Duke and the Police

by Jason Trumpbour, FODU spokesperson

Duke and the Police

I have been keeping a low profile recently and that is deliberate. Mike Nifong had tried to make an issue of FODU’s efforts to call attention to his misdeeds. Now that the relevant authorities have taken the matter up, I am content to let them handle it. I will have much to say about the bar hearing, removal proceeding and contempt hearing in due course. In the meantime, I want to call attention to some disturbing information brought to light by the folks at LieStoppers concerning Duke. See also this timeline and the hearing transcript.

If you will recall, last May Mike Nifong requested the court issue a subpoena to Duke University to provide records of card key activity by all members of the Duke lacrosse team and also provide their home addresses. This information is protected by a federal statute called the Family Educational Right to Privacy Act and cannot be disclosed without a showing of need. Nifong’s request was patently overbroad, but Duke University refused to challenge it. Instead, Duke told the lacrosse players that it would comply with the request and that, if they did not like it, they could do something about it themselves. Attorneys for the lacrosse players challenged the request on their own and a hearing was held in July. The judge then handling the case, Kenneth Titus denied the request. It turns out that Nifong’s request was a complete fraud on the court because, as LieSoppers discovered, Duke University had already turned these records over to police months earlier in March evidently in violation of FERPA.

This new information is disturbing as it relates to Duke on several levels.

First, the Duke administration chose to supply personal information about its students to a manifestly unethical and corrupt district attorney in connection with a politically motivated investigation. Do not be fooled by the administration’s story that they did not know what to believe or that they instinctively trust public officials. Duke had been told by the police that the case was bogus and the file would likely be closed after the police had interviewed that alleged victim. How the police later came to aggressively investigate the case is an interesting story. I will have to tell it to you sometime, but not now. Suffice it to say that these circumstances were an additional reason for them to be very suspicious of the motives of Mike Nifong and the police.

Second, the principle beneficiary of this bit of theater would not have been Mike Nifong. He already had indictments against three defendants and he could have subpoenaed their records with no difficulty. Nifong had no need to use the records of the other players at trial, because his position at that point in time was that they had been exculpated by the April 4 lineup. Nor would there have likely been any repercussions for him or the police for merely soliciting a violation of FERPA. The real beneficiary would seem to be Duke University because it would provide a legal fig leaf to cover its apparent violation of federal law. Worse, Nifong’s apparent willingness to cover for Duke shows that Duke, through its own misconduct, had found itself entangled in Nifong’s malicious prosecution to the point that its interests had started to overlap with those of Nifong.

Third, even if the leak of personal information had not been illegal, it was extremely prejudicial to the players. Judge Titus found that Nifong had failed to show any legitimate reason for the police to have this information. Indeed, just as with the Ryan McFadyen e-mail, police used it to as part of a fishing expedition.

Finally, and probably most disturbing of all, this surreptitious leak of private information occurred at a time when Duke was pretending to support the players, had encouraged them to talk to Duke officials citing a totally fictitious student/teacher privilege and had even hired a local attorney who they offered to the players in an ambiguous relationship meant to approximate that of a defense attorney. Now we see what kind of “help” Duke was providing the players. No person truly acting in the role of defense counsel would have volunteered this information without a subpeona.

For those who insisted that our criticism of the Duke administration for its lack of public support for its falsely accused students was unfair because Duke was probably concerned about its students and was probably working behind the scenes to help them, guess again. For those who have insisted that speaking out against the conduct of Mike Nifong might work against the University’s interests and expose it to unacceptable risks, look at the risks the administration was willing to take in order to further the interests of those working against the players.

Speaking of the Ryan McFadyen e-mail, the claim by Sergeant Gottlieb in his post dated notes prepared in July that the police received a copy of the Ryan McFadyen e-mail through a Crimestoppers tip always sounded suspect to me. The affidavit in support of the search warrant application recites that “On 3/27/2006 Sgt. Gottlieb was contacted by a confidential source. The source provided Sgt. Gottlieb a copy of an e-mail sent by email address. . . .” The Ryan McFadyen e-mail was widely distributed because, aside from being tasteless, there was need to conceal its contents. It is possible that some private individual unconnected to the team came across a copy of it. However, the only other people who had access to the e-mail and its chain of replies were Duke University employees. Is Sergeant Gottlieb’s new version of events in July 2006, which characteristically contradicts an earlier document produced by the police, one supplied to a judge no less, an attempt to conceal another surreptitious leak of private information by Duke officials? In his deposition for the bar hearing, Benjamin Himan indicated that, on March 27, 2006, he, Sergeant Gottlieb and Nifong met and among the topics discussed was obtaining “e-mails and stuff like that.” However, we do not see the police or Nifong actually making a formal request for the e-mail records of the players.

