My point here was that indictments are based on the low standard of probable cause, and indictments are brought every day based on the word of the complainant alone. Most states do not require corroboration in rape cases. This is the law. That doesn't mean that I personaly agree with this low standard for bringing indictments. Any person who has read my work knows that throughout my professional life (as a PD and law prof) I have criticized the low standard for bringing indictments. I was stating the law as it is, not as I would like it to be. I also offered what I believed to be a possible explanation for why Nifong pursued the prosecution in the first place (his desire to treat black rape complainants the same as he would white complainants). I then went on to say that he engaged in misconduct when he withheld the exculpatory evidence."

Nifong "Contributes" To Obama

From yesterday's Herald-Sun:

Even former District Attorney Mike Nifong, who lost his job last year because of the Duke lacrosse scandal, spent much of Saturday morning canvassing homes for the Democratic presidential hopeful.

"He's the right man at the right time," said Nifong. "We need to get him elected."

Local Obama spokesman Paul Cox said later that Nifong "has no official role in the campaign and was not recruited by the campaign. He simply showed up as a volunteer."

Alone among the 2008 presidential candidates, Obama endorsed a Justice Department criminal investigation of Nifong. So if Obama rather than George W. Bush had been president in 2007, Nifong very likely would be on his way to jail.

What better way for Nifong--among the most politically poisonous figures in North Carolina--to pay Obama back? To the extent that voters in the Tar Heel State (a swing state) associate Obama with Nifong, John McCain will benefit.

Tone & Substance

I suspect that the 9/11 Commission public hearings introduced most people to Jamie Gorelick. In contrast to ineffective questioners such as Bob Kerrey, Jim Thompson, or Richard Ben-Veniste, Gorelick—and fellow commissioner Tim Roemer—proved an incisive cross-examiner, someone with impressive knowledge of the myriad issues associated with the commission.

How, then, to explain the contrast between the brilliant Gorelick of the commission hearings and her intellectually pedestrian motions in the civil case? Partly, of course, it’s a matter of role: as a 9/11 commissioner, Gorelick was seeking the truth; as a lawyer in the civil case, she’s representing a client.

Even given her role as an advocate, though, how does this Gorelick passage advance her client’s legal case?

A patient was brought to the hospital claiming an atrocious deed had been done to her; the hospital staff rendered her assistance, as they should have done; and subsequently, when the police officers and prosecutor carrying out the investigation asked a hospital employee for information, the employee cooperated. There is nothing tortious, much less a violation of civil rights, in this conduct.

[The claim, of course, is that the “hospital employee,” former SANE nurse-in-training Tara Levicy, provided false and misleading information when she “cooperated,” and that her supervisors either looked the other way or simply failed to perform their duties.]

Or how does this passage help Gorelick legally?

[The lacrosse players] contend that Duke and its employees violated their legal rights by providing the police with information about the alleged rape during the investigation. They also contend that the University had a legal obligation to quell public debate about the alleged rape. In essence, Plaintiffs argue that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime.

[Nothing even resembling such a claim was ever made.]

Federal judges have a reputation as no-nonsense jurists; it’s hard to see how such transparently absurd descriptions of the case will enhance Gorelick’s credibility.

Nor is there any obvious legal explanation—given that motions to dismiss assume all plaintiffs’ facts as true—for Gorelick’s strange assertion that the Group of 88 enjoyed an academic freedom exception from complying with Duke’s anti-harassment policies; or her claim that Levicy actually have given honest testimony, despite the wording to the contrary of the Attorney General’s report.

Such passages do, however, serve another interest of Gorelick’s client: maintaining the narrative of the case that Duke has presented to its alumni. Some alumni followed the case closely: recall the 88-cent donations to the alumni fund; or Jay Bilas’ public demand that Richard Brodhead and Bob Steel resign.

But most alumni (unsurprisingly) know about Duke’s response to the case via communications from Duke and from the alumni magazine, whose narrative suggested that after a brief initial difficulty (and perhaps an extremist statement from a scattered professor or two), the university did everything it could to bolster the players. In this narrative, the lacrosse players are nothing more than gold-diggers, out to get money from the university that stood behind them in their time of trial.

This narrative was relayed effectively when Charlie Rose interviewed members of the Duke family, in a July 4 broadcast.

