Tracey Cline: Durham's Rick Perry? (Cont'd.)

Tracey Cline is the chief prosecutor for Durham County. Her job requires—among other things—a degree of intellectual facility. Chief prosecutors must write briefs, and think quickly on their feet in developing and articulating oral arguments.

Starting this spring, Cline stated that she would only communicate in writing with N&O reporter Andrew Curliss. And so e-mails flew back and forth between Cline and Curliss, as well as other N&O journalists and editors. In response to the “Twisted Truth” series, Cline demanded that the N&O make public all of these e-mails. Curliss tried to give her an out, noting that the e-mails featured her making factually erroneous statements. But Cline insisted.

Below are some excerpts from the e-mails. Everyone has typos in e-mails. But Cline repeatedly makes basic spelling mistakes—such as:

Cline also favors wild run-on sentences—the sort of writing that I often see from poorly-prepared freshmen, but would never expect from a chief prosecutor:

And I have absolutely no idea what Cline meant in this sentence:

Cline also tends to play the victim card—even as she noted in her interview with the N&O that she didn’t want to suggest she was a victim:

Politico recently ran a column with the blunt headline, “Is Rick Perry Dumb?” The e-mails suggest that Durham’s current DA is in Rick Perry’s intellectual league.

Tracey Cline: Durham's Rick Perry?

One of the most extraordinary videos of a politician I have ever seen was this interview of Gov. Rick Perry.

Asked a simple question, Perry not merely was unable to provide a coherent response, but he couldn’t intellectually engage with (or even process) data that contradicted his pre-ordained belief. It was almost as if Perry thought the interviewer was speaking Hebrew.

Listening to Cline’s July 2011 discussion with N&O journalists reminded me of the Perry interview. Cline’s chief complaint—which she also expressed several times in e-mails to the N&O—involved a claim that in March 2011 articles about the Derrick Allen case, the N&O hadn’t revealed that the state had turned over bench notes regarding SBI testing to the defense.

This complaint would have been serious, if true. But not only had N&O articles mentioned the fact twice, N&O staffers read to Cline, during their meeting, the relevant sections from the paper’s stories. Much like Perry in the abstinence clip, Cline reacted as if her interviewers were speaking a foreign language (except for when she said she had no complaint about Judge Orlando Hudson making the same alleged error of which she was accusing the N&O). She repeatedly pressed the N&O reporters and editors to see her point of view. They confessed they were unable to do so—and understandably, since Cline’s “view” was incomprehensible. Here’s the section of the interview:

Based on this . . . reasoning . . . Cline concluded that the “Twisted Truth” series had done her a grave “injustice.” She penned a rambling e-mail demanding that the N&O send reporter Andrew Curliss, plus the paper’s editors, to a Cline-arranged “town hall,” at which she would invite “the victims in the crimes of alleged misconduct,” representatives from the DPD, and local politicians. (In other words, she planned to arrange a Cline political rally.) The N&O editors declined, but expressed a willingness to have Curliss appear alongside her in a neutral forum, such as a moderated discussion by the WUNC public radio station. Cline didn’t indicate any interest in such an option.

T. Cline, Esq., Paragon of Ethics (Cont'd.)

[Update, Tuesday, 5.11am: The third and final part of the series portrays a "minister of justice" who routinely flouts not merely the Supreme Court's Brady requirement (which mandates that all exculpatory evidence be turned over to the defense) but also North Carolina's open file discovery law (which mandates that all material be turned over to the defense). As with the first two parts of the series, Cline blames everyone else (the police, unnamed people in her office, procedures in her office that she claims to have changed, poor cooperation in one case with the FBI) for her failure to uphold legal ethics.

Viewing the articles through a lens most favorable to Cline, the series portrays a prosecutor who sees her role not as a "minister of justice" but as the representative of victims of crime, and who believes that her sole role as elected D.A. is to obtain convictions, by whatever means necessary. Through a more realistic lens, the series shows Cline to be fundamentally unethical, a prosecutor who believes that the rules don't apply to her.

One final note, on the similarities and differences between Nifong and Cline. Anyone who followed the lacrosse case will recognize the similarities--the willingness to mislead judges, bizarre rationalizations of negative DNA evidence, withholding exculpatory evidence while simultaneously (and sanctimoniously) proclaiming in public about having turned over all files.

But there's a very significant difference, as well. Cline, in this series, comes across as someone whose basic goal is to win at all costs, while breaking myriad rules in the processs. But there's no indication that she ever interfered in a pre-indictment police investigation--her rule-breaking always appears to have begun after indictments occurred--or that she has exploited a case for immediate political gain, as Nifong did. So there's something of a difference in motive, even as both chief prosecutors exhibited fundamentally and deeply unethical approaches to their position.]

[Update, Monday, 11.07am: The second part of the series should send chills to anyone who followed the lacrosse case. The case involved a claim of sexual assault against David Yearwood, in which then-ADA Cline misrepresented DNA findings to the court and withheld evidence from the defense attorney, all while she was claiming to go above and beyond the legal requirements by providing "open-file" discovery. Sound familiar?

A couple of passages to capture the flavor of Andrew Curliss' exposé, which I recommend in its entirety: "Cline told a judge that 'contact was insufficient' to capture Yearwood's DNA. She said the tests couldn't determine whether saliva found in the child's vaginal area belonged to the girl or to Yearwood. But the crime lab's work was clear about Yearwood: No forensic evidence, such as hair or fluids, connected him to the alleged crime, according to interviews and SBI records."

More: "Cline said she believes that she spoke accurately but that she relied in some instances on information that was available to her but is not in any record."

And a Nifongesque touch: "Long-settled law in the United States requires that defendants receive information the state gathers if it could be favorable to the defendant or if it would undermine, or impeach, a witness. Cline said in hearings during the Yearwood case that she went beyond that, giving 'open file' access. But records Yearwood's lawyers have not previously seen have recently emerged. The SBI's lab report and notes, as provided to Yearwood for his trial, are 12 pages. The SBI says its file is 71 pages. Investigators scraped Yearwood's fingernails, but he has no reports about testing on them. In one hearing, Cline said the police had dusted for fingerprints in the home, mentioning as many as 20 prints. But she said they couldn't be evaluated because they weren't 'workable.' No reports about fingerprinting were provided to Yearwood."

