Updates

Updates on five* matters:

[Update, Wed., 7.40pm:

1) The New York Times editorializes that the Supreme Court should affirm (as, indeed, it should) that a prosecutor's primary goal is to seek justice, not to achieve a victory. Coming from an editorial page that was virtually alone among major national newspapers in never criticizing Mike Nifong's misconduct, even as Nifong was one of the highest-profile victory-over-justice prosecutors of the last decade, this argument could at best be qualified as better late than never.

2) A reminder that in the week of 18 September, the 4th circuit will hear Durham's appeal of Judge Beaty's order allowing discovery to proceed in the lawsuit filed by the falsely accused players. This move has an effect on the suit filed by the unindicted players, since Beaty allowed all discovery regarding former SANE-nurse-in-training Tara Levicy to be delayed pending the outcome of the appeal.

To summarize the Durham argument, as spelled out in Beaty's original ruling: "Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause."

3) In a move first reported by the H-S, Duke attorneys have filed a brief demanding the dismissal of the Katie Rouse lawsuit, partly on grounds that Rouse was considering leaving Duke even before the rape, partly on grounds that Rouse wasn't treated any differently than other Duke students who considered transferring.

The filings did reveal two previously unreported items. First--and almost incredibly--Moneta admitted that Rouse had been a student employee in his office. If the record of the Rouse case is how Moneta treats a student who had worked for him (as he told NBC-17, 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"), imagine how he'd treat a student he had never encountered but whose presence at Duke caused him bureaucratic problems.

Second, the filings indicated that the house in which Rouse was raped was owned by Duke mega-donor Aubrey McClendon. (Sports fans might know the McClendon name--he's a part owner of the Oklahoma City Thunder, and played a key role in the borderline bad-faith departure of the franchise from Seattle.) Moneta's analysis the McClendon role, as expressed to other administrators: "Unbelievable" and "Shit." Bob Ekstrand has argued that the presence of McClendon gave Duke a motive to try and cashier Rouse out of the university.

Quite apart from the specifics of the Rouse case, there's something more than ironic about a paragon of political correctness such as Moneta worrying about a need to appease an anti-gay fanatic such as McClendon. Strange bedfellows indeed.]

WRAL reports that the State Bar has declined a request from ex-DA Tracey Cline to defer her disciplinary hearing, which currently is scheduled for the first week of October.

Cline wanted the Bar’s proceedings delayed until after she had exhausted her longshot appeals of Judge Hobgood’s order removing her from office.

There thus remains a good chance that Durham’s last two elected district attorneys not only will have been removed from office but removed entirely from the legal profession.

In the H-S, Ray Gronberg reports that Bob Ekstrand has, for the most part, agreed to demands by Duke attorneys for a protective order regarding discovery material in the civil case. In previous filings, Ekstrand had attached the depositions of Duke Police officer Gary Smith and Duke athletics official Chris Kennedy, as well as five e-mails between Pres. Brodhead and his advisors.

Gronberg correctly points out that such a protective order applies to both sides of the discovery, preventing Duke from releasing discovery information about the lacrosse players. But, as the H-S reporter surely is aware, the potential impact of discovery disclosure is so wildly disproportionate that only one side could experience any damage from releasing discovery material at this stage.

Thanks in large part to the combined spring 2006 actions of the media and Duke employees, the lacrosse players’ public reputations were trashed; it’s hard to imagine what Duke could release at this stage that would materially affect the players’ reputations. Moreover, such legal tactics would pose a risk of a public relations backlash against Duke, if the university came to be viewed as engaging in gratuitous character assassination against its former students.

(If there’s discovery material featuring the lacrosse players ruminating about Brodhead as a wise and incisive humanitarian leader, such a revelation would hamper the suit, but it seems extraordinarily unlikely the discovery file contains such material.)

For the plaintiffs’ attorneys, on the other hand, attaching discovery material to legal filings would pose no p.r. problems. More to the point, for Duke, the release of any of this material (whether in pre-trial filings or at trial) runs the risk of exposing damaging information about administrators—such as Brodhead’s implication that a possible frame for the lacrosse case was a movie in which an accused killer convinces his advocates of his innocence, only to be revealed as a killer.

Duke, of course, would have no such risk if either: (a) it had conducted a Freeh Report-like inquiry into how and why the administration so badly handled the lacrosse case, since such a review would have already exposed embarrassing material from administrators’ e-mails or other files; or (b) Brodhead hadn’t offered an after-the-fact claim that a presumption of innocence was one of the two lodestars of how he approached the case, since this highly implausible assertion is so easily undermined by such material as the president’s movie-critic e-mail.

Gronberg’s article notes that John Burness’ deposition has been scheduled, but contains no mention of whether depositions of Duke’s two key decisionmakers—Brodhead and ex-BOT chairman Robert Steel—have occurred.

It’s hard to imagine that Duke would want either of these depositions to see the light of day, which would make Ekstrand’s concession an important victory for the university.

Bitter-Enders

[Update, Sunday, 6.32pm: After an overwhelming number of trustees expressed support for the Penn State president, renegade Trustee McCombie, at a meeting of the Penn State board, announced that he will no longer pursue his appeal of the consent degree. Neither he nor the other most outspoken renegade trustee, Anthony Lubrano, revealed any of the factual errors that they claim exist in the Freeh Report.]

[Update, Wednesday, 1.45pm: Two additional items for the bitter-ender file. ESPN reports that a handful of former Penn State football players will appeal the sanctions, in part on grounds (you guessed it!) that elements of the Freeh Report were “clearly erroneous.” The letter offers no guidance on how, or in what manner, the findings were “clearly erroneous.”

In addition to his communication with the NCAA, renegade trustee McCombie, meanwhile, has also penned a letter to his fellow trustees, asking them (“for the glory,” as he ended his missive) to join his anti-accountability crusade. “I do not do this,” wrote he, “seeking a predetermined result nor do I claim to know what the final answers will be.”

That would be the same Trustee McCombie who told the NCAA that he did know what the final answers would be--namely, that the Freeh Report “contains findings and conclusions that are contrary to the evidence and/or unsupported by credible evidence.” Whether his fellow trustees will respond to a colleague who plays so fast and loose with the truth remains to be seen.]

