Thank You!

Congratulations to both the Men’s and Women’s Lacrosse teams for outstanding seasons and consecutive Final Four appearances. Thanks once again for representing the University so well and making us all proud!

Durham District Attorney Election

Today is election day in North Carolina and voters will choose the next District Attorney for Durham County. The Herald-Sun, the great defender of the status quo, predictably endorsed current Assistant District Attorney Tracy Cline. In doing so, it presented a variation of the Durham government party line that Mike Nifong and Mike Nifong alone is to blame for the Lacrosse Hoax stating, “[Nifong’s] actions did not reflect deep flaws within the DA's office.” On the contrary, the Lacrosse Hoax revealed some very deep flaws within the District Attorney’s office indeed.

Tracy Cline’s problems are well known. She was Nifong’s second chair in the lacrosse case and would have helped him try the case had it gone to trial. In October, however, she claimed that she had very little role in the hoax. According to the Herald-Sun,

Some suggested during the lacrosse meltdown that Nifong’s assistants dropped the ball by not reining in their boss, halting the scandal in its tracks.

Cline agreed last week that attorneys have a duty to report unethical conduct among their colleagues.

But she said she lacked insights into what Nifong was doing.

“I didn’t have any personal information about what went on in the lacrosse case, other than what the media reported,” she said. “My job was to keep the courtrooms running. That is what I was focused on.”

First, the assertion that she did not know the facts of the case is almost certainly false. Having worked as second chair, I can tell you that the second chair knows as much about the case as the lead attorney and often knows more. In fact, in the normal course of things, the second chair handles the day to day chores and basic prep work. Evidence presented at Nifong’s bar hearings suggests that was the case here.

More importantly, Cline did not need to know one thing about the Lacrosse case to know that Mike Nifong was an unethical attorney and that he should have been reported to the bar. From the very beginning of the hoax, I tried to make the distinction between Nifong’s conduct and the facts of the case. Even if one could plausibly claim not to know all of the facts of the case, all of Nifong’s misconduct took place in public for all to see. Anyone with a television set could watch him do it.

North Carolina Rule or Professional Conduct 8.3(a) states,

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the North Carolina State Bar or the court having jurisdiction over the matter.

It is no exaggeration in the least to say that every single lawyer in the District Attorney’s office is an unethical attorney. Mitchell Garrell, another assistant district attorney who is running against Cline tried to make an issue of Cline’s involvement in the hoax at a candidates forum. However, Garrell has some explaining of his own to do.

In any event, the problems with the assistant district attorneys during the Lacrosse Hoax go beyond a passive refusal to report Nifong to the bar. Many actively supported his bid for election and worked on his campaign. They did so with the full knowledge that he was an unethical and corrupt attorney. At a polling place during the 2006 general election, Nifong supporters who claimed to be attorneys in his office were falsely claiming that Nifong had a “smoking gun” that he would reveal at trial. That night, when the results were announced at the courthouse, an assistant district attorney taunted Duke students who were there to support Lewis Cheek saying, “poor little Duke kids didn’t get your way.”

Even after Nifong was disbarred, assistant district attorneys continued to support him and defend his actions. ADA Stormy Ellis pronounced herself “shocked that he has been tainted as a ‘rogue prosecutor.’ It scares me to think that one case can mar you for the rest of your life.” At Nifong’s contempt hearing, I heard a male voice behind me mutter, “Objection!” to a prosecution question it evidently did not like. I did not see who said it, but moments later David Saacks, who is now the acting District Attorney, stood up from directly behind me when he was called as a witness. At this same hearing, ADA Jan Paul, who had come to the hearing to support Nifong, refused to speak with investigative reporter Joe Neff of the News and Observer because she blamed him for Nifong’s downfall.

I do not endorse either of the remaining candidates, Freda Black or Keith Bishop. I just hope the people of Durham can find someone who is willing to provide ethical leadership and surround his or herself with ethical people.

While the ethics and moral outlook of assistant district attorneys might not seem that important, consider that the Lacrosse Hoax was not the work of a criminal mastermind. Instead, it was what happened when a venal and small minded career assistant found himself in a situation that tested his character. Consider also, that he likely developed the habits and attitudes he displayed during the Lacrosse Hoax working in that office for 27 years and who knows what other misconduct he might have committed before his actions became subject to public scrutiny.

