Responding to Nifong

The falsely accused players’ attorneys have filed a response to the 11-line motion to dismiss penned by Nifong attorney Jim Craven.

It makes two major points. First, while Craven and Nifong asserted (in lines four and five) of the 11-line masterpiece that the players had not stated a claim against Nifong for which relief could be granted, the players’ attorneys note that the allegations against Nifong include the disgraced ex-DA’s “involvement in the fabrication of false inculpatory evidence, the concealment of evidence of Plaintiffs’ actual innocence and the lack of probable cause against them, the intimidation of witnesses, and the making of false and inflammatory public statements regarding Plaintiffs’ supposed guilt—all of which resulted in the wrongful seizures of the three innocent Duke students and caused them to suffer substantial economic, emotional and physical harm, irreparable reputational harm, and millions of dollars in legal fees.”

Those, in short, would be claims under relevant federal and state laws.

Second, while Craven and Nifong asserted (in lines seven, eight, and nine) of the 11-line masterpiece that Nifong had absolute immunity, because all of his actions “were done in his role as District Attorney,” the players’ attorneys noted that “the mere fact that a defendant holds a prosecutorial title or position at the time of his alleged misconduct does not mean that he is entitled to absolute immunity. Citing a variety of Supreme Court precedents, the response brief concluded that “Nifong is liable for his investigative misconduct and false public statements in the same manner as any other law enforcement officer.”

In a timely reminder of this doctrine, the attorneys cited the Supreme Court’s just-decided Van de Kamp v. Goldstein, which explained that “absolute immunity does not apply” for a prosecutor’s “investigative . . . tasks.”

Essentially, Nifong performed three roles in the lacrosse case. First: from April 18, 2006 (the day he obtained indictments) until January 12, 2007, he served as the (corrupt, unethical) prosecutor in the case—for which he was disbarred and jailed for criminal contempt, but for which he cannot be sued under the doctrine of absolute immunity for prosecutorial functions.

Second: from March 24, 2006, when his DPD superiors instructed then-Sgt. Mark Gottlieb to take orders on the investigation from Nifong, until May 15, 2006, when he completed his investigatory work with then-lab director Brian Meehan, Nifong served as the de facto lead detective on the case. He revived this role periodically between May 2006 and January 2007, usually when he ordered henchman Linwood Wilson to “re-investigate” the case to develop new “facts” that conformed to whatever theory Nifong happened to be supporting at the time.

Third: between March 27, 2006, when he began his pre-primary publicity crusade, and mid-April 2006, Nifong served as the de facto public spokesperson for the Durham Police Department, regularly briefing the local, state, and national media on the progress of the “investigation” and the state of the “evidence” that the Police “investigation” he supervised had allegedly developed.

The 11-line brief filed by Jim Craven contended that Nifong is entitled to absolute immunity for all of these actions, apparently because all of these actions were proper prosecutorial functions. Perhaps if Craven had devoted more than 11 lines to his brief he could have provided a few facts that might have supported this argument. But as things stand now, as the players’ response brief points out, in claiming that the discredited ex-DA is entitled to absolute immunity for actions he performed in supervising the police investigation or serving as DPD de facto spokesperson, Nifong and Craven want a federal district court to overturn multiple Supreme Court precedents. That’s not likely to occur.

Radio Appearance

For those of you in the Chicagoland area, I'll be appearing on WGN's "Extension 720" tonight, from 9-11 Central Time, in a panel discussion about the state of American universities. An internet streaming link also is available.

Another Group of 88'er Promoted

Srinivas Aravamudan has become the third member of the Group of 88 to be promoted to a deanship since signing the Group's statement. Aravadudan joins Lee Baker and Sally Deutsch as the Group's representatives among the ranks of Duke deans. And, of course, 88'er Paula McClain currently serves as chair of the Duke Academic Council, the highest-elected faculty position on campus.

Aravamudan's research interests--postcolonial literature and theory--place him squarely in the Group's intellectual mainstream. In explaining the appointment, Dean of Trinity College Dean George McLendon cited Aravamudan's work at the Franklin Humanities Institute, where he ran a seminar entitled--naturally--“Race, Justice, and the Politics of Memory.”

According to his official statement, Aravamudan describes his role as building “on the existing strengths and accomplishments of the humanities faculty [which is dominated by the Group of 88]. Duke humanities have been recognized as stellar across the world over the last 20 years and the university will strive to the utmost to maintain that reputation. The current economic challenges will, nonetheless, also help humanities departments recognize their most pressing priorities, and encourage collaboration and rejuvenation over mere reduplication. There is no doubt that humanities at Duke will continue to forge ahead in terms of new configurations of theory and practice, and continued innovations in disciplinary as well as interdisciplinary scholarship.”

Aravamundan, by the way, also signed the "clarifying" statement, which Robert O'Neil recently noted "substantially heightened" the concern with the Group's ad, since the signatories, even after "the steady erosion of the premises on which the lacrosse players’ guilt had been based at the time of the original ad . . . declined to apologize or retract, and essentially reaffirmed the position they had advanced nine months earlier."

That members of the Group have consistently been promoted speaks volumes of Duke's future path.

Review: Race to Injustice

The newest book on the lacrosse case is now out. Edited by University of Florida law professor Michael Seigel, Race to Injustice: Lessons Learned from the Duke Lacrosse Rape Case, in many ways captures the conventional wisdom of the case’s effects:

• in the law, a willingness to address the shortcomings that the case exposed, coupled with a renewed emphasis on the dangers of prosecutorial misconduct and civil liberties violations;

• in the academy and academic culture, an almost complete unwillingness to reconsider the dominant assumptions about race, class, and gender; or to ask hard questions as to how dozens of professors at a major university could have both rushed to judgment and then refused to reconsider their perspective as facts emerged undermining their initial assumptions.

Most of the law essays are well-written and very much on point. The essays on eyewitness identification procedures by Gary Wells, Brian Cutler, and Lisa Hasel and on grand jury reform by editor Michael Seigel particularly stand out.

Wells, et al. walk readers through the myriad improprieties associated with the lineup procedures employed by Nifong and the DPD, which they deem “profoundly flawed, dangerous, and nondiagnostic of the guilt or innocence of the accused individuals.” The authors note that the Nifong/DPD procedures went against the guidance of not only DPD official policy but also the standards laid down by the American Psychology-Law Society, the National Institute of Justice, and the North Carolina Innocence Commission. “Identification procedures matters most,” Wells, et al, write, “when there are reasons to believe that the witnesses’ memory is weak”—as in the lacrosse case.

The trio adds that beyond all the other Durham improprieties, “the repeated presentation of certain suspects’ photos is particularly egregious”—36 lacrosse players were shown to Crystal Mangum twice, over a two week-span. That this issue received relatively little condemnation, the authors speculate, is “precisely because [condemnation] seems so obvious.”

Seigel’s essay points out that “all of the procedures designed to protect individuals suspected of committing a crime in North Carolina failed to prevent this travesty of justice”—in part because even the best procedural apparatus “will not stop a prosecutor who, for whatever reason, is not bothered by the prospect of breaking the law and covering up his breach.”

Seigel wonders whether grand jury reforms might prevent such obvious miscarrirages of justice as the lacrosse case. He points to two possibilities. First: abolishing the hearsay rule, thus requiring accusers to testify before the grand jury themselves (the lacrosse case grand juries heard only from Sgt. Gottlieb and Inv. Himan, and Gottlieb has admitted that he told the first grand jury false information). Seigel speculates, probably correctly, that no grand jury ever could have come back with an indictment after listening to Mangum spin what would have been by that point version number six or seven of the “attack.” Second: allowing grand juries to hear from the defendants. It is inconceivable that the lacrosse case grand jury would have brought back indictments had the lacrosse players been allowed to testify.

That said, Seigel notes that these reforms have their own problems—most notably, they would dramatically increase the workload of the grand jury system. As an alternative, he suggests requiring preliminary hearings. This procedure might not have worked in the lacrosse case, but only because of the inherently corrupt nature of Durham “justice.” (The judge that would have heard the preliminary hearing was none other than Nifong’s ex-boss, Ron Stephens, who would later serve as a character witness after the ex-DA was convicted of criminal contempt.) But perhaps even Stevens would have been shamed into dismissing the case after seeing a Mangum performance on the stand. As a second alternative, Seigel proposes a beefed-up grand jury process, to apply only to sexual assault cases, because of the opprobrium associated with a rape indictment.