Tracey Cline was going to be Nifong's second chair if the lacrosse case had gone to trial. It's quite clear, based on the above, that she would have had no problems with his unethical handling of the case. The question now is how much she advised him, in private conversations, to follow his unethical course.]

The voters of Durham County elect a district attorney with a record of public, ethically-dubious behavior. Now possessed of more power than ever before, the “minister of justice” only intensifies the unethical conduct.

The two sentences above could apply to either of the last two district attorneys elected in Durham. Mike Nifong is, fortunately, disbarred, and can’t harm people anymore. Tracey Cline is, alas, still dispensing her brand of “justice” in the Triangle.

A blockbuster story, by Andrew Curliss, in today’s N&O shows Cline to be, at best, utterly indifferent to legal ethics; at worst, she is someone determined to break the rules on a consistent basis in order to win in court. The article’s thesis: “In her quest to convict those accused of serious crimes, Cline has misstated facts to judges in other cases, a News & Observer investigation shows. She has not provided evidence favorable to defendants, as is required under the U.S. Constitution, state law and ethics rules that govern lawyers. . . . Cline's conduct is under scrutiny for similar behavior in at least five cases other than Washington's that are in various stages of the courts, according to documents and interviews.

Today's article focuses on the Court of Appeals dismissing the conviction of Frankie Washington, on 6th amendment grounds. (That’s extraordinary in and of itself—though technically all defendants have a right to a speedy trial, the courts almost never enforce those rights.) The article shows that, in handling the case, then-ADA Cline was at best negligent and at worst lied outright on the witness stand (Washington’s attorney had called her to testify to ask why it took so long for the case to trial). Cline tried Washington on a procedurally dubious eyewitness ID, without forensic evidence, and without looking seriously into evidence that another man, a convicted criminal named Lawrence Hawes, actually committed the crimes.

Even now, almost incredibly, Cline refuses to ask the SBI lab to compare the DNA evidence in the case to Hawes’ profile, which they have on file. Why? "It was clear to me that Frankie Washington was the person who did it."There was never any doubt in my mind that he committed the offense."

Evidently, Tracey Cline “knows” the truth, evidence be damned. Does that sound familiar? But what more could be expected from a "minister of justice" who invited Mike Nifong to her inauguration?

Curliss also interviewed several jurors from the case, all of whom didn’t know the charges had been dismissed. They recalled that when deliberations had begun, considerable disagreement had existed, but that they had eventually based their decision to convict largely on the basis of eyewitness ID. Yet the police had never even included Washington as part of a lineup—instead, two witnesses, sitting in the back of a police car, got a look at Washington from a distance of 20 feet. Incredibly, Cline seemed to have no problem with sending someone to jail based on such police conduct: "Frankie Washington has very smooth skin around his eyes, extremely, very distinctive eyes," she said. "It was clearly a legal show-up."

The State Court of Appeals, more reasonably, wrote, "We are troubled by the Durham Police Department's use of a highly suggestive show-up procedure to identify defendant as the perpetrator of this crime."

The Court of Appeals opinion overturning Washington’s conviction is brutal in its description of the DPD’s behavior and Cline’s indifference to legal norms: “The circumstances of this case are unprecedented,” the court wrote, in that “even with more than four-and-one-half years of time to prepare its case, the State failed to completely analyze the evidence as ordered.”

More important, “the record contains overwhelming evidence that the actual reason for the delay in this case was not a neutral factor, but rather, was repeated neglect and underutilization of court resources on the part of the Durham County District Attorney’s Office.” Evidence was “not submitted to the SBI lab for analysis until 4 August 2005, which was more than three years after these items were collected.”

“The record reveals that during the prosecution, the State was given notice of evidence tending to establish the guilt of another person already in custody, yet the State failed to request that the SBI make appropriate comparisons of the evidence to this person.”

The opinion noted the Court’s concern with “the fact that the victims in this case were permitted to participate in several in-court identifications nearly five years after the date of the crime.”

And then the opinion zeroed in on Cline: “At trial, Assistant District Attorney Cline testified that it can take ‘years’ for the SBI to fully test an item. This assertion, however, is simply unsupported by the evidence of record.” Cline’s stunning response to the Court? “In an interview, Cline did not recall[!!] her testimony at the trial."

In a series of interviews and e-mails with Curtiss, Cline offered varying explanations/excuses for her behavior. “I would not sit in a courtroom and lie. I wouldn't," she said. "That is not who I am. And anybody that knows me will tell you that.” That a person who invites to her inauguration the only DA in Durham's history convicted of lying to the court, and who then cut the salaries of the people in her office most associated with championing legal ethics, can claim to be a truth-teller to the core is almost laughable.

On another occasion, Cline seemed to blame the system, almost as if violations of constitutional rights are inevitable and unavoidable, and a prosecutor doesn't have any independent role in upholding ethics: “Every day we go to court - or in every jurisdiction in North Carolina, South Carolina, probably all the 50 states - there's evidence that's thrown out because of constitutional violations. There's confessions that are thrown out. There's evidence that's suppressed. Everything. This happens every day because of a violation of someone's constitutional rights. And, to be sure, sometimes the guilty people go free."

A few broader points:

(1) Events in Durham since 2006 are Example A of the dangers of elected district attorneys. Based on the results of the 2006, 2008, and 2012 elections, a majority of Durham voters are indifferent to electing chief prosecutors who are, in turn, at best indifferent to adhering to basic legal ethics. The result is almost predictable—a D.A.’s office run by people who can’t tell the truth will invariably trample on defendants’ rights.

(2) Washington’s fate—and the fates of the other defendants who have suffered from Cline’s unethical behavior (and that of the DPD)—brings into relief the folly of how groups like the NAACP and supposed progressives such as Irving Joyner and Diane Catotti approached the lacrosse case and its aftermath. Rather than realize that it was likely that the behavior of Nifong (and Cline) and the DPD likely had threatened the rights of other defendants, they chose to function as Nifong apologists—thereby losing the chance to push for a full-scale review of how the DPD and the prosecutors associated with the lacrosse case had behaved in other cases.

(3) Will the State Bar inquire into Cline’s behavior?