Unfortunately, the best chance for positive change in the Durham County District Attorney’s Office was when Governor Easley had the opportunity to appoint Nifong’s successor. What Easley needed to do was appoint someone from outside the Durham legal community who would go into that office with an eye toward firing most of the people there. Instead, he turned Jim Hardin, Nifong’s predecessor back into the office apparently with an eye toward stabilizing the current situation there.

LieStoppers Message Board

Last weekend, the LieStoppers message board was hacked and taken down. Thanks to an incredible amount of work and resourcefulness by the LieStoppers team, their message board is back in business in a new and (hopefully) more secure format and it is now open to the general public again.

Follow up on Duke's Motion and Two Other Items

The Administration's Motion Denied

As predicted, the judge in the civil suits denied the Duke administration’s motion to sanction opposing counsel for an alleged violation of Rule 3.6. (See previous post.) Here are details from the News and Observer and the Chronicle.

I wrote a letter to the Chronicle in which I call the actions by Duke’s counsel unprofessional. Understand that this motion was not a request for relief from any alleged harm. The administration’s lawyer denied in court that the motion was a request for a gag order. The motion was solely an attack on the integrity of Charles Cooper and his colleagues and, as I suggested in the previous post, one that had no basis in law. A bar complaint is a very serious matter touching on both the character and professional qualifications of an attorney. It should not be made lightly and certainly not to try and score a rhetorical point.

The administration’s motion is also a mean spirited cheap shot against the players who were also specifically targeted. Although Rule 3.6 only applies to attorneys, the motion requested that the court make a finding that “Plaintiffs and their counsel” violated Rule 3.6 and the local rule incorporating it. It accuses them of violating one of the same rules that their tormentor and the administration’s erstwhile codefendant, Mike Nifong did.

While the administration’s attorneys were rummaging through the Rules of Professional Conduct, perhaps they missed Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

Federal Rule of Civil Procedure 11(b)(2) has a similar requirement.

It is hard to see the administration’s motion as a good faith argument for the extension, modification or reversal of existing law. Interpreting a statute or rule is a matter of reading the text, which is entirely controlling, and there was no suggestion that the language used is vague or ambiguous. Duke’s argument that the spirit of the rule was violated, even if it were true, is utterly beside the point. Moreover, Rule 3.6(b)(2), the public documents exception, appears specifically intended to operate as a safe harbor rule for lawyers trying to comply with the general rule stated in Rule 3.6(a). Finally, even if the court did announce a new rule, it could not give it retroactive effect.

What we are left with the administration is attempting to try the case in the media under the guise of upholding the exact opposite principle. For the administration, appearances have always been the only thing that mattered. Still, this is a new low.

Elmo a Citizen

Congratulations to Moezeldin Elmostafa, or “Elmo” as he affectionately came to be known to supporters of the accused players, who recently became a US citizen. He was also recently named “Hero of the Year” by Reader’s Digest magazine. Durham needs more citizens like him.

Elmo was the taxi driver who picked up Reade Seligmann from the party and was able to help document Reade’s alibi. After Reade’s alibi came to light, Mike Nifong sent two detectives working on the lacrosse case to arrest Elmo on a stale warrant. When they arrested him, they asked him if he “had anything new to say about the lacrosse case.” When he said no, they then took him to a magistrate. He was eventually found innocent at trial.

I hope that the recent renewed publicity will focus attention on one loose end that remains in making Nifong fully accountable for his conduct. Attempting to alter the testimony of a witness is obstruction of justice. While Nifong’s ethical misconduct was addressed by the North Carolina Bar, he has never been made to account for his criminal conduct. Also suspicious was Nifong’s conduct in relation to another witness, the second dancer Kim Roberts. The same day that Nifong personally intervened to have her bail reduced on an unrelated criminal charge, she started giving an account that contradicted her earlier statement to police that no rape had occurred.

Elmo’s case also should be instructive to those who saw Nifong as some sort of champion for social justice because he was targeting affluent or supposedly affluent people. As an immigrant looking to become a citizen, Elmo was one of the most vulnerable people in our society. A criminal conviction of any kind could have resulted in his deportation and permanent exclusion from the United States. Yet, Nifong was as willing to maliciously prosecute him for his own purposes as he was Reade, Collin and David. Indeed, given the fact that Elmo refused to change his story when pressured by police, Nifong’s decision to prosecute him anyway was purely vindictive.