Other well-done law essays examine the role of DNA in the case (Paul Giannelli writes that “the DNA did its job. Unfortunately, Mike Nifong did not do his,” and says he can’t fathom what could have motivated Brian Meehan to violate legal and professional standards); the specifics of Mike Nifong’s prosecutorial misconduct (a thorough summary by Kenneth Williams); the toxic effects of pre-trial publicity (Andrew Taslitz); and the dangers of unjust imprisonment to those who can’t afford first-rate attorneys (Rodney Uphoff).

The only disappointing legal essay came from Indiana University law professor Aviva Orenstein, whose CV shows an expertise in feminist jurisprudence. Unlike, say, Wendy Murphy or Catherine MacKinnon, Orenstein at least has pondered issues such as due process and fairness for the accused in sexual assault cases. Yet her chief goal regarding the Duke case appears to be ensuring that people ignore any (legal) lessons from it. Indeed, she can’t even bring herself to use Crystal Mangum’s name—she alternatively describes the false accuser as “the accuser,” “the alleged victim,” and, at least once (p. 361), as “the victim.” And in her general discussions of sexual assault law, her essay too easily interchanged between “accuser” and “victim” (p. 358), as if any woman who makes an accusation of rape can be deemed a “victim.”

Orenstein’s thesis:

I am concerned about deriving the wrong lessons from the Duke case. In hindsight, knowing that these innocent young men were subjected to a false accusation, it is tempting to over-read the Duke case as a cautionary tale about the dangers of legal reforms in sex-crime prosecutions. Over the last thirty years, changes to evidentiary rules and other legal doctrines have enabled women to come forward and testify about sex crimes with less fear and humiliation than in times past. For all the hardship that a man accused of rape may face, there are still powerful stories drawing on gender, racial, and socioeconomic stereotypes that make it difficult to convict even those guilty of rape.

How, then, should women who make “a false accusation” be weeded out before causing “hardship” to the men they falsely accuse? Orenstein’s essay is silent on the subject; such suffering, it seems, is a necessary byproduct to counter the “powerful stories drawing on gender, racial, and socioeconomic stereotypes.” But, of course, our entire system of justice supposedly is based on the premise that better nine guilty people go free than one innocent person go to jail.

In this respect, Orenstein’s essay reflects the fundamental flaw in feminist theory about sexual assault law. Feminists believe that “the problem with rape prosecutions is not false reporting, but underreporting.” And so they have championed what Orenstein delicately describes as “legal reforms in sex-crime prosecutions” to increase the likelihood that those charged with rape will be convicted of the crime, even if doing so requires weakening due process protections for the accused—under the assumption that more true victims will come forward if they believe they’re likely to win at trial. And so we have moved from a sexual assault system that, in the 1970s, was biased against the accuser to a contemporary system that is biased against the accused.

Orenstein also expresses concern with what she deems the troubling “narrative” associated with the case—“a tale of a drugged-out, black exotic dancer with a criminal record, class envy, and a chip on her shoulder—one who was lying, delusional, or both.” Such an image, she claimed, “can be traced back to the historical, generalized suspicion of women accusing someone of rape.” Yet Crystal Mangum, in fact, was “a drugged-out, black exotic dancer with a criminal record, class envy, and a chip on her shoulder—one who was lying, delusional, or both.” Should the lacrosse players and their attorneys have treated Mangum with kid gloves because she seemed to fit all the worst stereotypes of a false rape accuser, even if doing so increased the likelihood of their going to jail for a crime that never occurred? Again, Orenstein’s essay is silent on the subject.

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Seigel’s book also contains several essays that examine either the academic or the cultural legacy of the case. Most of these read as if caricatures of the race/class/gender-based scholarship that fueled the Group of 88’s fury.

Here’s University of Florida Law’s Sharon Rush (ironically, a former women’s lacrosse player):

Crystal Mangum did not deserve the maligning of her character by some of the partygoers or by many others who recounted what happened that night in Durham . . . Even though she lied about events in that evening, particularly the rape, it is worth exploring the damaging and hurtful assaults on her dignity in the process of exposing those lies.

Let’s be blunt here: Mangum is someone who, for more than a year, repeatedly lied with the goal of putting three people in jail for 30 years for a crime that never occurred. One wonders how those committed to “exposing those lies” should have treated her: perhaps the lacrosse players’ attorneys should have hailed her as an upstanding citizen of the Durham community?

Here’s University of Florida Law’s Michelle Jacobs, a specialist in critical race theory:

All of the risk factors that can lead to acquaintance rape, particularly of the gang-rape variety, were present that night [at the party]. Although theories explaining why college-age men rape vary, four factors can generally be used to identify a heightened risk for male sexual aggression: stereotypical views of male and female role orientation; membership in a male peer-support group; alcohol consumption; and lack of deterrence. It is clear that at least three of these factors were present in the Duke scenario.

Once again, bluntness is in order: there was no rape in the lacrosse case. So unless Jacobs is contending that the existence of these “risk factors” increases the likelihood of a false allegation of rape, it’s hard to see the relevance of her essay to an analysis of the lacrosse case.

Here’s University of Mississippi Law’s Michele Alexandre, a specialist in “feminist legal theory”:

The Duke lacrosse rape case is a story that is crucially centered on our inability to address and undo our longstanding assumptions about women of color’s bodies.

Again, let’s return to reality: a “woman of color” made a false accusation of rape against three “privileged” white men, and had her accusations not only taken seriously by local authorities, but saw these local authorities engage in grossly unethical practices to keep her case alive. Moreover, she received zealous, public support from dozens of the professors who taught these “privileged” white men, and, at least initially, from most of the mainstream media. This is hardly the record we would expect from a case “that is crucially centered on our inability to address and undo our longstanding assumptions about women of color’s bodies.”

The only academic/cultural essay that seems grounded in what actually occurred at Duke comes from Robert O’Neil, a specialist in academic freedom issues, former president of the University of Virginia, and director of The Thomas Jefferson Center for the Protection of Free Expression.

O’Neill has little sympathy for the Group of 88’s performance. He writes,

Controversy over the “Group of 88” ad would have been intense under any conditions. But the level of concern was substantially heightened by the release of a later [January 2007] statement, signed by many of the original 88 and by other Duke professors as well. Given the steady erosion of the premises on which the lacrosse players’ guilt had been based at the time of the original ad, many in the Duke community expected the sequel to include, at the very least, a substantial recantation. The second letter did slightly qualify the 88’s original position, stating that ‘we do not endorse every demonstration that took place at the time.” it also sought to provide a broader and less passionate context for the Group of 88 ad, insisting that the earlier text had been distorted and misunderstood. Basically, however, the sponsors declined to apologize or retract, and essentially reaffirmed the position they had advanced nine months earlier.

O’Neil also dismisses the claims offered by some Group members that the administration should have openly defended them against their critics, while adding (correctly) that “in one specific respect, the administration exceeded any conceivable pre-existing obligation to safeguard the interests of its faculty,” when the administration shielded the faculty from lawsuits as part of the settlement with the three falsely accused players.

In a few other areas, however, O’Neil seems excessively willing to give the Group the benefit of the doubt. He faults Steve Baldwin, for instance, for behaving in an “uncollegial” fashion in his criticism of the Group—while leaving without mention the (false) assertion by Women’s Studies professor Robyn Weigman that Baldwin had used the “language of lynching.” Certainly, by any standard, a public, written, false allegation of racism against a colleague would qualify as “uncollegial” behavior.

More problematically, O’Neil seems to imply that an academic freedom exemption exists to the faculty’s requirements on treating students laid down in the Faculty Handbook and the student bulletin. Duke is, of course, a private institution, and if it wants to say that faculty members engaged in race/class/gender-based research have an academic freedom exemption to advance their pedagogical agenda by publicly attacking students on the politically incorrect side of the race/class/gender viewpoint, the University has every right to do so. But, as now written, neither the handbook nor the bulletin contains such an exemption.

Finally, O’Neil paints an inaccurate picture of one element of the Group of 88 statement. He notes that the ad would have been improper had the signatories claimed to speak on behalf of Duke, but “nothing in the ad expressly claimed or even strongly implied departmental (much less university) endorsement. Even a casual reading of the text would have belied such nexus, given the critical tenor of the statements.”