In our WSJ op-ed, Stuart and I noted that—thanks largely to the Freeh Report—Penn State had responded to administrative failure far more effectively than had Duke handled its response to the lacrosse case. Yet, we argued, a potential problem remained, in which “Penn State may be doomed to follow Duke's unfortunate example. Duke's appeasing of its faculty extremists symbolized its failed response to the lacrosse case. Penn State, similarly, has shown little willingness to deal with its bitter-enders—those among the campus community who prefer to hide their eyes and ears from the evidence and cling to the belief that the late Coach Joe Paterno was somehow mistreated. Such views exist even among the board of trustees, two of whose recently elected members, Anthony Lubrano and Ryan McCombie, campaigned on a platform demanding that the board apologize to the Paterno family.”

Events of recent days confirmed our pessimism. First, the Paterno family announced a desire to appeal the various NCAA sanctions against Penn State. (No member of the Paterno family is currently employed by Penn State, and the university continues to honor the terms of the sweetheart 2011 contract negotiated between the late football coach and ousted Penn State president Graham Spanier.) Beyond expressing rage at the condemnation of a “great educator, philanthropist and coach,” the family targeted the Freeh Report:

As will become evident in a thorough and impartial review, the NCAA acted hastily and without any regard for due process. Furthermore, the NCAA and Penn State’s Board Chair and President entirely ignored the fact that the Freeh Report, on which these extraordinary penalties are based, is deeply flawed because it is incomplete [in unidentified ways], rife with [unidentified, it seems] unsupported opinions and unquestionably [at least, it seems, according to the Paternos] one-sided.  [emphasis added]

The NCAA immediately rejected the appeal on grounds that a consent decree can’t be appealed. And even if such an agreement could be appealed, it hardly seems likely that a family of someone who no longer works for Penn State would have grounds for action.

Then, yesterday, ESPN reported that a renegade group of trustees, headed by the apology-demanding Ryan McCombie, had informed the NCAA that they intended to appeal the sanctions. The McCombie group complains that Penn State president Rodney Erickson kept them in the dark about his negotiations with the NCAA, and lacked authority to enter into an agreement with the NCAA—which, if true, would be grounds for the board to dismiss Erickson.

But after raising what could very well be a legitimate governance issue, the renegade trustees’ letter veered into the absurd. Here’s an excerpt:

The NCAA decree is fundamentally unfair in that the Freeh Report, on which it is predicated, contains findings and conclusions that are contrary to the evidence and/or unsupported by credible evidence [in ways that, it seems, must remain unidentified]. The Report failed to consider evidence or afford certain [unidentified, it seems] individuals an opportunity to be heard, failed to acknowledge the absence of [unidentified, it seems] important and material evidence, and reached [unidentified, it seems] conclusions based on assumption, conjecture, and misplaced characterizations that are contrary to the [unidentified, it seems] available facts and evidence.

ESPN added that if—as is expected—the NCAA rules either the consent decree can’t be appealed or that a renegade band of trustees lacks standing to appeal, the McCombie group will file a federal lawsuit.

The two documents’ descriptions of the Freeh Report were nothing short of wishful thinking. The Paternos’ letter asserted that the report is—not “likely is,” not “could be,” but “is”—incomplete and “rife with unsupported opinions.” Yet, in what could only be deemed a highly peculiar public relations strategy, the letter (just like all of the family’s other public statements about the Freeh Report) neglected to pass along even one of these “unsupported opinions” of which the Freeh Report supposedly is “rife.” Why, do you suppose, that is?

Likewise with the McCombie letter, which maintained that the report contained findings and conclusions that are—not “probably are,” not “could be,” but “are”—“contrary to the evidence and/or unsupported by credible evidence.” Yet the renegade trustees’ letter couldn’t find space to identify even one conclusion of the Freeh Report that was “contrary to the evidence,” or even one finding that was “unsupported by credible evidence.” Why, do you suppose, that is?

We’ve seen, of course, this type of thinking in the Duke case, with the bitter-enders among the Group of 88 and their supporters. The Group statement, apologist Charlie Piot claimed, wasn’t about the lacrosse case at all—even though the e-mail soliciting signatures described the ad as “about the lacrosse team incident.” Or, Group member William Chafe wildly asserted, “Bloggers who have targeted the ‘Group of 88’” were guilty of “sending us e-mails and making phone calls wishing our deaths and calling us ‘Jew b-’ and ‘n-b-’.” Yet when pressed, Chafe couldn’t identify which of the dozen or so “bloggers critical of the Group of 88” had engaged in such behavior.

Like the Paterno family and the renegade trustees on the Freeh Report, for bitter-enders like Chafe and Piot, the “facts” simply had to fit their preconceived notions.

As demonstrated most recently in the promotion of Paula McClain, Duke effectively surrendered to the Group of 88. Will Penn State likewise be drawn low by its bitter-enders?

Duke's Deposition Strategy

The H-S brings news this morning that Duke’s attorneys have succeeded in obtaining a protective order to prevent discovery items from being revealed before trial. Such an approach would come as little surprise: a university, after all, for which the Bowen/Chambers report remains its sole official word on how theadministration botched its handling of the lacrosse case would hardly be eager to have material emerge publicly that would contradict the party line.

The order does, however, contain an unusual line: “Although Plaintiffs initially disagreed as to the contents of the order, the parties have now submitted a Stipulated Protective Order for consideration.” The line is unusual because Bob Ekstrand, as Duke’s attorneys apologetically conceded, never agreed to such a submission. It seems likely that, nonetheless, the order will remain in place (one already exists for the Carrington lawsuit).

In various court filings since January, Ekstrand has attached three discovery items: a deposition from associate AD Chris Kennedy; a deposition from Duke PD officer Gary Smith; and two e-mail chains of Brodhead and his advisors. Given Duke’s determination to keep the discovery secret, it’s worth reviewing the scant material that has become public.

Smith Deposition

The Smith deposition was characterized by the officer’s memory problems—he said he couldn’t recall at least 30 items, including (preposterously) whether there was any conversation about the lacrosse case among Duke police officers in the early weeks of the affair. When not recalling, Smith was stonewalling: he purported to have no opinion on the integrity of the Nifong-Gottlieb investigation. (That would be the investigation of course, that set the stage for Nifong’s disbarment.)

Perhaps the most damaging admission in the Smith deposition, however, came in an apparent contradiction. Smith asserted that—on his own volition, and without a subpoena—he gave to Sgt. Gottlieb the FERPA-protected keycard information. And, he added, he didn’t tell his superiors he had done so, because he didn’t want them to know he had done wrong.

