Jim Cooney Representing Duke

No, I have not given up on the front page. I have just been busy with other projects this summer. I have some more time now so do keep checking here on your way to the media page.

Yesterday, it was announced that Jim Cooney who so ably represented Reade Seligmann during the criminal case would be representing Duke University in an unrelated suit against it by golf team member Andrew Giuliani. Some have worried that Mr. Cooney has gone over to the dark side.

That Jim Cooney was hired by Duke does not, by itself, trouble me. The right of all persons and entities to have the effective assistance of counsel is a fundamental norm of the profession and an indispensable feature of an adversarial system such as ours. The duty of lawyers to supply such representation unless actually unable to do so or prevented from doing so by a conflicting interest or duty is part of this norm. Because Reade settled with Duke, there does not seem to be a present, direct conflict. Indeed, from the administration’s perspective, it is a smart move. The administration is either getting wiser in its choice of legal representation (something I want to explore in a future update) or it fancies its chances in court and wants to try and fight a case on the merits for a change.

I am, however, troubled by some things Mr. Cooney had to say in two articles in yesterday’s Herald-Sun, here and here.

Here is a quote from the first article:

Charlotte attorney Jim Cooney shed some insight Tuesday into Duke President Richard Brodhead's involvement with one of the university's three lacrosse players falsely accused of rape in 2006.

Brodhead "personally assisted Reade [Seligmann] in transferring" to Brown University after the players' exoneration, by going "out of his way to contact the right people," writing letters of support and doing "everything he could to make sure Reade landed at a good school," Cooney said.

I heard early on that Reade was contacted by the coach of an Ivy League school (not Brown) shortly after he was indicted. He remembered what a great kid Reade was from the recruiting process and indicated that he would be interested in having him once his legal problems were over if Duke did not want him. Largely from just getting to know him, the coach seemed to assume that the charges were bogus. This was at a time when Duke kicked Reade off campus and pretended not to know him. We know what a great person Reade is. Do not forget that he was also an outstanding student and a formidable athlete. The idea that Reade would find it difficult to land a place at another good university is far fetched. Also keep in mind the tremendous mutual animosity between the lacrosse families and Brodhead. I cannot imagine Brodhead writing anyone on Reade’s behalf without a gun to his head. If he did so, it was either as part of the settlement or for his own self interest.

This situation seems analogous to the extensive lobbying Brodhead did with the presidents of the other ACC schools to get an extra year of eligibility for the team members from the NCAA. Was that effort made out of the goodness of his heart or because of his concern for the players? No, it was purely an exercise in mitigating damages in the anticipated lawsuits. Brodhead was the one who cancelled the season in the first place with full knowledge that the charges were bogus. Indeed, Brodhead’s actions after the hoax ended resembled the old slapstick comedy routine where a character knocks over a priceless piece of art in a museum and then franticly and futilely scrambles to put the pieces back together before anyone notices.

If Brodhead had such good things to say about Reade, why did he not say them at the beginning of the case when his words might have made a difference? If he had spoken up sooner rather than later, perhaps Reade could still be a student at Duke University and not Brown. Brodhead did not just remain silent as Reade was slandered. He actually went out of his way to condone the actions of some of those who were doing the slandering.

The article also states,

The school, beyond saying OK [for him to represent Reade], encouraged him to help Seligmann because officials there thought the youth "needed the strongest representation possible," Cooney said.

Again,one has to keep the context in mind. The statement ignores the fact that the case should have never reached the prosecutorial level in the first place and should have been dismissed after it did. Yet, not only did the administration refuse to speak out against the injustice being perpetrated against its students, it actually worked to keep the case on course for trial. That is not my conjecture, the administration said as much. You can read all of Duke’s press releases and public statements and see for yourself. Bob Steel was gambling that Reade, Collin and David would be acquitted. In that case, the administration could have it both ways. It could avoid angering certain narrow constituencies whose it approval it valued and it could say, “See. Everything turned out okay!” (a projected $5 million or more in attorney’s fees later). The perverse thing about the situation was that, the more the revelations revealed how false the charges were, the more the administration seemed encouraged not to do anything. Yes, the administration probably did want Reade, Collin and David to have the best counsel available, but first and foremost because it solved a problem for the administration.

What if Reade, Collin and David did not end up being acquitted? The administration was positioning itself for that eventuality as well. Remember the key talking point asserted by both Brodhead and Steel: “I believe in the system.” Think about the full implications of that statement. Think also about President Brodhead’s repeated assertions that only a jury could say what the facts of the case were and that no one else, including himself, was even entitled to an opinion on the matter. Had they been convicted, the administration would have turned on Reade, Collin and David and called them rapists. Given the extent to which the jury pool had been tainted, not only by Nifong, but also activists Duke whose favor Duke was soliciting, there was a very real danger of that happening. The results of polling done by the defense were quite disturbing. Indeed, Jim Cooney drafted the Motion for a Change in Venue. Convicted or acquitted, the one thing the administration was never going to do was say anything that might anger one of those narrow constituencies.

I am also taken aback by Jim Cooney’s words because they eerily seem to correspond to the administration’s current public relations strategy. Based on what I have been hearing and seeing, Duke is concentrating all of its efforts in protecting Brodhead and isolating him from the actions taken by other members of the administration. I hope Mr. Cooney is merely speaking off the cuff and from another set of the University’s ham fisted talking points. Any participation by him in Duke’s spin machine concerning the lacrosse litigation is above and beyond his duties in the Giuliani case. I also hope that he is simply misinformed about what Duke actually did and did not do during the lacrosse hoax.

In the second article there is this:

Cooney said Tuesday that he's "honored to be representing Duke," his undergraduate alma mater, in the Giuliani case.

"Duke as an institution has always tried to do its best," Cooney said. "There are times when it doesn't. But that doesn't mean it's not always trying to do the best it can. Trying to represent an institution that's trying and that has learned from issues in its past is exactly what I ought to be doing."

The facts adduced at trial in the lacrosse civil cases will show otherwise. The administration’s actions were always about their individual personal needs and desires and nothing else. They were certainly not about Duke University's interests. For his own sake, Mr. Cooney would be better served confining his efforts to defending Duke in the Giuliani case and leaving the lacrosse situation to speak for itself. A connection between the lacrosse litigation and the Giuliani case is not one he really ought to invite.

I have tremendous respect for Jim Cooney. As a concerned alumnus and lawyer, he is more than welcome to join us in throwing tomatoes at the administration when he is done with the Giuliani case.

As for the Giuliani case, I do not know the merits of it. However, regardless of whether or not Andrew Giuliani should be a member of the golf team, showing that Duke did not give him a fair hearing should be fairly easy for him to do given the way the University conducts its internal procedures. The Chronicle exposed many of these problems in a devastating series of articles last year. If the administration had really learned anything from the lacrosse case, the Giuliani case would have never reached the litigation stage and it probably could have been settled in a manner consistent with everyone’s best interests a long time ago.