Yet, of course, the wording of the ad unequivocally asserted official departmental endorsements. The bottom the text published in the Chronicle and then posted for 183 days on an official Duke departmental website contained the following passage:

We thank the following departments and programs for signing onto this ad with African & African American Studies: Romance Studies; Psychology; Social and Health Sciences; Franklin Humanities Institute; Critical U.S. Studies; Art, Art History, and Visual Studies; Classical Studies; Asian & African Languages & Literature; Women’s Studies; Latino/a Studies; Latin American and Caribbean Studies; Medieval and Renaissance Studies; European Studies; Program in Education; and the Center for Documentary Studies. Because of space limitations, the names of additional faculty and staff who signed on in support may be read at the AAAS website.

Moreover, as we now know, not even one of the departments listed as officially signing onto the ad ever formally voted on such an endorsement—an extraordinary violation of standard academic procedure, yet one for which the Duke administration appears not to have punished anyone associated with the ad.

One additional point on the book’s contents: the essays leave a glaring hole in coverage. How, one wonders, in the highest-profile case of prosecutorial misconduct in modern American history, did dozens of professors at a major university seem utterly indifferent to due process and almost eager to exploit their students’ difficulties? Perhaps, sadly, we’re at a point at which no one familiar with the academy even expects professors to defend due process if doing so contradicts the dominant assumptions on issues of race, class, and gender.

Steel Under Investigation

The Wall Street Journal is reporting that the Securities and Exchange Commission has launched an investigation of Duke Trustees chairman Bob Steel.

Over the summer, struggling Wachovia Bank had named Steel as its CEO--preposterously citing his ability to lead institutions in a “time of turmoil” as a criterion for the selection. In a CNBC broadcast on September 15, Steel asserted that Wachovia had a "great future as an independent company." He added, "But we're a public company, so we're going to do what's right for shareholders, I can promise you that. But we're also focused on the very exciting prospects when we get things right going forward."

Within two days, Steel was privately discussing a merger with JP Morgan--contradicting his assertion that Wachovia had a "great future as an independent company."

The Journal notes that "whether Mr. Steel misled investors and violated securities laws will depend on what Mr. Steel knew at the time of his comments. In general, securities laws say that an executive can't knowingly make a false statement that is material to the company's prospects."

Anyone who followed the lacrosse case wouldn't have been surprised by Steel's penchant to try to "spin" the press with misleading information--this is, of course, the same Bob Steel who privately claimed knowledge of "terrible, terrible" things in the lacrosse captains' house. He has never explained the evidence for which he based his claim, which the details presented in the Attorney General's report wholly rebuffed.

It is unclear whether Duke will allow Steel to remain as chairman while under SEC investigation--although, given the University's unwillingness to demand accountability for his failures in the lacrosse case, I wouldn't expect Steel's removal on this matter anytime soon.

[Update, 3.54pm]: A commenter correctly points out that Steel is entitled to the presumption of innocence. The mere fact of an investigation, however, places Duke in a delicate position. A chief responsibility of a BOT chairman at any university is raising and managing funds. I'm not aware of any recent case (at a prominent university, at least) in which a BOT chairman under investigation for alleged financial improprieities didn't step aside, if only for the duration of the investigation.

Setback for Durham?

The dragging out of the civil suit briefing process—caused largely by Mike Nifong’s ultimately unsuccessful attempts to use bankruptcy proceedings to get out of the civil suit—has resulted in some bad luck for Durham.

On Wednesday, the Supreme Court handed down a ruling that could weaken the Durham defendants’ efforts to use a claim of qualified immunity to avoid liability. Given that this claim formed a central element of Durham’s pleadings, the setback could be a formidable one indeed.

The Wednesday decision, Pearson v. Callahan, arose out of a Utah case involving a warrantless search. The victim of the search filed suit under §1983 (as the lacrosse players have done). The circuit court allowed the lawsuit to go forward. But the Supreme Court overturned decision, and instead held that the police officers in the Utah case were entitled to qualified immunity for their actions.

Good news for Durham, right? Not exactly. The Court stated in Utah, The unlawfulness of the officers’ conduct in this case was not clearly established.” Accordingly, the officers were entitled to qualified immunity under the standard laid down in Wilson v. Layne: the “objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.”

Unfortunately for Durham, no one (outside of Victoria Peterson and some Group of 88 extremists) could assert with a straight face that the actions of figures such as former Sgt. Gottlieb met a test of “objective legal reasonableness.”

Problematically for Durham, however, Justice Alito, writing for a unanimous Court, devoted most of his ruling not to the specific facts of the Utah case. Instead, he called for more flexibility in how lower courts address claims of qualified immunity presented by municipalities or municipal employees.

In a passage that almost read as if it came from briefs filed by the lacrosse players’ attorneys, Alito wrote that “when qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff’s claim or claims may be hard to identify” without the full discovery process that a summary judgment would prevent.

Accordingly, the Supreme Court held that “the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”

Any ruling that allows more discretion on whether a §1983 lawsuit can go forward is bad news for Durham—since the city essentially has no case beyond a claim of qualified immunity. A ruling cautioning that “when qualified immunity is asserted at the pleading stage [as Durham has done], the precise factual basis for the plaintiff’s claim or claims may be hard to identify” is especially bad news for Durham: does anyone really believe that if and when the players’ attorneys are allowed to depose Gottlieb and his cronies, and get access to internal DPD emails, that “the precise factual basis for [their] claim or claims” will not become clearer?

If Judge Beaty were looking for guidance in how to handle this portion of the summary judgment stage, Pearson would seem to be on point.

Duke's $5M Defense?

National Union, the insurance company sued by Duke, has filed its response—and the brief makes for interesting reading.

Among the claims:

1.) Since December 3, 2007, according to National Union’s filing, Duke’s lacrosse case legal expenses have exceeded $5 million.

From the brief: “Pursuant to the 2006 Policy, Defendant has advanced and paid to Plaintiff Duke University as defense costs the full $5,000,000.00 policy limit.”

If true, this assertion is extraordinary: Duke has exhausted its legal limit for defense costs before the case has even entered discovery. The University, it seems, is gambling everything on prevailing at summary judgment.

(National Union also is claiming that because Duke didn’t first inform the carrier that civil suits likely would be filed until December 3, 2007, the company isn’t liable for any of the University’s legal fees before that date.)

2.) Duke first notified its insurance carrier of potential legal liability through a letter sent on March 30, 2006. The letter’s wording provided “notification of an incident only as required by the policy conditions under the referenced policy. No claim has been made against Duke at this time. Rather than repeat the alleged circumstances, I have attached a number of newspaper articles that summarize all that is publicly known about the situation at this time.”

The highlight of the article packet that Duke passed along: Samiha Khanna’s wholly false article of March 25, 2006.

Duke’s March 30, 2006 letter is interesting in two respects. First, it was sent out not when Duke first learned that a local woman had made criminal allegations against Duke students. Instead, Duke notified its insurance carrier one day after Mike Nifong and the DPD were informed that DNA tests revealed no matches to any lacrosse players.

Second, Duke elected to forward to its carrier “all that is publicly known about the situation at this time.” But the University knew that at least some of this “publicly known” information—most notably, the claim that the lacrosse players hadn’t cooperated with police, and instead had erected a “wall of silence”—was false. It’s not clear why Duke would have chosen to pass along information that University officials knew was false, even if that information had appeared in the local and national press.

(National Union also cites the March 2006 letter as important for the company’s legal case; it points to a clause in its 2007 insurance policy with Duke that precludes any coverage from the policy for events that Duke brought to the carrier’s attention in the previous year.)

3.) Duke reached a settlement with the three falsely accused players without informing its insurance carrier, and ignored subsequent requests from National Union for more information on the settlement. Duke also hired outside counsel (Jamie Gorelick of the Washington, DC firm of Wilmer Hale) without clearing the selection with its insurance carrier.

The filing adds an intriguing claim: in its confidential settlement with the falsely accused players, “Duke may have admitted or assumed liability with the Duke Three.” (Duke has refused to supply the insurance carrier with a copy of the settlement.)

4.) In a February 2008 letter, National Union informed Duke that some of the lacrosse players’ claims—if true—involved actions by University officials beyond topics covered by the insurance policy. The letter cited items such as allegations of “false and misleading statements made with intent to conceal”; “public statements made with deliberate indifference and callous disregard for the truth”; and “repeated proffer of false testimony.” (On this point, allegations regarding Duke’s violation of FERPA seem especially troublesome for the University.) The carrier also noted that other alleged actions seemed to involve the defendants’ personal behavior (Pres. Brodhead’s public musings about the lacrosse players’ personal character?) rather than any action in their official capacity.

5.) According to National Union, Duke’s bizarre defense of former SANE nurse-in-training Tara Levicy’s conduct—that she is liable only for claims of medical malpractice, not for providing false information in an official capacity to authorities—means that there’s no coverage under National Union’s policy.