Yet when Smith e-mailed Gottlieb to tell the Durham officer he’d need to subpoena the information Smith had improperly supplied him, Smith blind-cc’d the director of the Duke Police Department, Robert Dean. Naturally, Smith couldn’t remember who told him to bcc Robert Dean. But if he had concealed his mistake from his superiors, why would he have bcc’d anyone at the Duke PD?

Kennedy Deposition

The Kennedy deposition contained no comparable blockbusters, but did feature some telling insights. Perhaps the most disturbing regarded the (successful) NCAA appeal to grant the non-seniors on the 2006 team an extra year of eligibility. In his draft of the request, Kennedy referenced the (undeniable) on-campus threats to the lacrosse players, as well as the dubious behavior of some Duke professors. The Duke counsel’s office—committed, it seems, to the Bowen/Chambers line—removed these items from the document sent to the NCAA.

Kennedy also provided what seems to be obvious analysis, regarding Pres. Brodhead’s infamous “whatever they did was bad enough” remark. He said, "I think that someone without any knowledge of any of the facts, someone on the outside would again draw the conclusion that some kind of crime had been committed and that Brodhead believed they were guilty. And furthermore, I think it was incredibly indiscreet to say ‘whatever they did was bad enough.'"

Administrators’ E-mails

To date, only five contemporaneous e-mails from the time have been made public. The whitewash Bowen/Chambers committee cited a handful of others, but didn’t reproduce any of them—and, perhaps most damningly, cited none of the e-mails uncovered in the current lawsuit, raising questions of exactly what the racial preferences duo saw.

The e-mails shed some light on one of the unanswered (and, perhaps, unanswerable) questions of the case: what motivated Brodhead?

Did fear—of being labeled a racist, of facing a faculty revolt from the Group of 88—form the principal guide of his actions? Or did he, in fact, privately sympathize with the Group’s response to the case, and issue documents such as his April 5, 2006 open letter because he shared the Group’s worldview?

The e-mails provided some ammunition for advocates of the second viewpoint—as Brodhead implied that the appropriate frame for the case might be the movie Primal Fear, in which a criminal defendant fools his lawyer into believing his innocence, only to end the film by admitting that he had committed murder.

It shouldn’t come as much surprise that Duke doesn’t want more of Brodhead’s movie criticism to see the public light.

Updates

A couple of updates:

Stuart Taylor and I had an op-ed in yesterday’s Wall Street Journal, examining the . . . considerable gap between how Penn State responded to the scandal of the Spanier/Paterno cover-up and how Duke’s trustees and administration responded to their lacrosse case failures.

The op-ed focuses on the (almost comical, in retrospect) conclusions of the Bowen/Chambers report—for background, you can see here and here.

The H-S reports that next week, the State Bar will send a letter admonishing pro-Nifong crank Sydney Harr to cease practicing law in his attempt to represent false accuser and accused murderer Crystal Mangum.

The article’s most interesting comment, however, came from Woody Vann, Mangum’s attorney. During the lacrosse case, Vann distinguished himself as one of the fiercest of Nifong enablers. Even as Nifong moved toward disbarment, Vann told the AP, "Nobody knows anything about the previous 28 years. The cases he's tried and won, and the cases he's tried well and won."

Now, however, Vann has changed his tune: “I’m the first one to say I don’t think it’s good for my client to have her name in the same paragraph with … anyone who is a member of the Committee for Justice for Nifong. All that does is tie their names together and dredge up memories of 2006 and 2007 and that’s not what we’re dealing with.”

Duke's Version of Freeh (Updated)

[Update, 18 July, 8.38am: The Chronicle of Higher Education interviews, among others, John Burness about the Freeh Report. In his remarks, Burness essentially praises Penn State for doing what Duke did not do:

"They wouldn't have been able to put this behind them for the next several years if they hadn't gone about doing this the way they've done it—getting someone like Judge Freeh, whose character is pretty unassailable and who was given carte blanche to see what he found and report it without fear or favor," said John F. Burness, a visiting professor of public policy at Duke University and the university's spokesman during the 2007 lacrosse scandal. 

"There is some very bad news in here for Penn State and Coach Paterno and a lot of the leadership of Penn State," he said. "But this is a really critical inflection point for the institution because it is one of the thresholds they had to get through. As difficult as it will be, it was necessary to restore confidence in the integrity of the institution."]

I have a post over at Minding the Campus examining the Freeh Report—and what the document says about the continuing need for oversight by trustees. In short, at Penn State, the trustees failed in their fiduciary duties, and the university will now pay the price. The report describes a top-to-bottom failure in the Penn State administration—from the former president, to the former AD, to the former football coach, and back up again to current and former trustees.

At the very least, however, Penn State deserves credit for critically examining where and how the administration went wrong, and for trying to change a culture that both enabled and contributed to these administrative failures. And it’s hard to criticize the research behind the Freeh Report, which pored through e-mails, other university documents, transcripts of interviews, and publicly-available information from the criminal investigations. Any university that is attempting to move beyond errors would do well to look at the Freeh Report as a model.

For anyone who closely, or even not-so-closely, followed the lacrosse case, the flip-side of the Freeh Report is obvious. Though Duke steadfastly refused to publish a White Paper or even establish a Coleman Committee-like investigation of why and how the administration and “activist” faculty got the lacrosse case so wrong, there was—technically, at least—a Duke version of the Freeh Committee.

In his guilt-presuming April 5, 2006 letter (the document in which he dropped all reference to a presumption of innocence, and merely asked the Duke community to “wait until the authorities act before reaching any judgment in the criminal case”), President Brodhead announced an “Investigation of [the] Duke Administration Response.” He hoped, in part, “to address the concern that my administration did not respond as quickly as we should have and to learn any lessons this episode can teach.” The rush-to-judgment crowd that needed appeasing were unnamed “faculty, students, community members, and others.” While the identity of the “others” is unclear, it seems the remaining figures were either members of the Group of 88 or their student supporters.

To fulfill the role of Louis Freeh in the Penn State case, Brodhead chose former Princeton president and prominent affirmative action-defender William Bowen and former NCCU chancellor Julius Chambers; the duo added a third member, Danielle Carr Ramdath, who they helpfully  identified as an “African-American woman.” While the three admitted they didn’t have enough time to actually conduct a full-fledged inquiry, they nonetheless claimed that they “gained an understanding of the principal issues.”