Reminders

A few items from the last week serve as reminders of the lacrosse case.

First, a teaser from yesterday’s N&O front page, highlighting an article to appear Sunday (that I’ll blog) on Mike Nifong’s ethically-challenged successor, Tracey Cline.

Second, college football fans might have read about the arrests of two of LSU players (including the starting quarterback) for assault. LSU’s current athletic director is former Duke AD Joe Alleva—who demonstrated a rather uneven record in the lacrosse case: he shifted from initial public support for the lacrosse players to sudden silence, even as faculty members starting publicly going after student-athletes. All the while, he remained on the job despite being involved in a boating accident that resulted in alcohol-related charges against his son, before moving onto LSU at a higher salary.

Alleva’s comment on the football players’ travails? According to the Times-Picayune, “For his part, Alleva said the current problems facing the football team are "frustrating," but added that he understands how to handle delicate off-the-field issues from his experience around an alleged 2006 Duke lacrosse rape case that sparked controversy during his time as athletic director at the school.

“There's a lot of similarities in this situation," said Alleva, who has been at LSU since 2007. "I think it's always disappointing when student-athletes don't behave the way they're expected to."

A “lot of similarities” exist between the situations? Really? In the LSU case, no one appears to be denying that a fight occurred and that people were injured, though the players’ attorney has stated that his clients are innocent. (The lawyer has been careful not to deny that the players participated in a fight.) In the Duke case, on the other hand, the players’ attorneys consistently said that no crime occurred, and no physical evidence existed of any injury.

In the LSU case, the prosecutor and police appear to have behaved ethically—and, indeed, seem to have bent over backwards to ensure cooperation with the players. In the Duke case, on the other hand, both the prosecutor and the police cast legal ethics aside in an attempt to obtain convictions.

In the LSU case, there’s no evidence of race/class/gender-oriented faculty exploiting the situation to advance their pedagogical agendas (perhaps because one of the accused is a non-wealthy African-American, albeit one who owns no fewer than 49 pairs of shoes). In the Duke case, on the other hand, activist professors aggressively exploited the case, initially relying solely on the version of events presented by Mike Nifong—though most, in the 2007 clarifying statement, reaffirmed their rush to judgment even after Nifong’s case imploded.

In the LSU case, the accused players appear to have acted well outside the norm for LSU students (most LSU students, it would seem, don’t engage in bar fights). In the Duke case, on the other hand, the lacrosse players—along with hundreds of other Duke students, and thousands of students nationally—attended a tasteless spring break party; and—along with nearly 20 Duke groups over the course of the 2005-6 academic year, including some athletic parties—hired strippers.

Well, one similarity exists between LSU and Duke: Joe Alleva was the AD in both situations.

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And finally, consider this item from Cara Buckley in the New York Times, on the aftermath of the DSK dismissal of charges: “Experts said rape crisis centers usually see a drop in reported cases in the aftermath of high-profile sexual assault cases, especially those in which the prosecution failed, like the case against Duke University lacrosse players.”

Nifong clearly “failed,” but this doesn’t appear to have been Buckley’s meaning about “the prosecution.” In the lacrosse case, of course, Crystal Mangum's varying allegations were thoroughly investigated by the North Carolina attorney general's office. The special prosecutors' investigation used medical, DNA, and electronic evidence--as well as numerous interviews with Mangum, the two men euphemistically termed her "drivers," and lacrosse players who attended the party--to determine that the people Mangum accused were actually innocent, and that no physical contact of any kind between her and the accused could have occurred. Mangum, they concluded in a public report, had either lied or had come to believe her claims (which included, in their final version, an assertion of the rape occurring while she was suspended in mid-air) because of her serious, and longstanding, mental problems.

This process, obviously, was not the "prosecution" having "failed," given that the prosecutor's job is to achieve justice, not to obtain a conviction. Buckley—or her interviewees in the “victim’s rights” movement, whose viewpoint the article reflected—appear actually to maintain that any high-profile sexual assault claim, no matter how flimsy, that doesn’t yield a conviction, by hook or by crook, leads to diminished reports of sexual assault.

On another front, I invite readers to answer this SAT-style question: which of the following is NOT like the other?

a.) The DSK case, in which all sides admitted that sexual contact occurred, and in which a reasonable person could conclude that a sexual assault likely took place;

b.) A recent case involving two ex-NYPD officers, which yielded conviction on minor charges and in which the officer’s defense against rape was the highly implausible contention that he lay down in bed with a drunk woman to whose apartment he had been called but didn’t sexually assault her;

c.) The William Kennedy Smith case, in which all sides admitted that sexual contact occurred, and in which a reasonable person could (though I’d argue shouldn’t) conclude that a sexual assault likely took place;

d.) The Duke lacrosse case, in which no sexual contact of any kind occurred, and in which a state investigation was able to conclusively conclude that each of the accuser’s myriad tales was false.

I suspect that most test-takers would respond “d.” Yet Buckley’s article, reflecting the viewpoints of victims’ rights advocates, lumped the four cases together. And so either (a) given the disparity between press coverage of Mangum’s initial charges and of the players’ exoneration, many people, including potential rape victims, recall the event as initially portrayed, a likely sexual assault (thus implying continuing harm to the falsely accused players’ reputations); or (b) Buckley, whose article contained no quotes from any defense attorneys, buried the lede—that victims’ rights groups, for their own reasons, choose to link the lacrosse case with cases in which some doubt about guilt is actually plausible, in a manner that almost would have to raise suspicions that something must have happened in Durham.

On the latter point, in sentiments recalled the extremism of former SANE-nurse-in-training Tara Levicy, Buckley reports, "None of the women’s advocates interviewed expressed doubt in Ms. Diallo’s claim that she was assaulted." Ideological blinders work wonders.

The latter two items testify to the lasting reputational damage to the falsely accused players caused by the unethical actions of Nifong, the DPD, and figures such Levicy and Dr. Brian Meehan.