Medical malpractice claims, National Union argues, are covered instead by a Duke policy with Durham Casualty Company, Ltd. The brief hints at why Duke might want National Union rather than Durham Casualty to cover any judgments related to former SANE nurse-in-training Tara Levicy: “DCC is a captive insurance company that is wholly owned by Plaintiff Duke University.” In other words, one way or the other, Duke would be paying for Levicy’s misconduct.

6.) The National Union brief also reveals that Duke has a $25 million insurance policy with United Educators Insurance—and contends that any lacrosse case payments should be prorated between the two insurance companies. Since the UE limit of $25 million is five times greater than National Union’s $5 million limit, National Union claims that UE should be liable for 83% (five-sixths) of any insurance payments to Duke, with National Union liable only for the remaining 17%.

Absent more information, it’s hard to speak conclusively on the merits of the Duke-National Union battle. But in its revelations of the March 30, 2006 letter, and that Duke made key decisions without informing its insurance carrier, the filing does provide more insight of Duke’s erratic behavior throughout the lacrosse case.

Dershowitz on UPI

Harvard Law School professor Alan Dershowitz, discussing books on momentous legal cases in this week's WSJ:

"Until Proven Innocent," an account of the Duke lacrosse case, should be ranked high among works that disprove the notion that those charged with serious crimes are invariably guilty and that those who are acquitted somehow beat the system. Stuart Taylor Jr. and KC Johnson pillory not only the prosecutor in the supposed sexual-assault case -- he was eventually disbarred after charges against the three players were dropped before going to trial -- but also the president of Duke University and those on his faculty who were willing to sacrifice innocent students as a bizarre form of racial reparation. The Duke case demonstrates how contemporary political correctness, run amok, can deform the legal system just as dramatically as other prejudices have in the past.

Is Nifong Paying by the Line?

In one of the stranger filings of the civil suit, Nifong attorney James Craven demands that the suit against his client be dismissed--in an 11-line brief.

Under the law, the disgraced ex-attorney had absolute immunity for all actions taken as DA. But how does Craven address in these eleven lines the police notes and actions showing how Nifong also acted in a police supervisory role--for which he doesn't have absolute immunity?

Craven simply ignores the material--and then, incredibly, urges the judge to incorporate into his brief the arguments of . . . Linwood Wilson, who is acting as his own attorney.

So, Nifong has a lawyer who has chosen to rely on the legal musings of a fired DA investigator who isn't even an attorney. Quite remarkable.

Keohane's "Root of the Problem"

I have an essay at Minding the Campus, discussing former Duke president Nan Keohane's recent defense of her successor, Richard Brodhead. An excerpt:

"The lacrosse thing was kind of a zinger out of the blue," Keohane recently told the Yale Daily News. "It was the accident of timing that it came on Dick's watch and not mine. I had attempted to deal with some of the things that may have been at the root of the problem, but we hadn't really made a huge amount of progress."

There's scant evidence, however, that Keohane "had attempted to deal with some of the things that may have been at the root of the problem" during her decade-long tenure as Duke president. Among the problems exposed by the lacrosse case that were either ignored or intensified during Keohane's reign:

- Academic groupthink involving issues of race, class, and gender: Keohane and her dean of faculty, future Group of 88 member William Chafe, had reconfigured faculty lines (in the name of a "diversity" agenda) to hire specialists in race, class, or gender issues; many of the professors with the worst performance in the lacrosse case (Wahneema Lubiano, Kim Curtis, Grant Farred, Houston Baker) joined the faculty during the Keohane administration.

- "Activist" faculty ignoring the rules: To take the most blatant example, future Group of 88 member Anne Allison, joined by 38 colleagues, violated Duke rules by using university funds to pay for an anti-Bush newspaper ad. Allison's cohort received a slap on the wrist---hardly a sufficient deterrent to prevent the Group of 88 from violating the very same rule in the lacrosse case.

- Administrative indifference to student civil liberties: As former Duke student body president Elliot Wolf observed, throughout the last decade, Duke has changed its bulletin to strip rights from students caught up in the campus judicial process.

Read the entire essay here.

Cline: Was Nifong Right?

Durham County's new "minister of justice," Tracey Cline, continues to display an utter indifference to pursuit of truth or ethical responsibility in office. In an interview with ABC-11's Tamara Gibbs, Cline boasted of her decision to invite to her inauguration a figure disbarred by the State Bar and deemed a "rogue prosecutor" by the state Attorney General. Said she, "I invited everybody and I know the focus is going to be on Mr. Nifong." [emphasis added]

Cline's promised approach almost directly echoed the reasoning offered by Nifong in going forward with an evidence-free case against the falsely accused lacrosse players: "Whether people like it or not, you do what's right and then you don't have to explain what you've done because it's the right thing and that's the bottom line as a prosecutor."

And, incredibly, Cline refused to endorse the Attorney General's report on the lacrosse case. According to Gibbs, "We also asked Cline about the Duke Lacrosse case. We wanted to know if she believed the woman who accused the Duke players of raping her and her thoughts on how her former boss handled the case. Cline declined to comment."

[update, 1-9, 12.05pm]: Liestoppers posts this photo of a proud Nifong, looking on as his protégé took the oath of office, while John in Carolina explains why Cline invited Nifong but not former DPD officers Mark Gottlieb and Ben Himan to her swearing-in ceremony:

News

Two pieces of news:

The Herald-Sun reports that taxi driver Moezeldin Elmostafa has settled his civil suit against the department store chain whose bogus allegations of shoplifting were used by Mike Nifong and the DPD to pressure Elmostafa to change his story in the lacrosse case.

And Durham County’s new “minister of justice,” Tracey Cline, e-mails to dispute my characterization of her as indifferent to ethics. “To seek justice,” writes she, “must be done ethically or else it is not justice.”

So that’s the message she wanted to communicate by inviting Mike Nifong as a special guest to her swearing-in ceremony.

Cline: Symbolism and Prosecutorial Ethics

Newly inaugurated Durham County district attorney Tracey Cline--fresh off a campaign in which she at best misled and at worst lied to Durham voters regarding her position on the lacrosse case--sent a powerful message about the role that ethics will (or, in this case, will not) play in her office.

From Anne Blythe's article in the N&O:

Nifong, who was stripped of his law license for prosecutorial misconduct in the Duke lacrosse case, attended the ceremony at Cline's request [emphasis added]. He stood in the back of the courtroom and at the end hugged and shook hands with many of his former colleagues.

At least now we know why Cline didn't list upholding ethics as one of her desired qualifications for Durham County assistant district attorneys.

December Events in the Case

New developments in the civil suit, and old names up to no good dominated December.

A Duke filing issued a blunt warning to parents of prospective students at the institution: the Faculty Handbook might require professors to teach students with respect, and the student bulletin might state that Duke students should not experience discrimination based on race, gender, or other personal status, but “the Duke bulletin is not a valid contract.” In another words: if a new manifestation of the Group of 88 chooses to go after your son, the university sees itself under no legal obligation to enforce its own policies.

Attorneys for the lacrosse players discovered that in a filing claiming partial immunity, Durham attorneys had decided to . . . rewrite . . . the precise wording of the city's insurance policy to conform to the recent Pettiford decision that seemed to expand a city's ability to shield itself from lawsuits under North Carolina law.

Durham attorneys piled up more legal fees in a filing admitting that they had . . . incorrectly . . . transcribed the wording of the city's insurance policy to make it seem as if Durham's policy was the same as the city's policy in Pettiford. But, they claimed, they still deserved immunity.

Tracey Cline implied an upcoming office purge for those who don't conform to her idea of "justice" and "teamwork."

The Rev. William Barber continued to dissemble, and in an almost comically inept fashion.

Duke Magazine presented an intriguing view of security on campus; and also provided the first time that a Duke publication has conceded on the record that the University possessed some legal jurisdiction over the events at the lacrosse house.

Duke is appealing an unfavorable ruling in the Pressler lawsuit.

And Reade Seligmann received the Intercollegiate Men's Lacrosse Coaches Association (IMLCA) Boston Market Humanitarian Award for his work on behalf of the Innocence Project.

There is, of course, a dissenting view of Seligmann's character, expressed by Richard Brodhead in his first public appearance after Seligmann's arrest on trumped-up charges. Even if Seligmann and Collin Finnerty were innocent, Brodhead proclaimed, "whatever they did was bad enough." The president has never retracted or apologized for his statement.