Departing from the Freeh investigative approach, the Bowen/Chambers report gave no indication of examining internal Duke e-mails to get a sense of how and why the administration responded as it did. (Bowen and Chambers—Carr Ramdath, for reasons that are not clear, did not sign the report—never explained how they could investigate the “Duke administration response” without examining what would be the most relevant evidence to determine that response.) And the report gave no sign of the massive legal liability that Duke ultimately would face—the reported eight-figure settlement with the falsely-accused players, the legal bills piled up in defending the lawsuit from the unindicted players, the settlement with former coach Mike Pressler. Indeed, a reader of the Bowen/Chambers report—which faulted Duke largely for an insufficient commitment to diversity in its hiring process—would have been utterly mystified to ultimately learn that this “administration response” that the duo supposedly investigated had exposed the university to legal liability.

The Freeh Report is a long and difficult read. But for those with the time, compare it to the Bowen/Chambers report, to which I’ve linked in its totality. Which of the two constitutes an investigation, and which constitutes a whitewash?

Updates

Three brief items:

1.) The N&O reports that Crystal Mangum, in papers filed by her de facto attorney, Sydney Harr, has demanded that her bail be reduced (to $50,000) and that the murder charges against her be dismissed, on grounds of self-defense.

The Harr/Mangum team had already made requests along these lines; chances of getting a better outcome this time seem doubtful.

2.) Speaking of Harr (a local retiree best-known for heading a committee of die-hard Nifong fanatics): the Durham News reports that the State Bar will investigate him for practicing law without a license. Harr had admitted that he had "helped" Mangum write her previous legal filings, but argued that he did so after informing her he wasn't an attorney.

“You can’t disclaim the unauthorized practice of law simply by saying I am not an attorney,” David Johnson, deputy counsel for the State Bar, told the Durham News.

Harr (hilariously) claimed he wasn't aware of the rule. (This is the same figure who has termed himself so expert in ethics rules that he can demonstrate the incorrectness of Nifong's disbarment.) He also has told the Bar he won't practice law again--a promise that would seem to be undermined by his delivery of the most recent batch of Mangum papers.

3.) Continuing the practice of Duke elevating Group of 88'ers into positions of authority, as of July 1 the Duke Sociology Department will have a new chair--Eduardo Bonilla-Silva, one of the two or three most extreme members of the Group. In addition to signing the Group statement, Bonilla-Silva had signed onto an even more extreme case-related document, a May 1, 2006 letter that could only be described as willfully ignorant about events in the case.

I looked at Bonilla-Silva's scholarship and teaching record in this post. To give a taste: in a syllabus (a legally binding document between university, the professor, and students), Bonilla-Silva wrote, “We conclude the class with a discussion of some of the solutions that have been proposed to deal with the racial dilemmas plaguing the United States of Amerikkka (I will remove the three Ks from this word when the USA removes racial oppression from this country!).” And, as an example (he said) how he wasn't biased against white people, the chairman-designate noted, “Historically, many good people supported slavery and Jim Crow”—just like the “good people” in the current environment who “oppose (or have some reservations about) affirmative action.”

Imagine the (appropriate) howls of outrage if a university like Duke named as a department chair someone from the far right whose views and rhetoric were as extreme as Bonilla-Silva. Perhaps Bonilla-Silva is being prepped to succeed Paula McClain when his Group colleague steps down as graduate dean.

Follow Me

A reminder that you can follow me on Twitter; I tweet links to all my new posts both here and (on other higher-ed matters) at Minding the Campus, as well as assorted other links of interest.

Fairness

In general, the lacrosse case featured a level of non-responsiveness from key figures at Duke. (There were clear exceptions to this pattern: John Burness responded to virtually every request for comment from me.) Perhaps a fear of likely lawsuits explained this reticence; perhaps it came from a recognition—to borrow the chair of Dean McClain’s selection committee’s “Kinsley gaffe”—that many in Duke were “not on the right side of history.”

Among the faculty, the best example of reticence was the principal organizer of the Group of 88 statement, Wahneema Lubiano. Lubiano, author of two perpetually forthcoming manuscripts, aggressively solicited signatures for the Group ad, but subsequently refused all comment to me (or to any other blog that focused on the case), leaving unanswered such critical questions as to why she (falsely) claimed that five academic departments endorsed the statement. Within the administration, the case reticence award went to Larry Moneta, who declined an interview request for UPI, and who did his best to stonewall comment in this interview:

To what extent, however, could it be said that the blog (or, I suppose, other blogs) was unfair in not including sufficient information from the Duke faculty and/or administration? A few days ago, I was asked this question which is a rather interesting one, in reference to this post, which examined how the Duke and Durham communities responded to the sexual assault of Duke student Katie Rouse in a dramatically different approach than how the very same people had responded to the lacrosse case.

The post included one Moneta statement about the assault, in an interview with NBC-17 captured by 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.” The post did not include Moneta’s earlier statement on the case, a four-sentence press release mentioned here, which claimed that Duke was giving an unidentified type of “support” to the student and cooperating with the police investigation.

Duke not cooperating with the police investigation likely would have violated federal law, and so saying the university was cooperating with police would be a little like saying the sky is blue—clearly true, but of no relevance. In this instance, then, by the time of the post, the only appropriate reference to the Moneta press release would have been sarcastic—to note that a prominent Duke administrator apparently was defining “support” as seeming to shift the blame for the crime to the student.

But what if Moneta hadn’t done the interview with NBC-17? It’s still hard to see any news value in his press release, which was little more than pabulum. Given his position as president, the blog in general referenced all case-related press releases from Brodhead (even those that amounted to little more than pabulum), but generally referenced lower-level administrators only when they said something of substance. The handful of people who had any interest in generic statements issued over the signatures of various Duke officials could find them on the Duke website.

The idea that statements from affected parties must be referenced in the name of fairness—even if those statements either don’t say anything or non-responsive—has become a hallmark of contemporary political journalism, as reporters desperate to prove their “objectivity” include quotes from campaign press officials that amount to little more than talking points about issues that are at best tangential to the subject of the article. Reading past such non-sequiturs has become a requirement for anyone who glances at articles in the Times, Washington Post, or Politico. “Fairness” doesn’t immediately jump to mind when describing the impact of the inclusion of such statements.

The lesson from the Moneta press release? If administrators want their words noticed, their statements should actually say something. Then again, at Duke during the lacrosse case, administrators’ most substantive remarks (for instance, Brodhead’s April 5, 2006 letter to the campus community) often backfired. Perhaps they should have stuck to the pabulum strategy.

