Thursday, August 30, 2007

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


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.