Alternate Realities

As John in Carolina has noted, Duke Magazine (the journal sent to all Duke alumni) recently published a long article detailing efforts to improve campus safety. Nothing in the article was in any way objectionable, and much of it was commendable. The head of the volunteer Duke student EMS—an organization once under Student Life but now, more appropriately, under the jurisdiction of the Duke Police—discussed his positive experiences with the Duke Police, who he praised for their professionalism and dedication. The article also summarized the impressive list of safety-first changes adopted by Duke in the wake of the Virginia Tech massacre.

Yet much of the article seems, to put it most charitably, inconsistent with the University’s record in the lacrosse case. And this approach is, sadly, all too consistent with the magazine’s pattern of one-sided portrayals of the issues and problems arising from the case.

To begin with, here is how author Bridget Booher describes the case:

Though the majority of reported crimes are relatively minor incidents, two major events accentuated the need for Duke to think more strategically about campus safety and emergency preparedness. In the spring of 2006, allegations of an off-campus rape by Duke students exploded into a racially charged, nationally followed case that has come to be known simply as “lacrosse.” As the tangled mess slowly began to unravel, senior administrators identified a number of areas for improvement, including the university’s internal and external lines of communication.

Having mentioned Mangum’s allegations, doesn’t Booher have some obligation to point out that the Attorney General declared the Duke students actually innocent? It’s not entirely clear, indeed, what she means by “the tangled mess slowly began to unravel.” Even allowing for Booher’s peculiar word choice, didn’t the “mess” completely “unravel,” not merely begin “to unravel”?

Perhaps as interesting is Booher’s follow-up clause: “Senior administrators identified a number of areas for improvement, including the university’s internal and external lines of communication.”

In her discussion of the second “major event” that “accentuated the need for Duke to think more strategically about campus safety and emergency preparedness”—the Virginia Tech massacre—Booher devotes seven paragraphs to the specific (and commendable) ways in which Duke enacted changes.

And yet the “areas of improvement” from the University’s handling of the lacrosse case merit a mere one sentence.

Booher’s phrasing—“Senior administrators identified a number of areas for improvement, including the university’s internal and external lines of communication”—suggests the University identified “areas for improvement” beyond “the university’s internal and external lines of communication.” Yet no such “areas for improvement” have been publicly identified.

How, moreover, has the University acted to improve “internal . . . lines of communication”? Booher doesn’t reveal—nor, of course, has any other Duke administrator. Perhaps such changes have occurred. But it’s odd that the administration hasn’t chosen to share those changes with the broader Duke community.

And how has the university acted to improve “external lines of communication”? Again, Booher offers no specifics. The University’s acknowledged record involving improving “external lines of communication,” however, isn’t exactly encouraging, involving as it did only two stated issues:

• (1) the Bowen/Chambers report, which faulted (of all people) Larry Moneta for having the temerity, in an external line of communication, to warn Duke students of a possibly violent response from Durham residents; and

• (2) President Brodhead’s Sept. 2007 apology for his not having reached out to the families of the falsely accused players, an apology that came months after BOT chairman Bob Steel had privately assured other Trustees that such lines of communication had, in fact, existed. Neither Brodhead nor anyone else associated with Duke has publicly said (a) why Brodhead didn’t stay in touch with the families; (b) what steps have been taken to ensure that a repeat of this performance doesn’t occur; and (c) what steps have been taken to rebuke Steel for misleading other trustees.

The Booher article does provide one intriguing nugget of information. Under the heading “Law and order,” Booher writes,

Reciprocity between community partners extends to the Duke and Durham police departments as well. The two agencies have a concurrent jurisdiction agreement, which means that Duke can ask the Durham police for help with crimes on campus, and the Duke police can respond to crime involving members of the Duke community who live in surrounding neighborhoods.

The Ekstrand lawsuit has provided the most complete discussion regarding the question of Duke Police’s jurisdiction over events at 610 N. Buchanan. But Booher’s article appears to be the first official Duke publication to concede that, at the very least, Duke Police had concurrent jurisdiction over the lacrosse case—since “the Duke police can respond to crime involving members of the Duke community who live in surrounding neighborhoods.”

Booher’s clause, therefore, raises a troubling question: if the Duke Police had concurrent jurisdiction over the lacrosse case, why did they decline to exercise that jurisdiction—and who made this decision?

Other sections of Booher’s article contain boilerplate items that, alas, contradict the University’s known record in the lacrosse case. For instance, under the heading of “off-campus dangers,” Booher quotes Larry Moneta, noting that in dealings with the Durham Police, the university “can’t position itself as having a greater need than other parts of Durham.”

Over the past few years, however, the central issue in the relationship between Duke students and the Durham Police hasn’t been a demand for special treatment for Duke students. It has been, instead, Durham’s official policy (acknowledged by Duke) that Duke students, and only Duke students, will receive separate, and harsher, punishments in alcohol cases. The article has nothing to say on this issue. I e-mailed Booher to ask her why the article contained no mention of this “Good Neighbor Policy”; she didn’t respond, though I will post a response if one comes in.

Or take this Booher paraphrase of Moneta: “He assured the group that Duke officials do follow criminal cases very closely, and work with the local law-enforcement agencies and the attorney general’s office to expedite prosecution when appropriate and feasible.” In the lacrosse case, however, Duke’s official policy appeared to be to refuse to “work with the local law-enforcement agencies.”

Or take this passage:

In this case, as in others involving students of concern, the young woman’s name is added to a database maintained by Amy Powell, the student-affairs case manager. A position created just this year, the case manager coordinates the efforts of student-focused campus entities to ensure an integrated approach to addressing a spectrum of needs a student might have.

For example, the loss of a parent or close family member could have an impact on a student’s academic performance, his mental health, and even his financial-aid package should the family’s income fluctuate. In a situation like that, Powell would collaborate with the student’s academic deans, who alert the student’s professors to the situation; professional staff in Counseling and Psychological Services, to which the student might be referred; and the financial aid and registrar’s office.

This all sounds wonderful. The record of the lacrosse case, however, revealed that when some Duke professors—Kim Curtis, for example, or John Walsh’s spring 2006 professor, Claire Ashton-James—they not only did nothing, but behaved in an unprofessional fashion to further damage the student. What will Powell’s new position do to address such matters?

Or take this Moneta quote: “One of the things we tell parents during orientation is to contact us if something doesn’t seem right.” That, of course, would be the same Larry Moneta who, in March 2006, when a vigilante mob traveled from 610 N. Buchanan to a nearby house rented by other lacrosse players, where members of the mob shouted threats and banged on the doors/windows of the house. One of the players called Moneta for help; Moneta responded that there was nothing he could do. Could it be that Moneta doesn’t consider a mob banging on a Duke student’s window as “something [that] doesn’t seem right”?

Or take this quote from DUPD head Aaron Graves: “But as sworn police officers, we have an obligation to enforce the laws of the state, the orders of the city, and any other federal laws that apply.” In the lacrosse case, however, the DUPD unlawfully provided to the DPD the key card information of Duke students, information that was protected under “federal laws that apply” (FERPA). Duke officials then appeared to conspire with Durham authorities in an elaborate cover up scheme involving the issuance of fraudulent subpoenas. Why did Graves not adhere to his stated policy in the lacrosse case? Either Booher didn’t ask, or Graves didn’t tell.

Duke could have addressed to the lacrosse case as if a university’s fundamental mission were pursuit of the truth—by appointing, perhaps a truth and reconciliation commission, or by soliciting a white paper on how the University, its administrators, and its faculty members responded to the case. Duke, of course, didn’t choose this path. And Booher, doubtless, would have written a different article had the University chosen to confront publicly its handling of the case.

Duke’s decision is probably unsurprising. But the University’s approach also renders ridiculous such statements as Booher’s: “With their own children heading off to college, these parents want assurance that safety precautions and safeguards are in place to protect them from harm.”

Tracey Cline: Purge Ahead?

Employees of the Durham County district attorney’s office received a letter recently from the county’s soon-to-be “minister of justice,” Tracey Cline:

A few items to keep in mind:

1.) It is nothing short of laughable to believe that Cline—a figure who at best misled Durham voters about her role in the case and at worst outright lied about it—can evaluate anyone on the basis of their commitment to “justice.”

2.) Cline’s demand that all current employees of the D.A.’s office re-apply for their position, with a subsequent evaluation on the basis of their dedication “to the success of our team,” seems like nothing more than an ill-concealed rationalization for cronyism.