Amended Complaint

Bob Ekstrand who is representing three of the players in the civil suits recently filed an amended complaint which contains additional allegations and information. It also contains embedded audio and video exhibits. Warning! It is a huge file (121 MB). Such is the extent of the misdeeds of Duke and Durham’s leaders.

Duke's Motion

It has been a while since I updated the front page. Between the holidays and my other commitments, I have had to take some time to get caught up with my other affairs. However, FODU is still very much in business. I hope you have noticed that our Moderator has been continuing to keep the media links page updated everyday. I also hope you have been reading the excellent DSED blog, which has done more than fill any gap left by my absence. I will try to update more frequently and I want to do a larger post to get caught up. In the meantime, I just wanted to share my thoughts about Duke’s motion to shut down the informational site http://www.dukelawsuit.com/, which is maintained by a publicist for the players and their lawyers. Duke's caim is that it violates North Carolina Rule of Professional Conduct 3.6, the same rule that was among those Mike Nifong was disbarred for violating.

Well, I must say that I am glad that, after two years, Duke has finally discovered Rule 3.6. When Mike Nifong was out in front of the cameras violating it hourly, they did not want to know one thing about it. As late as September 2006, Bob Steel tried to argue with me about whether Nifong was actually doing anything wrong. Now, if they could only understand it . . .

First, Rule 3.6 only applies to lawyers. It does not apply to parties such as the players and their families. Although not unqualified, parties have a First Amendment right to say whatever they want about a case that is much broader than what is allowed to lawyers. Rule 3.6 certainly does not apply to the heartfelt statement lacrosse parent Steven Henkelman gave at the press conference.

Second, Rule 3.6 allows lawyers to comment on matters in the public record, which includes court filings.

Here are the relevant portions of Rule 3.6:

(a) A lawyer who is participating or has participated in the investigation or
litigation of a matter shall not make an extrajudicial statement that the lawyer
knows or reasonably should know will be disseminated by means of public
communication and will have a substantial likelihood of materially prejudicing
an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and,
except when prohibited by law, the identity of the persons involved;

(2) the information contained in a public record;

* * *

At the press conference linked on the site, attorney Charles Cooper did nothing more than summarize the contents of the complaint, which was being filed as he spoke. He appeared careful to so limit his remarks. The memorandum of law in support of Duke’s motion conceded this point. It tried to make a “spirit of the law” argument that the complaint itself was inflammatory and thus no public reference should be allowed to be made to it. Here is the crux of Duke’s argument from the memorandum of law accompanying the motion:

Plaintiffs will almost certainly argue that these statements are fully permitted by Rule 3.6(b)(2), which allows an attorney to comment about “information contained in a public record.” Many of these statements are direct quotes from the Complaint, while others are slight paraphrasings of the Complaint. (See, e.g., Compl. ¶¶ 3, 11(a), 11(b), 11(c).) When a complaint contains such incendiary language, an attorney should not be permitted to hide behind the language of the complaint and make a statement to the press that strings together paragraphs that are highly prejudicial. Such an action is contrary to the very intent of Rule 3.6, “materially prejudices an adjudicative proceeding,” and should not be allowed.

This is not a legal argument. Indeed, the fact that it is not a legal argument is also why they cannot offer one shred of legal authority to support it.

Mike Nifong violated Rule 3.6 by commenting on the evidence, lying about the evidence and inviting antipathy toward the accused. This was conduct squarely prohibited by the rule and manifestly prejudicial. Comments 5 and 6 accompanying the rules give a fuller explanation.

Others have noticed the hypocrisy of Duke criticizing dukelawsuit.com while at the same time maintaining its own informational site about the case which contains dishonest and self serving accounts of the administration’s handling of the Lacrosse Hoax. It is worse than that. Duke was anticipating lawsuits from the very beginning. Remember Mark Simeon, Nifong’s political ally, was lining up the Mangum family for a suit and brought Willie Gary to town in furtherance of that goal. If you will recall, Duke’s site initially linked media accounts that were mostly negative toward the players and ignored accounts critical of the investigation. As the tide started to turn, and Duke’s own misconduct became apparent, Duke began to anticipate suits from the players, instead.