CHARLIE ROSE: Let me talk about today. Duke University has gone on to be a great university.

MARY DUKE BIDDLE TRENT SEMANS: It really has. It really has.

CHARLIE ROSE: You’ve both contributed to that, the endowment and the trustees.

MARY DUKE BIDDLE TRENT SEMANS: Uncle Buck, grand pa, it is what they wanted.

CHARLIE ROSE: Uncle Buck is James Buchanan Duke.

MARY DUKE BIDDLE TRENT SEMANS: That’s right. I’m telling you, I’m sure they would be amazed at how fast it has grown . . .

CHARLIE ROSE: So Duke went through this great difficulty with the problems with lacrosse.

ANTHONY DREXEL DUKE: Yes.

CHARLIE ROSE: And you’ve got some lawsuits going. Has the university -- how has it handled this? What damage has it done to the university?

MARY DUKE BIDDLE TRENT SEMANS: I don’t think a whole lot. The giving to the university has not been arrested in any way. It hasn’t gone down. We had more applications, I think, than ever. And that means something. We have very loyal alums.

CHARLIE ROSE: People still want to go.

MARY DUKE BIDDLE TRENT SEMANS: Yes, they do.

ANTHONY DREXEL DUKE: When I go down there and I take a bunch of them out for dinner and so forth, it’s almost as though it never happened among the students, current enrollment.

CHARLIE ROSE: Even though there are lawsuits.

MARY DUKE BIDDLE TRENT SEMANS: They all talk about it a little bit.

CHARLIE ROSE: Fingered a lot of people that they thought should have done this or that.

ANTHONY DREXEL DUKE: Well, everybody has got their different opinions on that. But I find that student -- among the student body, they are unaffected. They love the university as much as people who went before this incident. And I think it’s going to come through. I personally am very fond of Dick Brodhead.

CHARLIE ROSE: He’s the new president they got from Yale.

MARY DUKE BIDDLE TRENT SEMANS: That’s right.

ANTHONY DREXEL DUKE: And he’s a heck of a good guy. I think that he was caught a little bit as a young president, as a new president, I should say. And maybe he didn’t take the right advice for a few days or something.

CHARLIE ROSE: But he got control.

ANTHONY DREXEL DUKE: He got control. But there were some problems on the way towards getting control.

MARY DUKE BIDDLE TRENT SEMANS: And what a dreadful thing to happen to somebody who has just come. It is just an awful thing.

ANTHONY DREXEL DUKE: Anyway.

“Maybe he didn’t take the right advice for a few days or something.” “He got control.”

When, exactly, did Brodhead get control?

• In mid-April 2006, when he declined to investigate allegations brought to him that Duke professors were abusing their classroom authority in dealing with the lacrosse players?

• A few days later, when he responded to the arrests of Reade Seligmann and Collin Finnerty by saying, “Whatever they did was bad enough”?

• In June 2006, when he issued an open letter minimizing the (by then massive) evidence of the players’ innocence?

• In summer 2006, when he wrote to Friends of Duke that a trial would give the falsely accused students their chance to be “proved innocent”?

• In fall 2006, when he used his interview with 60 Minutes to denounce the lacrosse players for their “highly unacceptable behavior”?

• In the spring 2007 semester, when he declined to enforce the Faculty Handbook against Karla Holloway (who distributed malicious rumors about Duke students via e-mail) or Grant Farred (who publicly accused Duke students of perjury)?

• In April 2007, when he wildly asserted, “The Group of 88 are a group of professors who signed a petition to assist students who felt threatened.”

The Duke family didn’t say—and Rose, unfortunately, didn’t press them—on exactly when in the timeline above Brodhead “got control.” Their view of the case must have left them mystified as to why Duke settled at least three lawsuits (from the falsely accused players, from former coach Mike Pressler, and from the Dowds) that flowed from the administration’s conduct.

The Duke family’s interview raises another question: if, during this period, Brodhead “didn’t take the right advice,” from whom was he getting this wrong advice? That’s a question that, doubtless, Jamie Gorelick would prefer never be answered.