Durham & NYC

[Update, Tuesday, 3.45pm: On the Atlantic site, Andrew Cohen praises Vance's decision. His conclusion: "No one ever said the criminal justice system is pretty, or perfect, or capable of always delivering a narrative that has a clear beginning, middle, and end. There is no legal right to a happy ending -- or even a dispositive one. The leavening truth here is that the Constitution worked pretty much the way it is supposed to work in these circumstances. Under the Supreme Court's precedent in Brady v. Maryland, prosecutors have a duty to share with defense attorneys any exculpatory evidence they find. This the prosecutors did, to their eternal credit. Moreover, a district attorney has an ethical obligation not to try a case he or she doesn't believe can be won. This, too, the district attorney considered."

Cohen had a far different take, however, on the lacrosse case, writing in June 2006 that discussion about Mike Nifong's procedural misconduct meant that, in the media, “there is no balanced coverage in the Duke case. There is just one defense-themed story after another.” The lacrosse players, he claimed in apparent ignorance of the first month of the case, benefited from “race and money and access to the media.” And when the victims of a rush to judgment were college students rather than the former IMF head, Cohen's interpretation of legal ethics went as follows: “We haven’t seen all of the evidence, haven’t examined all of the testimony; haven’t had the privilege of seeing the case unfold at trial the way it is supposed to.”]

As I’ve noted previously, there were significant differences between the lacrosse case and the allegations against French politician Dominique Straus-Kahn: in the DSK case some type of sexual contact occurred; and even his version of events reflected poorly on the former IMF head's character.

It turned out, however, that the most significant difference between the two cases involved the office of district attorney. With the exception of an ill-timed public statement early in the case, Manhattan DA Cyrus Vance, Jr., followed both ethical guidelines and normal investigative procedures. Mike Nifong, of course, did not. A few items from the dismissal motion filed by Vance’s office:

Prosecutor’s Duty

Vance's office spelled it out in the dismissal motion:

Nifong, by contrast, spoke of false accuser Crystal Mangum as “my victim,” and as late as Dec. 2006 ignored basic ethics and described his role as purely a gatekeeper: “If she says, yes, it’s them, or one or two of them, I have an obligation to put that to a jury.” These comments came several weeks after what was perhaps his most chilling remark of the entire case, when he claimed that not the evidence nor even his beliefs but instead divisions within the community sufficed as a cause to bring the case to trial.

Continuing the Investigation

Consider these passages from the motion, describing the Manhattan DA office’s continuing investigation:

This investigation included a critical analysis of the medical evidence:

Nifong, by contrast, preferred willful ignorance; he claimed that, until his case imploded with the Dec. 2006 Meehan hearing, neither he nor anyone from his office asked Mangum anything about the case. And neither he nor his office appear to have challenged the ever-changing testimony of former SANE-in-training Tara Levicy.

If Vance and Nifong differed, some elements of the political and intellectual community evident in Durham carried over into New York.

Sunday's New York Times reported that "Bill Perkins, a state senator from Harlem, who like Mr. Vance, is a Democrat, stood alongside black and female leaders and urged Mr. Vance to press forward with the case . . . Mr. Perkins and others framed the case as a possible instance of a powerful white man getting off for something he did to a poor immigrant woman. . . . Councilwoman [Letitia] James said that if the case was dismissed over credibility issues,'it would have a chilling effect on all rape victims, and it would send a message to all rape victims that unless you are a perfect rape victim, you should not even bother to come forward.'"

There’s little reason to believe that James or Perkins will suffer any political repercussions for their indifference to due process; but if they do, they could discuss survival strategies with one of the most vociferous apologists for the DPD’s procedural shenanigans, City Councilor Diane Catotti, who remains in office, and seems likely to win re-election this fall.

Alas, the Durham Democrats have removed from their website the 2006 photograph of a beaming Catotti standing by her endorsed candidate for her city’s minister of justice, Mike Nifong. But even without the photo, based on her record in the lacrosse case, those who presume guilt in sexual assault cases and are indifferent to procedural misconduct by authorities have no better friend than Catotti.

Durham "Justice"

An explosive story in today's N&O, suggesting that the familiar patterns--concealment of evidence, lax ethics in the police and prosecutor's office--remain firmly in place in Durham. In this case, the behavior had a deeply unfortunate consequence: for the second time in nine months, a murder charge was dismissed on procedural grounds. Judge Orlando Hudson found "that the state and/or its agents have destroyed the evidence," violating the terms of the Brady decision.

Read the entire story, by J. Andrew Curliss, here.

A few noteworthy items:

--Durham County's "minister of justice," the ethically-challenged Tracey Cline, declined to comment, or offer any explanation to the public as to how her office has repeatedly run afoul of basic procedural guidelines.

--Hudson has promised "a very interesting order" outlining his findings.

--Cline couldn't even manage to get the small lies correct, as seen in this vignette regarding the victim's sister, Latifah White. From Curliss' article:

White had been testifying while wearing sunglasses, an accommodation allowed because Cline said she was legally blind. But in the midst of her testimony, the sister told the judge she was removing her glasses.

"Dorman is looking at me," [the supposedly blind White] said. She removed the glasses and stared at Dorman from the witness box.

Can anyone really be surprised that DA Cline isn't overseeing an ethically pristine office?

Moneta & Holloway

The contemporary academic majority worships the trinity of race, class, and gender. Class is clearly the third wheel—unsurprisingly given that most tenured professors are well-off financially and secure in employment, and therefore don’t have a personal connection to the preferred ideological viewpoints on the issue.

The competition for primacy between race and gender, however, is less clear-cut. In a matter like the lacrosse case, where the preferred viewpoint on class, race, and gender all dictated a rush to embrace false accuser Crystal Mangum’s wild claims, the result—as we all saw with the Group of 88’s activities—can be vicious. But the rape of Katie Rouse, a white Duke student, by a local black man was met with utter silence from the Group. As I noted at the time, they seemed desperate to avoid making a politically difficult choice.

One Duke administrator, on the other hand, seemed positively eager to demonstrate that when push comes to shove, race trumps even gender. Larry Moneta responded to the attack on Rouse by issuing a statement casting blame on the victim. As he informed a local TV station, according to Liestoppers,"The situation was “part of the reality of collegiate life and of experimentation and some of the consequences of students not necessarily always being in the right place at the right time. This happens around the country. Duke is no different in that respect.”* 

Rouse has filed a federal lawsuit against Duke, claiming that the administration’s actions created for her a hostile educational environment. She took a leave from Duke shortly after the attack, and eventually left the university altogether, though under disputed circumstances. The initial complaint, filed by Bob Ekstrand, and Duke’s response go over the events of the case, but the two documents feature several notable items:

(1) Ekstrand claims that Duke administration never sanctioned the (African-American) fraternity at whose event Rouse was sexually assaulted.