In fall of 2006, Bob Steel made an offer to at least one of the families to pay their legal expenses in exchange for singing an agreement not to sue. Despite the desperation of their situation, they refused. Bob Steel and Richard Brodhead also had a meeting with the families to try and sort out their differences that went nowhere. Duke has known that the present suits were coming for a long time and the twisted apologetics contained on its own informational site were created with that prospect in mind. This strategy reminds me of the famous advice a rugby manager gave to his players before a game: “Be sure and get your retaliation in first!”

What is particularly telling to me is that, while Duke’s motion complains about prejudice caused by dukelawsuit .com, it does not ask for a specific remedy other than asking that the website and its contents be declared violations of Rule 3.6. It does not ask for a gag order. Motions for gag orders to avoid pretrial publicity are not uncommon and Duke could have made a much stronger argument for one by simply pointing to the harm pretrial publicity might cause. It would not be an availing argument, mind you, given its own attempt to take its case to the public, but a better one. By misframing the issue as a legal ethics and Rule 3.6 issue, it decided to forgo a stronger argument in order to try and score a rhetorical point. Duke is falsely attempting to create the appearance of similarity between the conduct of the plaintiffs and their nemesis Mike Nifong. In other words, Duke is attempting to try the case in the media while at the same time purporting to uphold the opposite principle. But then again, Duke signaled how it intended to fight this suit when it hired a lawyer, Jamie Gorelick, whose principal skill set is not federal civil rights litigation, but political infighting.

DSEDuke's new blog and Stuart Taylor

Duke Students for an Ethical Duke has a new blog. Be sure and check it out.

They also have a link to video of Stuart Taylor’s excellent speech at Duke on Friday. The video is low resolution and they are working on putting up one with a higher resolution. However, Stuart’s speech is good enough that you might not want to wait.

Stuart Taylor at Duke

Reminder:

Stuart Taylor co-author of Until Proven Innocent will

be speaking at Duke on Friday, November 2.

Book signing at 6:00 pm
Lecture at 7:00 pm

Details and directions are here.

Some Announcements

President Brodhead’s Review

Just a reminder that you still have a couple of days to send your comments regarding President Brodhead to the committee conducting his performance review for the Board of Trustees. The deadline for submitting comments is October 29.

If you do not have enough time to write a letter, send a postcard or send an e-mail. Make your voice heard.

Tell them that Duke can do a lot better.

In formation on how to participate is here.

Another group has taken the lead in rallying the Duke community to participate in the comment phase for President Brodhead’s review. They are called Friends for a Better Duke or FABDU and they want a Duke to be a fab place once again. You can check out their website here.

Stuart Taylor

Our other friends at Duke Students for an Ethical Duke have are hosting a book signing and lecture by Stuart Taylor, the co-author of Until Proven Innocent at Duke on November 2. The book signing will be at 6:00 and the lecture will follow at 7:00. Details, including directions to the venue, Love Auditorium are here.

Stuart is an excellent speaker and his lecture will be every bit as interesting and informative as KC Johnsons’s a few weeks ago. Incidentally, DSED informs us that Stuart originally signed on to debate any of the book’s critics who wished to come forward. However, there have been no takers so far so he will give a lecture instead.

Too Little Too Late

by Jason Trumpbour, FODU spokesperson

In an address to a conference at the Law School on Saturday, President Brodhead apologized for several aspects of the administration’s handling of the lacrosse case. The text appears here.

Apologizing to the players was the right thing to do. However, I cannot help but feel that, once again, circumstances forced his hand. After all, the administration had been belligerently insisting that they had gotten things more or less right and have clung to that position up until this speech. Now, there is the prospect of imminent lawsuits by the unindicted players and a review of President Brodhead’s first three years in office is underway. Just as the revelation that Mike Nifong was hiding evidence forced him to speak out in December, we see President Brodhead reacting rather than leading.

His apology also is incomplete. It is inevitable that mistakes would be made in trying to deal with such a bizarre and unprecedented situation. No one would have expected different. That mistakes were made is not really the problem.