More from the Rev. Barber

In recent months, the North Carolina NAACP and Rev. William Barber have taken up the cause of James Johnson, an African-American initially accused as an accomplice to murder in Wilson, North Carolina. The two pieces of evidence that the NAACP cited to justify its “demand” that Johnson “be exonerated”?

(1) No DNA evidence linked Johnson to the crime. (2) Johnson passed a polygraph test.

Readers of this blog might recall another high-profile North Carolina case in which no DNA evidence linked the accused to the “crime,” and in which all three defendants passed a polygraph test. The state NAACP seemed to view the power of such evidence quite differently in that case.

As in Durham, some in Wilson have demanded a trial of Johnson, so that the victim (in the Wilson case, of course, there really was a victim) could have her day of court. In an interview with WRAL, the Rev. Barber responded to such demands, “I don’t think it’s important to have his day in court if he’s not guilty.” (The Barber statement comes at 21.56 of the linked video.)

As a matter of law, of course, Barber is correct. And it also appears that he’s correct on the facts of the case in Wilson. (His claims of prosecutorial misconduct in Wilson, on the other hand, appear unsubstantiated.)

But how is it possible to reconcile Barber’s statement—“I don’t think it’s important to have his day in court if he’s not guilty”—with his and his organization’s behavior in the lacrosse case?

After all, Barber himself praised the Lord in July 2006, when Judge Kenneth Titus granted the NAACP’s request for a “gag order” in the lacrosse case—a move designed to bolster Mike Nifong’s prosecution of people who had passed polygraph tests, had no DNA evidence against them, and were “not guilty.”

And in August 2006, Barber’s photograph stood above a guilt-presuming, error-laden 82-point “memorandum of law” designed to bolster Mike Nifong’s prosecution of people who had passed polygraph tests, had no DNA evidence against them, and were “not guilty.”

And in December 2006, after Nifong wholly changed the theory of the crime and dropped rape charges but retained the other charges, Barber’s case monitor preposterously suggested that the move would aid Nifong’s case—against people who had passed polygraph tests, had no DNA evidence against them, and were “not guilty.”

And in January 2007, the Rev. Barber himself preached at Duke Chapel. But rather than mention that he didn’t “think it’s important to have [their] day in court if [they’re] not guilty,” the reverend engaged in a character assault on Duke students.

What accounts for the Rev. Barber’s dramatic shift in perspective? Those inclined toward Christian charity might suggest that the outcome of the lacrosse case convinced the Rev. Barber on the need for due process and the dangers of overreaching prosecutors. Those less charitable might offer a different, and I fear correct, explanation.

Hat tip: K.D.

The Rev. Barber

The N&O reports that William Barber, president of the North Carolina NAACP, has been elected to the NAACP national board.

That's the same Rev. Barber who:

--demanded a gag order against defense attorneys in the case, with the head of his organization's Legal Redress Committee suggesting that the defense attorneys, not Mike Nifong, had committed ethical misconduct; and then rejoiced when the order temporarily was put in place;

--had his photo above an 82-point guilt-presuming memorandum of law riddled with factual errors and unfounded speculation about the lacrosse players, a document for which neither he nor author Al McSurely has ever apologized;

--went to Duke Chapel to attack the lacrosse players' character while remaining silent as the grave about Nifong's procedural abuses;

--suddenly rediscovered his concern with prosecutorial misconduct after the lacrosse case had concluded;

--is, according to last report, overseeing his organization's own "investigation" into the lacrosse case.

Quite a figure to provide leadership for a great civil rights organization.

A DIW Contest

Two recent breathtaking assertions prompt this two-part DIW contest.

Part One.

Duke attorneys Jamie Gorelick and Dan McLamb wrote,

[The lacrosse players] contend that Duke and its employees violated their legal rights by providing the police with information about the alleged rape during the investigation. They also contend that the University had a legal obligation to quell public debate about the alleged rape. In essence, Plaintiffs argue that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime.

I have followed the case very closely. Unfortunately, I seem to have missed the filing or statement in which an attorney for the unindicted players made such assertions.

Contest participants are, therefore, urged to identify the statement to which the Gorelick/McLamb brief refers. To account for the Duke attorneys’ possible confusion, the contest will accept even a statement by an attorney in the criminal case arguing “that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime.”

Part Two.

Yesterday’s N&O contained the following passage about Board of Trustees chairman Bob Steel’s performance in the lacrosse case.