3.) Notably absent in Cline’s list of qualifications: a commitment to prosecutorial ethics. This oversight is unsurprising coming from Nifong’s key deputy, although for public relations reasons, Cline might have at least paid lip service to ethics. The omission speaks volumes of the direction in which Cline intends to lead the office. I emailed Ms. Cline to ask her why she declined to list a commitment to ethics as among her desired qualifications; she has not replied.

4.) Given Cline’s non-existent transparency (she still hasn’t provided an accounting of her role in the lacrosse case), it seems unlikely that Cline will provide public reasons for her demotions, promotions, and dismissals as the basis of her new standards.

5.) Two interim district attorneys, Jim Hardin and David Saacks, have presided over the office since Mike Nifong resigned. Neither conducted an office purge, although, based on her performance in the lacrosse case, Tracey Cline would have been an obvious candidate for dismissal. Neither required all members of the office to reapply for their positions, either.

6.) Why didn’t Cline reveal her plan during the primary contest?

Ten Questions for Rev. Barber

Perhaps I’m naïve, but I think that most people expect ministers to tell the truth. But the head of the North Carolina NAACP, Rev. William Barber, seems to have a lot of trouble with that qualification.

In a WRAL on-line forum, Barber was recently called to task for his organization’s guilt-presuming approach to the lacrosse case. Here is the question, and his response, in its entirety. My discussion is below.

The NAACP and other civil rights organizations and leaders were very outspoken in support of Crystal G. Magnum during the Duke Lacrosse rape investigation. When it became apparent that her allegations were not supported by the evidence, why didn't these same organizations/leaders offer apologies to the wrongly accused? – Roger Williams, Fayetteville

I’m sorry that you have been misinformed about our position. I know, however, that is easy especially in a time when so many can say through the Internet what they think you stand for without truly hearing or reading what you actually said. Below is a copy of our position.

Also, remember we supported the attorney general having a special investigation and prosecutor. The uniqueness of the NAACP is that we have been there when black girls/women have been raped and there were no consequences and when black boys/men have been accused of rape when they were innocent. With that history in mind, we have always called for fairness.

The following was our official public position that very few media outlets chose to print in its entirety:

1. We must denounce any code of silence, which seeks to inhibit ascertaining the facts.

2. We must have deep compassion and concern for the survivor and challenge any attempts to demean or destroy her rather than to seek and ascertain the truth.

3. We must ensure the D.A.’s investigation is completed thoroughly and promptly and that serious consequences be meted out if the allegations are proven. These allegations include: sexual violence/gang rape, racial slandering/hate crimes, underage alcohol use, and any prior history of racial bigotry and intimidation must be fully investigated. We do not want a rush to judgment or a delay of justice. Duke should be conducting its own thorough investigation. Who was at the party? Who violated Duke’s Code that night? How many times had they violated the law or Duke’s Codes before?

4. We must monitor the legal process to insure justice is carried out in this investigation without special privilege or treatment to anyone. Our position as an organization interested in civil rights and community justice, is that the investigation of allegations are fair, meticulous, comprehensive, aggressive, and thorough.

5. Those who are calling for justice and fairness in the investigation must not be wrongly described as a “lynch mob” no matter how zealous [sic] one seeks to defend their client.

6. Those who want to ensure justice must insist there are no short cuts to justice. We demand that the alleged perpetrators have rights to be protected. We must also be prayerful if the allegations are true and for whoever committed these acts because they are suffering from a great sickness of the spirit and hatred for humanity.

7. We must face this investigation when all of the facts are in.

8. We must face the truth and the justice that the truth demands.

9. We must consider in the wake of all that has and will occur, how we repent, repair, restore, and move forward. We must not engage in retaliatory violence. Our faith must insist that hope can still be rise out of hurt, what is meant for evil can yet be turned to good, and out of tragedy can still come triumph.

10. We must recognize that in a moment like this moment we need the guidance of God and a moral compass, which keeps us focused on the fact that only the truth can set us free.

Two obvious questions:

1.Which of these 10 “principles” guided the NAACP’s decision to post on its website an 82-point memorandum of law that not only presumed guilt but also was riddled with outright factual errors that made it appear as if a crime could have occurred?

2.And why has an organization that claims to seek “the guidance of God and a moral compass, which keeps us focused on the fact that only the truth can set us free” not publicly apologized for this document, which the head of is legal redress committee produced?

Barber’s commentary raises other uncomfortable questions, to wit:

3. The reverend asks people to “remember we supported the attorney general having a special investigation and prosecutor.” By omitting a qualifying clause, Barber produced a misleading statement. An accurate statement from Barber would have asked people to “remember we supported the attorney general having a special investigation and prosecutor after Mike Nifong recused himself from the case.” Before that point, of course, the NAACP had never made such a demand, and the special advisor it appointed for the case, Irving Joyner, had consistently defended Nifong’s behavior.

4. If the NAACP believed it “must face this investigation when all of the facts are in,” why did the organization essentially reject the results of the AG’s report and call for a new investigation (which it would dominate)? That’s not facing the facts, it’s denying them.

5. In principle number two, the NAACP described Mangum as “the survivor”—a term used by “rape victim” groups to describe a victim of rape. Yet at the time when Barber outlined his “principles” in spring 2006, defense attorneys were adamantly denying that any attack occurred. So, by describing Mangum as “the survivor,” did not the state NAACP’s own principles presume guilt?

6. Barber’s “principles” contain the following two contradictor items: “We demand that the alleged perpetrators have rights to be protected” and “we must denounce any code of silence.” Even the most limited view of civil liberties would hold that the “rights” of “alleged perpetrators” include not speaking to police outside the presence of their attorneys. Yet at the time when Barber announced his “principles,” the “code of silence” claim had a specific meaning—that, as Nifong and his enablers had charged, the lacrosse players had enacted a “code of silence” and refused to speak with police. (Of course this was untrue: they had only postponed a meeting with police until they could consult with counsel.) So could Barber explain how his organization was “upholding its demand that the alleged perpetrators have rights to be protected” by “denounc[ing] any code of silence”?

7. Barber’s “principles” contain another clear contradiction: “We do not want a rush to judgment” and “those who are calling for justice and fairness in the investigation must not be wrongly described as a ‘lynch mob’ no matter how zealous [sic] one seeks to defend their client.” The potbangers—who, the reverend told us, can’t be referred to as a “lynch mob”—claimed their goal was “justice and fairness.” How was their behavior consistent with the NAACP’s stated opposition to a rush to judgment?

8. In light of NAACP “principle” number 8, when will the organization “face the truth” about its record in the lacrosse case?

9. Barber asserted, “Our position as an organization interested in civil rights and community justice, is that the investigation of allegations are fair, meticulous, comprehensive, aggressive, and thorough.” Before his recusal, no one from the state NAACP ever denounced Mike Nifong’s myriad ethical improprieties, and Joyner appeared to give a pass to the rigged lineup. How was that behavior consistent with the organization’s interest in civil rights and commitment to a “fair” investigation?

10. And, finally, Barber’s “principles” held, “We must face the truth and the justice that the truth demands.” How could Barber’s misleading response to WRAL be deemed consistent with that principle?

Durham's Punctuation Thesis

Durham attorneys have made another filing—in the process, of course, upping the “defense costs” under which the city’s insurance policy kicks in and Durham loses its qualified immunity—reiterating the city’s demand to toss out all state claims.

The filing is a peculiar one. City attorneys Reginald Gillespie and Roger Warin admit that they filed a factually incorrect brief, omitting a comma when quoting the city’s insurance policy. The omission distorted the meaning of the city’s policy but had the convenient effect of exactly aligning the city’s policy with that of a recent North Carolina (Pettiford) decision that upheld a city’s immunity claim.

Remarkably, Gillespie and Warin don’t apologize. Instead, they mock the lacrosse players’ attorneys for pointing out their error, and reiterate their original argument as if they hadn’t filed a brief containing a significant factual error. The duo: “The City’s policy here is similar to the one in Pettiford.” Well, it is, provided that the vanishing comma remains vanished, and the city’s convenient use of ellipsis dots be allowed.

The filing has two other intriguing elements. First, Gillespie and Warin again cite the assurance of Durham’s Risk Manager, Darwin Laws, regarding “the scope of insurance coverage potentially available to the City in this case.” Yet, as the Ekstrand filing pointed out, Laws provided at best an . . . incomplete . . . summary of arrangements into which Durham has entered that might pierce the city’s immunity. Perhaps Laws, now chastened, has provided a comprehensive account in his new assurances to the court. But it’s hard to imagine why his words, having been impeached once, should be taken at face value now.