Coach K Defends Campus Due Process

In many ways the lacrosse case that hit the Duke campus was a perfect storm. A media that (thanks to the botched Samiha Khanna interview in the N&O and then the Times’ initial biased coverage) portrayed the affair as a brutal example of racism. A corrupt local prosecutor who positioned himself as a latter-day Atticus Finch. A diversity-obsessed faculty whose “activist” members were more than willing to play the race card against anyone who opposed them, even as they violated Duke rules and procedures to get their way. And a president who was at best intimidated by his own faculty and at worst a willing accomplice of the faculty mob.

In this environment, perhaps no one could have provided the voice of reason. Yet the voice of arguably the most powerful person on the Duke campus, men’s basketball coach Mike Krzyzewski, was conspicuously silent in the initial weeks of the case. The co-author of several books on leadership, Krzyzewski refrained from all public comment on the case until late June 2006, eleven weeks after President Brodhead had fired coach Mike Pressler and issued a guilt-presuming public statement, and nine weeks after Brodhead had traveled to the Durham Chamber of Commerce to say of the accused lacrosse players, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.”

In his June 2006 remarks, Krzyzewski said, “If you're going to be in here for the long run, you're going to have trying times. That's just what happens, whether it's a business, a family or a university if you're in it for the long haul." Of the accused players, the coach said, “What I've tried to do behind the scenes is say, 'We're with you. We'll see what happens, and whatever happened if you did it, you should be punished.’” (From everything I learned in the case, whatever behind-the-scenes support Krzyzewski provided to the falsely accused players was very, very quiet indeed.) The sports blog Deadspin mockingly characterized the remarks in the following way: “Blue Devils basketball coach Mike Krzyzewski has spoken out in full solidarity, um, in utter opposition, ah, in lukewarm, half-hearted support of the Duke players in this high-profile controversy.”

Such rhetoric, the coach concluded, was consistent with a university’s values: “Giving support does not mean you're choosing sides. Giving support is what a university should do ... because we're in the kid business.” Of course, the leadership that was needed on the Duke campus in spring 2006 was not giving support (if the players were guilty, why would they have deserved the support of the men’s basketball coach, whether or not he was in the “kid business”?), but speaking out on behalf of fairness—ensuring that Duke faculty treated all students fairly, and ensuring that Durham authorities treated all Duke students fairly.

Krzyzewski made no such statements while the case was ongoing. He gave somewhat contradictory reasons for this approach. In an interview with the AP, he said that he decided to privately “lend whatever guidance or insights I might have into the situation,” including to President Brodheead, because “I am the basketball coach. I'm not the president, I'm not the athletic director and I'm not on the Board of Trustees and don't want to be.” (If, in fact, Krzyzewski did privately advise Brodhead, he either saw his advice completely rejected or gave very bad advice.) In an August 2006 interview with Time, however, the coach implied that he had remained silent to help the players, since “in [the Durham] area, I am like a lightning rod for some things, because there are a lot of Carolina fans or whatever.” And by March 2007, in an interview with Bob Costas, the coach enhanced his recollection again: “I met with my college president. I told Dick Brodhead, 'If you need me ... you tell me, and then put me in a position where I'm not the basketball coach. But I am that special assistant to you.’ Dick Brodhead did not bring me in.”

Krzyzewski eventually did criticize the Group of 88, though not until the spring of 2007, and only once he realized that the Group’s statement targeted not only the lacrosse players but also indicated “a latent hostility or whatever you want to say towards sports on campus. I thought it was inappropriate, to be quite frank." And he issued by far the most gracious statement of anyDuke administrator once the case imploded, when he commented after Nifong’s disbarment, “The Lacrosse Community, the Pressler Family, the Danowskis, there's some real heroes, but the main heroes are those kids and their families.”

Yet at no point in the lacrosse case did Krzyzewski issue a public statement on behalf of due process—urging Duke administrators to ensure that all Duke students were treated according to the rules by Durham authorities and by Duke professors, or that Duke administrators avoid precipitous action until the facts were clearer.

Why revisit Krzyzewski’s silence on lacrosse case due process? Because CNN reports that in an interview to appear tomorrow, the coach will criticize Penn State’s board of trustees for acting too hastily in firing longtime coach Joe Paterno. Penn State, said Krzyzewski, made a “real mistake” in how it handled affairs; “it was really not well done.” He continued, “You had somebody who’d given six decades of service to the university and done such an incredible job. Somehow, you have to let—something has to play out and respect the fact that you’ve gone through all these experiences for six decades. And it doesn’t just go out the window, right at the end.”

Penn State’s trustees faced an extraordinarily difficult decision regarding Paterno’s fate when the indictments of the school’s AD, security chief, and former football defensive coordinator came down. Viewing the facts the Trustees had through the lens most favorable to Paterno, the coach (a) had received a report of a horrific crime by his former chief assistant, waited a day before phoning his AD about it, and then never followed up on the report even as his former chief assistant continued to frequent the football facilities; (b) had, despite his prominence in State College, no knowledge of the 1998 police investigation into another child sex abuse claim against Jerry Sandusky; and (c) did not notice Sandusky bringing along one of his sexual-abuse alleged victims to a 1998 bowl game. Finally, and again assuming facts in the most favorable light toward Paterno, the trustees would have needed to believe that Sandusky's abrupt resignation as defensive coordinator in 1999 was not motivated by hopes of distancing the football program from Sandusky following the 1998 investigation.

With these (and especially item a) as the facts viewed most favorably to Paterno, it seems to me Penn State’s trustees acted properly, though I can see how people of good faith could disagree. It would seem odd, however, for someone who didn’t criticize his own university’s trustees and administrators for not upholding due process to then criticize another school’s under the circumstances that Penn State faced in November.

Moreover, even if someone believed in November that the trustees mistreated Paterno, virtually every piece of information that’s emerged since then has placed Paterno in a less flattering light. In the late coach’s only interview aboutthe affair, he suggested that when he first heard of the allegations against Sandusky, he couldn’t even conceive of them, since “I never heard of, of, rape and a man.” To accept that statement required believing that Paterno—a high-profile Catholic who made large donations to Catholic causes—had never heard of the sex abuse scandal that rocked the Catholic church in the United States.


Then, an Esquire article offered tantalizing, if circumstantial, evidence that Paterno might in fact have known of the 1998 investigation into Sandusky.