(2) Both sides concede that Duke’s Stephen Bryan e-mailed senior administrators after Rouse was attacked—and highlighted the race of her attacker. In its response, Duke declines to explain what motivated Bryan.

(3) Ekstrand’s complaint alleges—and Duke’s response doesn’t seem to dispute—that Duke maneuvered (a cynical person might say manipulated) its internal procedures in fall 2007 to get Rouse out of the university. Then-dean Diane McKay (who’s now at Princeton) met with Rouse at the time to discuss Rouse’s desire to take some time off, and encouraged Rouse to write an e-mail stating a desire to transfer. Duke then took this e-mail as an indication that Rouse had voluntarily withdrawn from the university, rather than (as Rouse seems to have intended) a desire for additional voluntary leave as she recovered from the rape.

(4) Ekstrand tries to claim that university administrators had a legal obligation to follow the student handbook—a losing argument in light of Judge Beaty’s unfortunate decision in Carrington. Duke makes clear the documents have no legal weight at all, instead asserting “that Duke University published and made available its Undergraduate Student Bulletin and its Community Standards publications.” The bulletin, in short, isn’t worth the paper upon which it’s printed.

(5) Duke claims that deciding in Rouse’s favor would constitute a “denial of due process”(!) to defendants such as Moneta.

(6) One item in Duke’s response raised eyebrows: “Defendants admit that Crystal Mangum is an African-American Durham woman who falsely accused Duke lacrosse team members of rape.” [emphasis added] This admission appears to contradict a key element from the filings of former Duke attorney Jamie Gorelick, whose departure as the university’s lead counsel in the civil suits continues to lack credible explanation. Gorelick’s filings, it’s worth remembering, strongly implied that the judgment of former SANE nurse-in-training Tara Levicy was correct, and the findings of the AG’s report were wrong.

Duke, therefore, is simultaneously claiming that Mangum’s claims were false and that Levicy’s “medical” findings that corroborated Mangum’s rape claim were true.

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During the lacrosse case, English professor (and a Duke. law faculty member who lacks a J.D.) Karla Holloway demonstrated an . . . unusual . . . conception of ethics in the legal arena. Abandoning the academy’s traditional fealty to presumption of innocence, she signed a statement affirming that something “happened” to false accuser Mangum. She then publicly criticized the Duke women’s lacrosse players who did stand up for presumption of innocence. And, after Mike Nifong’s case imploded, she penned a mass e-mail passing along wild sixth-hand gossip designed to make the falsely accused players look bad.

And yet the NIH has invited this same Karla Holloway to participate in a forum on . . . ethics.

Was Larry Moneta unavailable?

*--This section quoted from a Bob Ekstrand filing that he subsequently withdrew; I have modified the post for accuracy.

Rob Taylor Cracks the Case

This summary is not available. Please click here to view the post.

Legal Filings

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

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

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

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

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

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

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

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

Remarkable.

Holloway & The Potbangers, Together Again

So many different groups demagogued the lacrosse case to advance their own particular, and not necessarily otherwise complementary, agendas. Mike Nifong could use the case to consolidate his primary and general election victories. Bob Ashley could use the case to boost the Herald-Sun's appeal to Durham African-Americans. Sgt. Gottlieb could use the case to further his dislike for Duke students. The Times sports page could use the case as exhibit A of dangerous male athletes. The Group of 88 could use the case to demand curricular and personnel concessions for their race/class/gender agenda. Trinity Park activists (whose list-serv helped facilitate the infamous potbanger protests) could use the case to hammer Duke for alleged negligence in curbing student partying in their neighborhood.

These differing groups all took the same basic approach to the lacrosse case. But there's scant evidence that most members of the Group of 88 cared much about student partying. And the Trinity Park activists--while perhaps ideologically sympathetic to the Group's curricular beliefs--didn't go to bed at night worrying about new faculty lines, or finding ways to require Duke students to take more required race/class/gender courses.

With each of these groups, however, having made common cause in bolstering the tall tales of Crystal Mangum (and taking a hit to their reputations in the process), it appears as if the lacrosse case has created new alliances. How else to explain the following announcement on the Trinity Park list-serv, regarding an event tomorrow from Group of 88 extremist Karla Holloway:

MEET THE AUTHOR: KARLA FC HOLLOWAY
Sunday, July 17, 3 p.m. - 4:30 p.m.
Main Library, 300 N. Roxboro St.

Dr. Karla FC Holloway, James B. Duke professor of English at Duke University, will read from her book, Private Bodies, Public Text: Race, Gender and a Cultural Bioethics. Using historical examples, from the Tuskegee Study and Henrietta Lack to the more contemporary examples of Terri Schiavo and those hospitalized during Hurricane Katrina, Dr. Holloway demonstrates how [of course--ed.] race and gender play pivotal roles in medical research and treatment. A book signing will follow the reading.

One outside member of the list-serv caustically responded, "Be sure to bang your pots and pans in support of the presumption of innocence." (This suggestion is a good one, given that Holloway has never made a public appearance defending her extremism throughout the lacrosse case.) Trinity Park resident Sue Jerrell, however, would brook no condemnation of Holloway. "Move on," declared she. "There are so many truly horrific injustices out there that could really use a champion."

Given Holloway's . . . unusual . . . interpretation of due process and the presumption of innocence, I'm not exactly sure how she qualifies as a "champion" in fighting injustice.

hat tip--G.M.

Updates

A few items of note:

1.) Jamie Gorelick and her Washington law firm, Wilmer Cutler Pickering Hale and Dorr, have withdrawn from representing Duke, after garnering millions in fees from Duke or its insurers.

All things considered, this development is probably a victory for the unindicted lacrosse players. Several people I know worked for the 9/11 Commission, and I teach US diplomatic history, so I followed the affair quite closely, and was consistently impressed with Gorelick. While her civil case filings weren't intellectually compelling, that had more to do with the difficulties of her client than her legal acumen.