Second, Gillespie and Warin claim that “well established” principles of law bolster their argument about how to interpret the language of the city’s insurance policy. That assertion sounds pretty impressive—until a look at their filing’s citation. This “well established” principle of law, it turns out, has been articulated in just one case—a 2001 decision in the Missouri Court of Appeals.

Why a federal court in North Carolina should consider an intermediate state court 1000 miles away as the barometer of “well established” principles of law Gillespie and Warin do not discuss.

Durham's Vanishing Comma

A few weeks back, Durham attorneys filed a motion requesting summary judgment regarding elements of the civil suits dealing with state law. They cited a recent decision, Pettiford v. City of Greensboro, to contend that they had immunity. The basic argument: the city has immunity from state-based tort claims, since Durham’s insurance policies were written in such a way not to pierce the immunity the city enjoyed.

At the time, several commenters pointed out that the city’s filing seemed unusually cogent. In sharp contrast to the run-of-the-mill argument from Durham (i.e.: state law says Mike Nifong wasn’t supposed to supervise a police investigation, and therefore Durham can’t be sued for results from the city’s decision to allow him to supervise a police investigation), the Durham filing looked as if had offered an intellectually consistent and on-point claim.

But as revealed in explosive filings from Charles Davant (representing the three falsely accused players) and Bob Ekstrand (representing Ryan McFadyen, Matt Wilson, and Breck Archer), we should have known better. Incredibly, it appears as if Durham’s high-priced attorneys—the same attorneys who have received more than $1 million in fees—misrepresented the city’s insurance policies in such a way that they essentially presented a false argument.

Davant’s opening pithily summarizes the implications of the city’s multiple errors:

The City’s brief misquotes the sentence upon which its argument depends, omitting a particularly important comma. The omission reverses the sentence’s meaning, transforming policy language that is fatal to the City’s position into the inaccurate language upon which the City’s motion is based. The omission also leads the City to represent, inaccurately, that this Court interpreted “identical policy language” in Pettiford. In fact, Pettiford involved an insurance policy that was altogether different from the City’s, and that only highlights the problems with the City’s argument.

Other issues about the Durham filing raised by Davant and Ekstrand.

1.) Inaccurate Quotations.

The city’s filing was [deliberately?] misleading. It removed a comma from a key sentence in its insurance policy—and by so doing, changed the meaning of the policy’s language in such a way to align Durham’s policy with the language of the Pettiford decision. Perhaps the Durham attorneys were simply, if inexcusably, sloppy?

2.) Misleading Ellipses.

The Durham brief also . . . creatively . . . used ellipses to mask the true meaning of its insurance policies. As Ekstrand points out,

The ellipses conceal the text that reveals that the City’s retained limit is exhausted not only by the City’s obligation to pay a claimant, but also by the City’s payment of “defense costs” along the way to judgment. Specifically, the City’s ellipses replace the phrase “by means of payments for judgments, settlements, or defense costs.” Restored to its original state, the quoted sentence reads: [The insurer’s] duty to pay any sums that you become legally obligated to pay arises only after there has been a complete expenditure of your retained limit by means of payments for judgments, settlements, or defense costs.

(While Durham has had no legal judgments against it in the case, its defense costs to date exceed its limit, and therefore require insurance payment.)

Even more dramatically, Ekstrand quotes an email between then-City Manager Patrick Baker and the city’s risk manager—the email about the very issue of insurance and the city losing its immunity, but from an already settled 2007 lawsuit. The city’s risk manager was clear: defense costs—not just settlement costs—pierced the city’s immunity:

The SIR [self-insured retention] applies to damages as well as legal defense expenses (but not to expense of our staff counsel, so we can't bill for your time.) When we expect that a claim could go into the excess (exceed the SIR), then we need to report it to the underwriter promptly. … We have an obligation to protect the underwriter's interest, and that necessarily affects our settlement posture within the SIR . . . . This does affect the potential for an immunity defense because immunity is waived to the extent of the insurance. … This is the dilemma of the low SIR.

The Durham brief operated as if this email didn’t exist.

3.) Ignoring Relevant Case Law.

In his filing, Davant cites 16 separate North Carolina cases that refuted Durham’s argument even if the city hadn’t misrepresented the language of its insurance policy. In one of these 16 cases that refute Durham’s argument, Durham itself was a defendant—making it rather difficult to explain how the city could have been unaware of the precedent.

Davant also quotes from the Kephart decision, in which the Court rejected the very argument offered by Durham in its filing as “basically circular” and contrary to “our case law,” which “has consistently considered purchase of limited insurance coverage by a governmental entity to constitute partial waiver of sovereign immunity.”

“In short,” Davant concludes, “the City’s legal argument is refuted not only by its prior admissions and the case law, but by the plain language of its policies.”

4.) Concealing Relevant Information.

The issue of defense costs triggering the insurance policy wasn’t the only information conveniently neglected from the Durham filing. Durham also made the following claim: “The City does not now participate, and has not in the past participated, in any local government risk pool pursuant to Article 23 of Chapter 58 of the North Carolina General Statutes.”

But, as both the Ekstrand and Davant filings observes, Durham actually does participate in such an arrangement—Interlocal Risk Fund. Could the Durham attorneys have been aware of this arrangement?

Moreover, as the Ekstrand filing further notes,

[Durham counselor] Mr. Laws states under oath— unequivocally and incorrectly—that “the City is not a party to any agreement which requires … any other entity to pay claims for which the City incurs liability.” Mr. Laws is wrong. One such agreement was attached to Plaintiffs’ Amended Complaint: the Duke-Durham Police Jurisdiction Allocation Agreement. Section 3.5 of the Police Jurisdiction Allocation Agreement contradicts Mr. Laws’ sworn declaration. It provides: “To the maximum extent allowed by law, the University shall defend, indemnify, and save harmless the City from and against all claims, demands and lawsuits that may arise in any manner from, in connection with, the acts or omissions of the University’s officers while performing their duties under this Agreement.”

Ekstrand continues,

Plaintiffs can only assume that Mr. Laws simply did not know of either the City’s “Immunity Waiver Fund,” the City’s three Resolutions deeming the fund to be a waiver of the City’s governmental immunity, the City Council’s appropriation of over $600,000.00 to participate in the League of Municipalities’ local government risk pool, or the City’s indemnification agreement with Duke University relating to all claims arising out of the concerted activities of the Duke and Durham police departments. If that is the case, Mr. Laws simply not a reliable affiant with respect to the facts at issue in the City’s dispositive motion.

The city’s pattern of . . . incomplete . . . disclosure of information, the players’ attorneys argue, should be particularly problematic in a motion for summary judgment. Davant summarizes the information that the plaintiffs’ attorneys could encounter if and when discovery actually begins:

• communications between City officials and/or the City’s insurers regarding coverage of Plaintiffs’ state-law claims;
• reimbursement of the City Defendants’ legal fees incurred in connection with defending Plaintiffs’ state-law claims;
• other statements by City officials concerning the City’s insurance coverage for Plaintiffs’ claims;
• whether the City and/or its insurers have engaged in other actions that would support a finding of insurance coverage and, therefore, a waiver of immunity.

The Davant filing presents five (logical, if almost comical) questions that the Durham filing essentially presented as unsettled:

1. Where an insurance policy provides that coverage is triggered upon the insured’s payment of $500,000 “for judgments, settlements, or defense costs,” is coverage triggered upon the insured’s payment of $500,000 in defense costs?

2. Can a city claim governmental immunity on the ground that it has no “legal obligation to pay” its self-insured “retained limit,” where the policy at issue requires only that the retained limit be paid, not that the city have had a “legal obligation to pay” it?

3. Does a city’s insurance policy extend coverage to state-law torts if it expressly covers “wrongful acts” that specifically include “negligent acts,” “personal injury offenses,” “malicious prosecution,” “false arrest,” and other state-law torts?

4. Does an endorsement to an insurance policy that is expressly made “subject to” the policy instead override the policy?

5. Should summary judgment be granted on the affirmative defense of governmental immunity where the moving party’s prior statements, at a minimum, create a question of fact, and the non-moving parties have been unable to take discovery?

The answers to each of these questions are self-evident, at least to everyone outside the Durham elite.

Some aspects of this case—chiefly involving the unindicted players’ suit against Duke, which could have far-reaching implications on higher education—involve complicated questions of law. But the only thing complicated about Durham’s interpretation of the Pettiford decision appears to be how the city’s attorneys could have ever made the claims they did.