And finally, reports in recent days have suggested that in 2001, Paterno’s nominal superiors (whom he had faced down in 2004 when they urged him to retire) extensively discussed the charges against Sandusky, and made a conscious—and probably illegal—decision not to report the allegations.

Given all that, it seems remarkable that Krzyzewski still believes that the Penn State trustees should have kept Paterno as their coach for the rest of the 2011 season—all the more so given his disinclination to publicly support due process or criticize his own school’s administrators during the lacrosse case.

H-S: Civil Case Appeal Scheduled

The Herald-Sun reports that the 4th Circuit has scheduled oral arguments for sometime in the third week of September for Durham's appeal in the civil suits. Durham is claiming that governmental immunity means that the lawsuit must be dismissed before any discovery occurs--a precedent that would be comforting for all city governments intent on engaging in a conspiracy to bring false charges against innocent people.

It's worth reiterating exactly what's under appeal here: there hasn't even been any discovery in a civil suit that was filed years ago. With the only on-point precedent a case from a district court outside of the 4th Circuit, Judge Beaty allowed Durham (and also all claims against Duke involving former SANE-nurse-in-training Tara Levicy) to be deferred until the 4th Circuit acts. So even if the appeals court decides against Durham, this decision almost certainly won't come before early 2013, and then the lengthy discovery process will commence.

Cline: Taxpayers Should Fund My Appeal

The N&O reports that disgraced ex-DA Tracey Cline has offered a Durham definition of chutzpah: she has filed a request that taxpayers should fork over the funds for her appeal of the (civil) judgment that removed her from her post as DA. She justified this extraordinary request on the grounds that since she no longer draws her DA's salary, she can't afford her attorneys' fees. (Cline apparently has struggled to set up a private practice.)

According to the N&O, the director of the courts system, former Judge John Smith, urged Judge Hobgood to deny the motion, on the following grounds: "there is no appropriation of funds for this purpose, there is no statutory authorization justifying the expenditure, and there is no other factor that would permit the Administrative Office of the Courts to provide payment for outside counsel in this situation. Furthermore, precedents establish that this is not a situation where state funds should be used to pay for private counsel in a removal proceeding such as this.”

Cline also can appeal to the AG's office to pay her legal expenses; why Roy Cooper would want to fork over taxpayer funds for such a fantastic appeal is not clear to me.

Cline Faces the Bar--And Duke Rationalizes McClain's Ethical Shortcomings

Update, Saturday, 12.16pm: The complaint is available on the Bar's website.

The complaint itself is divided into two parts. The first focuses on Cline's efforts to obtain prison visitor information on inmates Yearwood, Richardson, and Kidwell--all, apparently, out of an effort to find proof for Cline's claim of a vast conspiracy between the N&O, a handful of defense attorneys, and Judge Hudson. In the process of requesting this information, Cline made false statements to the court and to prison officials.

On this point, the Bar seems to have Cline dead to rights: she lied to obtain information she had no right to have, and she did so for an improper purpose.

The complaint's second section focuses on Cline's "repeated statements about the honesty, integrity, and fairness of Judge Hudson." According to the Bar, Cline knowingly made false statements (or had "reckless disregard as to whether the statement was true or false"). The complaint produces several of these statements--duly noting the myriad spelling and grammatical errors contained in the NCCU Law grad's various motions to the court.

Cline, the complaint claims, "brought the office of the Durham County District Attorney into disrepute." (Could her attorney argue that the office was in such disrepute that nothing Cline could have done could have brought it into further disrepute?) The complaint also alleges that Cline's statements undermined confidence in the judicial system--except, I suppose, for roving-character-witness-to-unethical-DA's Judge Marcia Morey--and were made with "reckless disregard for the truth."

The Bar concludes by charging Cline with violating five acts that violated ethics rules, two relating to the prisoner visitation record requests, three related to her false and inflammatory statements about Judge Hudson:

----------------------------------------------------------------------------------------------

Joe Neff brings the word at the N&O.

The State Bar has filed a 10-page ethics complaint against the disgraced ex-DA, charging her with making repeated false representations to the court, including knowingly making false representations to the court in her request for prison records.

Will consecutive elected Durham County DA's be disbarred for ethical violations?

And speaking of ethics, DukeProf pointed me to this quite remarkable comment from the chair of the search committee that recommended Duke hiring Paula McClain as graduate dean. According to the Chronicle,

The top three candidates also faced tests of “background due diligence,” [committee chair Calvin] Howell said. The committee conducted a poll in an effort to understand how each candidate was viewed publicly. In the past, McClain has been criticized for her involvement with the “Group of 88”—University professors who signed a controversial advertisement printed in The Chronicle following the 2006 lacrosse scandal. McClain’s involvement in the controversy did not cross a “threshold of concern,” Howell said. “She’s a political scientist and that’s what they do, they take a stance,” Howell said. “You’re not always on the right side of history, but as a scholar you have to have a voice.”

Imagine if instead of presuming the guilt of her own school's students, McClain has issued a public statement urging the Supreme Court to overturn racial preferences. Does anyone who saw how President Brodhead handled the issue this spring believe that Duke's response to such a candidate would have been "that’s what they do, they take a stance . . . as a scholar you have to have a voice”?

The inference from Howell's statement: McClain was on the wrong side of history, but Duke nonetheless put her in a position that depends on her good judgment.

Dean McClain

[Update, Saturday, 5.57pm: And, in a further aspect of the annals of non-accountability: Duke has just extended Richard Brodhead's contract for five years. In a statement, the trustees praised Brodhead's "inspired leadership." The statement speaks for itself.]


As noted many times before, a major theme of this blog has been the utter lack of accountability for the faculty members and academic administrators whose behavior in the lacrosse case failed to meet even the minimal ethical standards that a world-class university should expect of its faculty. Duke provided yet another reminder of the pattern earlier this week, when it named Group of 88'er Paula McClain--yes, that Paula McClain--as dean of the university's Graduate School and vice provost for graduate education.


In announcing yet the latest Group member to receive a promotion, President Brodhead hailed McClain as an "outstanding university citizen." And he singled out for particular praise "her concern for the well-being of individual students."


That's a very interesting description of McClain, who in 2006-7 displayed an utter indifference to the well-being of dozens of Duke students.