What President Brodhead really needs to take responsibly for and has yet to do so are the selfish motives that drove the administration’s policies. The administration wanted the case to go to trial. It believed that, if the case were dismissed before trial for whatever reason, people would say that Duke used its influence to have it dismissed. Robert Steel, the Chairman of the Board of Trustees told me that a year ago. That is also why President Brodhead, despite being savagely maligned for doing so, clung to the concept of Reade, Collin and David “proving themselves innocent.” That was not just an isolated, unfortunate choice of words. President Brodhead repeated this formulation only a few days ago. Dismissal is the proper procedure in the case of weak or baseless charges. Indeed, prosecutors have an affirmative legal and ethical duty to dismiss such charges where they are not based on probable cause or where they do not themselves believe in the guilt of the accused. However, the administration pretended not to know anything about these concepts.*

If Reade, Collin and David had to be exposed to the risks associated with a trial by a corrupt, unethical prosecutor who had done everything he could to inflame the jury pool, that was just the way it had to be. Steel told me that it did not matter if they were convicted because all the problems with the case would be sorted out on appeal. That is not the way the appeal process works and I told him that, but that was still his plan.

The most disturbing outgrowth of this policy was that the administration not only did not want to speak up itself. It did not want anyone else doing so either. Administration officials would privately bad mouth the players to reporters and anyone else who expressed doubts about the charges or the fairness of the procedures used. I know. I heard this garbage myself. They were still doing it after the Attorney General’s report came out to justify their actions.

In the end, the administration’s policies were never about ignorance of the facts or credulity concerning the motives of public officials. The facts were irrelevant. It was all about keeping up appearances. Moreover, the views of some groups carried more weight than others. It is the same policy that lead to Ryan McFadyen being suspended, Mike Pressler being fired and Kim Curtis going unpunished.

President Brodhead, as he did in May, reckons that he has things figured out now. However, a recent series in the Chronicle detailed how the administration has been modifying the University’s judicial code to eliminate most of students’ procedural rights and how the administration punishes students on the mere accusation of Durham police officers without further proof despite well documented abuses by the Durham Police department. If the lacrosse case has taught us anything, it is that procedure matters. Unfortunately, it appears that the administration has learned absolutely nothing at all.

Duke needs and deserves strong leadership. In making his apology, we find President Brodhead doing precisely what he has been doing all along: embracing and conforming to whatever the prevailing understanding is regardless of its validity. It is gratifying that people finally understand what was actually going on. However, nothing has changed at Duke.

Throughout this entire ordeal, we have criticized the administration, but, unlike a number of other critics, we did not call for President Brodhead to be removed. Instead, we tried to support him and give him the courage he needed to be a leader and to do the right thing. We tried to engage the administration in a respectful dialogue about the issues. We have nothing to show for those efforts. I am glad that FODU could help the public understand the extent of Mike Nifong’s misconduct. However, that satisfaction is tempered by the fact that we spent a year doing someone else’s job for them.

It has long been our position that the administration’s words must be matched with deeds. Unfortunately, the time for action has come and gone. Last May, I wrote President Brodhead asking him to appoint a commission to look at the administration’s response to the lacrosse case. He appointed one to look at the first couple of weeks. Why not the other eleven months or so? We could not have changed the past. However, could have made sure that the same mistakes and moral failings are not repeated in the future. That is what we wanted and that is what most of the families, despite the wrongs done to them, really wanted. President Brodhead gave us the brush off. That was his last possible opportunity to actually do some tangible good. He has made his choice. It is time to look somewhere else for leadership.

President Brodhead is now undergoing a performance review to determine whether his contract should be renewed. Information on how to participate is here. I know what we will be recommending.

In criticizing President Brodhead, it should be kept in mind that he alone is not responsible for the University’s official policies and conduct. Indeed, those above him and below him bear greater culpability and their status needs to be addressed as well. Robert Steel, the Chairman of the Board of Trustees bears the greater responsibility for Duke’s official policies regarding the lacrosse case. Getting rid of him is a bigger priority for me than getting rid of Brodhead. Many of those below President Brodhead carried out these policies in the manner described above and with far too much enthusiasm. President Brodhead often simply appeared to be there in the middle. However, that in and of itself is a huge problem.