Steel said in such a situation many decisions are made, sometimes based on incorrect information. “There’s no way you can go through something like that and do everything perfectly.”

Contest participants are urged to identify which piece of correct information—if known to the Duke administration—would have caused the administration to pursue a different policy. Three points need to be kept in mind:

1.) At the time of Mike Nifong’s pre-primary publicity crusade (late March/early April 2006), Duke administrators knew that a key Nifong claim—that the players had erected a “wall of silence” and refused to give their version of events to police—was false. Yet not only did administrators decline to reveal this information, there’s no evidence that their knowledge of this correct information had any impact on their approach to the case at the time.

2.) Two months after public revelation of Mike Nifong’s most serious procedural breach—instructing the Durham police to run the rigged April 4, 2006 lineup—President Brodhead declined a request from Friends of Duke University to publicly demand that Duke students receive the same due process rights as all other residents of Durham. Instead, he wrote, a trial would allow “our students to be proved innocent.” No evidence exists that their knowledge of the correct information about the rigged lineup had any impact on administrators’ approach to the case at the time.

3.) Apart from Prof. Petters (and, briefly before their subsequent retreats, Profs. Thorne and Moreiras), the Group of 88—the key campus pressure group on the case—appeared impervious to any new, correct information after they issued their statement on April 6, 2006.

Contest answers will be posted Friday.

[Update, 6.45pm: Prize for anyone who can actually identify the statements to which Gorelick and McLamb referred: One share of Wachovia stock.]

Steel to Wachovia

The Wall Street Journal is reporting that Wachovia has hired Bob Steel as its new chief executive officer.

Notes the Journal, “Mr. Steel said he was approached about the job in the past few days. He has a long friendship with Mr. [Lanty] Smith [who chaired the Wachovia search committee] as both share ties to Duke University; Mr. Steel is the current chairman of Duke’s board of trustees, and Mr. Smith is a former trustee.”

Wachovia’s shares and earnings have declined noticeably in the past 12 months, and the bank has been the subject of takeover rumors. Said one financial analyst about Steel, “He is an ideal choice for this time of turmoil.”

Steel might have many qualifications for taking the helm of the nation’s second-largest chain of banks, but surely his track record in leading institutions in a “time of turmoil” is not among them.

Steel’s handling of the lacrosse case suggested a leader who was mostly concerned with upholding the position of the man he selected as president of Duke, Richard Brodhead. The fact that Duke already has paid out three settlements (to the falsely accused lacrosse players, to the Dowds, and to former coach Mike Pressler) and is facing two other massive lawsuits reflects poorly on Steel’s ability to fulfill the chief requirement of his position: looking after the fiduciary interest of his university.

Moreover, Steel’s performance on issues associated with the case raised profound questions about his judgment. This is, after all, a man who:

• In August 2006 informed the New Yorker that the University had cancelled the lacrosse season 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.” The quote hardly inspires confidence of a BOT chairman providing moral leadership for the University.

• Seemed unconcerned that many Duke faculty members refused to adhere to their contractual guidelines (the Faculty Handbook) or even Duke regulations (departments not paying for political ads, departments actually voting on issues before they claimed to provide an official endorsement).

• In a fall 2006 private meeting with Friends of Duke head Jason Trumpbour, passed on unsubstantiated personal attacks about the lacrosse players’ character, suggesting that something “terrible, terrible” occurred at the party; and dismissed Trumpbour’s concerns about Mike Nifong’s ethical behavior. In both respects, of course, Trumpbour’s judgment was proved correct, and Steel’s was proved wrong.

• Promoted the African-American Studies program to full departmental status, despite the abysmal performance in the case of many of the program’s leading faculty members.

• Behaved, in general, as if he were more afraid of arousing the wrath of the politically correct on campus or “activists” in the Durham community than in upholding the due process rights of his own institution’s students.

• Justified the dismissal of Coach Mike Pressler to one lacrosse parent by musing, “Life sucks. Bad things happen to good people and you better get used to it.”

This record, it’s worth noting, led to an extraordinary call for Steel’s resignation from Duke alum Jay Bilas, who wrote “Based upon Bob Steel’s letter of April 11, 2007, in which Mr. Steel stated that the board agreed with the principles President Brodhead established and the actions he took, the resignation of Mr. Steel and any board members that acted in lock step with President Brodhead are also appropriate.”