• In April 2006, she signed a statement that prejudged a criminal case against Duke students, affirming that something "happened" to false accuser Crystal Mangum, and that she would continue to protest the issue regardless of what the police or court decided.
• The next month, in an interview with espn.com, McClain rationalized Nifong's pre-primary publicity crusade (which ultimately contributed to his disbarment), absurdly claiming, “Whether what he’s done has made it more political? . . . This would have been political, regardless.”
• In summer 2006, McClain (apparently expressing "her concern for the well-being of individual students") issued a one-word response--"No"--when a DIW reader asked her whether she'd be willing to issue a statement on behalf of the falsely accused students, even to the extent to demanding that they receive fair treatment by Nifong.
• A few months later, in perhaps  another expression of "her concern for the well-being of individual students,"  this time for Duke student-athletes, McClain termed herself "aghast" at a common-sense proposal to improve coordination between professors and coaches. She also openly mocked a sophomoric spoof of the proposal.  As Sports Law Blog tartly observed at the time “Apparently, Professor McClain--who is co-director of Duke's Center for the Study of Race, Ethnicity, and Gender in the Social Sciences--believes that in the aftermath of the Duke lacrosse scandal, the University needs to distance itself from its sports teams, rather than embrace them."
• In 2007, in what  was perhaps another expression of "her concern for the well-being of individual students," McClain responded with defiance to the legal settlement between Duke and the falsely accused players--a settlement in which Duke shielded the faculty from any lawsuits filed by the falsely accused students.

This is the record of Duke's new graduate dean, an "outstanding university citizen" who has demonstrated "her concern for the well-being of individual students."


I'm sure McClain's appointment has nothing to do with Brodhead's recent remarks in which he profoundly apologized for not appointing more women and/or minorities to upper-level administrative posts--even as he, a white male, refused to resign to allow the Duke trustees to appoint a female or minority president.

The Serial Fabricator Strikes Again

[Update, 6 May, 10.33am: As of this morning, the comments section in which Adjunct Prof. Murphy made her false statements is not visible on the P-L website.]


[Update, 5 May, 11.39pm: Rule 8.4(c) of the Massachusetts Rules of Professional Conduct deems it "professional misconduct for a lawyer to  . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." It is hard to see how Murphy's lengthy, and repeated, fabrications in her public comments about the lacrosse case do not violate this standard.]


Adjunct law professor and serial fabricator Wendy Murphy, Esq., is at it again, this time on the pages of the (Quincy, MA) Patriot-Ledger. Pressed on her pattern of fabrication in the lacrosse case, Murphy unleashed the following:

I also very much value bloggers who note the Duke case. It enables me to repeat things the public rarely gets to read about the case. Once again, I'll include a few key facts [sic] here: 

The victim [sic] was offered 2 million dollars to recant a couple of months after charges were filed, AFTER everyone involved in the case knew what she'd told police - and AFTER everyone involved in the case knew the key evidence - including: statements from eyewitnesses at the scene and results from tests conducted on a broomstick that was seized by police because men at the party reportedly threatened to rape the victim [sic] with a broomstick. Test results on the broomstick have never been released, nor have thousands of pages from the investigation including eyewitness statements. After the victim [sic] was offered 2 million dollars to recant, she hired a very powerful attorney in Florida who has never revealed what legal services he provided. If she lied, SHE should have been prosecuted - not the district attorney - but parents of the men involved said publicly they didn't want her to be punished. 

The public should be demanding full disclosure the entire file - or at least disclosure of all eyewitness statements and all reports related to forensic testing on the broomstick. 

Murphy has a remarkable ability both to outright lie and to issue highly misleading statements (for which she lacks evidence) but which also can't be disproved since it's impossible to prove a negative. That said, she manages at least four false statements in 217 words:

(1) There was no "forensic testing on the broomstick," because no evidence exists that the police ever seized a broomstick. How police could release testing that never occurred Murphy does not say. [A note: on 27 April 2006, on national TV, Murphy gave a completely different interpretation about forensic tests on this non-existent "broomstick evidence," asserting that the DNA tests showed no matches to lacrosse players "because a broom handle was used, which by the way, doesn't produce DNA when you put it inside someone."]

(2) No version of events--even any of the myriad, contradictory versions of events offered by false accuser Crystal Mangum--ever claimed that any of the falsely accused players "threatened to rape the victim [sic] with a  broomstick." Two statements (those by one of the captains and the other dancer, Kim Roberts) referenced an unindicted player boorishly urging Roberts to use the broomstick as a sex toy in the dancers' "show"; both statements said Roberts took offense; and no one (except Murphy, it seems) mentioned the broomstick as an element of any crime.

(3) Mangum was not "offered 2 million dollars to recant." The claim originated from an article from "reporter" Cash Michaels; a subsequent investigation by the DPD not only found no evidence of the claim, but had Mangum herself denying it. Michaels' source, Mangum's "cousin Jakki" (a/k/a Clyde Young), subsequently admitted that months would pass during which she did not speak to her "cousin."


(4) Mangum never "hired a very powerful attorney in Florida." The attorney to which Murphy referred, Willie Gary, briefly offered to represent Mangum pro bono, but does not appear to have ever actually met her, and in any event quickly lost interest in Durham affairs. Moreover, Gary's involvement in the case (such as it was) occurred before, not after as Murphy claims, the false report of a bribe offer--rendering illogical Murphy's mention of Gary.

Beyond the false statements, Murphy provided at least two misleading ones:

(1) North Carolina attorney general Roy Cooper elected not to prosecute Mangum not because of what the parents said or wanted, but because, as he publicly noted on 11 April 2007: (1) Mangum's mental illness was so extensive that she might have believed her myriad false tales; and (2) he feared that prosecuting Mangum could delay the healing process in Durham. In any event, the decision on whether or not to prosecute Mangum had nothing to do with Nifong being prosecuted for criminal contempt, which involved his lying to a judge in open court about whether he had turned over all the DNA evidence to the defense.

(2) It's quite true that roughly 1000 pages of the case file never were released. But as Murphy well knows, no reporter ever saw that material because Judge Osmond Smith sealed the pages, which included the records of Mangum's mental health treatment. Murphy's insinuation that this material would somehow enhance Mangum's claims--as opposed to showing clearly why Mangum lied--is beneath contempt.

Keep in mind: this is the person that the "good-journalism" organization, Poynter, not only uses as a source, but considers worthy of an invitation to guest lecture in a seminar for journalists.

I have e-mailed the Patriot-Ledger's web editor to ask about the paper's policy regarding the posting of false statements by P-L writers, and will update this post if I receive a reply.