Gorelick's oddly-timed departure also triggered an odd public accounting. In a response to a request from the H-S, the university's spokesman declined to explain what happened. But Gorelick herself gave a statement to American Lawyer. It reported, "Several motions filed on behalf of defendants Duke University and Duke University Health System Inc. have successfully narrowed the focus of the case to the point it makes sense for the two North Carolina firms that have been part of the defense team to assume control of the matter, says Wilmer public policy and strategy chair Jamie Gorelick."

The significant "narrowing" occurred with the court's accepting Gorelick's argument that the Duke student bulletin and faculty handbook aren't worth the paper on which they're printed, and in no way should be construed as legally binding on the university. But the university is still on the hook, of course, for myriad other matters (FERPA, the escapades of Tara Levicy, a failure to supervise its employees).

The combination of Duke's non-response to the withdrawal and Gorelick's bizarre talking-point response has to raise a few eyebrows.

2.) One very minor case mystery--the identity of the father of false accuser Crystal Mangum's two children--has been revealed. He's Richard Ramseier, who has petitioned a Durham court for custody of the children. The judge not unreasonably quizzed Ramseier on where he's been for the last decade. (The father said he was in the Navy and then had spent some time in California, where he had some financial problems.)

Given that Mangum is currently in jail for a murder charge, it's hard to imagine that a court could find her the fitter parent. But, then again, this is the Durham justice system we're talking about.

3.) U.S. Rep. David Price--Durham's congressman, a former Duke poli-sci prof, and the man who pointedly refused to criticize Mike Nifong at the height of Nifong's misdeeds--will receive the 2011 John Tyler Caldwell Award for the Humanities, awarded by the North Carolina Humanities Council.

Joining Price on the dais is none other than Richard Brodhead, who will deliver the Caldwell Lecture in the Humanities.

4.) I barely followed the Casey Anthony trial, but based on Ms. Grace's past work, wholly endorse this judgment from Frank Bruni on Nancy Grace: "She doesn’t serve the cause of victims with such histrionics. She serves the cause of Nancy Grace. And she succeeds only in trivializing everything — and getting ratings. A record 5.2 million viewers turned to HLN on the judgment day. Apparently many of us share her appetite for gross caricatures of good and evil, and come out of this as graceless as she."

5.) Finally, a couple of long-term correspondents passed along to me news of Yao Ming's likely retirement. I'm sure that former Group of 88 extremist and current Cornell lightning rod Grant Farred is puzzled by the lack of attention paid to Yao's departure. After all, as Farred noted, Yao represented "the most profound threat to American empire.” Perhaps we'll soon see Pres. Obama and the House Republicans squabbling over which side deserves credit for ridding the nation of such a profound threat.

A Few Items

Duke has just announced a new batch of trustees, including a judge on the 4th circuit--Allyson Duncan (Duke Law '75). The appointment presumably will require a double recusal--not only will Duncan need to recuse herself from any and all lacrosse case appeals, but I would assume she'd have to recuse herself, within the BOT itself, from any and all discussions of the lacrosse case. She was a Bush nominee.

Commenting on the DSK case in the Washington Post, Paul Farhi notes how the mainstream media has refused to name his accuser--even as she files a lawsuit against the New York Post. Alan Dershowitz (correctly) comments on the unfairness of this approach, and the article also (correctly) observes how, in an internet era, accusers' names can generally be easily found, making the anonymity policy even less defensible.

And then there's this absurd analysis from June Cross, in The Root: "Even in 2011, it seems, black women who accuse powerful men of rape have to lead lives above reproach. The Duke University lacrosse-team rape case from 2006, and the St. John's College case before that, bear witness to what happens when a young black woman of questionable repute charges rape against privileged men. But the life circumstances of marginalized women force them to make different life choices.

Crystal Mangum's problem wasn't her "marginalized" status--it was the fact that the physical evidence, in myriad ways, contradicted each and every one of her various tall tales.

Finally, the incomparable Dorothy Rabinowitz in the Wall Street Journal praises Manhattan DA Cyrus Vance for his willingness to reconsider the DSK case in light of the accuser's credibility falling apart. She correctly notes that Vance's open-mindedness came as "no small shock in a society accustomed to prosecutors whose instant response to the discovery of facts that undermine their case is to dig in all the more aggressively—recall the Duke University lacrosse case, or the notorious child abuse cases of the 1980s—with assurances that the case against the accused is stronger than ever."

Rushing to Judgment

[Updates, 4 July, 5.22pm: Two Daily Beast pieces worth noting. The first, from Harvard Law professor Alan Dershowitz, uses the DSK case to analyze the problems with the public's response to rape allegations in general. Virtually Dershowitz's entire essay could apply to the lacrosse case, none more so than the following: "Special sex prosecutors and special rape prosecutors are often agenda driven. Too often they believe they’re on a mission and treat the alleged victim in a way that’s different from how they handle any other crime. They’re zealots; I call them Nancy Grace prosecutors. She behaves on her TV talk show as if there’s no such thing as innocence; everybody arrested is guilty. I believe there’s been a Nancy Grace aspect to this case. The prosecution presented its case in public as if there were no doubt about the alleged victim’s credibility or the complete guilt of the alleged offender."

Second, from DSK defender Bernard Henri-Levy. I'm dubious about the more general defense of DSK's character associated with Henri-Levy's earlier comments on the case. But his essay contains one very important item, in his reflection upon a letter by Bill Keller, the retired executive editor of The New York Times, in which "he said he was 'struck' and 'puzzled' by the fact that '57 percent of the French public' and, in particular, '70 percent of the Socialists' seemed to embrace the cause of Dominique Strauss-Kahn, whereas 'one might expect' them 'to be ideologically empathetic to an African hotel maid.'"

That comment unintentionally offers insight into the Times' decision to so heavily slant its lacrosse case coverage in favor of Mike Nifong and Crystal Mangum. It's no secret that the non-Murdoch media leans to the left, to such an extent that "one might expect" them "to be ideologically empathetic to an African"-American alleged student. Perhaps this is why, early in the case (see UPI, p. 120), Times editors made the conscious decision to downplay evidence of innocence in the paper's coverage.