If Steel runs Wachovia like he oversaw the lacrosse case at Duke, I fear the institution’s “time of turmoil” might just be beginning.

Rabinowitz

For those who missed it, the extraordinary Dorothy Rabinowitz from today's Wall Street Journal. IUPUI, the university of which Rabinowitz writes, is a leading backer of the AAC&U, an academic organization that captures a lot of the Group of 88's ideology, and about which I wrote a few years ago here.

The Lying Game

Over the extended holiday weekend, the defendants in the Ekstrand lawsuit filed their expected motions to dismiss. For the most part, they make similar arguments to the motions to dismiss the Cooper lawsuit—it was all Mike Nifong’s fault, Duke has no legal obligation to enforce its own anti-harassment policies or its Faculty Handbook, and the Durham Police Department did nothing wrong in the case.

Here, for instance, is how Durham attorney Patricia Kerner describes the rigged April 4, 2006 lineup—in which Nifong, who had improperly been given supervisory authority over the police investigation, instructed Mark Gottlieb to violate DPD procedures and conduct a lineup confined to suspects, with no filler photos: “On April 4, 2006, at Durham County District Attorney Mike Nifong’s direction, DPD officers shared the photos from the NTO with Mangum.” Who could criticize a Police Department committed to “sharing”?

Beyond such comical (and probably self-defeating) legal spin, a few items in the responses were noteworthy.

1.) Duke’s “Let Levicy Lie” defense. In evaluating a motion to dismiss, courts treat plaintiffs’ factual claims as true. Yet in their brief to dismiss the Cooper lawsuit (involving 38 unindicted players and their families), Duke attorneys Jamie Gorelick and Dan McLamb went out of their way to challenge the factual premises of the lawsuit. They flatly asserted that former SANE nurse-in-training Tara Levicy “did not” give to the police “false and misleading” information. And, as if to reconfirm the legitimacy of Levicy’s findings, they described Crystal Mangum as the “victim.”

Such passages vanished from the Gorelick/McLamb response to Ekstrand. Perhaps the Duke attorneys decided that it was unwise to so aggressively challenge the AG’s conclusions on actual innocence. Or, perhaps, the recent filing of Mark Gottlieb, who blamed none other than Levicy for the investigation getting off the ground, spooked Duke.

To neutralize the Gottlieb claim, the Duke attorneys responded to the Ekstrand suit by reversing themselves almost 180 degrees from their “something happened” insinuations. Now, they assert, civil procedure law gave Levicy (a figure who would have been the most significant “expert” witness in a criminal trial from this case) a license to lie; therefore, even if she did manufacture evidence, neither Duke nor Levicy herself should be held liable.

In a remarkable passage, Gorelick and McLamb write, “Plaintiffs fail to show how the health care providers could have foreseen—much less that they knew—how their supposed negligence might have resulted in harm to these Plaintiffs.”

Is Duke really asserting that the Duke Hospital could not have foreseen how placing a barely qualified feminist ideologue—a figure who later told defense attorneys that she had never encountered a woman who lied about rape—in a position to pass expert judgment on whether a rape occurred “might have resulted in harm to these Plaintiffs”? And is Duke really asserting that the Duke Hospital could not have foreseen how its own administrators not supervising this barely qualified feminist ideologue as she dealt with police and prosecutors “might have resulted in harm to these Plaintiffs”? Such an assertion doesn’t pass the laugh test.

The heart of the Gorelick/McLamb brief, however, argues that Levicy’s fabricated testimony was not necessary for the DPD and Nifong’s office to obtain the (all-but-unprecedented) non-testimonial order against the 46 white lacrosse players. They write,

Even if that information provided by Duke health care providers and included in the affidavits were fabricated, there was no Fourth Amendment violation because the affidavits established probable cause without that information.