*[Edited for clarity]

Video of KC Johnson's Duke Lecture

The video of KC Johnson's lecture at Duke is now up. It is on the website of Duke Students for an Ethical Duke, one of the cosponsors for the event. Here is the link.

While you are over there consider making a donation to DSEDuke. During the lacrosse case, the students as a group were the only ones consistently showing any leadership or initiative on campus. Now that the crisis is over, the students are once again leading the way by making sure that the appropriate lessons are learned and that Duke can once again be a place of mutual respect and concern among all members of the community.

[Update: new link provided]

Its Out!

Until Proven Innocent, Stuart Taylor and KC Johnson's definitive account of the Duke lacrosse case is out today. Be sure and get your copy. And then go and see KC Johnson speak at Duke on September 11, 2007. (See the last post for details.)

Another Follow Up to Duke and the Police

by Jason Trumpbour, FODU spokesperson

Speaking of the growing library on the Duke lacrosse case, I realized that I forgot to mention in my last post an item from Mike Pressler and Don Yaeger's book, It’s Not about the Truth that I thought was rather interesting. That post and the one before it dealt with the Duke administration's violation of federal law by releasing protected student information to Durham police without a subpoena. In It's Not about the Truth, News and Observer columnist Ruth Sheehan, an early critic of the lacrosse team who had based her criticism on the false information being disseminated by Nifong and the Durham Police Department, recounted a conversation she later had with John Burness:

I did have a conversation with [him] about the university's role in the case at some point and asked why when all of this was coming out that they [the university] didn’t help us understand the truth, why they did not spin the other side to us. They could have helped us, that’s for sure. One thing he did say to me at the time, which is a convenient excuse but also true, was that they also have to be really careful about how they handle student information.

Yes, one cannot be too careful.

I am sure that Until Proven Innocent will add more insights such as this one into the Duke administration's thinking. I greet that prospect with both eagerness and trepidation.

Announcements and a Follow Up

KC Johnson to Speak at Duke University

Professor KC Johnson, Durham in Wonderland blogger and

coauthor of Until Proven Innocent, will speak in

Duke’s Page Auditorium on September 11, 2007 at 7:00.

This event is cosponsored by Duke Students for an Ethical Duke and

the Program for Values an Ethics in the Marketplace.

by Jason Trumpbour, FODU spokesperson

DSEDuke

One of the groups sponsoring KC Johnson’s address, Duke Students for and Ethical Duke (not to be confused with the equally estimable Duke Students for an Ethical Durham) is a new group dedicated to making sure that the appalling treatment of certain Duke students by the administration and a few of their professors is not forgotten and does not go unaddressed. They are pledged to “defend the dignity and the academic and legal rights of Duke students, both individually and collectively, whether threatened by other students, faculty, or administrators alike.” Here is an article from the Chronicle.

This is a very encouraging development. The fact that the number of groups focusing attention on these issues is growing and not decreasing with time should indicate to the trustees and administration that these issues are not going to go away. It is also good that the students themselves are getting involved. We at FODU are certainly concerned for Duke as an institution. However, most of all, we have done what we have done for the students. Those of us who are alumni want present students to enjoy what we enjoyed while at Duke: a university committed to the care, nurturing and dignity of ALL students. Those who are parents want these things for their children.

Follow up to Duke and the Police

First, a Duke official contacted me after I posted the last update and took issue with two statements I made there. I repeated information that had been told to me personally and which had also been widely reported. However, this official says these two statements are inaccurate and offers an alternative view. As the other bloggers in this case have done, I reproduce this person’s comments below in order to allow a fair opportunity to reply. I also appreciate this person’s willingness to respond and engage us in a dialogue, something lacking among Duke officials up to this point.

1) No one in the university “hired” Wes Covington. In fact, I was the unfortunate agent who brought him into contact with the players. When I met with them on March 17th and first learned of the police search, I was surprised and concerned that they had neither told their parents about it nor retained counsel. I told them to call their parents and consult with them about a lawyer. I said that I would also find out if there was anyone locally who could help them. I then asked Sue Wasiolek for a recommendation and she pointed me to Covington. I was the one who passed his name along to the four captains. They met with him at least once that I am aware of but to the best of my knowledge, he was never formally retained by any of them. I would be surprised if anyone in the administration other than Wasiolek knew anything about this until much later. By 3/24 (the day after the NTO was served) he was entirely out of the picture as far as I know.