Did Sgt. Smith Forget His Memory Pills?

The Liestoppers forum has posted the deposition transcript of Duke police first sergeant Gary Smith. Smith’s name would be known to people who followed the case very closely as the Duke employee who, in violation of FERPA, handed over the lacrosse players’ keycard information to the DPD—and then, at least according to the implied Duke version of events, initially didn’t tell anyone what he did.

Perhaps Sgt. Smith needed to take a few of Grandma’s pills before being deposed. Over the course of the session, he claimed that he could not recall:

1. ·         Whether he had ever worked with Mark Gottlieb before the lacrosse case;
2. ·         From whom he “heard rumors” that Gottlieb was biased against Duke students;
3. ·         The contents of former Duke PD office Christopher Day’s report, from which Smith claimed to have initially learned about the lacrosse case;
4. ·         Whether Officer Day considered Crystal Mangum’s allegations credible;
5. ·         Whether Officer Day changed his initial accurate report (as he did, seemingly under pressure from higher-ups at Duke);
6. ·         Whether the case was initially a subject of conversation in the Duke PD;
7. ·         Whether there was, in fact, any conversation about the case in the Duke PD in the early days;
8. ·         Whether he had ever supplied e-mails to the DPD;
9. ·         Whether or not he supplied prior reports about the lacrosse players to the DPD;
10. ·         Whether Gottlieb requested from him the names and contact information of the lacrosse players, or whether he supplied this information on his own initiative;
11. ·         What role DPD captain Phyllis Cooper had in his being appointed the “sort of” (his words) lead investigator on the case (on that matter, he deemed his memory “wishy-washy”);
12. ·         How many investigators were employed in the Duke PD at the time of the lacrosse case;
13. ·         Whether he had any conversations with Capt. Cooper about the case;
14. ·         Whether or not Duke had previously declined to exercise jurisdiction over alleged crimes in rental properties the university owned;
15. ·         How he described, to his Duke superiors, the information he supplied to Sgt. Gottlieb;
16. ·         What type of assistance he gave to Gottlieb later in March, which Gottlieb had commented on in his typed “notes” (on this point, Sgt. Smith claimed that too much time had passed for him to remember what he did with Gottlieb on what was doubtless the biggest criminal case of his career);
17. ·         Whether DPD officers entered into the “private residence” of Duke students in Sgt. Gottlieb’s nighttime excursion into the Duke dorms, when Gottlieb was trolling for information outside the presence of the students’ counsel;
18. ·         Whether he gave to the DPD two additional reports about the lacrosse players, as the Gottlieb notes claimed;
19. ·         Whether he ever had a conversation with Gottlieb about what Crystal Mangum told the DPD;
20. ·         Whether or not he had ever supplied the DPD with students’ FERPA-protected keycard information on any case other than the lacrosse case;
21. ·         What basis he used to select the students whose FERPA-protected keycard information he voluntarily turned over to the DPD;
22. ·         Whether he turned over Devon Sherwood’s FERPA-protected keycard information to the DPD;
23. ·         Whether he counted how many names were on the lacrosse roster;
24. ·         The nature of his conversations with his DukePD superiors over whether FERPA applied to the keycard information;
25. ·         When he spoke to his DukePD superiors about whether keycard information was FERPA-protected (he said it was simply too long ago for him to remember this critical conversation);
26. ·         Whether he referenced the lacrosse case in his conversation with DukePD superiors about whether keycard information was FERPA-protected;
27. ·         Whether in a late-March conversation with his DukePD superiors he admitted that he had turned over the keycard information;
28. ·         Whether he asked his DukePD associate, Sgt. Stotsenberg, not to reveal to anyone else that Smith had turned over the keycard information (Smith had already confessed his violation to Stotsenberg, who initially was the only DukePD officer to know of the keycard turn-over);
29. ·         Whether he had ever discussed with Stotsenberg the possibility of a deposition in the lacrosse case civil suits;
30. ·         Whether any such conversations referenced the keycard information.

Sgt. Smith also claimed not to have known at the time of the allegations that:

1. The three captains voluntarily gave police statements;
2.  The three captains offered to take polygraph tests;
3. Duke owned the house that the three captains rented;
4. What Gottlieb was thinking when Sgt. Smith informed Gottlieb that the keycard information was likely FERPA-protected;
5. In 2007, his superiors were discussing whether he should be disciplined for turning over the FERPA-protected keycard information.

When he occasionally shook free of his memory-induced haze, Smith did make a few damaging admissions.

1. He admitted that he wouldn’t give the DPD social security numbers of Duke students, because that’s “private” information. (Why the FERPA-protected keycard info didn’t also apply under this standard Smith did not say.)
2.  In a question about his assisting Gottlieb during his nighttime excursion into the lacrosse players’ dorms, he suggested that he saw no problem, as a DPD officer, in helping the DPD ferret out Duke students for questioning even though he knew these students were represented by counsel. Then, however, under effective questioning, Smith admitted it would not have been “proper” for Gottlieb to have entered the students’ dorm rooms as part of his interrogation project.
3. Smith admitted that the Duke PD didn’t follow its own procedure regarding the Gottlieb nighttime excursion; those procedures require that “all requests for interviews of students by the Durham police will be coordinated with [DukePD] Director Dean.” He offered no explanation as to why procedures weren’t followed.
4.  He admitted that he had volunteered to supply Gottlieb with the FERPA-protected keycard information.
5. He admitted that he made a conscious decision not to tell his DukePD superiors that he had turned over the FERPA-protected keycard information—because, he admitted, he was afraid he might get in trouble.
6. In his e-mail to Gottlieb suggesting that he get a subpoena for the improperly turned-over keycard record, he admitted that he blind-cc’d Duke PD director Dean, which he didn’t regularly do—suggesting that the DukePD leadership was involved in the after-the-fact scheme to concoct a legal rationale to turn over the keycard information. (He said he didn’t remember who told him to blind-cc Dean.)
7. As to whether he had an obligation to inform the Duke students whose rights he had violated about what he did, “It never occurred to me.”
8. He had—and as of December 2011, still has—“no opinion” about the “integrity” of the Nifong-Gottlieb investigation. Wow.
9. The “courts” found that the falsely accused players “weren’t guilty, and that is sufficient for me.” In fact, of course, the Attorney General exonerated the players, and deemed them innocent, not simply not guilty.

Nothing in the Smith deposition should give any confidence in the integrity of the DukePD.