As the Fourth Circuit has made clear, “even if an affidavit supporting a search warrant is based in part on some illegal evidence, such inclusion of illegal evidence does not taint the entire warrant if it is otherwise properly supported by probable cause. Thus, unless the tainted information is so important that probable cause did not exist without it, the warrant will be deemed valid.” The Fourth Circuit, moreover, “has always applied a highly deferential standard of review in considering the sufficiency of a finding of probable cause by a magistrate.” Under this standard, the relevant inquiry is “whether the magistrate had a ‘substantial basis’ for his conclusion that probable cause existed” . . . It is clear that the affidavits supporting the NTID and Search Warrant applications were sufficient without the allegedly fabricated evidence . . . The affidavits provided the magistrate judge with ample reason to support his conclusion that there was probable cause to issue both the NTID and the Search Warrant . . . This would be true under any standard of review, but it is certainly true under the Fourth Circuit’s “highly deferential” standard.

It’s striking that the Duke brief doesn’t cite even one case in which a court ordered a non-testimonial order against dozens of people solely on the basis of an interview (not even an official statement!) by a complaining witness—and, in this case, a complaining witness whose claims were contradicted in every important detail by a neutral witness’ (Kim Roberts) written statement filed before the NTO was issued.

To relate the Duke “probable cause” theory fits to the actual facts, take the experience of Brad Ross. According to the new Gorelick/McLamb theory, the DPD and Nifong’s office had probable cause to obtain a non-testimonial order requiring Ross’ DNA (an extraordinary invasion of privacy)—even though they had no evidence that Ross attended the party, much less held a reasonable belief that Ross could have committed the alleged crime—solely on the basis of a police officer’s recapitulation of an interview with Mangum. (Ross, of course, wasn’t even in Durham on the night of the party.)

If the Gorelick/McLamb standard actually applied across the nation, whole groups of people would be subject to NTO’s all the time, solely at the whim of vengeful or mentally imbalanced accusers.

To give a sense of the breadth of Duke’s legal theory, consider that in March 2006, Mark Gottlieb and then-ADA Tracey Cline didn’t believe that Mangum’s allegations alone could obtain the desired NTO from Judge Ron Stephens. That’s why they included Levicy’s false recapitulation of the evidence. So Gorelick and McLamb are now saying that “probable cause” existed for an NTO under standards that even Gottlieb, Cline, and Stephens—hardly paragons of due process or civil liberties—considered insufficient.

Truly remarkable.

2.) David Addison’s “Lying Is Reasonable” defense. In an unintentionally entertaining brief that cites an Idaho decision to prove that North Carolina Police Department spokespersons have no obligation to the public and laments “the emotional ‘costs’” of the case to Addison(!), the recently promoted DPD officer claims immunity from the civil suit.

The reasoning of his attorney, James Maxwell? “All of the factual assertions and ultimate claims arise out of [his] alleged positions as ‘official spokespersons’ for the Durham Police Department.”

“Alleged positions”? In March 2006, did Addison misrepresent himself to the media when he described himself as acting official spokesperson for the Police Department?

The brief continues, “In addition, the creation of the ‘flyer’ for publication on behalf of CrimeStoppers was a normal part of David Addison’s responsibilities as the Coordinator of that program.”

Is it a “normal part” of “Addison’s responsibilities” to offer editorial commentary, in his own voice, that heightened public condemnation of the suspects? If so, why didn’t his brief produce any other examples of his guilt-presuming editorializing?

More from the brief: “Each and everyone one of those published statements was made in the course and scope of [his] function as a governmental official. It has long been established law and good public policy that ‘public officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.’”

In effect, Addison maintains that a “reasonable person” would not have considered it wildly improper for an acting department spokesperson and a CrimeStoppers community liaison to make inflammatory public statements, or to offer editorial commentary that heightened public condemnation of the plaintiffs in civil suit, or to falsely characterize the evidence in the lacrosse case.

It’s probably true that neither Bill Chafe nor Victoria Peterson—to pick two prominent figures from the case—would have considered Addison’s statements unreasonable. Unfortunately for Addison, most courts would not deem Chafe, Peterson, or their ilk “reasonable people.”

The brief’s conclusion: Addison was merely “carrying out his responsibilities as a police officer.” [emphasis added]

In the Wonderland that is Durham, it is evidently part of the “responsibilities [of] a police officer” for a Police Department spokesperson to make inflammatory public statements, offer editorial commentary that heightened public condemnation of suspects, and falsely characterize the evidence in a pending case.

