Saturday, January 31, 2009

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.

Friday, January 30, 2009

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.

Tuesday, January 27, 2009

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.

Monday, January 26, 2009

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.


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.

Saturday, January 24, 2009

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.

Friday, January 23, 2009

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.

Monday, January 19, 2009

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.

Saturday, January 17, 2009

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.

Friday, January 16, 2009

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.

Monday, January 12, 2009

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.

Thursday, January 08, 2009

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:

Wednesday, January 07, 2009


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.

Tuesday, January 06, 2009

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.