[Update, here are the links to the Davant and Ekstrand motions.]

New Civil Suit Filings

Late November featured several filings in the civil suit—some from the plaintiffs, mostly repeating previously advanced arguments, and an explosive filing from Bob Ekstrand, raising serious questions about the Durham legal team’s veracity. Today’s post will look at the defendants’ filings; Wednesday’s will examine the Ekstrand filing.

Some of the old and new defendants’ assertions that raised eyebrows:

1.) Durham and Duke authorities continue to defend the non-testimonial order that kicked off the media firestorm.

Under North Carolina law, an NTO requires both probable cause that a crime was committed and a reasonable belief that the subject of the NTO could have committed the crime. In March 2006, with the drafting assistance of Durham DA-elect Tracey Cline, the DPD obtained an NTO requiring DNA and photos from all 46 white lacrosse players.

In analyzing the lacrosse case NTO, apply the Brad Ross test: he’s blonde (Mangum hadn’t described any of her attackers as blonde); none of the captains listed him as attending the party (as, in fact, he did not, since he was in Raleigh that night); and his name didn’t match any of the names of the people Crystal Mangum alleged “attacked” her.

Not only did the DPD lack a “reasonable belief” that Ross committed the “crime”—they had no belief at all on the matter. Yet they sought and obtained an NTO against him. And attorneys representing both Durham and former DPD officers (and, even more incredibly, Duke) continue to assert that they had every legal right to seek an NTO against Ross.

Durham attorneys Reginald Gillespie and Roger Warin describe the non-testimonial order as “reasonable.” Duke attorney Jamie Gorelick suggests that the NTO was legally justified. Attorneys for former DPD officers Ben Himan and Mark Gottlieb go even further, asserting that “ample grounds” existed for the NTO. Indeed, the Himan/Gottlieb brief contains a 26-point chart justifying the NTO. The inference: Durham police would do it all over again.

This line of argument effectively makes the plaintiffs’ case for them, since it suggests that the Durham Police (and, incredibly, Duke as well) see nothing wrong with violating residents’ civil rights, as an official policy. The logical extension of the Durham/DPD argument is that once the city has “probable cause” that a crime has occurred, it doesn’t need “reasonable belief” against a particular subject in order to obtain an NTO against that person.

2.) Blame someone else.

The Himan-Gottlieb brief is particularly aggressive in throwing co-defendant and former SANE nurse-in-training Tara Levicy under the bus. “The SANE nurse [in training],” attorneys Edwin Speas and Joel Craig write, “told investigators in this case that Mangum ‘had signs, symptoms, and injuries consistent with being raped and sexually assaulted vaginally and anally.’”

The officers, they suggest, can’t be held liable for the fact that Levicy lied to them. The brief asserts that Gottlieb and Himan had no obligation to interview the person who actually performed Mangum’s medical exam, Dr. Julie Manly. Speas and Craig don’t explain why it was OK for Gottlieb and Himan not to interview Manly.

3.) Don’t let the facts of the case stand in the way of an argument.

From the Durham brief: “The City has explained that, as a matter of law, Michael Nifong acted solely on behalf of the State of North Carolina, rather than the City.” Yes, that’s how the law is supposed to work. But in this case, of course, it didn’t, since Durham decided to allow Nifong to run a DPD investigation. That’s a major reason why Durham faces a lawsuit.

From the Durham brief, regarding Mangum’s failure to identify any of her “attackers” in lineups that loosely followed the DPD’s requirement of five filler photos for every photo of a suspect: “The fact that Mangum appeared to have difficulty identifying her attackers in the photo arrays was not material to the probable cause determination.” Mangum, of curse, didn’t “appear[] to have difficulty identifying her attackers in the photo arrays.” She could not identify her attackers in the photo arrays. Why can’t the city of Durham, after everything that’s happened, admit this?

4.) Duke maintains its “straw man” legal strategy.

Duke attorneys Donald Cowan and Jamie Gorelick, still seeking to try a case that doesn’t exist, maintain that the lacrosse players’ “fundamental contention is that Duke University and its administrators were legally obligated to protect them from the consequences of a police investigation—by quelling media coverage of the case, preventing campus protests, and even interceding to stop the investigation.” And, they add, “Plaintiffs contend that the Duke health care providers, who were responsible for the medical examination of Crystal Mangum on the night she alleged she was raped, should be liable for harms allegedly caused by Durham Police officers and the prosecutor in investigating those allegations.”

I can sympathize with the plight of Cowan and Gorelick: it sure would be easier to argue against such a case than the case that they confront: that Duke officials took money from the lacrosse players but failed to enforce either the Faculty Handbook or the Student Bulletin; that Duke’s inability or refusal to supervise one of its employees, Tara Levicy, was critical to first initiating and then sustaining the case; and that Duke employee Levicy’s false statements to police were critical to first initiating and then sustaining the case.

That said, the Cowan/Gorelick approach seems more appropriate to the world of political spin—where talking heads base arguments on wild and easily noted distortions of the opponents’ words and arguments—than to the world of a federal court, where words are supposed to mean what they say.

5.) Duke still defends its suppression of the student voter registration drive.

Write Gorelick and Cowan,

All the alleged efforts to “shut down” their voter registration drive took place on Duke’s private property. They argue, however, that the First Amendment was implicated when “uniformed police officers” carried out Duke’s alleged decision to curtail their registration efforts. That argument lacks merit; courts have repeatedly held that the police may assist private property owners in exercising their right to restrict political activities on their property without violating the First Amendment.

The 1998 Higher Education Act requires any university that receives federal funds (as Duke does) to encourage students to register to vote. I’m not aware of any litigation specifically defining the scope of the act, but surely suppressing a student-led voter registration drive would not fulfill the act’s provisions.

The lacrosse players lack standing to sue for Duke violating the Higher Education Act. It nonetheless is astonishing to see the University's legal team so nonplussed by Duke's apparently unwillingness to adhere to the HEA's terms.

6.) A no-winner for Duke.

Assert Gorelick and Cowan bluntly, “The Duke bulletin is not a valid contract.” A translation for Duke parents: if activists in the Duke faculty decide to target your son to advance their pedagogical or ideological agendas, Duke considers itself under no obligation to uphold its own policies to protect its own students.

I wonder what all the students ensnared in the Duke judicial system for real and imagined violations of that bulletin think of the argument that the bulletin “is not a valid contract.” And I wonder what prospective parents of the Class of 2013 would think of Duke’s dismissal of its own regulations. Somehow, I doubt that Duke will share with them the words of Gorelick and Cowan.

7.) When all else fails, count on Linwood Wilson for comedy.

Fired DA office investigator Linwood Wilson, acting as his own lawyer, demands that sanctions for unethical behavior(!) be filed against the lacrosse players’ attorneys.

We’re talking about a man who denied ever seeing Mike Nifong behave in an unethical fashion. So it could be argued that Wilson doesn’t understand what constitutes unethical conduct. Speaking of himself in the third person, Wilson writes:

Defendant Wilson had no arrest powers and no prosecutorial powers and could not have arrested nor prosecuted any of the Plaintiffs’. Defendant Wilson had no supervisory authority placed upon him by the City of Durham Police Department nor did Defendant Wilson share with Nifong and have “certain final policymaking authority, delegated from City Officials”. Plaintiffs’ have continued to group Defendant Wilson as a law enforcement officer in all their pleadings knowing full well that was not true. Plaintiffs’ failure to properly investigate, if by nothing else but simply reading the State Statute (GS 7A-69), or by simply calling the Attorney General’s Office, would have verified those facts. Defendant Wilson argues that Plaintiffs’ failure to do so, and by filing an action against Defendant Wilson knowing that certain allegations were false, has resulted in a Rule 11 Violation and the sanction for that violation should be dismissal as set out as a remedy in the Federal Rules of Civil Procedure.

In other words, Nifong wasn’t supposed to be supervising the police investigation, and Wilson, his employee, wasn’t supposed to be engaged in de facto police activity, and because the players’ attorneys pointed out these inconvenient facts, they should be sanctioned.

Wilson’s legal creativity rises to even greater heights, however, in his concluding section, which tries to promulgate new law:

Plaintiffs’ [sic] were never even charged with any crime and have no foundation for this action and it is increasingly clear that Plaintiffs’ motives are to extort money from these defendants by bringing an action they know to be frivolous. Therefore Defendant Wilson’s Motion to Dismiss should be granted.

Wilson’s filing only confirms the old aphorism: A man who is his own lawyer has a fool for a client.