3.) Civil Procedure according to Linwood Wilson. Most people recognize the saying, “A man who is his own lawyer has a fool for his client.” Fired D.A. investigator Linwood Wilson’s motion to dismiss seems to prove the point.

In his brief, Wilson (who is acting as his own attorney) notes that absolute immunity applies only to prosecutorial functions, not those considered “administrative” or “investigative.” Having established this bar, however, Wilson renders the distinction meaningless. Yes, he concedes, he might have interrupted a defense attorney’s press conference to falsely describe the evidence in the case—but that was a “prosecutorial” function, not an “administrative” one. And yes, he concedes, he might have gone on his own, without a police officer in violation of DPD regulations, to interview Mangum, at which time she gave a wholly new version of events, resulting in the D.A.’s office dropping some charges and completely changing its version of the “crime”—but that too was a “prosecutorial” function, not an “investigative” one.

Most prosecutors, of course, would not consider such behavior “prosecutorial”—as Wilson doubtless would have learned from his attorney, had he hired one.

Wilson also seizes upon a 5^th Circuit case (Brandley), which, he reasons, “affords absolute immunity to attempts by prosecutors to intimidate or tamper with witnesses.” Unfortunately for Wilson, North Carolina isn’t in the 5^th Circuit (prosecution-friendly Texas and Louisiana), nor is there anything in the Brandley decision which applies this absolute immunity to non-lawyers in a prosecutor’s office functioning in an investigatory role.

4.) Did Durham’s attorneys forget that they have another lawsuit pending? With these filings, the city of Durham is probably up to around $1 million in attorneys’ fees in lacrosse case-related lawsuits. The most recent batch of filings, however, raises the question of whether the city is getting its money’s worth.

A persistent theme in the city’s response: the unindicted players weren’t really harmed (at least by Durham) because, in the end, they weren’t indicted.

Leave aside, for a moment, the question of whether this is a compelling argument. Its articulation appears to offer a corollary argument: those who were indicted were harmed. Yet, of course, Durham is current facing a federal civil rights lawsuit from three people who were indicted without probable cause.

Indeed, in the brief defending former City Manager and current City Attorney Patrick Baker, Durham lawyers essentially concede the point. In attempting to describe the NTO as constitutional and even beneficial to the plaintiffs in this case, attorney Patricia Kerner reasons,

Consistent with the [law’s] purpose, Plaintiffs’ compliance with the Court’s NTO eliminated them as potential perpetrators: they were not identified as attackers by the alleged victim [sic] in a photo array, nor supported as such through DNA evidence.

(Kerner does not identify who, at this point, is “alleging” that Mangum was a “victim.”)

But if the purpose of the NTO was to eliminate “potential perpetrators,” why were those for whom no DNA evidence existed even included in the rigged April 4 lineup?

This list would include each of the Ekstrand plaintiffs (Ryan McFadyen, Matt Wilson, and Breck Archer), but it would also include the three falsely accused players. As we now know, Nifong and the Durham Police had the NTO’s oral results on March 29, 2006, two days before they reached the decision (to which the DPD leadership did not object) to violate procedure and conduct a suspects-only lineup.

Kerner’s argument, in short, would seem to bolster the claim against Durham filed by the three falsely accused players, since nothing in the NTO which her brief so robustly celebrates would indicate that a negative DNA test and a negative DNA test alone would not have “eliminated [each lacrosse player] as potential perpetrators.”

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Some of the arguments in these briefs suggest that the motion to dismiss could determine the outcome of the case. That’s certainly true for Duke: it’s hard to imagine that the University would want to go into court and publicly maintain that its SANE nurses have a license to lie.

Only in Durham

The People's Alliance didn't exactly distinguish itself during the lacrosse case: the far-left group announced in April 2006 that it "wholly supports the struggle of this young woman [Crystal Mangum]"; resolutely stood up in November 2006 for prosecutorial misconduct in its enthusiastic support for Mike Nifong; and then stood four-square in summer 2007 for police misconduct when its most prominent City Council backer, Diane Catotti, did her best to frustrate the inquiry into why the Durham Police Department helped indict three demonstrably innocent people.

Now this only-in-Durham allegation, involving the People Alliance's office manager and former city Democratic Party official, courtesy of Powerline.