I do not believe that the administration actually wanted to help frame its own students. There is some indication that members of the administration initially believed the charges based on their own personal prejudices rather than objective facts. However, the one common denominator present is that there was always some other priority for the administration that was greater than the welfare of its students. They wanted to be on the right side in the eyes of the public regardless of the facts or law. They wanted to maintain their cozy working relationships with local officials. They wanted to appease small, vocal constituencies within their faculty. They did not think the lacrosse players deserved their help.

People, particularly lawyers, keep asking me, “Doesn’t Duke have access to legal advice?” They are puzzled at how a major university with its own legal staff and a top ten law school on campus could continuously make such horrible mistakes and seemingly lack any appreciation for what was going on in the lacrosse case. Duke does have access to plenty of legal advice. The reality is that the administration does not care. I found this out first hand. In settling with several of the players, particularly in the Dowd case, the Duke administration essentially used University resources to pay for the privilege of doing whatever it wanted. They were not mistaken about the consequences of their actions. It was never going to be any other way.

It is impossible to defend the administration’s motives in violating FERPA as somehow a well intentioned attempt to further the cause of justice as it understood it to be at the time. If the administration had truly been committed to justice, it would have pursued it without regard to where it might take them and which side it might be found to lay. Yet, when the time came for speaking up for the due process rights of its students, the administration was silent and remained silent until late December. No, there was never any commitment by the administration to seeing justice done in the lacrosse case at least through December and certainly not in March. In the absence of such a commitment, there was only self interest and playing favorites.

Collin Leaves Duke as Well

In other news, Collin Finnerty has announced that he is transferring to Loyola College. As with Reade Seligmann, it is disgraceful that Duke has not done more to retain a student who suffered because of his Duke affiliation and did so with dignity and character. Reade, Collin and David represented the University well and made us proud.

I live not too far from Loyola College. It is an excellent school with a top notch lacrosse program (they beat Duke last year). The people there are glad to have him and I am sure that they will take good care of him in a way that the Duke administration was unwilling to do. Welcome to Baltimore Collin!

Joan Collins

I do not want Joan Collins’s latest article to be overlooked by bumping it from the top place with this update so, after reading this, keep reading below. I would just like to add that it is not surprising to me that faith was important to all of the lacrosse team members, their families and the Presslers and that it helped them through their ordeal. The deep faith she describes them having was certainly apparent to me by their conduct all along, especially that of Reade, Collin and David. I am sure that there were many, many moments of despair for them. However, they did not give up. They did not let themselves be paralyzed with self pity. They did not give in to hatred. They never lost the ability to see beyond their own concerns and now want to use their experience to help others in similar situations.

St. Louis de Montfort, in his Letter to the Friends of the Cross, described the proper way for people to confront and even embrace the vicissitudes of life, which provide opportunities for spiritual growth and a closer, more uncomplicated and uncluttered relationship with God. To suffer setbacks without hope and without faith is to suffer as the damned do. However, to suffer with hope and with faith is to suffer as Christ and the holy martyrs did. What the three families went through was horrible and they are still suffering materially for it. However, not only were they not destroyed by the experience, as Joan points out, they are better people for it. St. Louis emphasizes that there is nothing meritorious about suffering in and of itself. Recently, someone wrote a letter to the Herald-Sun complaining about all of the legal actions against Mike Nifong and compared him to Jesus. I wish I were kidding. However, to suffer for an evil or unjust cause is to be a martyr not for God, but for Satan. If Mike Nifong would only embrace the, in his case, just suffering he brought on himself, as the penitent thief at Christ’s side did, he too could be a better person for this experience and actually would be like Christ.

While we are on the subject, this was the thought for the week during Mike Nifong’s bar hearing on a site run by Irish Jesuits called Sacred Space:

Jesus urged us not to swear at all: “All you need say is ‘Yes’ if you mean yes, ‘No’ if you mean no.” Only constant honesty with ourselves can make us really sincere. The world knows an honest person. Many would not tell a downright lie, but few, even of the pious, always tell the truth. It was the truth in Jesus that devastated his enemies. In proportion as we live a recollected life, with Jesus as model, we attain a simplicity and lucidity of character which has less and less need for untruth.

I thought the coincidence was remarkable. That should be the lesson for all of us in the lacrosse case, not just Mike Nifong.