2) The persistent rumor about “student/teacher privilege” is somewhat inaccurate. This came up in a meeting between the captains and Trask, Pressler [and] Alleva . . . on 2/24. By then, the players had all retained counsel and been advised not to speak about the matter without the presence of counsel. Trask had been sent down to athletics (I think) to assess the situation and report back to Allen Building. When he asked the players to tell him everything that had happened, they responded that they had been advised not to speak (in fact, they were dying to tell anyone who would listen what had (or hadn’t) happened). Trask responded that they could call their lawyers to come over and that he would wait for them. The players (specifically, David Evans) then said they would go ahead without representation. At that point, Trask said “We could argue that it (their account of the evening of 3/13) is a protected educational record. We might lose that argument.” The players then went on to detail what had happened at the party. Incidentally, it was clear . . . that Trask was absolutely certain that nothing had happened and that the players were innocent; I’m not sure that he played much of a role in what ensued in the following weeks.

Either way, my larger point remains unchanged. Officials of Duke University--and, in a couple of cases at least, I do think genuinely--were indicating to the players their belief in their innocence at the same time that the University was surreptitiously passing protected personal information about them out the back door to police officers with questionable motives and disputed integrity.

The problems with Mike Nifong and his conduct were manifest as I mentioned in the last post. However, Duke had every reason to be very suspicious of the motives of the police as well. Before that interview with the victim occurred, the original police investigator assigned to the case spoke with Sergeant Mark Gottlieb and they agreed that he would take over the case. As detailed last September in both the News and Observer and the Chronicle, Sergeant Gottlieb had been the subject of numerous allegations involving the violation of the rights of Duke students and use of thug-like tactics against them because of some particular animus he had against Duke students. Days before the lacrosse case incident, Durham Police Department officials had moved Gottlieb from patrol to investigations in District 2 apparently in response to these complaints. Duke officials had been notified of the complaints against Gottlieb no later than February. Now Gottlieb was back chasing Duke students, having in his own words “adopted” the lacrosse case. And into Gottlieb’s very hands, Duke personally delivered this protected information without a subpoena.

Second, in the comments, someone asked why turning the key card data over to the police was prejudicial to the players. Sure it was illegal, but how did it harm them? A good investigator will gather as much information as possible and then form a theory. However, that is not how it is always done. Some police investigators unfortunately do not go wherever the evidence takes them. Instead, they make up their mind what happened and then go out and try to find evidence that supports their theory while ignoring all else. Sometimes they will even make up evidence. Even “good” cops sometimes do all this. No better illustration of these problems can be found than the way Durham police actually conducted the lacrosse case investigation.

Let me be clear. There is nothing inherently sinister about police. Most police officers are dedicated, honest professionals who want to make a difference in the community. As in every human organization, there are some who do not live up to these ideals. In the middle are a bunch of people who see police work as just another job. Even under the best circumstances, the role of a defense attorney, as with any other type attorney, is to protect against the worst case scenario. They do that by forcing police to establish probable cause and preventing opportunities for fishing expeditions.

In investigating an alleged crime, the police must establish two things: whether a crime occurred and who did it. In the context of the lacrosse case, the police had skipped over the first step and were already trying to find three people to indict. This was despite their initial skepticism about the accuser’s story. In fact, throughout the entire case, they specifically avoided looking for corroborating evidence to test the accuser’s claims, evidently afraid of what they would find. Remember that the application for the Nontestimonial Order sought by police stated that the dna evidence would “immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are. . . .” Yet, the police did not wait for the results of the DNA testing to come back before inducing Duke to give them the keycard information. The keycard data helped police establish who was at the party and, more importantly, who was not. As described in the Pressler/Yeager book, the police were afraid that the accuser would pick someone out of the lineup who was not at the party and that is exactly what she did.

It is not that information protected by FERPA can never be obtained by police. All police have to show is that they have some particular need for the information, i.e. that it would be helpful to them in their investigation. That is a very low threshold, yet the police and Nifong were unable to make that showing with regard to the key card data. That they were unable to do so demonstrates that no legitimate reason existed for them to have this information.