[Updates, 2 July, 1.40pm: The Times today--showing an intent to explore the news that was sadly lacking in its Duke case coverage--brings more information, suggesting that the Nifong/Vance comparison might be more apt. Today's article reveals that a debate occurred as to how fast to press for an indictment, with the ultimate decision to rush ahead with an indictment (and to make public comments about the reliability of the "victim") before the investigation was anywhere near complete. That decision, obviously, was a grave mistake. See Ann Althouse's post for more on the effects of these actions; but also this counter-intuitive post from Feministe observing that, at the least, Vance's office turned over exculpatory information promptly to the defense, in sharp contrast to Nifong's handling of the Meehan report.

Two other matters: One, a question from the previous thread, asking me for what I considered Nifong's chances to be of his regaining his law license in 2012. My answer: his chances are very, very, very remote.

Two, see the comment in this thread from an "Edward G. Nilges" for evidence of how the unethical actions of Nifong and the DPD continue to harm the falsely accused players, and thus why the civil suit continues to matter. Even if only 1% of the American public is as ignorant as Nilges, we're talking about more than 3m people.]

The New York Times appears to have suddenly discovered the importance of evaluating the accuser’s credibility when reporting on sexual assault cases. Last night, the paper broke the story that the rape case against former IMF head Dominique Strauss-Kahn has been badly weakened (fatally undermined?) by enormous gaps in the accuser’s credibility. To get a sense of just how enormous, here’s the prosecutors’ letter on some of the problems.

One can imagine how the Times’ Duff Wilson (who was promoted after his coverage of the lacrosse case) would have reported the news: “Although DA Cyrus Vance, Jr. discovered big holes in the case, including the fact that his accuser is a serial fabricator, there is also a body of evidence to support his decision to take the matter to a jury.”

Vance’s decision to affirm for the cameras a stronger case than he actually possessed was Nifongesque. And comparisons to the lacrosse case, which have appeared frequently in the last 24 hours, are hard to avoid.

That said, the comparison can be overdrawn, in at least two respects. First: while the decision to arrest clearly was made before anything resembling a comprehensive police investigation occurred, there’s no evidence (to date) that DA Vance personally corrupted the inquiry, as occurred with Nifong and the DPD. Second, and perhaps more important: the media critique of DSK’s personal characteristics seems largely correct. Regardless of the legal demerits of the case, this affair doesn’t seem to have been a case of character assassination, in sharp contrast to the lacrosse case.

In this respect, the more appropriate comparison might be the Garrett Wittels case. In late December, to widespread national coverage, the FIU baseball star was arrested in the Bahamas, charged with rape. To their credit, unlike the Duke administration, the FIU administration upheld the presumption of innocence and didn’t suspend Wittels; and, unlike the Group of 88, “activist” faculty at FIU didn’t choose to publicly go after one of their students. (A handful of hacks did try to exploit the case, offering bizarre arguments in the process.)

Wittels always maintained his innocence, and his accusers’ story always seemed less than plausible. Last week, all charges against the player and his two friends were dismissed, amidst signs that his accusers had lied as part of a scheme to exploit money. Yet the turn of events generated far less coverage than the initial allegations against Wittels; and the false charges had an effect—Wittels went undrafted in the MLB draft, apparently because of “character” concerns.

The Wittels and DSK cases do serve as reminders that the lacrosse case isn’t the only evidence against the “women-never-lie” claim of sexual assault.

Accountability

The lack of accountability is a major theme of the lacrosse case and its aftermath. Whatever else could be said about rogue ex-DA Mike Nifong, the State Bar eventually held him accountable, and stripped him of his law license. That action, in turn, triggered an accountability session for the ethically challenged Linwood Wilson, who was fired from his job as DA investigator as soon as Nifong lost his position. And, with the company he founded facing a loss of accreditation, Dr. Brian Meehan eventually lost his job as well.

Compare that record to the academy and to the media. In the academy, if anything, participation in the witch-hunt is a career advancer. Several prominent members of the Group of 88 either left Duke for better jobs (Farred, Baker, Payne) or were promoted within Duke to deanships. The administration even forked over a large legal settlement to the falsely accused players in part to shield individual faculty members from legal liability.

And then there’s the media. Bob Ashley stayed on as the Herald-Sun’s editor until his retirement this past January. Likewise with the Times’ Bill Keller, who kept his position for years until recently stepping down. Duff Wilson is still at the Times, where he was promoted to cover the tobacco and pharmaceutical industries. His on-line bio adds that he’s “currently a member of the board of directors and executive committee of the nonprofit group Investigative Reporters and Editors,” and has taught investigative reporting.” (The site doesn’t feature his syllabus, but based on his Duke reporting, presumably Lesson Plan One is, “Always Trust Whatever the Prosecutor Tells You.”)

But none of these figures can compare to Nancy Grace, subject of a glowing profile (coupled with a photo of Grace in a stylish black leather jacket) in Sunday’s Times. The article, by Brian Stelter, noted that Grace’s current network, HLN (the successor to Headline News), has reoriented itself (and boosted its ratings) around Grace’s guilt-presuming coverage of high-profile trials. It doesn’t mention just how wrong-headed Grace’s trial coverage has been in the past.

And the MSM wonders why younger people increasingly trust The Daily Show for hard news?

The Daily Show - Duke (Non) Rape Case
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Beaty's Levicy Dilemma

More than five years after rogue ex-DA Mike Nifong and his subordinates in the DPD obtained indictments, the discovery process has begun in the civil suits. Ironically, however, only some of the Duke defendants are currently subject to that discovery.

The reason? Durham is appealing Judge Beaty’s ruling allowing the lawsuit to proceed, on the grounds that the city has governmental immunity against the lacrosse players’ claims. In other words: the city can violate its own procedures to frame innocent citizens, and should have no civil liability for its actions.

Very broadly reading the terms of the 2009 Ashcroft v. Iqbal decision, and citing a host of other cases of which the only absolutely on-point was a 2002 holding from the Middle District of Alabama that obviously isn’t binding precedent in North Carolina, Judge Beaty granted Durham’s request to delay discovery for (at the very least) many months, as Durham’s longshot appeal winds its way through the federal court system.

On the surface, Durham’s legal strategy makes no sense, especially given its political leaders’ constantly complaining about the cost of the lawsuit to them. But at a practical level, the Durham approach is unsurprising. First, the more time that elapses before discovery, the more opportunity for the DPD to “lose” evidence, or for DPD officers to claim that they don’t recall what happened in spring 2006. Perhaps more important, dragging the case out for as long as possible means that the political enablers of the hoax (such as Diane Catotti, the Nifong-supporting city councilor who strove mightily to neuter the commission intended to investigate the DPD) will get more time before having to justify their conduct to the electorate.

One element of Beaty’s discovery order, however, provides some insight into how he (at this very preliminary stage) views the case. In his rulings on the motion to dismiss, Beaty dismissed claims of malpractice against Duke and former SANE nurse-in-training Tara Levicy on the grounds that Levicy had no legal obligations relating to care to the public. (Her only legal obligations in this regard, Beaty asserted, were to false accuser Crystal Mangum.) This finding struck me as odd, since Levicy’s primary role in this case was not to provide medical care of any type to Mangum, but rather to gather evidence and offer analysis that the state might use in any prosecution.

In his discovery order, Beaty backtracked—at least intellectually—from this finding, and has now decided to lump Levicy in with the Durham defendants. The allegations against Levicy, he wrote, are "so intertwined with the claims against the city” that no discovery relating to Levicy or Duke Hospital can proceed.

In the short term, this finding is a tremendous victory for Duke: if Durham succeeds in its longshot appeal, and either the 4^th Circuit or the Supreme Court holds that qualified immunity applies even when city employees attempt to frame innocent people, then Tara Levicy or records relating to her dubious conduct will never face the plaintiffs’ attorneys.

In the long term, however, this finding poses terrific risks for Duke, since Beaty appears to be conceding that the allegations on the table (before, it’s worth reiterating, any discovery has occurred) demonstrate that a Duke employee was inextricably “intertwined” with the hoax. If he’s consistent with that finding, it will be much harder down the road for Duke to separate itself from the misconduct of Durham employees.

Durham: Don't Let Lacrosse Players Appeal

Both the city of Durham and attorneys representing the falsely accused lacrosse players have appealed portions of Judge Beaty’s ruling in the Evans case. The two sides, however, have exhibited differing strategies of appeal. Durham is claiming that not only was Beaty’s ruling incorrect, but also that the city should be allowed to indefinitely delay the discovery process as its (longshot) appeal works its way through the court system. As for the lacrosse players’ appeal? In a filing from yesterday, Durham is claiming that they shouldn’t be allowed to appeal at all.

The issue involves Durham’s late March 2006 decision, as documented by former Sgt. Mark Gottlieb, to ignore the police department’s command structure and instead to turn over command of the police investigation to rogue DA Mike Nifong. In his ruling, Beaty said that the city had no legal authority to have done so, and therefore the city can’t be held liable for punitive damages. (Nifong was a state employee; states can’t be held liable for punitive damages in federal lawsuits under the 11^th amendment.) Attorneys for the lacrosse players are seeking to appeal this portion of the ruling, noting correctly that this interpretation amounts to a get-out-of-jail-free card for unethical entities like the DPD—they could simply turn over future police investigations to Nifong’s ethically-challenged successor, Tracey Cline, and thereby shield the city from punitive liability.

Durham wants Beaty to refuse to certify the lacrosse players’ appeal, thereby ensuring that no higher court even would hear it. In its filing, Durham concedes that the DPD violated state law by allowing Nifong to take over the investigation: “North Carolina law clearly does not permit a City to delegate its final policymaking authority to a state official, and bars a state official from acting on behalf of any governmental entity other than the state.” But, the city muses, as it couldn’t legally have taken the action that it did, in fact Nifong wasn’t really in charge of the investigation after all—the DPD, and the rogue ex-DA himself, were essentially just pretending that he was running things.

Beaty accepted this line of reasoning in his ruling—in part, it would seem, because the facts of this case were so unusual and because he permitted the falsely accused players’ civil rights lawsuit against the city to move forward on other grounds.

It’s worth remembering—as Ray Gronberg pointed out in today’s H-S—that former city manager (and current city attorney) Patrick Baker is on record claiming that the command-structure procedures employed in the lacrosse case is normal for Durham. He wrote in 2007 that “the police are a part of the prosecution team and as such it is not unusual for the investigators to work closely and coordinate their [work] with the prosecutor.” Of course, in this instance, the prosecutor was running the police investigation, well before any indictments were obtained.

Edwards Indictment

[Update, 6 June. 4.40pm: And, in another intersection between the Edwards affair and the fringes of the lacrosse case, check out this sensational co-authored piece by Joe Neff, detailing the plea bargain negotiations between the Edwards team and the Justice Department.]

Former North Carolina senator and two-time presidential candidate John Edwards was indicted today, on six counts related to his cover-up of an affair with a campaign aide. The charges were filed in the Middle District of North Carolina, and so it's little surprise that Edwards has reached out to the area's best criminal defense attorneys: both Wade Smith and Jim Cooney are members of the Edwards defense team. Cooney told American Lawyer that he took the case in part because of his longstanding ties to Edwards, dating from the time when Edwards was among the state's leading plaintiffs' attorneys.

Though Edwards' behavior was undeniably unethical (he arranged for massive payments from a 96-year-old wealthy friend and donor to his mistress, all while publicly denying the affair and the woman's resulting pregnancy), it might not have been illegal. In any event, the prosecution will be a precedent-setter, one way or the other.

This is, by the way, the second occasion in which the Edwards campaign intersected with the fringes of the lacrosse case. In 2004, during his first presidential bid, Edwards ran as a Southern moderate. But in 2008, he reinvented himself as a far-left, anti-poverty crusader. As part of this effort, in early 2007, the Edwards campaign hired as its official blogger Amanda Marcotte, known for her intemperate rhetoric and extremist views.

Though Edwards, a North Carolinian and former law partner of Wade Smith, had remained silent on the lacrosse case, Marcotte had lots to say. Among her insights: "Can’t a few white boys sexually assault a black woman anymore without people getting all wound up about it?"

Once her words attracted public attention, Marcotte deleted them from her blog.

Marcotte eventually departed the Edwards campaign after an outcry over her anti-religious rants. And, of course, Edwards eventually departed the presidential race, after losing in Iowa and New Hampshire, and then getting crushed in Nevada and South Carolina.